Man Mohan Mohanty vs State Of Odisha And Another

K.S. Jhaveri, Cj

By way of this writ petition, the petitioner has challenged the Notification dated 22.08.2008, (Annexure-7), issued by the High Court of Orissa,

Cuttack, whereby the Ad-hoc promotion of the petitioner as Ad-hoc Additional District and Sessions Judge (FTC), Jajpur was terminated and he was

transferred and posted as Civil Judge (Senior Division), Boudh.

The main contention of Shri S.D. Das, learned Sr. Counsel for the petitioner is that the petitioner while working in the cadre of Senior Civil Judge

was promoted on ad-hoc basis vide Notification issued by the Home Department, Govt. of Orissa, dated 27.09.2007 for his appointment as Adhoc

Additional District Judge against Fast Track Court established under the 11th Finance Commission Award for a period of one year with effect from

the date he joins as such and pursuant to the aforesaid notification of the Home Department, he was issued with an order of the High Court of Orissa

vide Notification dated 6th/8th October, 2007 (Annexure-2). It is contended that when the petitioner was continuing as an Ad-hoc Additional District

and Sessions Judge (FTC), Jajpur, he was issued with a notice of Registrar (I&E) I/C, Orissa High Court dated 11.04.2008 forwarded through proper

channel, the relevant portion of which is as under:

“                                                       xxx

                                                                 xxx

                                                                  xxx

I am directed to say that while reviewing the out-turn of the Presiding officers of the Fast Tract Courts of the State from the Month of January & February, 2008

the court have been pleased to Â

observe that all the Addl. District & Sessions Judges of the Fast Track Courts working under your Jurisdiction, who have not reached the prescribed yardstick

and have not disposed of eight sessions cases per month, be cautioned to improve their performance in future, otherwise it may not be possible to recommended

further extension of their tenure of appointment.â€​

It is contended that in reply to the above letter, the petitioner immediately requested the learned District & Sessions Judge, Cuttack, vide letter dated

18.4.2008, (Annexure-5), requesting him to transfer sufficient number of ready cases to enable him to meet with the yardstick. The relevant portion of

the said reply is quoted below:

“                                          xxx

                                                                  Â

xxx                                                                   xxx

In the above circumstances, it is very difficult to meet the yardstick with the above number of sessions cases pending in my file, so I request to kindly transfer

sufficient number of ready cases to my file enabling me to met the yardstick.â€​

Thereafter, the petitioner made several correspondences with the learned District & Sessions Judge, Cuttack, reiterating the above facts, vide

Annexures-6 series. However, by virtue of the impugned Notification dated 22.08.2008, the Orissa High Court issued the following order:

“Orissa High Court, Cuttack

NOTIFICATION

Dated, Cuttack, the 22nd August, 2008

No.839/A:- On termination of the Ad-hoc promotion of Shri Man Mohan Mohanty at present Ad-hoc Additional District and Sessions Judge (FTC), Jajpur in the

Judgeship and Sessions Divison of Cuttack-Kendrapara-Jajpur-Jagatsinghpur made vide Home Department Notification No.37627/HS dated 14.08.2008 is

transferred and posted as Civil Judge (Senior Divison), Boudh in the cadre of Senior Civil Judge in the Judgeship of Kandhamal-Boudh with headquarters at

Boudh vice Shri S.K. Rajguru transferred.

By order of the High Court

(B.K.Rath)

Special Officer (Admn.)â€​

Learned counsel for the petitioner in course of his argument has taken us to paragraph-7 of the counter affidavit filed on behalf of opposite party

no.2. The relevant portion of which reads as under:

“7.                                       xxx      Â

                                                           xxx

                                                                 xxx

Further, during his tenure at Jajpur as Ad hoc A.D.J. an allegation petition was received from the Members of the Bar Association wherein referring to some of the

case records corruption allegations was leveled against the petitioner. After receipt, the same was sent to the Dist. Judge, Cuttack to examine and report vide

Court’s letter No.2261 dtd.25.03.2008. The Dist. Judge, Cuttack visited Jajpur and examined the connected records of the Court of Ad hoc A.D.J., S.D.J.M.,

Jajpur pertaining to which allegations were made. During his verification he found the orders passed by the petitioner in many cases to be highly suspicious,

motivated and beyond jurisdiction. During his personal interview with the Bar Members, almost all the lawyers of different Bar Association of Jajpur spoke ill of

the petitioner and made allegations against his integrity. Further, the District Judge, Cuttack had submitted his report mentioning that the conduct of Sri

