In all these matters, the petitioners are challenging the walking papers served on them by the respondents, terminating their services.
2. Justice delayed is justice denied. The Supreme Court in HUSSAINARA KHATOON vs. STATE OF BIHAR [AIR 1979 SC 1364] has held that "a system of criminal procedure which did not prescribe a speedy trial could not be said to be either fair or reasonable and speedy trial is of essence to criminal justice and there can be no doubt that the delay in trial by itself constitutes denial of justice"
3. In MANEKA GANDHI vs. UNION OF INDIA [AIR 1978 SC 597], the Honourable Apex Court has held that "there can be no doubt that speedy trial -- and by speedy trial we mean a reasonably expeditious trial -- is an integral and essential part of fundamental right to life and liberty enshrined in Article 21"
4. It is a very important obligation. Even apart from
Art.21, the constitutional mandate for speedy justice is inescapable. The preamble of the Constitution enjoins the State to secure social, economic and political justice to all its citizens. The Directive Principles of State Policy, by
Article 38(1) declare that the State should strive for a social order in which such justice shall inform all the institutions of national life. This is elaborated by Article 39A, specifically adding that 'the State shall secure that the operation of the legal system promotes justice, on a basisof equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.'
5. While interpreting this provision, the Honourable Supreme Court in BABU vs. RAGHUNATJI [AIR 1976 SC 1734] has held that 'social justice would include 'legal justice' which means that the system of administration of justice must provide a cheap, expeditious and effective instrument for realization of justice by all section of the people irrespective of their social or economic position or their financial resources.'
6. The 120th Law Commission Report said 'If legislative representation can be worked out, as pointed out earlier, on the basis of population and if other services of the State bureaucracy, police, etc. can also be similarly planned, there is no reason at all for the non-extension of this principle to the judicial services. It must also be frankly stated that while population may be a demographic unit, it is also a democratic unit. In other words, we are talking of citizens with democratic rights including the right to access to justice which is the duty of the State to provide'. The 120th Law Commission while recommending the five fold increase in judicial strength at all levels of the Indian judiciary (from 10.5 to 50 judges per million of population) also pointed out how India's Judge-population ratio stands in poor contrast when compared with several other countries.
7. In All India Judges Association Case [(2002) 4 SCC 247], the Honourable Supreme Court has desired the number of judges to be increased in a phased manner in five years so as to raise the judge-to-population ratio to 50 per million.
8. Thus, considering the inadequacy in the number of Judges and the poor Judge- population ratio, which is telling upon the huge backlog of the cases in the country, there was ad idem to establish Fast Track Courts of Sessions for the purpose of expeditious disposal of sessions cases by the Government which is popularly known as the Fast Track Courts Scheme. The scheme proposed to start 1750 Fast Track Courts at the rate of five in each district to clear pending criminal cases. Some of the aspects in the said Scheme like the mode of appointment of the Presiding Officer and such other incidental aspects, were under challenge before the Honourable Apex Court and a Three Judge Bench of the Honourable Apex Court in BRIJ MOHAN LAL vs. UNION OF INDIA AND OTHERS [(2002) 5 SCC 1], has issued the certain directions and since the said directions of the Honourable Apex Court are having a bearing on the matters on hand for disposal, the same are extracted hereunder for easy reference:
"1. The first preference for appointment of judges of the Fast Track Courts is to be given by ad hoc promotions from amongst eligible judicial officers. While giving such promotion, the High Court shall follow the procedures in force in the matter of promotion to such posts in Superior/Higher Judicial Services.
2. The second preference in appointments to Fast Track Courts shall be given to retired judges who have good service records with no adverse comments in their ACRs, so far as judicial acumen, reputation regarding honesty, integrity and character are concerned. Those who were not given the benefit of two years extension of the age of superannuation, shall not be considered for appointment. It should be ensured that they satisfy the conditions laid down in Articles 233(2) and 309 of the Constitution. The High Court concerned shall take a decision with regard to the minimum-maximum age of eligibility to ensure that they are physically fit for the work in Fast Track Courts.
3. No judicial officer who was dismissed or removed or compulsorily retired or made to seek retirement shall be considered for appointment under the Scheme. Judicial officers who have sought voluntary retirement after initiation of departmental proceedings/inquiry shall not be considered for appointment.
