Jayshree Chamanlal Buddhbhatti vs State of Gujarat and Another

H.N. Devani, J.—By this petition under Article 226 of the Constitution of India, the petitioner challenges the order dated 14th December,

2007 of the Government of Gujarat in its Legal Department whereby her appointment on probation has been terminated.

Pursuant to written examinations and oral interviews conducted by the High Court, the petitioner was selected for appointment to the post of

Civil Judge and Judicial Magistrate First Class. On the recommendation of the High Court, the Government of Gujarat, in its Legal Department by

its order dated 2nd March, 2005 appointed the petitioner as Civil Judge, Junior Division, Class-II on probation for a period of two years. The

High Court by its order dated 4th March, 2005 posted the petitioner to Rajkot as Civil Judge and Judicial Magistrate First Class, pursuant to

which the petitioner took over charge on 14th March, 2005. After joining service, the petitioner was taken in in-service training. Upon completion

of training, vide order dated 30th December, 2005 the petitioner was posted at Kodinar as Principal Civil Judge and Judicial Magistrate First

Class. The petitioner took charge at Kodinar on 7th January, 2006.

During the course of her service, the petitioner faced certain difficulties on account of the conduct of the subordinate staff in connection with the

subordinate staff permitting the advocates'' clerks to take the original Court record outside the Court premises, pursuant to which she addressed

two communications dated 16th and 19th May, 2006 to her superior, that is, the District Judge, Junagadh, intimating him regarding the said

problems. As the problems continued, the petitioner initially reported the same to District Judge Shri B.U.Joshi orally and thereafter addressed

communications dated 7th September, 2006, 30th September, 2006 and 10th October, 2006 pointing out gross indiscipline on the part of certain

members of the subordinate staff and their illegal activities. Later on vide communications dated 22nd January, 2007 and 3rd February, 2007 also,

the petitioner complained in this regard to the District Judge. It appears that no heed was paid to the said complaints and the same remained

unattended.

Two written complaints were received by the High Court, the first being an application dated 23rd January, 2007 of one Mr. K.J. Barad of

Kodinar taluka and the second being an application dated 6th February, 2007 purporting to be from advocates of Kodinar taluka, making

allegations against the petitioner to the effect that the petitioner was involved in an illicit relationship with one Mr. N.P. Thakkar, the then Additional

Civil Judge and Judicial Magistrate First Class, Jetpur, as a result of which his wife Mrs. Archanaben Thakkar had committed suicide (in

connection with which a first information report had been registered against Mr. Thakkar at Jetpur Police Station); regarding relations with political

persons and use of their vehicles; corruption, threats to staff etc. Pursuant to the said applications, the concerned Administrative Judge directed

that the concerned District Judge make a discreet inquiry in the matter. The learned District Judge, accordingly, made an inquiry and submitted a

report dated 16th March, 2007. The conclusion arrived at by the learned Judge, was ''there may be some exaggerations in the complaint,

however, it appears that the truth lies somewhere in mid-way.''

Pursuant to the aforesaid report the concerned Administrative Judge directed that a preliminary inquiry be made through the Registrar

(Vigilance) of the High Court. Accordingly, Shri B.U. Joshi, Registrar (Vigilance) carried out a preliminary inquiry and submitted a report,

recording findings against the petitioner in respect of the allegations levelled against her. The said report was placed before the Chamber of the

High Court, which recommended by a Circular Resolution that the period of probation of the petitioner be terminated. Pursuant to the

recommendation of the High Court, the State Government by the impugned order dated 14th December, 2007 terminated the petitioner''s

services, which has given rise to the present petition.

Heard, Mr. H.D. Vasavada learned Advocate for the petitioner, Mr. J.B. Pardiwala learned Advocate for the respondent No. 1 and Mr.

Apurva Dave learned Assistant Government Pleader for the respondent State Government.

Mr. H.D. Vasavada, learned Advocate for the petitioner submitted that since the High Court had decided to terminate the petitioner''s services

on the basis of the inquiry report submitted by the Registrar (Vigilance), the constitutional protection available to the petitioner under Article 311(2)

of the Constitution as well as the principles of natural justice had been violated. It was contended that the order of termination of the period of the

probation of the petitioner was not a simple termination, but under the garb of simple termination, the petitioner was sought to be removed for the

alleged misconduct. Referring to the impugned order, it was submitted that though the same states that the performance of the petitioner during the

period of probation was not found to be good and satisfactory and that she is not suitable for the post she holds, there is nothing on record to

show that the performance of the petitioner was not found satisfactory. It was further submitted that the impugned order states that it was on the

strength of material relating to the period of probation that the aforesaid opinion was based. The material against the petitioner, interalia was the

report of the Registrar (Vigilance); that if such material pertaining to alleged misconduct was taken into consideration, the petitioner was entitled to

a departmental inquiry in respect of the alleged misconduct. In support, reliance was placed upon the decision of a Constitutional Bench of the

Supreme Court in the case of Samsher Singh Vs. State of Punjab and Another, .

The learned Advocate for the petitioner had taken the Court through the entire record of the petition. Inviting the attention of the Court to the

various communications addressed by the petitioner to the learned District Judge in connection with the conduct of the subordinate staff, it was

submitted that despite such serious irregularities having been pointed out, there was no response to the same. It was pointed out that certain

disgruntled elements amongst the staff as well as the advocates had sought to tarnish the petitioner''s reputation by maligning her character. The

learned advocate for the petitioner pointed out that insofar as judicial work is concerned there was no complaint against the petitioner and on the

contrary the petitioner was doing excellent work and had a very good rate of disposal, as set out hereunder :

Year Civil Civil Total BJ OBJ Total Total Civil +

BJ OBJ Criminal Criminal Criminal

2006 152 437 589 321 1547 1868 2457

2007 119 272 391 202 1118 1320 1711

TOTAL 271 709 970 523 2765 3188 4168

It was submitted that even during the course of training, the petitioner had excelled in her work and resultantly she had been given independent

posting within a short period of time. It was urged that the petitioner had sincerely discharged her duties, however, as she had detected various

irregularities on the part of the staff, they disliked her. The learned Advocate referred to several communications addressed to the learned District

Judge to point out the seriousness of the misconduct on the part of the staff in which the advocates were also involved or were beneficiaries. It was

submitted that such disgruntled members of the staff and advocates had made malicious and false complaints against the petitioner pursuant to

which the inquiry had been made resulting into the termination of the petitioner''s services.

It was further submitted that the petitioner during the course of training had met Shri N.P. Thakkar, who, prior to his appointment, had been

practicing in the High Court and had good legal knowledge and was helpful to the petitioner as and when any question of law arose or as regards

any matter in connection with the working of the Court. In the circumstances, the petitioner who had no experience at the bar and had been given

an independent posting, used to turn to Mr. Thakkar for guidance whenever any legal issue or problem cropped up during the course of her work.

It was urged that it was for this reason that the petitioner often used to talk to Mr. Thakkar on the phone. It was submitted that the relationship

between the petitioner and Mr. Thakkar was like that between any other colleagues, however, with an intention to malign her and spoil her bright

service career, grave and serious allegations had been levelled against her character without there being any basis whatsoever.

It was further contended that the order of termination of probation has been passed on the basis of material on record, which according to the

petitioner could not have been used to decide her performance or suitability. It was urged that the inquiry conducted by Shri B.U. Joshi, Registrar

(Vigilance) is vitiated on account of personal bias. It was pointed out that Shri Joshi was the Principal District Judge, Junagadh at the time when the

petitioner was given charge of the Kodinar Court as Judicial Magistrate First Class and Principal Civil Judge and had ignored her requests to look

into the problems and had in fact taken sides with the staff against the petitioner. It was pointed out that the inquiry carried out by the said officer

was thoroughly lopsided as the said officer has recorded statements of only those persons who bore vengeance against her and had ignored the

statements made on affidavit by a majority of the members of bar in support of the petitioner. It was, accordingly, submitted that the inquiry report

was vitiated by personal bias and partiality and the order of termination was bad on the ground that the same was based upon such an inquiry

report and on the ground of being violative of the principles of natural justice as well as the petitioner''s right to a departmental inquiry under Article

311(2) of the Constitution.