Mohanty is not above board and he withdrew his earlier order passed U/S-10(3) Cr.P.C. authorizing the petitioner to dispose of urgent applications in absence

of regular Additional District Judge. The said report was submitted by the District Judge, Cuttack vide Confidential Letter No.27 Dtd.31.05.2008.â€​

As such, learned counsel for the petitioner contended that bare perusal of the aforesaid portion of the counter affidavit filed on behalf of the High

Court of Orissa clearly disclose that the petitioner was reverted on the allegation of misconduct, but surprisingly, neither any disciplinary proceeding

was initiated against him nor he was given any notice to show cause against such allegations. Thus, the punishment of reversion to the cadre of Senior

Civil Judge is not sustainable.

In support of his contention, learned counsel for the petitioner has relied upon the following decisions of the Hon’ble Supreme Court, the

relevant parts of which are quoted below and contended that the decision of the Full Court to revert the petitioner was the preliminary inquiry and on

that basis he was reverted.

(i) Paragraphs-13 to 17 of the decision of the Hon’ble Supreme Court in State of Uttar Pradesh and Others v. Sughar Singh, (1974) 1 Supreme

Court Cases 218:

 “13. Since we are concerned in this case with a case of reversion, we propose to confine our attention to the different circumstances in which an order of

reversion may be made. An order of reversion is, in its immediate effect bound always to be a reduction in rank. Even a reversion from a higher but temporary or

officiating rank to a lower substantive rank is in a sense a reduction. But such orders of reversion are not always reduction in rank within the meaning of Article

If the officer is promoted substantively to a higher post or rank, he gets a right to that particular post or rank and if he is afterwards reverted to the lower

post or rank which he held before, it is a ""reduction in rank"" in the technical sense in which the expression is used in Article 311. The real test in all such cases is

to ascertain if the officer concerned has a right to the post from which he is reverted. If he has a right to the post then a reversion is a punishment and cannot be

ordered, except in compliance with the provisions of Article 311. If, on the other hand, the officer concerned has no right to the post, he can be reverted without

attracting the provisions of Article 311. But even in this case, he cannot be reverted in a manner which will show conclusively that the intention was to punish

him. The order itself may expressly state that the officer concerned is being reverted by way of punishment. In fact the order may in various other ways cast a

stigma on the officer concerned. In all such cases, the order is to be taken as a punishment. Sometimes again, the order of reversion may bring upon the officer

certain penal consequences like forfeiture of pay and allowances or loss of seniority in the subordinate rank, or the stoppage or postponement of future chances

of promotion: in such cases also the government servant must be regarded as having been punished and his reversion to the substantive rank must be treated as a

reduction in rank. In such a case Article 311 will be attracted.

In State of Punjab and Another v. Sukh Raj Bahadur, AIR 1968 SC 1089, Mitter, J., after analysing the decisions of this Court in Parshotam Lal Dhingra v. The

Union of India, AIR 1958 SC 36, State of Orissa v. Ram Narayan Das, AIR 1961 SC 177, R. C. Lacy v. State of Bihar, C.A. No.590 of 1962 (decided on October 23,

1963), Madan Gopal v. State of Punjab, AIR 1963 SC 531, Jagdish Mitter v. Union of India, AIR 1964 SC 449 and A. G. Benjamin v. Union of India, (1967) 1 Lab

LJ 718, has formulated the following propositions:

“1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more

would not attract the operation of Article 311 of the Constitution.

The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.

If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way

of punishment, no matter whether he was a mere probationer or a temporary servant.

An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the, public

servant should be retained in service, does not attract the operation of Article 311 of the Constitution.

If there be a full-scale departmental enquiry envisaged by Article 311, i.e. an Enquiry Officer is appointed, a charge. sheet submitted, explanation called for and

considered, any order of termination of service made thereafter will attract the operation of the said article.

In Ram Gopal Chaturvedi v. State of Madhya Pradesh, (1969) 2 SCC 240, this Court refused to interfere with an order terminating the services of an officer

who had been temporarily appointed to the Judicial Service of Madhya Pradesh under rule 12 of the Madhya Pradesh Government Servants (Temporary and

Quasi-Permanent Service) Rules, 1960, without passing any stigma on the officer concerned and merely stating that his services were terminated from a specified

date. Even though the order of termination had been preceded in that case by an informal enquiry into the conduct of the officer with a view to ascertain if he

should be retained in service, this Court followed the decision in State of Punjab v. Sukh Raj Bahadur (supra) and observed:

On the face of it the order did not cast any stigma on the appellant's character or integrity nor did it visit him with any evil consequences. It was not passed by

way of punishment and the provisions of Article 311 were not attracted.