4. The third preference shall be given to members of the Bar for direct appointment in these courts. They should be preferably in the age group of 35-45 years, so that they could aspire to continue against the regular posts if the Fast Track Courts cease to function. The question of their continuance in service shall be reviewed periodically by the High Court based on their performance. They may be absorbed in regular vacancies, if subsequent recruitment takes place and their performance in the Fast Track Courts is found satisfactory. For the initial selection, the High Court shall adopt such methods of selection as are normally followed for selection of members of the Bar as direct recruits to the Superior/Higher Judicial Services.
5. Overall preference for appointment in Fast Track Courts shall be given to eligible officers who are on the verge of retirement subject to they being physically fit.
6. The recommendation for selection shall be made by a committee of at least three Judges of the High Court, constituted by the Chief Justice of the High Court concerned in this regard. The final decision in the matter shall be taken by the Full Court of the High Court.
7. After ad hoc promotion of judicial officers to the Fast Track Courts, the consequential vacancies shall be filled up immediately by organizing a special recruitment drive. Steps should be taken in advance to initiate process for selection to fill up these vacancies much before the judicial officers are promoted to the Fast Track Courts, so that vacancies may not be generated at the lower levels of the subordinate judiciary. The High Court and the State Government concerned shall take prompt steps to fill up the consequential as well as existing vacancies in the subordinate courts on priority basis. The State Government concerned shall take necessary decisions within a month from the receipt of the recommendations made by the High Court.
8. Priority shall be given by the Fast Track Courts for disposal of those sessions cases which are pending for the longest period of time, and/or those involving under trials. Similar shall be the approach for civil cases i.e. old cases shall be given priority.
9. While the staff of a regular Court of Additional District and Sessions Judge includes a Sessions Clerk and an Office Peon, work in Fast Track Courts is reported to be adversely affected due to shortage of staff as compared to regular courts performing same or similar functions. When single Orderly or Clerk proceeds on leave, work in Fast Track Courts gets held up. The staff earmarked for each such court are a Peshkar/Superintendent, a Stenographer and an Orderly. If the staff is inadequate, the High Court and the State Government shall take appropriate decision to appoint additional staff who can be accommodated within the savings out of the existing allocations by the Central Government.
10. Provisions for the appointment of Public Prosecutor and Process Server have not been made under the Fast Track Courts Scheme. A Public Prosecutor is necessary for effective functioning of the Fast Track Courts. Therefore, a Public Prosecutor may be earmarked for each such court and the expenses for the same shall be borne out of the allocation under the head Fast Track Courts. Process service shall be done through the existing mechanism.
11. A State Level Empowered Committee headed by the Chief Secretary of the State shall monitor the setting up of earmarked number of Fast Track Courts and smooth functioning of such courts in each State, as per the guidelines already issued by the Government of India.
12. The State Governments shall utilize the funds allocated under the Fast Track Courts Scheme promptly and will not withhold any such funds or divert them to other uses. They shall send the utilization certificates from time to time to the Central Government, who shall ensure immediate release of funds to the State Governments on receipt of required utilization certificates.
13. At least one Administrative Judge shall be nominated in each High Court to monitor the disposal of cases by Fast Track Courts and to resolve the difficulties and shortcomings, if any, with the administrative support and cooperation of the State Government concerned. The State Government shall ensure requisite cooperation to the Administrative Judge.
14. No right will be conferred on judicial officers in service for claiming any regular promotion on the basis of his/her appointment on ad hoc basis under the Scheme. The service rendered in Fast Track Courts will be deemed as service rendered in the parent cadre. In case any judicial officer is promoted to higher grade in the parent cadre during his tenure in Fast Track Courts, the service rendered in Fast Track Courts will be deemed to be service in such higher grade.
15. The retired judicial officers who are appointed under the Scheme shall be entitled to pay and allowances equivalent to the pay and allowance they were drawing at the time of their retirement, minus total amount of pension drawn/payable as per rules.
16. Persons appointed under the Scheme shall be governed, for the purpose of leave, reimbursement of medical expenses, TA/DA and conduct rules and such other service benefits, by the rules and regulations which are applicable to the members of the judicial services of the State of equivalent status.
17. The High Court concerned shall periodically review the functioning of the Fast Track Courts and in case of any deficiencies and/or shortcoming, take immediate remedial measures, taking into account views of the Administrative Judge nominated.