In support of his submissions, the learned Advocate for the petitioner had, interalia, placed reliance upon the following decisions:

Samsher Singh Vs. State of Punjab and Another,

Prithipal Singh v. State of Punjab and Ors. AIR 2001 SCW 2287,

Ishwar Chand Jain Vs. High Court of Punjab anfd Haryana and Another, ,

Vishaka and others Vs. State of Rajasthan and Others,

On the other hand Mr. J.B. Pardiwala, learned Advocate appearing for respondent No. 2 High Court, vehemently opposed the petition. It was

submitted that when an appointment is made on probation, it presupposes that the conduct, performance, ability and capacity of the employee

concerned have to be watched and examined during the period of probation. He or she is to be confirmed after the expiry of the probation only

when his or her service during the period of probation is found to be satisfactory and he or she is found to be suitable for the post. It was submitted

that sufficiency or reliability of the material against the petitioner need not be gone into in a writ petition under Article 226 of the Constitution of

India. The mere fact that the concerned employee was under a cloud is sufficient to discontinue her services during the period of probation. It was

contended that there are many factors which enter into consideration for confirming a person who is on probation. A particular attitude or tendency

displayed by an employee can well be considered in the decision of the appointing Authority while judging his or her suitability or fitness for

confirmation. Adverting to the material on record it was submitted that even if all the statements of the officers and peons who were hostile towards

the petitioner were to be discarded, certain other facts were required to be noticed, viz. (i) the allegations levelled in the first information report by

Padmaben, the mother of the deceased, that her son in law had illicit relations with a lady from the same profession at Kodinar; the petitioner had

accepted the fact that she used to have telephonic contact with Mr. Thakkar, hence there was no question of identity of the lady; (ii) the accused is

charge sheeted to undergo trial for the offence punishable u/s 306 of the Indian Penal Code, 1860; (iii) there is voluminous documentary evidence

regarding the telephone calls between the petitioner and Mr. N.P. Thakkar, which was procured from the telephone department and as such was

above suspicion. It was urged that in the background of the aforesaid facts, the confidence of the employer was shaken. The High Court,

therefore, found it difficult to confirm the services of the said judicial officer. It was contended that excellence and proficiency would not be the

only criteria for confirmation of a judicial officer; that as an institution, the High Court owes a duty to the public at large that the conduct of judicial

officers even in their private lives is beyond reproach. Referring to the contents of the impugned order, it was submitted that a plain reading of the

impugned order does not suggest anything stigmatic. It was, accordingly, submitted that there was no stigma attached to the termination; the

petitioner was simpliciter found to be non suitable, hence there was no breach of Article 311(2) of the Constitution.

In support of his submissions, the learned Advocate for respondent No. 2, placed reliance upon the decision of the Supreme Court in the case

of M/s. Oswal Pressure Die Casting Industry, Faridabad Vs. Presiding Officer and Another, for the proposition that once it was found that the

assessment made by the employer was supported by some material and was not mala fide, it was not proper for the High Court to interfere and

substitute its satisfaction with the satisfaction of the employer. Reliance was also placed upon the decision of the Supreme Court in the case of

Radhey Shyam Gupta Vs. U.P State Agro Industries Corporation Ltd. and Another, for the proposition that even in a case where a regular

departmental enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed - if at that point of time, the enquiry is

dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given

any findings on the charges. It was accordingly urged that the petition being devoid of any merit, deserves to be dismissed. An unreported decision

of a Division Bench of this Court in the case of J.H. Joshi v. State of Gujarat rendered on 10th May, 2005 in Special Civil Application No. 5691

of 2002 was cited for the proposition that judicial interdiction in matters involving corporate decision taken by a body consisting of constitutional

functionaries must be avoided except when it becomes inevitable. The Court referred to the observations made by a Division Bench in the case of

S.N. Jog v. State of M.P. 1981 (2) SLR 352 and observed that the said observations found their echo in the case of The High Court of Judicature

at Bombay, Through Its Registrar Vs. Shashikant S.Patil and Another, wherein while reversing the order of the Bombay High Court which had

quashed the decision taken on the administrative side by the High Court to punish the respondent, the Supreme Court made reference to its earlier

decisions in the case of State of Andhra Pradesh Vs. Sree Rama Rao, ; in the case of A.N. D''silva Vs. Union of India (UOI), ; and in the case of

Union of India (UOI) Vs. H.C. Goel, and recorded a note of caution in the matter of judicial review of administrative decisions of the High Court

and observed as under:

When a constitutional function was exercised by the administrative side of the High Court any judicial review thereon should have been made not

only with great care and circumspection, but confining strictly to the parameters set by this Court in the aforecited decisions.

Before examining the legality and propriety of the impugned order of termination, it may be pertinent to refer to the legal position as regards

termination of the services of a probationer. It is by now well settled that a probationer does not have a right to hold the post during the period of

probation. The post of a probationer cannot be equated with that of an employee, who has been substantively appointed on a post and has a right

to hold that post. An order terminating the services of a probationer can be questioned only if it is shown that it has been passed arbitrarily or has

been passed by way of punishment without complying with the requirements of Article 311(2) of the Constitution. Since a probationer has no right

to hold the post on which he has been appointed on probation, he cannot claim a right to be heard before an order terminating his services is

passed.

In the case of Anoop Jaiswal Vs. Government of India and Another, , the Supreme Court has held that where the form of the order is merely a

camouflage for an order of dismissal for misconduct, it is always open to the court before which the order is challenged to go behind the form and

ascertain the true character of the order. If the court holds that the order though in form is merely a determination of employment is in reality a

cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred

by law upon the employee. Even though the order of discharge may be non-committal, it cannot stand alone. Where the report/recommendation of

the superior authority is the basis or foundation for the order that should be read along with the order for the purpose of determining its true

character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that

but for that incident, it would not have been passed, then it is inevitable that the order of discharge should fall to the ground where the aggrieved

officer is not afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution. It is wrong to assume that it is

only when there is a full scale departmental inquiry any termination made thereafter will attract the operation of Article 311(2).

In the case of AIR 2000 1706 (SC) , the Supreme Court extensively reviewed the case-law to determine whether termination is simpliciter or

punitive in character and, whether misconduct on the part of an employee is the ''motive'' or ''foundation'' for terminating his services. The Court

held that the important principles which are deducible on the concept of ''motive'' and ''foundation'', concerning a probationer, are that a

probationer has no right to hold the post and his services can be terminated at any time during or at the end of probation on account of general

unsuitability for the post in question. If for determination of suitability of the probationer for the post in question or for his further retention in service

or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his services, the order will not be

punitive in nature. But, if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating

the service is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry was held not for assessing the general

suitability of the employee for the post in question, but to find out the truth of the allegations of misconduct against him. In this situation, the order

would be founded on misconduct and it will not be a mere matter of ''motive''.

It was further held that ''Motive'' is the moving power which impels action for a definite result, or to put it differently, ''motive'' is that which

incites or stimulates a person to do an act. An order terminating services of an employee is an act done by the employer. What is that factor that

impelled the employer to take the decision? If it was the factor of general unsuitability of the employee for the post held by him, the action would

be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back

to ascertain the truth of those allegations and a termination order is passed, thereafter, the order, having regard to other circumstances, would be

founded on the allegations of misconduct which were found to be true in the preliminary inquiry.''

In the light of the aforesaid legal position, what falls for consideration before this Court is whether the impugned order is founded on any

conclusions arrived at by the employer as to the petitioner''s misconduct or whether the order of termination was passed because the employer did

not want to continue an employee against whom there were some complaints. It would, therefore, be necessary to refer to the impugned order of

termination dated 14th December 2007, which reads as under:

GOVERNMENT OF GUJARAT

Legal Departmental

Sachivalaya, Gandhinagar

Dated : 14th December 2007

Notification: No. CJM/102004/340/D (Part)

Miss J.C.Buddhabhatti, Principal Civil Judge and JMFC, Kodinar was appointed in cadre of Civil Judge (JD) by this dept. Notification No. CJM-

102004-340-D (Part) dt. 2/3/05 on probation for two years.

