# ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AND ANR

- **Citation:** [2022] 16 S.C.R. 693
- **Court:** Supreme Court of India
- **Decided:** 2022-03-15
- **Case number:** Civil Appeal No. 2029 of 2022
- **Bench:** Uday Umesh Lalit, Vineet Saran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/abhay-jain-v-the-high-court-of-judicature-for-rajasthan-and-anr-35469
- **Pages:** 50

## Headnote

Judicial Service - Rajasthan Judicial Service Rules, 2010 -
rr.45 and 46 - Entitlement to protection u/Art.311 of the Constitution
- Bail order dated 27.04.2015 passed by Appellant-judicial officer
in favour an accused in a case under Prevention of Corruption Act
became genesis of action taken against him - Departmental enquiry
instituted against him u/r.16 of Rajasthan Civil Services
(Classification, Control and Appeal) Rules, 1958 for acts amounting
to misconduct and violation of rr.3 and 4 of the Rajasthan Civil
Services (Conduct Rules), 1971 - Allegation leveled that appellant
passed the bail order with ulterior or oblique motives and for
extraneous considerations - Appellant submitted preliminary
objections to the allegations, which came to be rejected by the
Enquiry Judge - Meanwhile, Higher Judicial Committee, constituted
for deciding confirmation and discharge of Judicial Officers, upon
inspection of appellant's records, decided not to recommend the
appellant for confirmation - Subsequently, a Full Court meeting
was convened wherein, based on recommendation submitted by the
Higher Judicial Committee, it was decided to discharge the appellant
- Appellant was thus discharged despite pendency of enquiry
proceedings against him - Discharge order was passed against the
appellant on ground that the Full Court found the appellant's
services to be unsatisfactory during probation - Subsequently,
enquiry as well as disciplinary proceedings initiated against the
appellant were closed - Writ petition filed by appellant dismissed
by High Court - On appeal, held: There was no material to showcase
unsatisfactory performance of appellant in terms of requirement u/
rr.45 and 46 of the RJS Rules, 2010 - Moreover, appellant's
discharge was not simpliciter, as claimed by the respondent - Noncommunication of ACRs to the appellant was proved to be arbitrary
and since respondent choose to hold enquiry into appellant's alleged
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misconduct, the termination of his service was by way of punishment
because it put a stigma on his competence and thus affected his
future career - In such a case, the appellant would be entitled to
protection of Art.311(2) of the Constitution - Moreover, adverse
comments in ACR for the year 2015 could not have been the basis
on which appellant was discharged from service - Appellant was
never granted opportunity to improve and there was no intimation
to him about his performance being unsatisfactory - Importantly,
no verifiable complaint was filed against the appellant that could
form the basis of disciplinary proceedings against him - Appellant
was competent to pass the bail order dated 27.04.2015 and
Respondent was not able to prove presence of any extraneous
consideration or ulterior motive on the part of the appellant - Also
neither the bail order dated 27.04.2015 was ever challenged by the
State before any Court of law, nor was any complaint received
against the appellant regarding the said bail order - This is not the
case where there were strong grounds to suspect the appellant's
bona fides - Even if appellant's act was considered to be negligent,
it cannot be treated as "misconduct" - The discharge order is
accordingly quashed - Keeping in view that the appellant had not
worked as judicial officer after he was discharged, he be reinstated
with all consequential benefits including continuity of service and
seniority, but with only 50% backwages - Constitution of India,
1950 - Art. 311.
Service Law - Judicial Service - Every judicial officer is likely
to commit mistake of some kind or the other in passing orders in the
initial stage of his service, which a mature judicial officer would
not do - However, if the orders are passed without there being any
corrupt motive, the same should be over-looked by the High Court
and proper guidance should be provided to him.
Service Law - Judicial Service - Merely because a wrong
order has been passed by the appellant

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[2022] 16 S.C.R. 693
693
ABHAY JAIN
v.
THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AND
ANR.
(Civil Appeal No. 2029 of 2022)
MARCH 15, 2022
[UDAY UMESH LALIT AND VINEET SARAN, JJ.]