18. The High Court and the State Government shall ensure that there exists no vacancy so far as the Fast Track Courts are concerned, and necessary steps in that regard shall be taken within three months from today. In other words, steps should be taken to set up all the Fast Track Courts within the stipulated time."
9. It is in this backdrop, the Government of Tamil Nadu in G.O.Ms.No.739, Home (Cts.IA) Department, dated 3.8.2001 and G.O.Ms.No.1254 Home (Cts.IA) Department, dated 18.12.2001 have sanctioned Constitution of 49 Fast Track Courts with the Presiding Officers in the cadre of District Judge, to clear the backlog of cases pending in the Sessions Courts. The term of these Courts at the time of the constitution was fixed for a period of five years. The writ petitioners, who were appointed as Additional District and Sessions Judges, Fast Track Court, on ad hoc basis, in G.O.Ms.No.158, Public (Spl.A) Department, dated 14.2.2002, along with others, were posted in the newly constituted Fast Track Courts, by the High Court's Notification No.19/2002, dated 18.2.2002.
10. After their appointment, as per the directions issued by the Honourable Apex Court in the above mentioned Brij Mohan Lal case, the then Chief Justice, High Court,Madras in the minutes dated 28.4.2005 has directed as follows:
"The Vigilance Committee of the Madras High Court is requested to look into the service records and the general reputation of the Fast Track Court Judges in the State of Tamil Nadu and in the Union Territory of Pondicherry, in the light of the service guidelines given by the Supreme Court, and submit its report to the Administrative Committee of the Madras High Court, as early as possible."
11. Pursuant thereto, excepting the Presiding Officer, Fast Track Court, Bhavani, as it was vacant, the cases of the remaining 48 Presiding Officers viz. Additional District Judges, Fast Track Courts were reviewed by the Vigilance Committee comprising of three Honourable Judges of this Court in the meeting held on 13.7.2005 and the minutes of the said Vigilance Committee were ordered to be placed before the Administrative Committee. The Administrative Committee, in turn, in the meeting held on 17.8.2005 had deferred the matter till the final report of the concerned Committee is submitted. Thereafter, the Committee for reviewing the performance of the Additional District Judges, Fast Track Courts, has been reconstituted and the reconstituted Honourable Committee in the meetings held on 16.10.2006, 4.12.2006 and 5.12.2006, having reviewed the performance of the Additional District Judges, Fast Track Courts, had resolved to recommend the termination of the following officers:
1.Mr.G.K.Bharathi (First Petitioner in W.P.No.12805 of 2007)
2.Mr.V.B.Chinnappa (Second Petitioner in W.P.No.12805 of 2007)
3.Mr.R.Duraisamy (Petitioner in W.P.No.27773 of 2007, which has been separated from these matters and ordered to be posted before another Bench)
4.Mrs.A.Devaki (Petitioner in W.P.No.10372 of 2009)
5.Mrs.A.S.Hassina
6.Mr.S.Mani (Third Petitioner in W.P.No.12805 of 2007)
7.Mr.P.Pandurangan (Fourth Petitioner in W.P.No.12805 of 2007)
8.Mr.K.Pandurangan (Petitioner in W.P.No.8677 of 2007) and
9.Mr.P.G.Rajagopal
12. The report of the said Assessment Committee was ordered to be placed before the Administrative Committee and the Administrative Committee of this Court, in its meeting held on 11.12.2006 had resolved, among others, to continue Mrs.A.S.Hassina and Mr.P.G.Rajagopal in service, on ad hoc basis, upto 30.6.2007, with severe warning and to terminate the services of the remaining seven officers, as Additional District Judges, Fast Track Court, on and from 1.1.2007 in public interest as there was no need to continue their services, as such, any longer. Accordingly, the Full Court of this Court, before which the matter was placed, in its meeting held on 20.12.2006, had resolved, among others, to continue Mrs.A.S.Hassina and Mr.P.G.Rajagopal in service and to terminate the services of the remaining seven Additional District Judges, Fast Track Courts, appointed on ad hoc basis from among the Bar. N ecessary proposal was sent to the Government by the High Court on 22.12.2006 and the Government had issued ordersin G.O.Ms.No.83 Public (Spl.A) Department, dated 12.1.2007, terminating the services of the aforesaid seven Additional District Judges, Fast Track Courts, directly recruited from Bar on adhoc basis from service, with immediate effect. Aggrieved by the same, the petitioners have filed these writ petitions.