The Hon''ble High Court, on the strength of material on record relating to period of probation of Miss J.C.Buddhabhatti, Civil Judge and JMFC,

has found that her performance is not good and satisfactory and that she is not suitable for the post she holds and therefore recommended to

terminate her probation period immediately and she should not be continued to officiate for long term.

The Govt. of Gujarat accordingly accepts the recommendation of Hon''ble High Court and terminates appointment on probation period of Miss

J.C.Buddhabhatti, Principal Civil Judge and JMFC, Kodinar with immediate effect.

By order and in the name of the Governor of Gujarat,

[V.K. PUJARA]

Deputy Secretary to Government

Legal Department

A perusal of the aforesaid order shows that the High Court has found that the performance of the petitioner is not good and satisfactory and

that, she is not suitable for the post she holds and has, accordingly, recommended that the probation period of the petitioner be terminated

immediately. However, the said order also indicates that the opinion of the High Court is based on the strength of material on record relating to the

period of probation. In the circumstances, another aspect which would fall for consideration is as to whether there is any stigma in the order of

termination or in the material referred to in the termination order. It would, therefore, be necessary to refer to the material on record relating to the

period of probation to find out as to whether the impugned order of termination is a termination simpliciter or is an order of dismissal for

misconduct.

A perusal of the record shows that the High Court while recommending termination of the services of the petitioner has placed reliance on the

report submitted by the Registrar (Vigilance), after making preliminary inquiry in the matter. Since the said report forms the basis of the termination

order, it would be necessary to examine as to whether the inquiry made by the concerned officer was for the purpose of assessing the suitability of

the petitioner for continuance in service or for some alleged misconduct. The Registrar (Vigilance) has formulated the following points in the context

of the inquiry made by him and has recorded findings in respect thereof:

[a] Illicit relations of Ms. J.C.Buddhabhatti, Principal Civil Judge & J.M.F.C., Kodinar with Mr. N.P.Thakkar, Addl. Civil Judge & J.M.F.C.,

Jetpur.

[b] Relationship of Ms. Buddhabhatti with the political party (BJP leader).

[c] Whether Ms. Buddhabhatti is temperate, attentive, patient and/or impartial.

In connection with the aforesaid issues, the Inquiry Officer has recorded the following findings:

[a] In view of the above, there is worth substance in respect of illicit relations between Mr. N. P. Thakkar and Ms. J. C. Buddhabhatti.

[b] The above evidence and circumstances established that Ms. Buddhabhatti has relations with political persons.

[c] Overall situation at Kodinar shows that Ms. Buddhabhatti is not temperate, attentive, patient and impartial.

A perusal of the report indicates that the Enquiry Officer namely Shri B.U.Joshi, the then Registrar (Vigilance) recorded the statements of

witnesses behind the back of the petitioner. The enquiry was to ascertain the truth of allegations of misconduct. Neither the report nor the

statements recorded by the Enquiry Officer were supplied to the petitioner. The Enquiry Officer gave his findings on the allegations of misconduct.

The High Court accepted the report of the Enquiry Officer and recommended to the Government that the probation of the petitioner be terminated,

as she was not a suitable person to be retained in service. Thus the findings recorded by the Registrar (Vigilance) in the preliminary inquiry

conducted by him, form the foundation of the decision of the High Court of terminating the services of the petitioner. Thus, the termination of the

petitioner''s services was founded on the report of the preliminary inquiry, which was conducted to inquire into the allegations made against the

petitioner. The inquiry was not held to find out whether the petitioner was suitable for further retention in service or for confirmation. In this

situation, the order of termination is definitely punitive in character as it is founded on the allegations of misconduct. The findings arrived at by the

Registrar (Vigilance) upon conducting a preliminary inquiry against the petitioner pursuant to complaints of misconduct received against the

petitioner, could not have been used for terminating the petitioner''s probation without a proper departmental inquiry. Such findings must, in law, be

arrived at only in a regular departmental inquiry. In the circumstances, the impugned order amounts to termination of service by way of punishment

and in absence of any enquiry held in accordance with Article 311 of the Constitution, cannot be sustained and as such is liable to be struck down.

As held by the Constitutional Bench of the Apex Court in the case of Shamser Singh v. State of Punjab and Haryana the form of the order is not

decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts and

circumstances of the case establish that an inquiry into allegations of serious and grave character of misconduct involving stigma has been made in

infraction of the provisions of Article 311 of the Constitution. In such a case the simplicity of the form of the order will not give any sanctity.

Having arrived at the conclusion that the provisions of Article 311(2) of the Constitution have been violated, inasmuch as the termination order

is passed on alleged misconduct without there being any departmental inquiry, this Court would generally not enter into the merits of the inquiry

report. However, in the peculiar facts of the present case, we have closely scrutinized the material on record and find it difficult to remain oblivious

to the manner in which the inquiry has been carried out and the material on which the findings have been based. In the normal course, we would

have refrained from commenting on the inquiry report, however, considering the fact that the reputation of a lady judicial officer at the threshold of

her career is at stake, we have thought it fit to examine and closely scrutinize the material on record and the findings arrived at by the Registrar

(Vigilance) on the basis of such material.

As noted hereinabove, prior to the preliminary inquiry made by the Registrar (Vigilance), initially a discreet inquiry had also been carried out

through the learned Principal District Judge, Junagadh. Since the contents of the said report also has some bearing in the matter it would be

pertinent to make reference to the same in some detail.

The first report dated 16th March, 2007, was submitted by the learned Principal District Judge, Junagadh after making a discreet inquiry into

the matter. In the said report, the allegations against the petitioner have been classified as follows:

[a] Illicit relation with Mr. Thakkar, Civil Judge, Jetpur.

[b] About Miss Buddhabhatti''s relationship with the political party (BJP Leader)

[c] General

In connection with the first allegation, the learned Principal District Judge (hereinafter referred to as the ''Inquiry Officer'') has recorded the

statement of the petitioner and obtained her version. The Inquiry Officer has then referred to the contents of the First Information Report lodged

against Mr. Thakkar in connection with the suicide committed by his wife Archanaben. The Inquiry Officer has recorded that Mr. Thakkar and

Miss Buddhabhatti were placed for training at Rajkot, and that, a colleague who also happened to be at Rajkot had supported the allegations

against the petitioner, saying that there was murmuring among all concerned about the suspicious relationship between the petitioner and Mr.

Thakkar. The Inquiry Officer has thereafter proceeded to compare the leave report of both the judicial officers for the period from January 2006

to December 2006 and has found that at least 3 to 4 times during the year, their leave periods coincided to a certain extent. It has also been

recorded that prior to receipt of the complaint, the learned District Judge had visited Kodinar in January 2007 and had inquired from the President

of the Bar regarding the alleged closeness of Miss Buddhabhatti and Mr. Thakkar. That the President of the Bar had informed him that the judicial

work of the petitioner is okay and that she is hard working. That on being specifically asked about her character, he said, ''There is substance in

the allegation.'' He had attributed this deviation on the part of the petitioner to her young age, childishness and marriage not having taken place at

the right age. During the course of inquiry, the Inquiry Officer had met the advocates of the Kodinar Bar. Two of the advocates, namely, Mr.

Rathod and Mr. Vala had supported the allegations about the illicit relations between the two and in the opinion of the Inquiry Officer they were

over-confident about their belief. The Inquiry Officer has also recorded the statement of one Mr. Bharat, who was the peon posted at the

residence of the petitioner during the relevant period i.e. the calendar year 2006 and had been transferred to Rajkot in January 2007. The said

peon had virtually expressed ignorance about the relationship between the petitioner and Mr. Thakkar. While talking to him, the Inquiry Officer did

not feel that he was telling lies or trying to hide something. It is also recorded that the stenographer attached to the petitioner also did not have any

knowledge about any such relationship between the petitioner and Mr. Thakkar. Mr. Sevak, C.O.C. of Kodinar Court had also dismissed the

query in this regard, by saying that Mr. Thakkar had come to Kodinar only on one occasion, at the time when the petitioner had taken charge.