Judicial Service - Rajasthan Judicial Service Rules, 2010 -
rr.45 and 46 - Entitlement to protection u/Art.311 of the Constitution
- Bail order dated 27.04.2015 passed by Appellant-judicial officer
in favour an accused in a case under Prevention of Corruption Act
became genesis of action taken against him - Departmental enquiry
instituted against him u/r.16 of Rajasthan Civil Services
(Classification, Control and Appeal) Rules, 1958 for acts amounting
to misconduct and violation of rr.3 and 4 of the Rajasthan Civil
Services (Conduct Rules), 1971 - Allegation leveled that appellant
passed the bail order with ulterior or oblique motives and for
extraneous considerations - Appellant submitted preliminary
objections to the allegations, which came to be rejected by the
Enquiry Judge - Meanwhile, Higher Judicial Committee, constituted
for deciding confirmation and discharge of Judicial Officers, upon
inspection of appellant's records, decided not to recommend the
appellant for confirmation - Subsequently, a Full Court meeting
was convened wherein, based on recommendation submitted by the
Higher Judicial Committee, it was decided to discharge the appellant
- Appellant was thus discharged despite pendency of enquiry
proceedings against him - Discharge order was passed against the
appellant on ground that the Full Court found the appellant's
services to be unsatisfactory during probation - Subsequently,
enquiry as well as disciplinary proceedings initiated against the
appellant were closed - Writ petition filed by appellant dismissed
by High Court - On appeal, held: There was no material to showcase
unsatisfactory performance of appellant in terms of requirement u/
rr.45 and 46 of the RJS Rules, 2010 - Moreover, appellant's
discharge was not simpliciter, as claimed by the respondent - Noncommunication of ACRs to the appellant was proved to be arbitrary
and since respondent choose to hold enquiry into appellant's alleged
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[2022] 16 S.C.R.
misconduct, the termination of his service was by way of punishment
because it put a stigma on his competence and thus affected his
future career - In such a case, the appellant would be entitled to
protection of Art.311(2) of the Constitution - Moreover, adverse
comments in ACR for the year 2015 could not have been the basis
on which appellant was discharged from service - Appellant was
never granted opportunity to improve and there was no intimation
to him about his performance being unsatisfactory - Importantly,
no verifiable complaint was filed against the appellant that could
form the basis of disciplinary proceedings against him - Appellant
was competent to pass the bail order dated 27.04.2015 and
Respondent was not able to prove presence of any extraneous
consideration or ulterior motive on the part of the appellant - Also
neither the bail order dated 27.04.2015 was ever challenged by the
State before any Court of law, nor was any complaint received
against the appellant regarding the said bail order - This is not the
case where there were strong grounds to suspect the appellant's
bona fides - Even if appellant's act was considered to be negligent,
it cannot be treated as "misconduct" - The discharge order is
accordingly quashed - Keeping in view that the appellant had not
worked as judicial officer after he was discharged, he be reinstated
with all consequential benefits including continuity of service and
seniority, but with only 50% backwages - Constitution of India,
1950 - Art. 311.
Service Law - Judicial Service - Every judicial officer is likely
to commit mistake of some kind or the other in passing orders in the
initial stage of his service, which a mature judicial officer would
not do - However, if the orders are passed without there being any
corrupt motive, the same should be over-looked by the High Court
and proper guidance should be provided to him.
Service Law - Judicial Service - Merely because a wrong
order has been passed by the appellant-judicial officer or the action
taken by him could have been different, this does not warrant
initiation of disciplinary proceedings against the judicial officer.
Service Law - Judicial service - Negligence vis-a-vis
misconduct - On facts, appellant-judicial officer, while passing the
bail order, may have been guilty of negligence in the sense that he
did not carefully go through the case file and did not take notice of
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the order of the High Court which was on his file - This negligence
cannot be treated to be misconduct.
Service Law - Misconduct - Mere suspicion cannot constitute
"misconduct" - Any 'probability' of misconduct needs to be
supported with oral or documentary material.
Service Law - Judicial service - Relief-oriented judicial
approaches cannot by themselves be grounds to cast aspersions on
the honesty and integrity of an officer.
Allowing the appeal, the Court
HELD: 1. The submission of the respondent that the
discharge of the appellant was a discharge simpliciter and not
violative of Article 311(2) of the Constitution of India is not worthy
of acceptance. The High Court erred in holding that the discharge
order of the appellant was a simpliciter order and not punitive in
nature. In spite of observing that the order of discharge had been
passed on account of inquiry initiated against the appellant, the
High Court failed to provide any reasoning as to how the
allegation of misconduct pertaining to the bail order was not the
foundation of the order of discharge. [Para 41][719-E-F]
2. The material placed before the Higher Judicial
Committee [consisting of five Judges and constituted for deciding
the confirmation and discharge of Judicial Officers] which
recommended the discharge of the appellant, clearly shows that
no adverse remarks were made against the appellant except in
relation to the grant of bail on 27.04.2015. [Para 43][719-H]
3. To argue that the comments and observations in the 2015
ACR of the appellant were the basis on which he was discharged,
is misplaced and erroneous. Firstly, a bare perusal of the ACR
reveals that the top of this ACR itself carried a comment that
read "Discharged from Service". Secondly, the Higher Judicial
Committee had, even prior to the submission of the 2015 ACR,
already recommended the discharge of the appellant. Notably,
the ACR for the year 2015 was filled and submitted by the
appellant on 20.01.2016, while the Higher Judicial Committee
had already recommended the discharge of the appellant on
ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AND ANR.