In the Union of India v. Gajendra Singh, (1973) 3 SCC 797, this Court sustained an order passed by the Union of India reverting an officiating Naib Tehsildar

to his permanent post of Kanungo on the ground that he could not pass the departmental examination. This Court clearly held in that case that ""appointment to a

post on officiating basis is, from the nature of employment, itself of a transitory character and in the absence of any contract or specific rule regulating the

conditions of service to the contrary, the implied term of such an appointment is that it is terminable at any time. The Government servant so appointed acquires

no rights to the post. But if. the order entails or provides for forfeiture of his pay or allowances or the loss of his seniority in the substantive rank or the stoppage

or postponement of his future chances of promotion then that circumstance may indicate that though, in form, the government had purported to exercise its

undoubted right to terminate the employment, in truth and reality, the termination was by way of penalty.

Let us now consider whether in the light of the various cases decided by this Court the order of reversion amounted to a reduction in rank within the meaning

of Article 311 (2) of the Constitution. We will apply all the different tests laid down by this Court one by one. First, the order is not attended with any stigma. The

order merely states that Sughar Singh is reverted and that he is reverted to his substantive post of Head Constable. By no stretch of imagination can this language

be construed as casting a stigma on the respondent. Secondly, there is nothing to show that Sughar Singh has lost his seniority in the substantive rank. It is true

that some of his colleagues who were also holding the substantive post of head constable and who had also been appointed in an officiating capacity to the post

of Platoon Commanders were not reverted on the day when the respondent was reverted. But that cannot be regarded as a penal consequence by way of loss of

seniority in the substantive rank. In Divisional Personnel Officer v. Raghavendrachar, AIR 1966 SC 1529 this Court has clearly held that where a number of

employees are placed on a senior list on a provisional basis they do not get-any indefeasible right to retain their seniority on that provisional basis so that the

reversion of a person who was in the list does not constitute a reduction in rank merely on the ground that persons lower in the rank have not been reverted.

Thirdly, there is no evidence to show and, in fact, it was not contended on behalf of the respondent that there has been any forfeiture of his pay or allowances or

any loss in the seniority in the substantive rank which is, one must remember, the rank of Head Constables. On a careful scrutiny of the order of reversion we do

not find any indication that it affects the seniority of Sughar Singh in his substantive rank or that it affects his chances of his future promotion from that rank. It is

true that Sughar Singh will be deprived by the order of reversion of the post of Platoon Commander but that is not considered a penal consequence. Such

deprivation is the usual consequence of any order of reversion from the officiating post which an 'incumbent has no right to hold. Such deprivation has been held

by this Court not to be an order attended with penal consequences (see Union of India v. Jeewan Ram). AIR 1958 SC 905â€​

(ii) Paragraph-17 of the decision of the Hon’ble Supreme Court in K.H. Phadnis v. State of Maharashtra, AIR 1971 SUPREME COURT 998 (V

58 C 201):

“17. The order of reversion simpliciter will not amount to a reduction in rank or a punishment. A Government servant holding a temporary post and having

lien on his substantive post may be sent back to the substantive post in ordinary routine administration or because of exigencies of service. A person holding a

temporary post may draw a salary higher than that of his substantive post and when he is reverted to his parent department the loss of salary cannot be said to

have any penal consequence. Therefore, though the Government has right to revert a Government servant from the temporary post to a substantive post, the matter

has to be viewed as one of substance and all relevant factors are to be considered in ascertaining whether the order is a genuine one of ""accident of service"" in

which a person sent from the substantive post to a temporary post has to go back to the parent post without an aspersion against his character or integrity or

whether the order amounts to a reduction in rank by way of punishment. Reversion by itself will not be a stigma. On the other hand, if there is evidence that the

order of reversion is not ""a pure accident of service"" but an order in the nature of punishment, Article 311 will be attracted.â€​

(iii) Paragraph-2 of the decision of the Hon’ble Supreme Court in Chandra Prakash Sahi v. State of U.P. and others, (2000) 5 Supreme Court

Cases 152:

What is ""motive""; what is ""foundation""; what is the difference between the two; these are questions which are said to be still as baffling as they were when

Krishna Iyer, J. in Samsher Singh vs. State of Punjab, (1974) 2 SCC 831, observed as under : (SCC p.889, para 160) ""Again, could it be that if you summarily

pack off a probationer, the order is judicially unscrutable and immune? If you conscientiously seek to satisfy yourself about allegations by some sort of enquiry

you get caught in the coils of law, however, harmlessly the order may be phrased. And so, this sphinx-complex has had to give way in later cases. In some cases the

rule of guidance has been stated to be `the substance of the matter' and the `foundation' of the order. When does `motive' trespass into `foundation'? When do we

lift the veil of `form' to touch the `substance'? When the Court says so. These `Freudian' frontiers obviously fail in the work-a-day world.