Among the staff members, one peon who worked on night duty for major part of the year 2006 had stated that Mr. Thakkar used to come to

Kodinar. From the latter part of the peon''s version, it appears that he had stated that Mr. Thakkar had come with the petitioner when she had

come to take charge at Kodinar on 7th January 2006. The Inquiry Officer has also recorded that a dozen advocates of Kodinar Bar had come to

see him and had spoken in defence of Miss Buddhabhatti. However, strangely, the Inquiry Officer has recorded that the members were led by one

Advocate Mr. Bhanubhai Shah, who appeared to be a BJP follower. However, there is nothing on record to indicate as to on what basis the

Inquiry Officer has formed such an opinion. On the basis of the aforesaid material, the Inquiry Officer has recorded the following findings:

[14] In view of the above, three instances appear to be acceptable: firstly, while taking over charge at Kodinar Court by Miss Buddhbhatti, Mr.

Thakkar did accompany her and had stayed overnight; secondly, one day C.L. by Mr. Thakkar in June 2006, on the ground that he wants to visit

Somnath for religious purpose. It is suggestive of the fact that at that time also both must have stayed together overnight; thirdly, in October, 2006,

Mr. Thakkar, leaving his wife, mother and other family members, at Diu, had gone to Jetpur via Kodinar. Staying of overnight at this time is

possible to infer. To add to this, the circumstances, namely, she used to talk to Mr. Thakkar daily on phone is admitted by her, and, secondly, that

they had worked together at Rajkot station for over seven months, ---- must have helped and facilitated them to come closer. In short, in my

opinion, crossing of the permissible limit at some stage of their relationship by Miss Buddhbhatti and Mr. Thakkar cannot be denied.

Examining the findings recorded by the Inquiry Officer, in the context of the evidence on record, though it has come on record that Mr.

Thakkar accompanied the petitioner when she took charge at Kodinar Court, there is no reliable material on record to indicate that he had stayed

there overnight. However, the Inquiry Officer has come to the conclusion that Mr. Thakkar had stayed there overnight. The second conclusion that

both of them stayed together overnight is merely based upon the fact that Mr. Thakkar had, in June 2006, availed of one day''s casual leave to visit

Somnath temple for religious purposes. There is nothing on record to even remotely suggest that Mr. Thakkar had in fact visited the petitioner.

Merely on the basis of the casual leave availed of by Mr. Thakkar, the Inquiry Officer has jumped to a conclusion of such a serious nature,

suggesting that the petitioner and Mr. Thakkar must have stayed together overnight. The conclusion regarding Mr. Thakkar having stayed overnight

at Kodinar on the third occasion in October 2006 is to the say the least, preposterous. Just because Mr. Thakkar is alleged to have gone to Jetpur

via Kodinar, the Inquiry Officer has inferred that he had stayed overnight with the petitioner. Moreover, merely on the basis of the fact that the

petitioner used to talk to Mr. Thakkar daily on phone, and the fact that they had worked together at Rajkot for about seven months, the Inquiry

Officer has come to the conclusion that the petitioner had crossed the permissible limits at some stage of her relationship with Mr. Thakkar. It is

highly unfortunate that such serious aspersions are cast on the character of a lady judicial officer merely on the basis of assumptions and inferences.

One shudders to think of the plight of the numerous lady judicial officers at all levels, even the High Court, if any sort of association with male

judicial officers is to be viewed with such suspicion.

As regards the second issue regarding the petitioner''s relationship with political leaders (BJP leaders), the Inquiry Officer has recorded that

one Advocate Mr. Vala had given certain phone numbers which according to him belonged to the petitioner, however, he did not find it worth

while to inquire further about the use of the mobile phone by the petitioner. It is further recorded that Mr. Vala, in his statement, had stated that the

petitioner does use cars, the number of which are referred to in the complaint, for going to Diu, Jamnagar etc. In this regard, the Inquiry Officer has

recorded that something specific has not come to notice in this regard and that it is difficult to procure reliable material about this. The Inquiry

Officer has further recorded that, on an earlier occasion, when he had visited the New Court Building site, he had a talk with the petitioner and

that, Mr. Dinubhai Solanki, BJP leader, had insisted that the site allotted by the Collector must not be used for the New Court Building. That,

during this talk, the petitioner had talked neutrally and had said that the complaint about the inconvenience at the new site by the BJP leader is only

exaggeration. In other words, in connection with the Court Building site, the petitioner had not supported the BJP leader. The Inquiry Officer has,

thereafter, referred to three criminal cases pending against Mr. Dinubhai Solanki, BJP leader. He has recorded that in one case, he is shown to be

absconding by the police and the other two cases are sessions triable and are disposed of by the Amreli Sessions Court. After recording the

aforesaid, the Inquiry Officer has concluded that leaning in favour of BJP at one or the other instance by the learned Judge cannot be denied.

However, upon perusal of the contents of the report, there is no material whatsoever to indicate any connection between the petitioner and the

BJP, hence, it is surprising as to how the Inquiry Officer has arrived at such a conclusion.

As regards the third category, namely, general complaint, the Inquiry Officer has found that the allegation that the petitioner is corrupt, prima

facie, does not appear to be acceptable, nor does ''the complaint'' in question allege in this regard. The Inquiry Officer has found that there is some

substance with regard to the lack of smooth functioning and proper tuning with the staff. Apart from this, nothing adverse is recorded against the

petitioner.

It was on the basis of this report that the concerned Administrative Judge had directed that a preliminary inquiry be conducted. We may now

advert to the contents of the report submitted by the Registrar (Vigilance), after conducting preliminary inquiry into the allegations made against the

petitioner. The issues framed and the findings recorded therein have already been referred to hereinabove.

As regards the first issue regarding illicit relations with Mr. N. P. Thakkar, the Registrar (Vigilance) has referred to the contents of the criminal

complaint lodged against Mr. N. P. Thakkar. He has also recorded the statement of the complainant, Padmaben H. Thakkar, mother in-law of

Mr. N. P. Thakkar, wherein she has stated that Mr. Thakkar had relations with a lady engaged in the same profession, residing at Kodinar. The

Registrar (Vigilance) has thereafter referred to the leave reports submitted by Mr. Thakkar as well as the details of certain calls between the

petitioner and Mr. Thakkar and has also recorded that ''the fact of often stay at Kodinar by Mr. N. P. Thakkar is corroborated by statements of

the advocates and one employee'' and that the police has recorded the statements of Advocates of Kodinar, namely, [1] Haribhai Govindbhai

Rathod, [2] Jagdishbhai Mohanbhai Tank, and [3] Haribhai Badabhai Bheda. The Registrar (Vigilance) has also recorded the statements of the

Advocates, namely, [1] Haribhai Govindbhai Rathod, [2] Amarshibhai Parbatbhai Vala, [3] Malabhai Phudabhai Gohel, [4] Haribhai Badabhai

Bheda, as well as the statement of the night watchman; namely, Vajesing B. Solanki. The Registrar (Vigilance) has recorded that all these persons

have stated in their statements that when the petitioner took charge at Kodinar, she was accompanied by Mr. Thakkar, Civil Judge, Jetpur. He has

thereafter recorded the leave accounts of the petitioner and Mr. N. P. Thakkar and the details of phone calls for a particular period. The Registrar

(Vigilance) has recorded that in her statement before the police, the petitioner had not disputed the fact that she had telephonic contact with Mr.

Thakkar. However, she had explained that during the course of training, she and Mr. Thakkar were in the same batch, so she knew him as a

brother judge. Also as Mr. Thakkar was practicing in the High Court, he had good knowledge of various laws and as she was initially posted at

Kodinar, a Taluka place and was fresh and inexperienced, she used to discuss various law points and seek guidance from Mr. Thakkar in various

matters through telephone. That her relationship with Mr. Thakkar was a professional relationship like that with a brother judge. The Registrar

(Vigilance) has thereafter scrutinized the details of calls between the petitioner and Mr. Thakkar and has recorded that, during April and May

2006, they were in constant touch. On 12th April 2006, they had talked for about 45 times in a day. Similarly, the number of calls during each day

shows that they were in constant touch with each other. On the basis of the call details, the Registrar (Vigilance) has come to the conclusion that

there were not only professional relations, but there was much more between them which is corroborated by the statements of the Advocates and

the night watchman of the Civil Court, Kodinar. The Registrar (Vigilance) has also recorded that it is also brought on record that they had both

stayed together at night many times. On the basis of the aforesaid evidence, the Registrar (Vigilance) has come to the conclusion that ''there is

worth substance in respect of illicit relations between Mr. N. P. Thakkar and Miss J. C. Buddhabhatti''.