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24.11.2015 itself and the impugned order of discharge was passed
on 27.01.2016, admittedly, in pursuance of a Full Court meeting
on 20.01.2016. Additionally, although the respondent had
submitted that the Integrity Certificate of the Appellant was
withheld by the Inspecting Judge, he failed to highlight that the
reason for the certificate being withheld was that the appellant
had been served with a chargesheet and not because of the
appellant's service record. [Para 46][720-G-H; 721-A-C]
4. Moreover, the ACRs were not communicated to the
appellant within reasonable time. The non-communication of the
ACRs to the appellant in the present case is arbitrary and such
arbitrariness violated Article 14 of the Constitution of India. [Para
47][721-C, G-H]
5. Since the Government had, on enquiry, come to the
conclusion, rightly or wrongly, that the appellant was unsuitable
for the post he held on probation, this was clearly by way of
punishment and, hence, the appellant would be entitled to the
protection of Article 311(2) of the Constitution. Moreover, in the
facts and circumstances of the present case, the substance of the
termination order reveals that the discharge was by way of
punishment. Hence, the question that whether the action of nonconfirmation of the appellant is in accordance with Rules 45 and
46 of the RJS Rules is answered in the Negative. There was no
material on record to showcase unsatisfactory performance of
the appellant in terms of requirement under Rule 45 and 46 of
the Rajasthan Judicial Services Rules, 2010. [Paras 50 & 51][726C-D, G]
6. The appellant was never granted an opportunity to
improve and there was no intimation to him about his performance
being unsatisfactory. This requirement of affording an opportunity
of improvement has been stressed upon by the Supreme Court
on multiple occasions and has also been envisaged under Rule
46(1) of the RJS Rules, 2010. [Para 53][727-B-C]
7. Every judicial officer is likely to commit mistake of some
kind or the other in passing orders in the initial stage of his
service, which a mature judicial officer would not do. However, if
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the orders are passed without there being any corrupt motive,
the same should be over-looked by the High Court and proper
guidance should be provided to him. In the present case,
admittedly there was no intimation to appellant about his
performance being unsatisfactory and hence he was deprived of
his opportunity to improve as a judicial officer. [Para 54][728-H;
729-A-B]
8. The three complaints filed against the appellant were
never communicated to the petitioner during his service tenure
and had been subsequently closed. The record clearly showcases
that no verifiable complaint was filed against the appellant that
could form the basis of the disciplinary proceeding against him.
[Para 55][729-B-C]
9. With respect to the grant of bail order dated 27.04.2015,
the record reveals that when the bail application of the accused
K.K. Jalia was listed before the Court of the appellant, no reply
was filed by the State and the prosecution, despite being given
the opportunity to file their reply, neither argued nor brought on
record the fact about the bail of the accused being denied by the
High Court. Additionally, it is evident from the record that the
Investigating Officer produced two letters dated 24.04.2015 and
27.04.2015 by the competent authority that clearly stated that
the file was submitted to the State Government for decision
regarding sanction. No time was specified regarding when the
decision was likely to be taken. Letter dated 27.04.2015 filed by
the Investigating Officer clearly stated that the meeting was held
with competent authority on 23.03.2015 and that the file was sent
to the State Government for their decision. Therefore, it is evident
that the competent authority could not decide the matter and had
sent it to the State Government with no timeline in sight.
Moreover, the counsel of the accused informed the appellant that
the co-accused Alimuddin and Irfan had already been granted
bail by the High Court and this was a relevant consideration to
appellant's mind. The fact of Alimuddin being granted bail was
even more relevant for the appellant because he was aware of
Alimuddin's role in the case and also the fact that despite
prosecution sanction having been granted against Alimuddin, he
was granted bail by the High Court. [Para 56][730-A-E]
ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FOR
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10. The appellant could not be said to be at fault in granting
bail to K.K. Jalia since the bail order dated 27.04.2015 was based
on the non-grant of prosecution sanction and no progress in
relation to the same being brought on record. The appellant even
recorded that the State should act swiftly in relation to the grant
of prosecution sanctions in such matters. Also, it is settled law
that the appellant, under section 439 CrPC, could have granted
bail to the accused even subsequent to the rejection of the bail
by the High Court. [Para 57][730-E-F]
11. In essence, the appellant honestly admitted in his
comment that he had come across the reference of the dismissal
of the first bail application whilst dictating the bail order but
exercised his discretion in granting bail to the accused given the
uncertainty and delay in prosecution sanction and the intervening
grant of bail to the two other co-accused by the High Court, even
when the prosecution sanction had been granted for one of the
co-accused. [Para 59][731-F]
12. Importantly, the order of grant of bail dated 27.04.2015
was never challenged by the State before the High Court.
Moreover, no complaint was ever filed against the appellant with
respect to the grant of bail. [Para 61][733-A-B]
13. Charges filed against the appellant are vague in nature
and absolutely no details have been provided regarding the
allegation of passing the bail order for extraneous considerations/
ulterior motive. In this context, there is no detail provided as to
what was the said extraneous consideration or ulterior motive,
but merely an inference has been drawn on the basis of suspicion.