(iv) Placitum C AND F along with paragraphs-31 to 35 of the decision of the Hon’ble Supreme Court in Registrar General, High CourtÂ

of Gujarat and Another v. Jayshree Chamanlal Buddhbhatti, (2013) 16 Supreme Court Cases 59, which reads as under:

“c. - Termination of services of Probationary Civil Judge by High Court on grounds of unsuitability for the post-Order actually based on prior discreet inquiry

and a later preliminary inquiry conducted into adverse allegations against her without affording her any opportunity of hearing, although inquiry sought to be

justified for purpose of ascertaining her suitability for the post-Termination held invalid.

f - Held, High Court on administrative side is required to afford Subordinate Judges minimum protection/opportunity available to civil servants under Art.311(2)

of Constitution â€" No such opportunity was afforded to respondent, even the materials placed on record did not establish any such aspect which would lead to a

conclusion of unsuitability â€" Inference of unsuitability drawn by High Court on administrative side, totally uncalled for â€" High Court’s order on judicial

side, setting aside termination order, fully justified â€" Reinstatement with continuity in service with all consequential benefits and entitlement to seniority

directed, as if respondent was never terminated from service â€" Order for back wages also passed -

Having gone through the salient judgments on the issue in hand, one thing which emerges very clearly is that, if it is a case of deciding the suitability of a

probationer, and for that limited purpose any inquiry is conducted, the same cannot be faulted as such. However, if during the course of such an inquiry any

allegations are made against the person concerned, which result into a stigma, he ought to be afforded the minimum protection which is contemplated under

Article 311 (2) of the Constitution of India even though he may be a probationer. The protection is very limited viz. to inform the person concerned about the

charges against him, and to give him a reasonable opportunity of being heard.

Having noted the facts as they have emerged on the record, can the preliminary inquiry conducted against the respondent in the present case be said to be an

innocent one only to assess her suitability? Is it not apparent that certain aspersions were cast on the character of the respondent during the course of the

conduct of this inquiry on her suitability? If that was so, was it not expected from a High judicial institution like the High Court to afford her the minimum

opportunity to defend herself? In Shamsher Singh v. State of Punjab, (1974) 2 SCC 831, this Court has observed that the Subordinate Judges are under the care

and custody of the High Court. This custody and care certainly requires the High Court to afford the Subordinate Judges the minimum opportunity which is

otherwise available to every other civil servant under Article 311 (2).

Having noted the aforesaid legal position, we must pay heed to the lament of this Court as expressed in Ishwar Chand Jain v. High Court of P & H in (1988) 3

SCC 370. In that matter, the probationary service of an Additional District and Sessions Judge was terminated on the basis of the High Court’s conclusion

regarding suitability. This Court, however, found that the action taken against the appellant was basically because of some grievances made by the members of

the Bar, and there was no justifiable material available on the record of the Court. The members of the Bar Association had passed a resolution condemning him

on a trifling matter, as observed by this court. This Court observed in the end of paragraph 7 in following words:-

“7. …….If the members of the Bar Association pass resolution against the presiding officers working in subordinate courts without there being any

justifiable cause it would be difficult for judicial officers to perform their judicial functions and discharge their responsibilities in an objective and unbiased

manner. We are distressed to find that the High Court instead of protecting the appellant took this incident into consideration in assessing the appellant’s

work and conduct.â€​

In this matter, the Bar Association passed a resolution against the Additional Sessions Judge for not detaining a witness on the request of the counsel for the

party to enable him to bring summons for effecting service on him, without there being any requisition from the court of the Chief Judicial Magistrate. This Court

noted that if such resolutions are passed, it will be difficult for the judicial officers to perform their function in an objective and unbiased manner. This Court was

constrained to observe that the High Court had failed to protect the appellant. What had distressed this Court was that the High Court, instead of protecting the

appellant had taken into account the unjustified allegation made by the bar, while assessing the work and conduct leading to discontinuation of his probation

services. The same appears to be the situation in the present case.

