Central Administrative Tribunal - Delhi
P-3 vs Union Of India on 9 December, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 3544/2009 New Delhi this the 9th day of December, 2010. Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) Pradip Kumar Das, C-II/12, Satya Marg, Chanakyapuri, New Delhi-110021. Permanent address: P-3, CIT Scheme, 114 B Prince Anwar Shah Road, Kolkata-700 045. Applicant (By Advocate Shri Saurabh Kirpal, Shri A.K.Behera, Shri Ravi Shetty, Mrs. Jasmine Ahmed and Shri S.Nayak ) VERSUS 1. Union of India, Through the Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi 110 001 2. The President, Customs, Excise and Service Tax Appellate Tribunal, West Block No.2, R.K.Puram, New Delhi-110066. 3. Director of Estates, Directorate of Estates, Nirman Bhawan, New Delhi. .. Respondents (By Advocate Shri Dayan Krishnan with Shri Nikhil Nayyar and Shri R.N. Singh ) O R D E R Mr. L.K.Joshi, Vice Chairman (A) :
Two questions arising for adjudication in this OA are whether the Applicant would be considered deemed to have been confirmed from probation after the prescribed one year of probation, though provision existed for extension by two years, one year at a time, when the probation was extended towards the end of the third year, simultaneously for both the years; and whether the order of the Applicants discharge from service would be considered punitive and not termination simpliciter. The following two orders have been assailed in this OA:
(a) order number 4 of 2009, issued by the first respondent, Department of Revenue, by which the period of probation of the Applicant as Member (Judicial) in the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has been extended retrospectively for a period of two years simultaneously; and
(b) order number 5 of 2009 issued by the first Respondent, whereby the Applicant has been discharged forthwith from service as Member (Judicial) in the CESTAT, under Rule 8(3) of the Customs, Excise and Service Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1987 (hereafter the Rules of 1987).
2. The CESTAT was created by introducing Sections 129 to 129 E in the Customs Act, 1962 to hear appeals against the orders passed by the Commissioners of Customs and Excise ( Service Tax included later on), which were being heard by the High Courts under their writ jurisdiction. The appeals lie directly to the Honourable Supreme Court in cases involving valuation or rate of duty and to the Honourable High Courts in other cases. The eligibility conditions for being Judicial Member of the CESTAT prescribed in the Rules of 1987 are:
(i) for being eligible for Judicial Member a person has to have:
(a) held a judicial office for 10 years, or
(b) being a member of the Indian Legal Service having held a post in Grade I thereof, or any equivalent or higher post, for at least 3 years, or
(c) being an advocate for at least 10 years.
(ii) Rule 8 of the Rules of 1987 deal with probation. The Rule is extracted below:
"8. Probation-
(1) Every person appointed as a Member shall be on probation for a period of one year.
(2) The Central Government may extend the period of probation for a further period of one year at a time so that the period of probation in aggregate may not exceed three years.
(3) The Member may be discharged from service at any time during the period of probation without assigning him any reason."
(iii) Rule 9 of the Rules of 1987 is also extracted below:
"9. Reversion or Termination of the Service of Members. (1) In case of a person appointed as a judicial Member directly from the Bar, unless he is confirmed, the appointments may be terminated by the Central Government at any time without assigning any reason after giving him one month's notice of such termination and in case such Judicial Member wishes to resign, he shall be required to give one month's notice to the Central Government."
The Applicant was a practising advocate at the Calcutta High Court and CESTAT for 20 years dealing mainly with the Customs, Excise and Service Tax matters. On 22.04.2006 the Applicant appeared for interview before the committee comprising Honourable Judge of the Supreme Court as Chairman and Secretary Legal Affairs, Secretary, Department of Revenue and the President of the CESTAT as Members. He was offered appointment as Member (Judicial) of the CESTAT by letter dated 23.10.2006. The terms and conditions of the service were annexed with the offer of appointment. He was appointed as Member (Judicial) by order dated 07.11.2006. The Applicant assumed the charge of office on 22.11.2006. The Applicant completed his one-year period of probation on 21.11.2007. No order extending the period of probation was issued. The Applicant continued to work as Member (Judicial). He served under three Presidents, namely, Justice Abichandani, Justice S N Jha and Justice R M Khandparkar. He never received any adverse comment from any one of them during his tenure of service as Member (Judicial). The Applicant also got his increment in his salary. Just when he assumed that his probation would have come to an end, to his utter chagrin he received the order dated 19.11.2009 extending his probation first up to 21.11.2008 and then further up to 21.11.2009. The Applicant tendered his resignation from the post of Member on 20.11.2009 (Annex A-8). However, the order number 5 of 20.11.2009 discharging the Applicant from service was issued. The Applicant withdrew his resignation by letter dated 23.11.2009 under Rule 9 (2) of the Rules of 1987, within the prescribed period.