Further, the record reveals that no complaint or other material
exists which could form the basis of the said allegations. [Para
62][733-B-C]
14. The accused K.K. Jalia had the right to file bail
application at any stage when undergoing imprisonment as an
under-trial prisoner. The fact that the two other co-accused had
already been enlarged on bail was a valid reason for granting bail
to accused K.K. Jalia. If the High Court was to initiate disciplinary
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proceedings based on a judicial order, there should have been
strong grounds to suspect appellant's bona fides and the order
itself should have been actuated by malice, bias or illegality. This
is clearly not the case in the present matter. The appellant was
competent and well within his right to grant bail to the accused in
discharge of his judicial functions. [Para 64][735-F-H]
15. Merely because a wrong order has been passed by the
appellant or the action taken by him could have been different,
this does not warrant initiation of disciplinary proceedings against
the judicial officer. [Para 66][736-G]
16. The appellant may have been guilty of negligence in
the sense that he did not carefully go through the case file and
did not take notice of the order of the High Court which was on
his file. This negligence cannot be treated to be misconduct.
Moreover, the enquiry officer virtually sat as a court of appeal
picking holes in the order granting bail, even when he could not
find any extraneous reason for the grant of the bail order. The
present case revolves only around a single bail order, and that
too was passed with competent jurisdiction. Mere suspicion cannot
constitute "misconduct". Any 'probability' of misconduct needs
to be supported with oral or documentary material, and this
requirement has not been fulfilled in the present case. There
was no allegation of illegal gratification against the present
appellant. Relief-oriented judicial approaches cannot by
themselves be grounds to cast aspersions on the honesty and
integrity of an officer. [Para 69][740-G-H; 741-A-C]
17. There was no material to showcase unsatisfactory
performance of the appellant in terms of requirement under Rule
45 and 46 of the RJS Rules, 2010. Moreover, the appellant's
discharge was not simpliciter, as claimed by the respondent. The
non-communication of the ACRs to the appellant has been proved
to be arbitrary and since the respondent choose to hold an enquiry
into appellant's alleged misconduct, the termination of his service
is by way of punishment because it puts a stigma on his
competence and thus affects his future career. In such a case,
ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AND ANR.
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the appellant would be entitled to the protection of Article 311(2)
of the Constitution. Moreover, the adverse comments in the ACR
for the year 2015 could not have been the basis on which the
appellant was discharged from service. The appellant was never
granted an opportunity to improve and there was no intimation
to him about his performance being unsatisfactory. Importantly,
no verifiable complaint was filed against the appellant that could
form the basis of the disciplinary proceeding against him. After
perusing all the relevant record, it is clear that the appellant was
competent to pass the bail order dated 27.04.2015 and the
Respondent has not been able to prove the presence of any
extraneous consideration or ulterior motive on the part of the
appellant. Also neither the bail order dated 27.04.2015 was ever
challenged by the State before any Court of law, nor was any
complaint received against the appellant regarding the said bail
order. This is not the case where there are strong grounds to
suspect the appellant's bona fides. Even if appellant's act is
considered to be negligent, it cannot be treated as "misconduct".
[Para 71][741-F-H; 742-A-C]
18. The discharge order is quashed. Keeping in view that
the appellant has not worked as judicial officer after he was
discharged, it is directed that while the appellant be reinstated
with all consequential benefits including continuity of service and
seniority, but will be entitled to be paid only 50% backwages.
[Para 72][742-D-E]
Director, Aryabhatta Research Institute of Observational
Sciences vs Devendra Joshi (2018) 15 SCC 73;
Rajasthan High Court vs. Ved Priya (Judgment dated
18-03-2020 of Supreme Court in Civil Appeal No.
8933-34/2017) and Bimla Devi vs State of Bihar (1994)
2 SCC 8 - distinguished.
Sukhdev Singh vs Union of India (2013) 9 SCC 566:
[2013] 5 SCR 1004; Maneka Gandhi vs Union of India
(1978) 1 SCC 248: [1978] 2 SCR 621; Shamsher Singh
vs State of Punjab (1974) 2 SCC 831: [1975] 1 SCR
814; State of Bihar vs. Gopi Kishore Prasad AIR 1960
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SC 689; Ishwar Chand Jain vs High Court of Punjab
and Haryana (1988) 3 SCC 370: [1988] 1 Suppl. SCR
396; Ramesh Chander Singh vs High Court of
Allahabad (2007) 4 SCC 247: [2007] 3 SCR 198; P.C.
Joshi vs State of U.P. (2001) 6 SCC 491: [2001] 1 Suppl.
