Punjab-Haryana High Court
Dr. Rakesh Mittal vs State Of Punjab And Others on 12 December, 2008
Author: Permod Kohli
Bench: Permod Kohli
C.W.P. No.10397 of 1988 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
C.W.P. No.10397 of 1988
Date of Decision: 12.12.2008
Dr. Rakesh Mittal ..........Petitioner
Versus
State of Punjab and others ............Respondents.
CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI
Present: Mr. Vivek Sharma, Advocate
for the petitioner.
Mr. S.S. Sahu, AAG, Punjab.
PERMOD KOHLI J. (ORAL)
******** Petitioner was appointed on 12.02.1985 as PCMS Class II on selection by the Punjab Public Service Commission. His appointment was on probation for a period of two years. The initial period of two years was further extended by another one year from 12.02.1987 to 11.02.1988 in exercise of the powers conferred under sub-rule 3(b)(ii) of the Punjab Civil Medical Services (Class II) Rules, 1982. During the extended period of probation, the services of the petitioner were dispensed with on account of unsatisfactory probation period vide order dated 28.10.1987 (Annexure P-3). Petitioner is aggrieved of this order.
The main thrust of the arguments of the petitioner is that the order is stigmatic in nature and could not have been passed without holding disciplinary proceedings against the petitioner. With a view to support his arguments, he has relied upon the reply filed by the respondents-State wherein the respondents have stated that the petitioner absented himself from duty while in probation. Petitioner has relied upon 2000(2) RSJ SC 127 in case of V.P Ahuja Vs. State of Punjab and others wherein following observations have been made:-
C.W.P. No.10397 of 1988 -2-
"A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice."
Further reliance is placed upon (2007) 10 SCC 71 in case of Jaswant Singh Pratapsingh Jadeja Vs. Rajkot Municipal Corporation and another wherein following observations have been made:-
"The tests governing termination of probation are no longer res integra. When a disciplinary enquiry is initiated on the premise that there are serious allegations of misconduct on the part of the delinquent officer; his explanation thereupon had been rejected pursuant whereto a full-scale formal enquiry has been initiated culminating in a finding of guilt, the order terminating the service would be held to be stigmatic. There may also be cases where the allegations involved moral turpitude on the part of the delinquent officer. The language used in the order of termination of service may ex facie be stigmatic. The language used therein may also show that there was something over and above the assertion that the officer was found unsuitable for the job. The aforementioned tests, however, are not exhaustive."
I have perused the impugned order dated 28.10.1987 (Annexure P-3). From the reading of the order, it appears that services of the petitioner have been simply dispensed with on account of his unsatisfactory probation period and no stigma is attached to his conduct nor any alleged mis-conduct is part of the order. I have perused the reply, wherein following averments have been made:-
"His probation period was extended for one year vide order dated 28.10.1987 as his work and conduct during probation was not found satisfactory. He, however, absented from duty from 11.04.1987 while he was on probation. According to rule 11(3)
(b)(ii) of the Punjab Civil Medical Service (Class II) Rules, 1982, services of the petitioner were liable to be terminated after extending the probation period for one year because his work and conduct was not found satisfactory during the period of probation. Thus, the services of the petitioner have been rightly terminated by the Appointing Authority."
From the reply it is abundantly clear that service of the petitioner has been dispensed with for unsatisfactory probation, though reference is made to the absence of petitioner from service. Absence of petitioner is mentioned as an additonal fact, but the petitioner's services have been C.W.P. No.10397 of 1988 -3- dispensed with only on account of his unsatisfactory probation period. This is further proved from the fact that the initial period of two years' probation was further extended to one year to watch the performance of the petitioner. Mere mention of absent from duty does not mean that the petitioner's services have been terminated on account of the absence. In any event, the impugned order ex facie does not disclose any stigma.
Learned counsel for the petitioner submits that the Court should lift the veil and go behind the order to find out the reason for dispensing with the services of petitioner. From the petition, it appears that there is no ground of mala fide against any individual to persuade the Court to lift the veil to find out the mala fides in passing the impugned order. The reading of the order is sufficient to demonstrate that there is no stigma. Hon'ble Supreme Court in 2005(5) SCC 569 in case of State of Punjab and others Vs. Sukhwinder Singh made following observations:-
"In the present case neither any formal departmental inquiry nor any preliminary fact finding inquiry had been held and a simple order of discharge had been passed. The High Court has built an edifice on the basis of a statement made in the written statement that the respondent was habitual absentee during his short period of service and has concluded therefrom that it was his absence from duty that weighed in the mind of Senior Superintendent of Police as absence from duty is an misconduct. The High Court has further gone on to hold that there is direct nexus between the order of discharge of the respondent from service and his absence from duty and, therefore, the order discharging him from service will be viewed as punitive in nature calling for a regular inquiry under Rule 16.24 of the Rules. We are of the opinion that the High Court has gone completely wrong in drawing the inference that the order of discharge dated 16.03.1990 was, in fact, based upon the misconduct and was, therefore, punitive in nature, which should have been preceded by a regular departmental enquiry. There canot be any doubt that the respondent was on probation having been appointed about eight months back. As observed in Ajit Singh and others etc. V. State of Punjab and another (supra) the period of probation gives time and opportunity to the employer to watch the work ability, efficiency, sincerity and right to dispense with his service without anything more during or at the end of the prescribed period, which is styled as period of probation. The mere holding of preliminary enquiry where explanation is called from an employee would not make an otherwise innocuous order of discharge or termination of service punitive in nature. Therefore, the High Court was C.W.P. No.10397 of 1988 -4- clearly in error in holding that the respondent's absence from duty was the foundation of the order, which necessitated an inquiry as envisaged under Rule 16.24 (ix) of the Rules."
Since I have already observed that the order is not stigmatic in nature, the contention of petitioner is misplaced. In view of the above legal and factul background, this petition is dismissed.
December 12, 2008 (PERMOD KOHLI) Pankaj* JUDGE Note: Whether to be referred to the reporter? Yes.