13. The sole hue and cry of the petitioners in all these writ petitions is that the impugned orders of termination are punitive in nature, besides leaving a stigma on them and since the impugned orders have come to be passed without any enquiry and without any opportunity having been afforded to them, they need to be set aside, being violative of the principles of natural justice. In support of such contentions, the learned counsel for the petitioners would rely on the following judgments:
1.ANOOP JAISWAL vs. GOVERNMENT OF INDIA AND ANOTHER [(1984) 2 SCC 369],
2. ISHWAR CHAND JAIN vs. HIGH COURT OF PUNJAB AND HARYANA AND ANOTHER [(1988) 3 SCC 370],
3. T.RAMAMOORTHY vs. THE SECRETARY, SRI RAMAKRISHNA VIDYALAYA HIGH SCHOOL, TIRUPPARAITURAI, TIRUCHIRAPALLI DISTRICT AND 3 OTHERS [1998 Writ L.R. 641],
4. MADAN MOHAN CHOUDHARY vs. STATE OF BIHAR AND OTHERS [(1999) 3 SCC 396],
5. STATE OF JHARKHAND AND OTHERS vs. AMBAY CEMENTS AND ANOTHER [2005 (1) CTC 223],
6. D.AMALADOSS vs. STATE OF TAMIL NADU, REP.BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT (COURTS I-A) CHENNAI AND ANOTHER [(2006) 4 MLJ 1360]
7. MATHURA PRASAD vs. UNION OF INDIA AND OTHERS [(2007) 1 SCC 437],
8. NEHRU YUVA KENDRA SANGATHAN vs. MEHBUB ALAM LASKAR [(2008) 2 SCC 479],
9. ROOP SINGH NEGI vs. PUNJAB NATIONAL BANK AND OTHERS [(2009) 3 MLJ 934 (SC)],
10. UMA NATH PANDEY AND OTHERS vs. STATE OF U.P. AND ANOTHER [2009 (2) CTC 185],
11. KOTHARI INDUSTRIAL CORPORATION LTD. vs. KOTAK MAINDRA BANK LTD. [2009-4-L.W. 242]
14. In the first judgment cited above in ANOOP JAISWAL vs. GOVERNMENT OF INDIA AND ANOTHER [(1984) 2 SCC 369], the Honourable Apex Court has held:
"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 the 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."
15. In the second judgment in ISHWAR CHAND JAIN vs. HIGH COURT OF PUNJAB AND HARYANA AND ANOTHER [(1988) 3 SCC 370], the petitioner therein was appointed as Additional District and Sessions Judge on probation for a period of two years in accordance with Rule 10(1) of the Punjab Superior Judicial Service Rules, 1963 and while he was posted at Hissar, the Bar Association of Hissar passed a resolution against him as a result of which he was transferred from Hissar to Narnaul as Additional District and Sessions Judge. While the petitioner was posted at Narnaul inquiry into certain complaints again him was held by a Judge of the High Court and after the inquiry, the High Court at tits meeting held on 21.3.1985, resolved that the petitioner's work and conduct was not satisfactory during his probationary period and as such his services deserved to be dispensed with forthwith. In those circumstances, the Honourable Apex Court has held that:
"The High Court had no relevant material in coming to the conclusion that the appellant's work and conduct were not satisfactory during his probationary period. Some of the materials which were taken into account were non-existent and the others were not relevant and further the allegations which were taken into consideration remained unsubstantiated. The resolution passed by the Bar Association against the appellant was wholly unjustified and the complaints made by the advocates were motivated which did not deserve any credit. Even the vigilance judge after holding enquiry did not record any finding that the appellant was guilty of any corrupt motive or that he had not acted judicially. All that was said against him was that he had acted improperly in granting adjournments. Having regard to the entire material, it must be held that the High Court committed error in holding that the appellant's work and conduct were not satisfactory and that his services were liable to be terminated."
"Every judicial officer is likely to commit mistake of some kind or the other in passing orders in the initial stage of his service which a mature judicial officer would not do. However, if the orders are passed without there being any corrupt motive, the same should be overlooked by the High Court and proper guidance should be provided to him. If after warning and guidance the officer on probation is not able to improve,his services should be terminated."