SCR 369; Krishna Prasad Verma vs State of Bihar
(2019) 10 SCC 640: [2019] 12 SCR 861 and Sadhna
Chaudhary vs State of U.P. (2020) 11 SCC 760 - relied
on.
Pradip Kumar vs Union of India (2012) 13 SCC 182:
[2012] 9 SCR 1141; Radhey Shyam Gupta vs. U.P. State
Agro Industries Corporation Ltd. (1999) 2 SCC 21:
[1998] 3 Suppl. SCR 558 and Pavanendra Narayan
Verma vs. Sanjay Gandhi PGI of Medical Sciences
(2002) 1 SCC 520: [2001] 5 Suppl. SCR 41 - referred
to.
Case Law Reference
AIR 1960 SC 689
relied on
Para 21
(2018) 15 SCC 73
distinguished
Para 21
[1988] 1 Suppl. SCR 396
relied on
Para 22
[2012] 9 SCR 1141
referred to
Para 22
[1998] 3 Suppl. SCR 558
referred to
Para 30
[2001] 5 Suppl. SCR 41
referred to
Para 31
(2020) 11 SCC 760
relied on
Para 36
[2013] 5 SCR 1004
relied on
Para 47
[1978] 2 SCR 621
relied on
Para 47
[1975] 1 SCR 814
relied on
Para 49
(1994) 2 SCC 8
distinguished
Para 61
[2007] 3 SCR 198
relied on
Para 63
[2001] 1 Suppl. SCR 369
relied on
Para 65
[2019] 12 SCR 861
relied on
Para 67
ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FOR
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2029
of 2022.
From the Judgment and Order dated 21.10.2019 of the High Court
of Judicature for Rajasthan Bench at Jaipur in D.B. Writ Petition No.
6749 of 2016.
P. S. Patwalia, Sr. Adv., Nikhil Singhvi, Ms. Supriya Juneja, Aditya
Singla, Ms. Cheshtha Jetley, Obhirup Ghosh, Advs. for the Appellant.
Vijay Hansaria, Dr. Manish Singhvi, Sr. Advs., K. Parameshwar,
M. V. Mukunda, Sandeep Kumar Jha, Advs. for the Respondents.
The Judgment of the Court was delivered by
VINEET SARAN, J.
Leave Granted
2. The appellant, who joined as a judicial officer in 2013, having
been discharged from service in the year 2016, filed a Writ Petition in
the Rajasthan High Court, which was dismissed by the impugned judgment
dated 21.10.2019 passed by a Division Bench of the High Court.
Aggrieved by the same, this appeal has been filed by way of this Special
Leave Petition.
3. Brief facts relevant for the purpose of the present case are
that a notification inviting applications for District Judge Examination,
2013 was issued on 19.07.2011.The selection was to be madefrom
amongst the candidates of Advocates' Quota under the Rajasthan Judicial
Services Rules, 2010 (for short 'RJS Rules'). In the said examination,
the result of which was declared on 25.05.2013, the appellant stood
first. On 15.07.2013, the appellant was appointed to the post of Additional
District Judge under Rule 43 of the RJS Rules read with Article 233(1)
of the Constitution of India and as per the Rule 44 of RJS Rules, the
appellant was to be on probation for a period of 2 years. By an order
dated 16.07.2013, the appellant was posted as an Additional District &
Sessions Judge No.2, Bharatpur, on which post he joined on 18.07.2013.
Then on 05.05.2014, the appellant was posted as Presiding Officer,
Labour and Industrial Tribunal, Bharatpur, on which post he joined on
06.05.2014. He was thereafter, by an order dated 24.02.2015, appointed
as Sessions Judge, Anti-Corruption Department (ACD), Bharatpur, on
which post he joined on 25.02.2015.
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4. It was during his posting as Sessions Judge, Anti-Corruption
Department, Bharatpur, that a bail was granted by the appellant, which
is the genesis of the action which has been taken against the appellant.
5. In a case under Section 7, 13(1)(d) and 13(2) of the Prevention
of Corruption Act, 1988, three accused namely K.K.Jalia, Alimuddin
and Irfan were arrested on 29.12.2014. The said K. K. Jalia, who was
the Chairman of the Municipal Corporation, was alleged to have taken a
bribe of Rs.5 Lakhs; Alimuddin, who was a Police Constable, was alleged
to have taken a bribe of Rs.10 Lakhs; and Irfan, was a non-official also
alleged to be involved in the case. On 08.01.2015, the predecessor of
the appellant dismissed the bail of K. K. Jalia and the bail of Alimuddin
was also dismissed on 03.02.2015.The Investigation Officer had sent a
letter to the concerned department seeking sanction of prosecution against
the said two accused, K. K. Jalia and Alimuddin on 18.02.2015. Charge
sheet was filed against all the three accused on 23.02.2015. It was at
this stage, on 25.02.2015, that the appellant was appointed as Sessions
Judge, Anti-Corruption Department.