The record of the case shows that it is an admitted position that the petitioner used to frequently talk to Mr. Thakkar on telephone, which

according to the petitioner was in connection with her judicial work. However, the findings regarding 45 phone calls and numerous phone calls on

certain days, prima facie appeared to be a matter of concern, hence, we had called upon the learned advocate for the petitioner to explain the

same. In reply to the said query, the learned advocate for the petitioner had submitted that the telephone connection between Kodinar and Jetpur

being weak, the phone calls kept getting disconnected and therefore, though the phone calls are considerable in number, the talk time is not as

much. We have, therefore, scrutinized the details of the telephone calls and found that the facts regarding telephone calls made to Mr. Thakkar are

highly misleading, inasmuch as the report refers to the number of calls in a single day so as to create an impression that the petitioner had been

incessantly talking to Mr. Thakkar, whereas a closer scrutiny of the record reveals that the facts are otherwise. For example on 12th April, 2006 it

is stated that the petitioner had made 45 calls. Out of these 45 calls, 7 calls were made between 15:00:42 to 15:11:45 and the total talk time is

approximately 12 minutes. Between 18:18:05 to 18:46:56 there were 18 calls, which include 3 calls of 0 second, 3 seconds and 6 seconds

respectively. The total talk time during the said period is approximately 18 minutes. Between 21:08:26 to 21:21:24 there were 14 calls, which

include 4 calls of 1 second, 6 seconds, 9 seconds and 8 seconds respectively. The total talk time for the said period is 12 minutes. Thus the total

talk time for the 45 calls is approximately 42 minutes and translates into three calls with intermittent disconnections. Thus, the impression created

by stating that 45 calls were made is highly misleading inasmuch as 42 minutes of talk time with 44 disconnections certainly cannot be said to be a

long period. Similar is the position as regards the other days when the petitioner is stated to have talked to Mr. Thakkar several times in a single

day. The explanation given by the learned advocate for the petitioner for the large number of calls, namely that the connection between Jetpur and

Kodinar being weak the calls would get disconnected, appears to be both plausible and credible and is supported by the record. When the phone

gets disconnected every minute or two some time would be consumed in getting a link on the topic, and it is the specific case of the petitioner that

she took advice in connection with the legal issues arising in the cases before her as well as in administrative matters. Thus, the report presents a

very distorted version about the phone calls. The Registrar (Vigilance) has thereafter recorded that details of calls show that they had talk at late

night between 11:00 to 12:00 p.m. however, no dates are mentioned. A perusal of the extract of phone calls supplied by the learned Advocate for

the respondent No. 2 shows that such late night phone calls were by way of an exception rather than the rule. After referring to the phone calls the

Registrar (Vigilance) has observed as follows:

The details of calls lead us to believe that there is not only professional relations but there is much more between them, which is corroborated by

the statement of Advocates and Night Watchman of Civil Court, Kodinar. If, at all, they have only professional relations then they would have used

the office phone but the details of calls show that they used to talk by their private mobiles. It is also brought on record that they both stayed

together at night many a times.

The Registrar (Vigilance) acting as an enquiry officer was entitled to draw his own inference and so long as the inference drawn by him was

supported by some material on record, a court of judicial review would not interfere therewith. However, suspicion or presumption cannot take the

place of proof even in an inquiry of this nature. Insofar as the last observation, namely that they both stayed together at night many a times, we are

of the opinion that on the basis of the material on record no reasonable person could have arrived at the conclusions arrived at by the Registrar

(Vigilance).

Before further dealing with the report of the Registrar (Vigilance), we note that after joining at Kodinar in January 2006 (Kodinar is a coastal

town at the distance of 377 kilometers from Ahmedabad), the petitioner had been writing to the District Judge, Junagadh from May 2006 onwards

about the illegal and immoral activities of the Court staff at Kodinar including illegal activities like removing the original Court record from the Court

premises which was for the benefit of the concerned Advocates. Even in the letter dated 3.2.2007, the petitioner had specifically indicated the

names of Advocates '' Mr. A.P.Vala, Mr. H.G.Rathod and Mr. J.M.Tank.

It appears that during the course of investigation into the complaint lodged against Mr. Thakkar in connection with the suicide of his wife, the

investigating officer had recorded statements of advocates Shri Haribhai Govindbhai Rathod, Shri. Jagdishbhai Mohanbhai Tank and Shri Haribhai

Badhabhai Bheda. All the aforesaid persons have stated that Mr. N.P. Thakkar was present at Kodinar when the petitioner took charge on 7th

January, 2006. Mr. Haribhai Rathod in his statement has stated that his office was situated near the residential quarter of the petitioner and that he

had seen that many a times, Mr. N.P. Thakkar used to come there late at night and leave early in the morning. That as there were rumours about

the relationship between the petitioner and Mr. Thakkar, their eyes were always on the bunglow occupied by the petitioner, that on working days

at night and full days on holidays, Mr. Thakkar used to stay with the petitioner. Advocates Mr. J.M. Tank, Mr. Haribhai Bheda have given an

identically worded statements. The Registrar (Vigilance) has during the course of enquiry recorded the statements of advocates Shri Haribhai

Rathod, Shri Haribhai Bheda, Malabhai Fulabhai Gohel and Shri Amarshibhai Parbatbhai Vala as well as Vajesingh Solanki, the who was posted

as watchman since July, 2006 at the Court premises. Shri Rathod has stated that on 7th January, 2006 Mr. N.P. Thakkar was present and both

had stayed together at night. That as his office was situated near the Court and he had stayed there till 11-11:30 p.m. he had personal knowledge

of the said fact. He has alleged harassment at the hands of the petitioner and has relied upon his statement before the police insofar as the

relationship between the petitioner and Mr. Thakkar is concerned. Mr. A.P. Vala has requested that his statement recorded on 17th February,

2007 by the learned District Judge be considered. According to Shri M. F. Gohel, the petitioner used to adopt a partial attitude against his clients

as well as the clients of Haribhai Bheda, Haribhai Rathod and A.P. Vala. He is totally silent as regards the relationship with Mr. Thakkar, however,

he has alleged that she had relations with Shivabhai Hamir. Shri Haribhai Bheda has placed reliance upon the statement recorded earlier by the

District Judge as well as by the police. The night watchman, Vajesingh Solanki has stated that on 6 to 7 occasions, Mr. Thakkar had come at

11:30 p.m. and left at 5:30 a.m. He has also alleged that the petitioner had contact with political persons and is prejudiced against certain

advocates and harasses their clients. A perusal of the statement of Mr. Rathod recorded by the District Judge on 17th February, 2007 shows that

insofar as the petitioner''s relationship with Mr. Thakkar is concerned he had stated that Mr. Thakkar had accompanied the petitioner on 7th

January, 2006 and that they had stayed together alone at the bungalow at night. No other allegation is made in this regard. He has alleged

harassment at the hands of the petitioner in relation to court cases and has also alleged that the petitioner had tried to make complaints against him.

Mr. A.P. Vala has in his statement before the District Judge stated that when the petitioner took charge, Mr. Thakkar was also present and that

both had stayed together alone at night. That Mr. Thakkar frequently used to come to Kodinar on weekends and leave early on Mondays. That

the staff as well as the advocates were well aware of the illicit relations between them. He has alleged that the petitioner had close relations with

political persons and has also alleged harassment by the petitioner in connection with court cases. Mr. Haribhai Bheda has in his statement before

the District Judge stated that Mr. Thakkar used to frequently come to Kodinar on weekends and that the petitioner and Mr. Thakkar used to visit

Diu and stay there. He has also made allegations regarding court proceedings and orders passed by the petitioner. On the other hand, 38

advocates stated to be regularly practicing at Kodinar have addressed a representation to the Hon''ble Chief Justice, stating that certain false and

frivolous complaints have been made against the petitioner and in support thereof false statements have also been given. That the Registrar

(Vigilance) had visited Kodinar on 19.5.07 but had not called any of them for recording their statements nor had he inquired about them.