"Under the Constitution, the High Court has control over the subordinate judiciary. While exercising that control it is under a constitutional obligation to guide and protect judicial officers by ignoring ill-conceived or motivated complaints made by unscrupulous lawyers and litigants. An independent and honest judiciary is a sine qua non for rule of law. If judicial officers are under constant threat of complaint and enquiry on trifling matters and if High Court encourages anonymous complaints to hold the field the subordinate judiciary will not be able to administer justice in an independent and honest manner. Similarly, 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."
16. But, in the cases on hand, the High Court has not acted on any complaint of corrupt practices against the petitioners, to apply the above judgment of the Honourable Apex Court. Having scrupulously verified the judgments of the petitioners and assessing their overall performance, as has been directed by the Honourable Apex Court in Brij Mohanlal's case, the impugned orders of termination were passed against the petitioners, that too without attaching any stigma to them, but not as a punishment. Therefore, both the above judgments of the Honourable Apex Court have no application to the cases on hand.
17. In the third judgment cited above in T.RAMAMOORTHY vs. THE SECRETARY, SRI RAMAKRISHNA VIDYALAYA HIGH SCHOOL, TIRUPPARAITURAI, TIRUCHIRAPALLI DISTRICT AND 3 OTHERS [1998 Writ L.R. 641], a Division Bench of this Court has held:
"If the statutory provision enacted by the Legislature prescribed a particular mode for terminating the service or dismissing the teaching or a non-teaching staff of a school, it can and has to be done not only in that manner alone, but it cannot be done in any other manner too. This principle that where a power is given to do a certain thing in a certain way, things must be done in that way and not otherwise and that the other method of performance is necessarily precluded, is not only well settled, but squarely applies to this case also in construing the scope of the power as also its exercise by the management under Section 22 of the Act."
18. This judgment has been rendered by the Division Bench of this Court while dealing with the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, wherein the termination order was slapped on the employee, when the Management's application for sanction to terminate the services of teacher was kept pending by the Competent Authority. The facts on hand are quite different from the above case and hence, this judgment of the Division Bench also has no application to the cases on hand.
19. In the fourth case cited above in MADAN MOHAN CHOUDHARY vs. STATE OF BIHAR AND OTHERS [(1999) 3 SCC 396], a Judicial Officer, whose performance and integrity was otherwise reported not bad, was compulsorily retired on the basis of a single act of granting anticipatory bail in a criminal case under
Section 307 IPC and the Honourable Apex Court has held such compulsory retirement as bad and set aside the same. But, in the cases on hand, the very performance of the petitioners was found to be not satisfactory, resulting in their termination. Therefore, this judgment of the Honourable Apex Court also has no application to the facts of the case.
20. In the fifth judgment cited above in STATE OF JHARKHAND AND OTHERS vs. AMBAY CEMENTS AND ANOTHER [2005 (1) CTC 223], a Three Judge Bench of the Honourable Apex Court has held:
"Cardinal rule of interpretation is that where a Statute provides that a particular thing should be done, it should be done in manner prescribed and not in any other way. Penal Statute should be strictly construed and followed."
21. This judgment has been rendered by the Honourable Apex Court while dealing with the taxing provisions. But, there cannot be any doubt regarding the proposition that where a Statute provides that a particular thing should be done, it should be done in manner prescribed and not in any other way. In the cases on hand, the performance of the petitioners was assessed by a Committee consisting of Three Honourable Judges of this Court, in due compliance of the guidelines issued by the Honourable Apex Court in Brij Mohanlal's case. Therefore, even this judgment of the Honourable Apex Court, cited on the part of the learned counsel for the petitioner would, in no way, help their case.
22. In the sixth case relied on by the learned counsel for the petitioners, in D.AMALADOSS vs. STATE OF TAMIL NADU, REP.BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT (COURTS I-A) CHENNAI AND ANOTHER [(2006) 4 MLJ 1360], a Division Bench of this Court, headed by one of us (Elipe Dharma Rao, J.), while dealing with a case of a Judicial Officer, who was dismissed from service, after conducting an enquiry with a delay of six years in initiating and completing the enquiry, based on the complaint given by persons involved in criminal cases, has quashed the departmental proceedings and the order of dismissal, observing as follows:
"Departmental proceedings cannot be initiated against Judicial Officers on the basis of ill-conceived or motivated complaints made by unscrupulous litigants and lawyers. Order of dismissal from service, passed against the Judicial Officer on the basis of complaint made by persons involved in criminal cases are liable to be quashed."