6. Then on 04.03.2015, the second bail application of the accused
Alimuddin was rejected by the appellant. The bail application of K. K.
Jalia was rejected by the Rajasthan High Court on 11.03.2015. On
17.03.2015, the second bail application was filed by K. K. Jalia before
the appellant. It is noteworthy that the Rajasthan High Court granted
bail to the co-accused Irfan (who was a private person) on 16.04.2015,
and then on 27.04.2015, bail was also granted to Alimuddin by the
Rajasthan High Court.
7. On the second bail application of K. K. Jalia filed on 17.03.2015,
the Court fixed 20.03.2015 along with the main file. Then on 18.03.2015,
on the main file the case was fixed for 31.03.2015 for filing of sanction
of prosecution of K. K. Jalia and till then the judicial custody of remand
was extended in the bail matter. On 20.03.2015, the bail matter was
adjourned for 31.03.2015. On 31.03.2015, the bail matter was adjourned
for 13.04.2015 and in the main file, 13.04.2015 was fixed for filing of
prosecution sanction against K. K. Jalia and for arguments on cognizance.
On 13.04.2015, on which date the appellant was on leave, the bail matter
was again adjourned by the officiating Presiding Officer for 16.04.2015,
and on the main file it was noted that no sanction against K. K. Jalia was
received and since the appellant was on leave, the case was fixed for
27.04.2015 for filing of sanction of prosecution against K. K. Jalia. On
ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AND ANR. [VINEET SARAN, J.]
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16.04.2015, a fresh application of bail was filed by the accused K. K.
Jalia stating that he was arrested on 27.12.2014 and charge sheet was
filed on 23.02.2015, but till date no sanction of prosecution as required
under Section 19 of the Prevention of Corruption Act, 1988, had been
given, and that the custody of the accused K. K. Jalia was illegal as the
accused could not be detained for an indefinite period. On the said date
the appellant, in his order, observed that from 23.02.2015 till date i.e.
16.04.2015, there was no document on the file which would indicate that
any progress has been made with regard to grant or refusal of sanction,
and accordingly, it was directed that such a progress report be filed with
regard to the efforts of the Anti-Corruption Department for grant of
sanction be submitted on 27.04.2015, and time was also granted to file
reply to the bail application by the next date i.e. 27.04.2015. On
17.04.2015, the matter was placed with regard to the attestation of bail
of Irfan, who had been granted bail by the Rajasthan High Court on
16.04.2015.
8. On 27.04.2015, on the main file, the investigation officer sought
time for filing of sanction against K. K. Jalia and 08.05.2015 was fixed
and till then, the judicial custody and remand of K. K. Jalia and Alimuddin
was extended. In the bail application of K. K. Jalia, which was also
fixed for 27.04.2015 and was taken separately, two letters had been
filed. One letter dated 24.04.2015 mentioned that a file for sanction of
prosecution of K. K. Jalia was submitted to the State Government, and
the other letter dated 27.04.2015, which was addressed to the appellant,
mentioned that a meeting to discuss whether the prosecution sanction
should be granted or not was held on 23.03.2015, but no decision had
been reached, and thus, the file had been sent back to the State
Government to take a decision in that regard and the same was still
pending. It was also pointed out that the other co-accused Alimuddin
(Police Constable) had been granted bail by the Rajasthan High Court
on the same date i.e. 27.04.2015. The appellant heard the matter of bail
of K. K. Jalia and granted bail to him by a detailed order. On 28.04.2015,
the matter for attestation of bail of Alimuddin was taken on the main file
as the Rajasthan High Court granted him bail on 27.04.2015. The sanction
of prosecution of K. K. Jalia was also received on the main file on
28.04.2015.
9. It appears from the record that the bail order in the case of K.
K. Jalia was called for by the Rajasthan High Court on 27.04.2015 itself
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and on 02.05.2015 the appellant was directed by the Rajasthan High
Court to submit his comments regarding the said order dated 27.04.2015.
The appellant submitted his response/comments on 12.05.2015 stating
therein that the fact of dismissal of bail by the Rajasthan High Court on
11.03.2015 was neither argued by the Counsel nor the copy of the order
was filed or produced, even though time was granted to the prosecution
on 16.04.2015to file the reply to the bail application. In the said reply, it
was admitted by the appellant that the fact of dismissal of the bail by the
Rajasthan High Court came to his notice from the memo of the second
bail application while he was dictating the bail order dated 27.04.2015,
and it was stated by the appellant in his reply that since the order of the
Rajasthan High Court dated 11.03.2015 was not produced before him,
he had thought that there was definitely a change in circumstances from
11.03.2015 as the period of the custody of the accused was nearing four
months and also that 48 days had passed from 11.03.2015 to 27.04.2015
and in the absence of prosecution sanction, especially when it could not
be known as to when such sanction would be granted, the trial could not
start. It was also stated by the appellant that other two co-accused,
whose bail application had been rejected by him earlier, had already
been granted bail by the Rajasthan High Court. After considering, the
explanation of the appellant, the Chief Justice of the Rajasthan High
Court directed to initiate departmental enquiry under Rule 16 of Rajasthan
Civil Services (Classification, Control and Appeal) Rules, 1958 (for short
'CCA Rules, 1958).