3. The learned counsel for the Applicant has drawn our attention to the note dated 26.11.2007 in file number F.No. 27/22/2005-Ad.1C, obtained under the Right to Information Act, 2005, in which it has been mentioned that action for initiation of the process of confirmation of the Applicant, which was due on 22.11.2007, would be initiated in a new file. On 23.01.2008 a noting was made for calling for the ACRs of the Applicant and two other Members. On 06.06.2008 Justice S N Jha, President of the CESTAT, wrote to the Secretary, Department of Revenue, requesting him to take steps for the confirmation of some of the Members of the CESTAT, including the Applicant. The Vigilance Cell of the first Respondent also conveyed its clearance from vigilance angle regarding the Applicant. On 14.09.2009, the Applicant received a note from the President of the CESTAT annexing therewith a copy of a complaint from Members of the Bar about an incident alleged to have occurred in the Applicant's Court on 09.09.2009 and also requesting for his report about the incident. The complaint was about misbehaviour by the departmental representatives with the Members of the Bar. The President of the CESTAT prepared the report dated 18.11.2009 regarding this incident in which, inter alia, the following observations were made regarding the conduct of the Applicant:
15. It must be noted that, whenever any act of misbehaviour on the part of the parties or their representatives takes place in the Court, it is essentially for the Presiding Officer to administer proper control and to try to defuse the tension, if any, caused on that count and not to retire immediately to the Chamber. Abstaining from and abandoning the Court in such a situation and leaving it open and free for all could result in encouraging indiscipline in the Court. Merely because some of the representatives of the parties start raising voice or make allegations against the Bench, it would not be proper to abandon the Court functioning and to retire to Chamber. Rather the Presiding Officer has to try to control such situation by use of administrative acumen. In the case in hand, there does not appear any efforts made by the Presiding Officer in that regard. The learned counsel for the Applicant has submitted that there was nothing in the report, which would merit the discharge of the Applicant from the post of Member (Judicial).
4. The Applicant had been granted increments in his salary on 27.11.2007 and 27.11.2008. The learned counsel for the Applicant has submitted in this regard that the grant of increments would show that the performance of the Applicant had been satisfactory. Reliance has been placed on Ajit Singh and others V. State of Punjab and another, (1983) 2 SCC 217. The Honourable Supreme Court made the following observations in the paragraphs 10 and 17 of the judgement:
10. This conclusion is buttressed by another circumstance appearing in the record. When each of the petitioners completed his one year of service, which marked the expiration of the period of probation, an increment was released in his favour. Subject to the specific rule to the contrary, ordinarily no increment is earned during the period of probation. But at any rate, if an increment can be earned after the expiry of the period of probation, it would depend upon the satisfaction of the appointing authority that the work and conduct of the probationer was satisfactory. Further Rule 4.7 of the Punjab Civil Service Rules, Vol 1 provides that an increment shall ordinarily be drawn as a matter of course, unless it is withheld. An increment may be withheld from a government employee by a competent authority if his conduct has not been good or his work has not been satisfactory. Now almost all the petitioners completed their one-year service by June 1980. An increment was released in favour of each of them. It is implicit in release of increment that the petitioners had satisfactorily discharged their duty during the probation period, and at any rate the work and conduct was not shown to be unsatisfactory, which permitted an increment to be earned. Assuming, as contended for on behalf of the respondents that period of probation was two years, the fact that on the expiry of one year of service an increment was released, would imply that during the period of one year the work and conduct has not been unsatisfactory. If it was otherwise the release of increment could have been interdicted on the ground that neither the work nor the conduct was satisfactory. The fact that the increment was released would at least permit an inference that there was satisfactory completion of the probation period and that during the probationary period, the work and conduct of each of the petitioners was satisfactory.