As has already been observed supra, these are not the cases of any disciplinary action initiated on the petitioners. Therefore, this judgment also has no application to the cases on hand.
23. In the seventh case relied on by the learned counsel for the petitioners in MATHURA PRASAD vs. UNION OF INDIA AND OTHERS [(2007) 1 SCC 437], the Honourable Apex Court has held:
"When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedures laid down under the sub-rules are required to be strictly followed. A judicial review would lie even if there is an error of law apparent on the face of the record. If statutory authority uses its power in a manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact for sufficient reasons may attract the principles of judicial review."
24. Even in the above case, the enquiry officer has failed to follow the procedures laid down. But, as has repeatedly been observed by us throughout, it is not a case of any disciplinary proceeding and enquiry and the performance of the petitioners was assessed by a Committee of three Honourable Judges of this Court, as has bee directed by the Honourable Supreme Court in Brij Mohanlal's case. Therefore, the above proposition laid down by the Honourable Apex Court has no application to the cases on hand.
25. In the eighth case relied on by the learned counsel for the petitioner in NEHRU YUVA KENDRA SANGATHAN vs. MEHBUB ALAM LASKAR [(2008) 2 SCC 479], a probationer was terminated by a non-speaking order, informing him that in an enquiry conducted behind his back, he was found guilty of misappropriation of Government fund. For the above said reasons that it is not a case of disciplinary enquiry, this judgment of the Honourable Apex Court also has no application to the facts of the cases on hand.
26. In the ninth judgment relied on by the learned counsel for the petitioner in ROOP SINGH NEGI vs. PUNJAB NATIONAL BANK AND OTHERS [(2009) 3 MLJ 934 (SC)], the Honourable Apex Court has held:
"The departmental proceedings are quasi-judicial proceedings. The findings in such proceedings must be based on evidence and supported by reasons. Though the Evidence Act is not applicable to such proceedings, principles of natural justice would apply. Suspicion of guilt of delinquent officer, however high, may not be a substitute for proof."
27. In the tenth judgment relied on by the learned counsel for the petitioner in UMA NATH PANDEY AND OTHERS vs. STATE OF U.P. AND ANOTHER [2009 (2) CTC 185], the Honourable Apex Court has held:
"Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice."
"Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice."
28. In this matter, the Revision petition filed by a party to a Criminal proceeding was allowed by the High Court without even issuing notice to the other party and such an order was appealed. In those circumstances, the Honourable Apex Court has considered the violation of natural justice and allowed the appeal on the sole ground of violation of natural justice, after considering and analyzing all the principles relating to natural justice. Though there cannot be any dispute with regard to the proposition laid down by the Honourable Apex Court, the above said judgment cannot, in any manner, augment the cause of the petitioners, since as has already been observed by us supra, the impugned orders of termination were passed by the respondents, only having found the services of the petitioners as not satisfactory, that too without attaching or attributing any stigma to them.
29. In the last judgment relied on by the learned counsel for the petitioner in KOTHARI INDUSTRIAL CORPORATION LTD. vs. KOTAK MAINDRA BANK LTD. [2009-4-L.W. 242], a Division Bench of this Court, while dealing with an appeal arising from and out of the Companies Act regarding an order of winding up, has held that:
"Where a statute requires to do a certain thing in a certain way, the thing must be done in that way and all other methods of performance are necessarily forbidden....."
30. Though there cannot be any doubt that where a Statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way, it should be mentioned that in the cases on hand, the performance of the petitioners was assessed by a Committee consisting of Three Honourable Judges of this Court, in due compliance of the guidelines issued by the Honourable Apex Court in Brij Mohanlal's case. Therefore, even this judgment of the Honourable Apex Court, cited on the part of the learned counsel for the petitioner would, in no way, help their case.
31. At the cost of repetition, we want to insist that these are not the cases of disciplinary proceeding matters, so as to say that the procedure contemplated under the Rules in such disciplinary matters should be scrupulously followed. Even in the impugned orders of termination, no stigma has been attached to the petitioners so as to say that the impugned orders of termination are punitive in nature.