10. The said inquiry was initiated against the appellant vide
Memorandum dated 07.08.2015 for acts amounting to misconduct and
violation of Rule 3 and 4 of the Rajasthan Civil Services (Conduct Rules),
1971. The allegations levelled against the appellant included, inter alia,
that he should have desisted from granting bail to the accused K.K. Jalia
as there had been no material or substantial change in the facts and
circumstances of the case after the rejection of his earlier bail applications
by the appellant's predecessors. Additionally, it was alleged that the
appellant had already rejected the second bail application of the coaccused/Alimuddin on 04.03.2015 by observing therein that the matter
is grave in nature and that there was no change in circumstances after
the dismissal of his first bail application. It was also alleged that the
appellant passed the bail order with some ulterior or oblique motives and
for extraneous considerations.
ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AND ANR. [VINEET SARAN, J.]
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SUPREME COURT REPORTS
[2022] 16 S.C.R.
11. The appellant submitted his preliminary objections to the above
allegations on 29.09.2015, which came to be rejected by the Enquiry
Judge vide order dated 31.10.2015, withoutaffording the opportunity of
personal hearing to the appellant.
12. The Higher Judicial Committee, which consisted of five Judges
and which was constituted for deciding the confirmation and discharge
of Judicial Officers, on 24.11.2015, upon inspection of the appellant's
records, decided not to recommend the appellant for confirmation.
13. On 20.01.2016, a Full Court meeting was convened
wherein,based on the recommendation submitted by the Higher Judicial
Committee, it was decided to discharge the appellant. Notably, the
appellant was discharged despite the pendency of the enquiry proceedings
initiated against him. On 27.01.2016, a discharge order was passed
against the appellant on the ground that the Full Court found the appellant's
services to be unsatisfactory during the probation.
14. Subsequently, the enquiry against the appellant was closed on
02.05.2016. However, the department reserved the right to reopen the
same. On 05.05.2016, the High Court also closed the disciplinary
proceedings initiated against the appellant.
15. Aggrieved by the order dated27.01.2016, the appellant filed a
Writ Petition before the Rajasthan High Court on 18.05.2016 seeking
the following reliefs:
"(i)
Quashing of impugned order dated 27.01.2016 wherein
he was discharged/removed from service
 (ii)
Quashing of the enquiry proceedings initiated against
the appellant by way of memorandum dated 07.08.2015
 (iii)
Quashing of conditional order dated 05.05.2016 passed
by Respondent No. 1 seeking to re-open enquiry
 (iv)
Reinstatement along with consequential benefits"
16. By an Order dated 21.10.2019, the Rajasthan High Court
dismissed the Writ Petition filed by the Appellant against the order dated
27.01.2016. While Dismissing the Petition, the High Court observed that:
"During the pendency of the inquiry against the petitioner,
Full Court Meeting was convened on 20.1.2016 and it was
decided to discharge the petitioner despite the pendency of
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the inquiry against him on the basis of report of Higher
Judiciary Committee and in this Committee one of the member
was the Inquiry Judge. Petitioner had already completed two
years of required probation period on 17.7.2015 and no
extension order or confirmation order was passed.Hence, the
order of discharge, though appeared to be simpliciter but had
been passed on account of inquiry initiated against the
petitioner.
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Thus, while granting bail to the accused, the petitioner took
into consideration the fact that the accused was arrested on
28.12.2014 and the charge-sheet had been filed on 23.2.2015.
However, prosecution sanction order of the accused had not
been received and trial could not begin till the prosecution
sanction order was received. A perusal of the bail order also
reveals that it was argued by the counsel for the accused that
the co-accused Alimuddin had been granted bail by this Court
on 27.04.2015.
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The material question would be as to whether the petitioner
was aware of the fact that the bail petition filed by the accused
Kamlesh Kumar Jalia had been dismissed by the High Court.
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ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AND ANR. [VINEET SARAN, J.]
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SUPREME COURT REPORTS
[2022] 16 S.C.R.
Thus, the fact that the bail petition by the accused had been
dismissed by the High Court was in the notice of the petitioner
when he had passed the order dated 27.04.2015 granting
bail to the accused. It is noteworthy that challan had already
been presented in the court when the bail petition filed by the
accused was dismissed by the High Court on 11.3.2015. At
that stage also prosecution sanction order of the accused had
not been received. Thus, there was no change in circumstance
warranting interference by the petitioner while granting bail
to the accused on second bail application after about 40 days
of the dismissal of his bail petition by this court."