High Court of Judicature of Bombay v. Shashikant S. Patil, (2000) 1 SCC 416 was altogether a different case. That was a matter where a full-fledged

departmental inquiry was conducted against the respondent. It is true that the inquiry report had exonerated the respondent, and the disciplinary committee had

reversed that decision. The High Court on the judicial side had interfered with the decision of the disciplinary committee. It is this decision of the High Court

which came to be upturned in this case, and it was in this context that this Court observed:

“24. When such 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.â€​

The present case can not be said to be one where the High Court on judicial side has erred as in Shashikant S. Patil (supra) in exercising its powers as claimed by

the appellants.

As held by this Court time and again, it is the responsibility of the High Court to protect honest judicial officers. As the facts in this case indicate, apart from

the fact that no opportunity was afforded to the respondent, even the material placed on record did not establish any such aspect which would lead to a

conclusion of unsuitability. The disposal of the respondent was very good, and the complaints by the subordinate staff were clearly motivated. There was no

involvement of the respondent in the suicide by the wife of Shri N.P. Thakker, and all that the High Court administration could lay hand on was the telephonic

conversations which the respondent had with Mr. Thakker. The inference of unsuitability drawn by the High Court administration was therefore totally uncalled

for. The impugned judgment setting aside the termination order dated 14.12.2007 issued on the ground of unsuitability is, therefore, fully justified.â€​

It is contended that the consideration which has met with the Full Court was the preliminary inquiry and on that basis, the petitioner was terminated.

Thus, in view of the observations made by the Hon’ble Apex Court in the case of Registrar General, High Court of Gujarat and Another (supra),

the petitioner is required to be restored back to the post of Ad-hoc Additional District and Sessions Judge (FTC), Jajpur and all consequential benefits

be granted in his favour.

Learned Govt. Advocate for the opposite parties has taken us to the reply in affidavit and contended that the petitioner was working as a judicial

officer and the expectations from a judicial officer are on a different footing than the other public servants. It was an Ad hoc promotion for a Fast

Tract Court, where the very object of the Finance Commission was to adjudicate Cases which are pending for a long time. Establishment of Fast

Track Courts were meant for cleaning up the backlogs by disposing of the old cases pending for pretty long period. Further, it is submitted that the

specific allegations against the petitioner that although the petitioner had sufficient number of cases on his board/Court, as would reveal from

Annexure-B/2 to the Counter Affidavit, he did not take appropriate steps for early disposal of those cases. Further, in order to shift his responsibility

for which he was appointed, he communicated the Dist. Judge, Cuttack to transfer more ready cases to meet with his yardstick. Due to his

incapability and inefficiency to dispose of sufficient number of cases, although available on his board, he was not recommended for further extension

and that being the subjective satisfaction of the appointing authority, the same is beyond the scope of judicial review. The preliminary inquiry report,

which has been referred, was not referred in the order impugned herein as the same didn’t form basis of decision of the Full Court. It is also very

clear from the contents of the counter affidavit relevant portion of which reads as follows:

 “                               xxxÂ

                                                                   xxx

                                                                  xxx

From the periodical statements submitted by the petitioner to the Court, it is found out that he had disposed of only 05. 04, 04. 05, 04, 02, 03 and 04 Sessions

Cases in the month of January, Februry, March, April, May, June, July and August, 2008 respectively though in those months 48,56,56,51,47,64,61 and 60

Sessions Cases respectively were pending in his Court. Apart from Sessions Cases a good number of T.S., T.A., Misc. Appeal, Civil Revision, Misc. Cases, Criminal

Appeal and Criminal Revision Cases though were also pending in his Court the petitioner had disposed of only a few number of cases out of them. A detail Chart

of pending and disposed of cases is filed herewith as Annexure-B/2â€​

In that view of the matter, it is submitted that in view of the well settled principle of law, the impugned notification is not a punishment as no stigma

is attached to the order of termination of Ad-hoc promotion. Further, the said order under Annexure-7 was challenged only after the retirement of the

petitioner on 31.01.2009 and the writ petition was filed on 25.02.2009. It seems that the petitioner has accepted the termination of Ad-hoc promotion

and thus, it is only an after though of the petitioner to take a chance in challenging the impugned order, which should not be encouraged. Therefore,

learned Govt. Advocate contended that the writ petition deserves to be dismissed.

We have heard learned Sr. Counsel for the petitioner and learned Govt. Advocate for the opposite parties.