. . .
17. The fourth and fifth grounds for dispensing with the services of the petitioners were that the probationers being probationers had no right to the posts, and their performance in the opinion of the appointing authority was not satisfactory are wholly untenable because the period of probation had expired and they were continued in service after allowing each one of them to earn an increment. It is a permissible inference that till allowing each petitioner to earn his increment, his service and work were deemed to be satisfactory and nothing is pointed out to us as to what occurred in respect of 11 petitioners simultaneously within hardly a period of less than six weeks since the release of increment to stigmatise each one of them that his work and conduct was not satisfactory. Therefore, the conclusion is inescapable that none of the reasons assigned for dispensing with the services of the 11 petitioners is tenable. The learned counsel would contend that the Rule 4.7 of the Punjab Rules, referred to in the paragraph 10 of the judgement, is in pari materia with FR 24, which reads thus:
24. An increment shall ordinarily be drawn as matter of course unless it is withheld. An increment may be withheld from a Government servant by the Central Government or by any authority to whom the Central Government may delegate this power under Rule 6, if his conduct has not been good or his work has not been satisfactory. In ordering the withholding of an increment, the withholding authority shall state the period for which it is withheld, and whether the postponement shall have the effect of postponing future increments. Referring to the instructions of the Ministry of Home Affairs dated 15.04.1959, the learned counsel would contend that the probation should not be extended as a matter of routine. The said instructions are extracted below:
Confirmation of probationers A person appointed against a permanent post as a direct recruit with definite conditions of probation is to be confirmed in the grade with effect from the date on which he successfully competes the period of probation. The decision whether he should be confirmed or his probation extended should be taken soon after the expiry of the initial probationary period, i.e., ordinarily within 6 to 8 weeks and communicated to the employee together with the reasons in case of extension. Even though the meetings of the DPC may be held after the termination of the period of probation of direct recruits, a person appointed against a permanent post with definite conditions of probation is to be confirmed in the grade with effect from the date on which he successfully competes the period of probation. A probationer who is not making satisfactory progress or who shows himself to be inadequate for the service should be informed of his shortcomings well before the expiry of the original probationary period so that he can make severe efforts at self-improvement. It was further submitted that by the Office Memorandum dated 28.08.1998 the Department of Personnel and Training had given the following directions:
"4. In view of the above, it is once again reiterated that decision to confirm a probationer to extend the period of probation, as the case may be, should be communicated to the probationer in normally within six to eight weeks.
In order to ensure that delays do not occur in confirmation, timely action must be initiated in advance so that time-limit is adhered to."
It was contended that the Respondents did not follow these instructions issued by the Government. Reliance has been placed on Dr. Mrs. Sumati P. Shere V. Union of India and others, (1989) 3 SCC 311. Specific advertence has been made to paragraph 5 of the judgement, which is reproduced below:
5. We must emphasize that in the relationship of master and servant there is a moral obligation to act fairly. An informal, if not formal, give-and-take, on the assessment of work of the employee should be there. The employee should be made aware of the defect in his work and deficiency in his performance. Defects or deficiencies; indifference or indiscretion may be with the employee by inadvertence and not by incapacity to work. Timely communication of the assessment of work in such cases may put the employee on the right track. Without any such communication, in our opinion, it would be arbitrary to give a movement order to the employee on the ground of unsuitability. It was urged that the Applicant's disposal has been satisfactory and the report about the disposal of cases was being sent to the President regularly. A copy of the report about the disposal by the Applicant sent to the President has been placed at page 120 of the paper book. It was also submitted, as pleaded in paragraph 4. 11 of the OA, that most of the orders passed by the Applicant were upheld by the Honourable High Court. The learned counsel would further contend that minor infringements of instructions could not lead to the drastic action of discharge of a judicial officer on probation. Reliance has been placed on Ishwar Chand Jain V. High Court of Punjab and Haryana, AIR 1988 Supreme Court 1395, in which it has been held thus in paragraph 13:
13. As far as the confidential roll of the appellant is concerned it is noteworthy that when the High Court considered the matter on 21-3-1985 the appellant's annual report was available only for the first year of his service namely 1983-84. The report for that year was satisfactory. Entry for the year 1984-85 was awarded by Justice S. P. Goyal who was Inspecting Judge on 15-4-1985. He awarded Grade 'B' plus to the appellant which means that appellant's work was good. But this entry could not be taken into consideration by the High Court as it had already taken the decision on 21-3-1985 to dispense with the appellant's services. We are distressed to find that when the aforesaid entry for 1984-85 came up for consideration before the full court of the High Court it modified the same and down-graded the entry from 'B' plus to 'C' which means appellant's work was unsatisfactory. During the hearing we asked the learned counsel appearing for the High Court to produce material on the basis of which the High Court modified the entry given by Justice S. P. Goyal for the year 1984-85 but he was unable to place any material before us to support the decision of the High Court in modifying the entry. The modification of the entry is therefore without any material and is not sustainable in law. It is thus clear that so far as annual entry on the appellant's confidential roll is concerned there was no material against him which could show that the appellant's work and conduct was unsatisfactory. The facts and circumstances discussed earlier clearly show that the appellant's services were terminated merely on the basis of the report made by the vigilance judge which we have discussed in detail earlier. The note appended to the agenda of the meeting referred only to the inquiry report and it did not refer to any other matter. The Vigilance Judge failed to express any positive opinion against the appellant; instead he observed that the complaints required further investigation. If the High Court wanted to take action against the appellant on the basis of the complaints which were the subject of enquiry by the vigilance judge, it should have initiated disciplinary proceedings against the appellant, then the appellant could get opportunity to prove his innocence. We have already discussed in detail that the facts stated in the complaints and the report submitted by the vigilance judge did not show any defect in appellant's work as a judicial officer. While considering complaints of irregularities against a judicial officer on probation the High Court should have kept in mind that the incidents which were subject matter of enquiry related to the very first year of appellant's service. Every judicial officer is likely to commit mistake of some kind or the other in passing orders in the initial stage of his service which a mature judicial officer would not do. However, if the orders are passed without there being any corrupt motive, the same should be 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.
5. During the course of the arguments the Respondents were directed to place the record pertaining to the discharge of the Applicant for the perusal of the Tribunal. From the perusal of the relevant file, we found that the letter dated 16.11.2009 had been written by the President of the CESTAT addressed to the Secretary of the first Respondent, in which it was mentioned that the Applicant was not fit and suitable to be continued as Member (Judicial) of CESTAT taking into consideration his overall unsatisfactory performance. He requested for the discharge of the Applicant from the CESTAT "in the best interest of our institution." The President also mentioned in the aforementioned communication that many of the orders passed by the Applicant ex facie disclose that he entertains appeals against the orders of the Commissioner (Appeals), which is specifically barred under Section 35 C of the Central Excise Act, 1944 and he invariably interface in such orders. It was also stated that in spite of being assigned the work of Single Member, he entertains and decides the appeal which are to be heard by a Division Bench. It was further mentioned that the jurisdiction of the Single Member Bench was restricted to the maximum limit of Rs.10 lakhs.
6. The learned counsel for the Applicant submitted that no specific order of the Applicant had been mentioned and, therefore, it would be difficult to deny or explain the allegation regarding transgression of jurisdiction. However, it was contended that the point regarding the absence of jurisdiction had never been taken in appeal by the Respondents before the higher judicial forum. He would contend that several precedents could be pointed out in which similar orders were passed by the Members and considering those, the orders passed by the Applicant would be considered to be within his jurisdiction. It was vehemently contended that the order of discharge from service was punitive as it was based on unsubstantiated allegations about the Applicant transgressing his jurisdiction in judicial matters and his inability to manage the court properly, as stated by the President in his report, referred to above. It was argued that the Respondents should have given the Applicant the opportunity to explain his conduct and defend himself and by not affording him an opportunity the Respondents had acted in violation of the principles of natural justice. It was argued that the Tribunal could lift the veil and look into the reasons for the discharge of the Applicant. Reliance has been placed on Anoop Jaiswal V. Government of India and another, (1984) 1 SLR 426, in which the Supreme Court held that the Courts can go behind the order and lift the veil to see the nature of the order. The observations of the Honourable Supreme Court are reproduced below:
It is, therefore, now well settled 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 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. (emphasis supplied).