The High Court further held that:
"It is not material as to whether the prosecution had sought
cancellation of bail granted to the accused or not. The
complainant or the State may not have bothered to seek
cancellation of bail granted to the accused. Although, there
was no written complaint against the petitioner with regard
to grant of bail to the accused but there must have been some
oral complaint against the petitioner which resulted in seeking
his explanation by the High Court with regard to grant of
bail by him to the accused.
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The High Court at the time of considering the case of
thepetitioner for conformation must have come to the
conclusion that it was not interested to ascertain the truth of
allegations levelled against thepetitioner and opted to pass a
simpliciter order of dispensing with the services of
thepetitioner. The Full Court had also taken into consideration
the remarks of the Inspecting Judge as well as the
Administrative Judge with regard to the period 2014-II. The
High Court in its wisdom came to the conclusion that the
services of thepetitioner, who was on a probation, did not
require to be confirmed as he was unlikely to prove to be a
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good judicial officer. The impugned order is a simpliciter order
and cannot be termed as punitive. The issuance of chargesheet against the petitioner was not the foundation of passing
of the impugned order dated 27.1.2016. Rather, the impugned
order had been passed by keeping in view the overall service
record of the petitioner.
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In the present case, the service record of the petitioner
available with the Committee as well as the High Court was
merely a motive to assess the service record of the petitioner
with a view to decide whether he was to be confirmed in
service. It has been held by the Hon'ble Supreme Court in
Director Aryabhatta Research Institute of Observational
Science's case (supra) that even in a case where a regular
departmental inquiry has been started and charge memo has
been issued and reply has been received and inquiry officer
has been appointed, and if at that time, inquiry is dropped
and a simple notice of termination is passed, the same would
not be punitive because the inquiry officer has not recorded
evidence nor given any finding on the charges. In the present
case also, though charges had been framed against the
petitioner and Inquiry Judge had been nominated but the
Inquiry Judge had not recorded any evidence nor had given
any finding on charges framed against the petitioner and thus,
the inquiry Judge had not reached to a logical conclusion.
The High Court in its wisdom thought of dispensing with the
services of the petitioner by passing a simpliciter order without
proceeding with the inquiry. After carefully considering the
facts and circumstances of the case, we are of the opinion
that the judgements relied upon by the learned counsel for
the petitioner fail to advance the case of thepetitioner."
17. Aggrieved by the abovementioned High Court Order dated
21.10.2019, this appeal has been filed by the appellant by way of Special
Leave Petition.
ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AND ANR. [VINEET SARAN, J.]
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18. Mr.P.S. Patwalia, learned Senior Counsel for the Appellant,
has submitted that the impugned discharge order of the High Court was
not based upon "unsatisfactory performance" of the appellant, as is the
requirement under Rule 45 and 46 of the RJS Rules, but rather the
foundation of the said order lies in the enquiry initiated against the appellant
vide memorandum dated 07.08.2015. Therefore, it has been submitted,
that the order of discharge/termination is punitive in nature and is in
violation of Article 311(2) of the Constitution of India. To substantiate
the above submission, the learned Senior Counsel highlighted the
comments and observations from the Annual Confidential Reports (for
short "ACR") of the appellant.
19. The learned Senior Counsel has also contended that there
was no valid complaint against the appellant and that in context of the
three complaints that have been relied upon by the respondent, it is crucial
to note that firstly, these three complaints were never communicated to
the Appellant during his service tenure;secondly, that even after the
first two complaints dated 07.02.2014 and 21.04.2014, the appellant was
promoted to the next higher post as District Judge in Labour Court; and
thirdly, that two of the three complaints relate to 2014 and were filed
and closed prior to the meeting of the Higher Judicial Committee and
therefore, could not have been the basis of the decision of the Higher
Judicial Committee.
20. Mr. Patwalia, has further contented that there was no infirmity
found in the appellant's record and the entire recommendation of the
Higher Judicial Committee is based upon the passing of the bail order
dated 27.04.2015. The learned counsel has also highlighted the fact that
that the Enquiry Judge of the Disciplinary proceedings against the
appellant was also part of the Higher Judicial Committee which had to
provide recommendation regarding discharge/confirmation of judicial
officers. Furthermore, it has been urged that the High Court in the
impugned order has failed to provide any reasoning for stating as to how
the allegation of misconduct pertaining to the bail order was not the
foundation of the order of termination.
21. Reliance was placed on the Constitution Bench judgement of
this court in State of Bihar vs. Gopi Kishore Prasad [AIR 1960 SC
689] to argue that once an enquiry is initiated on charges of misconduct
and if services are terminated without following the provisions of Article
311(2) of the Constitution, then the said termination is illegal. Additionally,
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it was argued that the reliance placed in the impugned order of the High
Court on Director, Aryabhatta Research Institute of Observational
Sciences vs Devendra Joshi [(2018) 15 SCC 73] is misconceived.
22.