Therefore, with a view to bring out the truth regarding the applications, they were annexing voluntary affidavits made by them so that no injustice is

caused to an innocent person. Along with the said representation affidavits of the concerned advocates have been annexed wherein in effect and

substance it has been stated that as the petitioner is an upright and honest judicial officer who conducts the proceedings in accordance with law,

certain disgruntled advocates and their clients who may not have succeeded in their litigation along with some members of the staff have made

allegations regarding her integrity as well as her character, which are got up and false.

At this juncture, it may also be pertinent to refer to the various representations made by the petitioner to the learned District Judge drawing his

attention to the serious irregularities being committed by certain members of the staff as well as the regarding their conduct and attitude towards

her. Vide communication dated 16th May, 2006 the petitioner had informed the District Judge that she had visited the staff room on 11th May,

2006, in the evening, and had found advocate Mr. Jagdish Tank with the original court file in his hand. Upon inquiry she had come to know that

original files were frequently being taken outside the Court premises. Vide communication dated 19th May, 2006 the petitioner had informed the

learned District Judge that despite the fact that payment had not been made pursuant to an order passed on an application for return of amount

deposited towards security/bail bond, entry was made in the Criminal Register showing that payment had been made to the said applicant. Again

vide communication dated 30th September, 2006 the petitioner had drawn the attention of the learned District Judge to numerous serious

irregularities committed by an employee Mr. D.R. Vaghela during the course of discharge of his duties viz. not maintaining bail bonds register; not

preparing statements which were required to be sent to the District Court; no information regarding old IPC cases had been sent to the monitoring

cell since 15.4.06; when the said employee was on leave, though matters were listed for hearing the files were not received. While searching for the

files, a bunch of about 100 undated files were found wherein proceedings had not been recorded; that the said employee would leave his table

unattended without making any entry in the movement register and also had the habit of going on leave without notice. Whenever he was

questioned regarding the aforesaid, his usual answer was ''Madam you may do whatever you can, but keep this in mind that in case you take any

action it is you who will have to suffer. I will do as I please''. The petitioner has further informed the District Judge that as she was on probation,

even though the employees had made false representations to harass her, out of fear of spoiling her career she did not want to enter into any

conflict with the employees. But the conduct of the said employee had become intolerable hence she was constrained to inform him. Vide

communication dated 7th September, 2006 the petitioner had informed the District Judge that she was not able to send the information called for

by the District Judge by fax message on 1.9.06, as the said Mr. Vaghela simply kept the fax message in his desk without informing anyone and

remained absent on the next day. When she called for his explanation in this regard she was told that he did not find it necessary to inform her and

that she may do whatever she wants. Yet by another communication dated 10th October, 2006 the petitioner had drawn the attention of the

District Judge to the fact that a page from the original judgement delivered by her was found missing after the same was pronounced. By

communication dated 22nd January, 2007, the petitioner had drawn the attention of the District Judge to the misconduct on the part of the

Registrar in not preparing an affidavit for the purpose of bail granted to a client of Mr. H.G. Rathod, and then calling up the District Court and

making false representation that she was not accepting the bail-bond. The petitioner had further drawn the attention of the District Judge to the fact

that the Registrar had made endorsement on an application in her name without having any authority to do so. Vide communication dated 3.2.07,

the petitioner had drawn the attention of the learned District Judge to several difficulties that were being faced by her at Kodinar. That as she was

discharging her judicial duties with honesty and integrity some of the employees did not like the same. Besides as she was a lady judge and they

had to remain under her authority and control and as she was taking a strict stand against their immoral activities and from time to time they were

told that the district court would be informed about the same, she was harassed by such employees and as such she was constrained to inform him

about the same. The petitioner had further informed the learned District Judge that complaints had been received from parties as well as advocates

that the Registrar was taking money for giving receipt in respect of fine recovered in prohibition cases and from persons who came to him for

affidavits; that on account of the absence of the Registrar during court hours the witnesses as well as parties had to wait for the purpose of taking

oath for conducting examination-in-chief. When she asked the Registrar about his absence, he had used unparliamentary language whereby her

respect, as a lady was not maintained. That as she was aware of the activities of the Registrar and was taking strict action in that regard, he would

use bad language whereby the dignity of a lady judge was not maintained and that she was addressed in a demeaning way and told that she would

be got dismissed from service and sent home. That he would spoil her confidential reports and ensure that her probation was not confirmed. That

she was being threatened that if she did not stop giving instructions she would meet a bad fate and it would be difficult for her to remain in the

judiciary. That the Registrar and Night Watchman V.B. Solanki and some advocates namely (1) A.P. Vala (2) H.G. Rathod (3) J.M. Tank etc.

who were giving all co-operation to the employees in their immoral activities and were fulfilling the needs of the employees, had joined hands to

harass her. That she was an unmarried lady and the aforesaid persons would tell their clients that if they go and meet her, their cases would be

disposed and would send them to her house and thus harass her. That as she was residing alone on many occasions, the staff and the aforesaid

advocates would send intoxicated persons to her residence due to which she had to call the police at night. The night watchman - V.B.Solanki for

the Court building near the petitioner''s quarter would move around in a drunken condition. That on umpteen occasions she had complained about

the behaviour of the employees to the District Judge on phone however, no steps were being taken hence she was constrained to give the

complaint writing.

A comparision of the statements recorded by the District Judge and the statements recorded by the Registrar (Vigilance) shows that the

Registrar (Vigilance) has recorded statements of those persons who had made allegations against the petitioner but has ignored recording

statements of persons who routinely came in contact with the petitioner, like the peon posted at her residence, her stenographer, the C.O.C. of the

Court etc., who had not stated anything adverse against the petitioner in the discreet inquiry carried out by the District Judge. As noted

hereinabove, the District Judge who had carried out discreet inquiry has recorded the statement of the peon who at the relevant was working at the

residence of the petitioner, and whose version the District Judge had found to be truthful. It is difficult to believe that if the allegations made by the

advocates were true, the peon posted at the residence would not be aware of the same. The District Judge had also recorded the statement of Mr.

Sewak, a senior member of the staff, who according to him did not have good relations with the petitioner. It may be noted that despite the fact

that Mr. Sevak did not have good relations with the petitioner, he has not attributed any credence to the allegations levelled against the petitioner.

However, for reasons best known to him, the Registrar (Vigilance) has chosen to ignore such important witnesses while conducting the inquiry.

The tenor of the statements of the advocates recorded by the Registrar (Vigilance) shows that they all had an axe to grind against the petitioner

as they have all alleged that the petitioner used to harass them and their clients. It may also be pertinent to note that by a communication dated 3rd

February, 2007 the petitioner had drawn the attention of the learned District Judge towards certain difficulties faced by her, wherein she has

specifically complained about the night watchman V.B. Solanki who was causing undue harassment to her and that advocates like (1) A.P. Vala,

(2) H.G. Rathod and (3) J.M. Tank etc. were supporting staff members in their immoral activities. That she being unmarried and a lady, they were

harassing her and frequently used to send clients to her house saying that ''if you go and meet Saheb, your case will be disposed of.'' The petitioner

has complained about his drinking and specifically alleged that ever since Mr. Solanki has been posted as a night watchman, he has been spreading

false rumours regarding her character amongst advocates. After stating her problems in detail, the petitioner had sought for a station transfer.