The very object of establishment of the Fast Tract Court under 11th Finance Commission was to dispose of the old cases as expeditiously as

possible and from the record, more particularly affidavit in reply, it is manifest that there was sufficient number of work available with the petitioner,

but without making any endeavour for disposal, he adopted a method of shifting of responsibility requesting the Dist. Judge, Cuttack to transfer

sufficient number of ready cases. Due to his inefficiency and incapability to achieve the out-turn, the petitioner was given warning vide letter at

Annexure-4, looking at his performance.

In our considered opinion, when the petitioner is given Ad-hoc promotion and he is not meeting with the object of establishment of Fast Track

Court under the 11th Finance Commission, the decision which is taken is required to be approved and the same is approved.

The main contention of learned counsel for the petitioner taking support of the affidavit in reply is that neither the preliminary inquiry report was

supplied to the petitioner nor he was asked to show cause on the allegations made against him. But on perusal of the order impugned it reveals that no

such reference has been made to the preliminary inquiry, as alleged and the impugned order is not an outcome of such allegations.

In the case of Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and another, reported in (2002) 1 Supreme Court Cases

520, it has been held as follows:

“29. Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in

a termination order would amount to a stigma? Generally speaking when a probationer’s appointment is terminated it means that the probationer is unfit for

the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is

implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a

probationer’s appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a

stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.

As was noted in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, (1999) 3 SCC 60:(SCC p.73, para 28) “28. At the

outset, we may state that in several cases and in particular in State of Orissa v. Ram Narayan Das, AIR 1961 SC 177, it has been held that use of the word

‘unsatisfactory work and conduct’ in the termination order will not amount to a stigma.â€​

Returning now to the facts of the case before us. The language used in the order of termination is that the appellants “work and conduct has not been found

to be satisfactoryâ€. These words are almost exactly those which have been quoted in Dipti Prakash Banerjees (supra) case as clearly falling within the class of

non-stigmatic orders of termination. It is, therefore safe to conclude that the impugned order is not ex facie stigmatic.

We are also not prepared to hold that the enquiry held prior to the order of termination turned this otherwise innocuous order into one of punishment. An

employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any

allegation that may have been made about the employee. A charge sheet merely details the allegations so that the employee may deal with them effectively. The

enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. None of the three factors catalogued

above for holding that the termination was in substance punitive exist here.

It was finally argued by the appellant that the intention of the respondents to punish him was clear from the following statement in the affidavit filed on their

behalf:

“It is important to mention herein that even honesty and integrity of the petitioner was also under cloud as he took undue favours by misusing his position,

from the suppliers and maligned the reputation of the institute.â€​

That an affidavit cannot be relied on to improve or supplement an order has been held by a Constitution Bench in Mohinder Singh Gill v. The Chief Election

Commissioner, New Delhi, (1978) 1 SCC 405: (SCC p.417, para 8). “[when] a statutory functionary makes an order based on certain grounds, its validity

must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwiseâ€​.

Equally, an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order. This is also what was

held in State of U.P. v. Kaushal Kumar Shukla, (1991) 1 SCC 691: (SCC p.705, para 13)

“The allegations made against the respondent contained in the counter-affidavit by way of a defence filed on behalf of the appellants also do not change the

nature and character of the order of terminationâ€​.

Having held against the appellant on all counts, we dismiss the appeal but without any order as to costs.â€​

It is the order of termination of Ad-hoc promotion (Annexure-7), which is under scanner and not the affidavit filed by the State to examine, as to

whether the order of action taken by the appointing authority was punitive. Applying the ratio of Paranendra (supra), it can be safely said that the

order of termination of Ad-hoc promotion was not punitive. Hence, no opportunity of hearing, as alleged, is required to be afforded to the petitioner

before passing the order. The case laws cited by learned Sr. Counsel for the petitioner, is therefore, not applicable to the case at hand, which deal with

different situations other than the present one.

In that view of the matter, we are of the considered opinion that where the petitioner has not met with the requirement, i.e. the out-turn as an Ad-

hoc Additional District Judge of a Fast Track Court, we see no reason to interfere with the order of termination of his Ad-hoc promotion and more

particularly when the order was not challenged immediately after it was passed and the petitioner has challenged the same only after his retirement,

after serving as Senior Civil Judge, pursuant to the impugned order under Annexure-7.

In view of the above, we see no reason to interfere with the impugned order under Annexure-7. Hence, the petition being devoid of any merits,

deserves to be dismissed and the same is accordingly dismissed. No cost.

…………………..……… Â