32. At this juncture, it is not out of place to mention that it was in the 4th Century B.C. when the wise Greek philosopher Socrates said that there are four qualities required in a Judge to hear courteously, to answer wisely, to consider soberly and to decide impartially
33. Dispensation of justice is an attribute of God. Blessed are those on whom that Godly assignment has befallen. Still blessed are those who acquit themselves of such assignment with pride, dignity and honour.
34. The qualities of a good Judge include patience, wisdom, courage, firmness, alertness, incorruptibility and the gifts of sympathy and insight. In a democracy, a judge is accorded great respect by the state as well as its citizens. He is not only permitted to assert his freedom and impartiality but also expected to use all his forensic skill to protect the rights of the individual against arbitrariness. Though such a state of affairs makes it easy for the judge to exercise his functions, he still requires many qualities to perform his duties effectively.
35. In the execution of his functions, a Judge has to exercise patience and alertness so that he can hear all the arguments of the contending parties to a dispute and arrive at a wise decision. An impatient Judge can hardly act with reason, however wise he may be. Patience and alertness are therefore essential qualities of a good Judge.
36. Justice delayed is justice denied, at the same time, it is to be remembered that sheer quantum justice without quality would be disastrous. The elements of judiciousness, fairness, equality and compassion cannot be allowed to be sacrificed at the altar of expeditious disposal. But justice has to be imparted and justice cannot be hurried to be buried. We have to decide the cases and not just dispose them of.
37. The second respondent/High Court has submitted that there are periodical reviews of the judgments and found that the petitioners have not followed the procedure contemplated, while disposing the cases and there is poor performance by the petitioners throughout. It has been strenuously submitted on the part of the second respondent that the impugned orders of termination were passed on the petitioners, who are probationers, since their services are not satisfactory and not as a punishment.
38. The Registry of this Court has placed before us the entire files consisting of the Minutes of the Performance Assessment Committee, the Administrative Committee and the Full Court. A thorough and careful scrutiny of the entire materials placed on record would show that only having disappointed at the performance of the petitioners, in discharge of their duties as the Fast Track Court Judges, on assessment of their judgments. No stigma has been attached or attributed to the petitioners by the respondents while terminating their services. We are also able to see that no discrimination between direct recruits and promotees has been shown by the Registry, while assessing their performance.
39. At this juncture, we feel it apt to quote the judgment of the Honourable Apex Court in HUKAM CHAND KHUNDIA vs. CHANDIGARH ADMINISTRATION AND ANOTHER [(1995) 6 SCC 534], wherein it has been held that 'the order of termination simpliciter passed on an employee holding temporary post on probation is neither arbitrary, nor capricious nor punitive in substance.'
40. Further, in RADHEY SHYAM GUPTA vs. U.P.STATE AGRO INDUSTRIES CORPORATION LTD. AND ANOTHER [(1999) 2 SCC 21], the Honourable Apex Court has held:
"The termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer. It is done only with a view to decide whether he is to be retained or continued in service...."
41. Even a Division Bench of this Court in S.VIDYASHANKAR vs. UNION OF INDIA [2007 (1) L.L.N. 345], has held that 'the order of termination of service of a probationer on ground that his services are not found to be satisfactory, does not cast a stigma on the probationer.'
42. Since the petitioners have not performed their assigned divine duties of rendering justice in the manner expected and exhibited their poor performance, which, if allowed to continue, would shake the confidence of the people in the entire justice delivery system, only after assessing their performance by a Committee consisting of Three Honourable Judges of this Court, in due compliance of the guidelines issued by the Honourable Apex Court in Brij Mohanlal's case, their services were terminated by the respondents, wherein we find no illegality or irregularity to cause our interference. The impugned orders of termination are the orders of termination simpliciter, without attaching any stigma to the petitioners. When such orders of termination simpliciter were passed against the petitioners, admittedly the probationers, that too without attaching any stigma, it cannot be said that such orders are punitive in nature, as has been tried to be branded on the part of the petitioners.
For all the above reasons and discussions, we see no ground to entertain these writ petitions. Accordingly, all these writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are also dismissed.
Rao To
1.The Chief Secretary, Government of Tamil Nadu, Fort St.George, Chennai-600009.
2.The Registrar General, High Court, Madras-104.
3.The Govt.of Tamil Nadu, rep.by its Secretary to Government, Home (IA) Department, Chennai 600 009