However, despite this position, the Registrar (Vigilance) has chosen to record the statements mainly of those advocates and members of the

staff against whom the petitioner had lodged complaints before the learned District Judge and members of their group. Not only that, when

majority of the advocates practicing at Kodinar have come forward in support of the petitioner by filing affidavits in favour of the petitioner, the

same have been brushed aside on the specious plea that the said statements are stereo-type and that the petitioner has chosen the divide and rule

policy and that these advocates have acted under political pressure without there being anything on record in support of such a view. What has

been overlooked is the fact that the statements of the other advocates on which the reliance has been placed, are also more or less stereotype. The

learned Advocate for the petitioner is therefore, justified in contending that the inquiry has been carried out in a lopsided manner, giving only one

version, and that too of disgruntled persons who had an axe to grind against the petitioner.

It is also perturbing to note that the concerned District Judge, instead of extending all possible help and encouraging a newly appointed lady

Judicial Officer who had been given independent charge of a Taluka Court in a far flung semi-rural coastal area and was likely to face a lot of

teething problems, had chosen to remain a mute spectator and had not even cared to request the High Court on the administrative side to transfer

the petitioner to any Court in any District Head Quarters, and on the other hand, had levelled allegations against her in her Annual Confidential

Reports. If this is the conduct of the District Judges, it certainly does not bode well for the judiciary and for lady judicial officers in particular.

Insofar as the alleged relations with political persons, the said finding and conclusion had been arrived at on the basis of the fact that in

connection with the first information report lodged in connection with the death of wife of Mr. N.P.Thakkar, the police has not tried to obtain

details of the calls of both Mr. N.P.Thakkar and the petitioner. This circumstance has been relied upon by the Registrar (Vigilance) to believe that,

because of political pressure, the investigation is delayed and that the police has tried to protect the petitioner and has not completed the

investigation in time and not filed the chargesheet within sixty days from the arrest of the accused. All these conclusions are based merely on

presumptions and there is no material on record in support of such conclusions.

It may be pertinent to note that the petitioner has alleged bias against the petitioner insofar as the Registrar (Vigilance) is concerned. The said

allegation finds support in the following part of the report which would clearly indicate the biased manner in which the report has been prepared:

Point (c) :-Ms. Buddhabhatti is so clever that as soon as it came to her knowledge that the Vigilance Cell is on tour at Junagadh District, she

cancelled her leave of 19.05.2007 so as to prove her presence will debar the lawyers and staff to give statement against her (Mark C/1), which

are to be recorded on 19.05.2007.

Such unfounded imputations leave no manner of doubt regarding the prejudice in the mind of the concerned officer against the petitioner.

The Registrar (Vigilance) has further reported as under:

It is found by me that Ms. Buddhabhatti has adopted practice of divide and rule. There are two groups of lawyers, one is supporting to Ms.

Buddhabhatti and another is opposing her. It was found that Ms. Buddhabhatti harasses the clients of the lawyers who are opposing her personal

activities i.e. her relation with Mr. N. P. Thakkar and political persons. The timings of calls reveal that she is not observing board hours regularly

and she had talked on mobile during board hours. The supporting group has written letters to the District Judge favouring her in form of certificate.

Subsequently, majority lawyers have sent their affidavits (Mark C/5) in favour of Ms. Buddhabhatti but simply because of filing stereo-typed

affidavits in favour of the Ld. Judge, it cannot be said that the Ld. Judge has not committed any breach of conduct rules when there is ample

evidence on record, as discussed above.

At the relevant time, the undersigned was the Principal District Judge, Junagadh and it was found that there is lack of smooth functioning and

proper tuning with the staff. Once the staff has represented unanimously against the Ld. Judge. The staff was threatened in the name of the District

Judge. Immediately, remarks of the Ld. Judge was called for wherein, she turned out and stated that she has not threatened the staff. But when 10

employees, unanimously make representation before the District Judge, according to me, it cannot be said that the staff has made wrong statement.

However, this action on the part of Ms. Buddhabhatti is a warning to the District Judge, not to enter in her chamber alone, without accompanying

any person otherwise she makes false statement in the name of the District Judge, which is not in the interest of administration at all. The

representation of the staff and other correspondence are annexed herewith as Mark C/3 to C/5.

During my visit, the Registrar and the Senior Clerk were on leave.

Overall situation at Kodinar shows that Ms. J. C .Buddhabhatti is not temperate, attentive, patient and impartial.

Insofar as the observations regarding policy of divide and rule are concerned, from the material on record, it appears that the Registrar

(Vigilance) has recorded statements of only those advocates who have spoken against the petitioner. The Registrar (Vigilance) has not bothered to

record even a single statement of any advocate supporting the petitioner, despite the fact that in his opinion, there were two groups. Instead after

recording the statements of those advocates who had a grudge against the petitioner, the Registrar (Vigilance) has accepted their say to be the

gospel truth and on the basis of their statements, held that the allegations against the petitioner are proved.

Insofar as the remark that this action on the part of Ms. Buddhabhatti is a warning to the District Judge, not to enter in her chamber alone,

without accompanying any person otherwise she makes false statement in the name of the District Judge is concerned, it would be pertinent to refer

to the Annual Confidential Reports of the petitioner. A perusal of the Annual Confidential Reports of the petitioner shows that for the period

14.3.2005 to 14.12.2005, she has been graded as ''good'' against all columns by the Principal District Judge, Rajkot. For the period 07.01.2006

to 13.06.2006, her Confidential Reports have been graded by Mr. B.U.Joshi, who was the then District Judge, Junagadh. In the said Confidential

Reports, in Form No. 3, the following remarks had been passed against her, which was communicated to her vide communication dated

19.9.2006:

[4] Personal characteristics:

[8] Politeness and Required courtesy improvement

[5] The District Judge''s assessment of the Civil Judge regarding his/her -

[x] Attitude towards the Requires public and the Bar.'' improvement

The Annual Confidential Reports for the period 14.06.2006 to 16.10.2006 make interesting reading, more particularly the remarks against ,

Column 5(xi) '' Any other remarks.

It may be pertinent to note that it was Mr. B.U.Joshi, the then Principal District Judge who had assessed the performance of the petitioner for

the said period. The learned Principal District Judge had recommended that the period of probation of the petitioner be extended for a further

period of two years. By communication dated 25th July 2007, the Registrar (Administration) communicated following adverse remarks to the

petitioner and requested her to show improvement in respect of the same:

[3] Character:

[c] Whether he/she mixes : Yes it is heard so. In such company as he/she should not.

[d] Whether he/she : No it is heard so. By limited Maintains aloofness. contact.

[4] Personal characteristics:

[4] Clarity of thought and : Required improvement. in correspondence and discussion

[8] Politeness and Courtesy: Required improvement

[5] The District Judge''s assessment of the Civil Judge regarding his/her:

[i] Ability : Now appears, not able for independent station.

[vi] Judicial qualities : Now appears it required improvement.

[vii] [A] Administrative capacity, Now appears knowledge of administrative inadequate work and office routine.

[x] Attitude towards the public: Require improvement and the Bar

[xi] Any other remarks : She has threatened the staff in the name of District Judge. Hence she is not reliable and hence it is not possible for D.J. To

enter in her Chamber without third person.

Reading the remarks against column [xi] ''any other remarks'' of the Annual Confidential Remarks for the period 14.6.2006 to 16.10.2006

with the observations referred to hereinabove, it is apparent that the same are more or less identically worded, namely, ''She has threatened the

staff in the name of District Judge. Hence she is not reliable and hence it is not possible for D.J. to enter in her Chamber without third person.'' This

clearly shows that the Registrar (Vigilance) was already prejudiced against the petitioner prior to being entrusted with the inquiry which is reflected

from the remarks made in the inquiry report which are based upon the remarks which he had made against the petitioner at the relevant time when

he was the District Judge who had done nothing inspite of various complaints made by the petitioner against the court staff at Kodinar in the year

2006. Besides, the said remarks are also unwarranted as there does not appear to be any basis for making such imputation against the petitioner

and only indicates the extent of bias against her.

As regards the finding that the petitioner is not temperate, attentive, patient and impartial, except for the statements of the aforesaid advocates

there is no material in support of such findings. The Registrar (Vigilance) has not carried out any assessment of the petitioner''s judicial work and

has merely placed reliance upon the statements of a handful of advocates who bore animosity towards the petitioner and arrived at such

conclusions, which lends credence to the submission of the learned Advocate for the petitioner that the inquiry carried out by him is lopsided.

The concluding part of the report reads as under:

Considering the above facts, it is established that Ms. Buddhabhatti, Principal Civil Judge & J.M.F.C., Kodinar has not maintained the Code of

Conduct and committed breach of Rule 3, 23 & 26 of the Gujarat Civil Services (Conduct) Rules, 1971 and Para 1, 2 & 16 of the Code of

Conduct for the Guidance of Judges.

Considering the aforesaid findings recorded by the Registrar (Vigilance), it may be pertinent to refer to Rules 3, 23 and 26 of the Gujarat Civil

Services (Conduct) Rules, 1971, which read as under:

Rule '' 3: General :

(1) Every Government servant shall at all times-maintain absolute integrity, maintain devotion to duty and, do nothing which is unbecoming of a

Government servant.

(2) No Government servant, who habitually fails to perform a task assigned to him within the time set for the purpose and with the quality of

performance expected of him, shall be deemed to be lacking in devotion to duty within the meaning of Clause (ii).

(3) All departmental rules and orders in respect of the subject dealt with within these rules which have been approved or may hereinafter be

approved by Government shall in so far as they are not inconsistent with any provisions of these rules, apply to Government servants to whom they

relate.

Rule '' 23 : Canvassing of non-official or other outside influence:

No Government servant shall bring or attempt to bring any political or other outside influence or bear upon any superior authority or to approach

any member of a legislature or other non-official for interceding with any superior authority for furthering his interest or for redressing his grievance

in regard to any matter pertaining to his service under Government.

Rule '' 26 : Plural Marriage :

[1] No Government servant shall enter into, or contract, a marriage with a person having a spouse living, and

[2] No government servant having a spouse living, shall enter into, or contract, a marriage with any person;

Provided that the State government may permit a Government servant to enter into, or contact, any such marriage as is referred to in Clause (1) or

(2), if it is satisfied that -

[a] such marriage is permissible under the personal law applicable to such Government servant and the other party to the marriage, and

[b] there are other grounds for so doing.

Para 1, 2 & 16 of the Code of Conduct for the Guidance of Judges, read as under:

[1] Avoidance of impropriety '' A Judge''s official conduct should be free from impropriety and the appearance of impropriety; he should avoid

infractions of law in his private affairs and his personal behaviour, not only upon the Bench and in the performance of judicial duties, but also in his

every day life, should be beyond reproach.

[2] Essential conduct '' A Judge should be temperate, attentive, patient, and impartial and since he is to administer the law and apply it to the facts,

he should be studious of the principles of the law and diligent in endeavouring to ascertain the facts.

[16] Industry '' A judge should exhibit industry and application commensurate with the duties imposed upon him.

On a plain reading of Rule 23 quoted hereinabove, it is apparent that the same has been wrongly invoked, inasmuch as there is no material on

record to show that the petitioner has brought or attempted to bring any political or outside influence upon any superior authority or that she has

approached any Member of Legislature or other non-official for interceding with any superior authority for furthering her interest or for redressing

her grievance in regard to any matter pertaining to her service under Government. The invocation of Rule 26 is equally misconceived inasmuch as

the same prohibits plurality of marriage. It is an admitted position that the petitioner is unmarried and it is nobody''s case that she had entered into

or contracted a marriage with a person having a spouse living. On the allegations made in the complaint the only rule that could have been invoked

would be Rule 3 of the said Rules.

In the society in which we live, the reputation of a woman is considered to be as fragile as glass, which when once broken cannot be put

together. Considering the nature of allegations against the petitioner, and the fact that both the enquiries were entrusted to judicial officers of the

rank of District Judge, they were expected to discharge the responsibility cast upon them with utmost circumspection keeping in mind the sensitive

nature of the inquiry entrusted to him. Considering the nature of the allegations levelled against the petitioner, greater was the duty cast upon the

concerned officers to ensure that inquiry is carried out impartially and fairly and with due care and caution. Instead, in absence of any reliable

evidence, both the officers have proceeded on the basis of surmises and inferences to cast grave aspersions touching the character of the petitioner

which are not backed by any reliable material. The lopsided inquiry carried out by the Registrar (Vigilance) and the distorted picture presented

before the High Court has resulted in causing immense damage to the petitioner''s reputation, which has been sullied beyond repair. The very fact

that only statements of persons against whom the petitioner had complained to the District Judge are recorded gives an indication as regards the

manner in which the inquiry has been carried out. When out of 30 advocates practicing at Kodinar, only a handful were against the petitioner and

the petitioner had earlier complained about their conduct to the District Judge, we see no reason as to why the statements of other advocates and

employees were not recorded.

Even in the present day and age, it is not uncommon for the staff in any establishment to question the authority of a female officer; it is also not

uncommon for an undisciplined staff to revolt against a disciplinarian head. Considering the nature of the complaints made by the petitioner against

some of the members of the staff, the extent of indiscipline prevailing among the staff is evident. Despite which it appears that no heed was paid to

the complaints made by the petitioner which were lost like a cry in the wilderness and on the other hand the consequent friction between the staff

and the petitioner on the question of enforcing discipline had been held against her stating that there is lack of smooth functioning and tuning with

the staff. Unfortunately the very District Judge who had chosen to turn a deaf ear to the pleas of the petitioner has carried out the inquiry in the

present case as the Registrar (Vigilance), resulting in great prejudice to the petitioner which is evident from the manner in which the inquiry has

been made. Considering the number of ladies who are now joining the profession, it is about time that we come out of the archaic narrow minded

mentality whereby any sort of friendship between male and female colleagues is frowned upon and viewed with suspicion, as otherwise it would be

difficult for ladies to discharge their duties independently and fearlessly. It is not uncommon for a colleague to consult another colleague or discuss

issues in connection with one''s work. Merely because in the present case, one colleague is a male and the other is a female is no reason to suspect

anything more. The report of the Registrar (Vigilance) to say the least, projects a very distorted version before the High Court. It cannot be

gainsaid that the Full Court while taking decision through Circular Resolution must have been swayed by the findings arrived at in the report.

Another matter of grave concern is the conduct of the District Judge, whose role is that of paterfamilias of the judicial hierarchy of the district,

towards the petitioner. Undisputedly, this was the petitioner''s first posting as a judicial officer. Moreover, she was given independent charge of a

Taluka Court in a semi-rural coastal area. Instead of extending all assistance to an inexperienced judicial officer, the District Judge turned a deaf-

ear to all her pleas in connection with the difficulties faced by her. Upon receipt of the complaints made by the petitioner, the District Judge could

at least have looked into the same and have advised the petitioner accordingly. If at any stage, the District Judge had heard anything adverse

against the petitioner, he ought to have cautioned the petitioner about it instead of adding fuel to the fire by taking sides with the staff against the

petitioner and making unwarranted remarks in her Annual Confidential Reports. If nothing more, the minimum that could have been done was that

the petitioner''s request for transfer could have been put up before the High Court on the administrative side.

In view of the above discussion, we find that the impugned order suffers from two basic infirmities. The first infirmity is that even if the report

made by the Registrar (Vigilance) were to be taken at face value, it is evident that the termination of the petitioner is not on the ground of suitability

because the report on the basis of which her probation has been terminated does not pertain to suitability but to misconduct/moral turpitude.

Hence, in view of the law laid down by the Supreme Court in the decisions cited hereinabove, if misconduct is the foundation for the termination,

the provisions of Article 311(2) would be attracted and the petitioner would be entitled to a departmental inquiry in connection with the allegations

made against her. The second infirmity is that the report on the basis of which the impugned order of termination has been passed is itself vitiated

on the ground of personal bias on the part of the Inquiry Officer namely the then Registrar (Vigilance), as also on the ground that the inquiry is

conducted in a lopsided manner and as such cannot be termed to be a fair and impartial inquiry.

For the foregoing reasons, the petition is allowed. The impugned order dated 14th December, 2007 terminating the appointment of the

petitioner on probation is hereby quashed and set aside. The respondents are directed to reinstate the petitioner with full backwages and continuity

in service. Rule is made absolute accordingly, with no order as to costs.