Reliance has also been placed on the judgement of this Tribunal in Dr. Punita K. Sodhi V. Union of India, OA number 1895/2009, decided on 06.01.2010, in which it was held on the basis of the noting in the file that the order was punitive.
7. The learned counsel for the Applicant would further contend that the Rule 8 of the Rules of 1987 provided for probation for a period of one year. It is pointed out that the probation could be extended after one year for a period of two more years subject to the condition that the probation would be extended for a further period of one year at a time. Since the probation of the Applicant was not extended after one year for another period of one year after completion of an year in November 2007, the Applicant would be deemed to have been confirmed. Reliance has been placed on State of Punjab V. Dharam Singh, AIR 1968 SC 1210, in which the Honourable Supreme Court has observed in paragraph 5 and 9 as under:
5. In the present case, Rule 6 (3) forbids extension of the period of probation beyond three years. Where, as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication.
. . .
9. Immediately upon completion of the extended period of probation on October 1, 1960, the appointing authority could dispense with the services of the respondents if their work or conduct during the period of probation was in the opinion of the authority unsatisfactory. Instead of dispensing with their services on completion of the extended period of probation, the authority continued them in their posts until sometime in 1963, and allowed them to draw annual increments of salary including the increment which fell due on October 1, 1962. The rules did not require them to pass any test or to fulfil any other condition before confirmation. There was no compelling reason for dispensing with their services and re-employing them as temporary employees on October 1, 1960 and the High Court rightly refused to draw the inference that they were so discharged from services and re-employed. In these circumstances, the High Court rightly held that the respondents must be deemed to have been confirmed in their posts. Though the appointing authority did not pass formal orders of confirmation in writing, it should be presumed to have passed orders of confirmation by so allowing them to continue in their posts after October 1, 1960. After such confirmation, the authority had no power to dispense with their services under Rule 6 (3) on the ground that their work or conduct during the period of probation was unsatisfactory. It follows that on the dates of the impugned orders, the respondents had the right to hold their posts. The impugned orders deprived them of this right and amounted to removal from service by way of punishment. The removal from service could not be made without following the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and without conforming to the constitutional requirements of Article 311 of the Constitution. As the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, 1952 was not followed and as the constitutional protection of Article 311 was violated, the impugned orders were rightly set aside by the High Court. It may at this stage be mentioned that the Applicant had dropped the contention regarding the deemed confirmation after some arguments initially, after considering the judgement of the Tribunal in OA number 1895/2009, Dr. Punita K. Sodhi (supra) decided on 06.01.2010, in which the identical issue of deemed confirmation was discussed. However, the argument regarding deemed confirmation has been revived by the learned counsel for the Applicant citing the judgement of Dharam Singh (supra).
8. The Respondents would contend that the reliance of the Applicant on the notes in the file on the subject of confirmation is futile because the process of confirmation was far from complete even in May 2009, as would be seen from the note dated 11.05.2009, placed at page 156 of the paper book, in which it was mentioned that the comments from the President, CESTAT, were still awaited. A reminder was sent to the CESTAT in this regard. It was contended that grant of increments does not ipso facto mean confirmation. The learned counsel for the Respondents would contend that the case of Ajit Singh (supra) was not a case for the proposition that if an employee earned an increment than he/she would be considered to have been confirmed. It was submitted that, as recorded in paragraph 5 of the judgement in the above cited case, the controversy was regarding the period of probation of each of the appointee. Paragraphs 7, 9 and 10 of the judgement have been cited to illustrate the above point:
7. When the master-servant relation was governed by the archaic law of hire and fire, the concept of probation in service jurisprudence was practically absent. With the advent of security in public service when termination or removal became more and more difficult and order of termination or removal from service became a subject-matter of judicial review, the concept of probation came to acquire a certain connotation. If a servant could not be removed by way of punishment from service unless he is given an opportunity to meet the allegations if any against him which necessitates his removal from service, rules of natural justice postulate an enquiry into the allegations and proof thereof. This developing master-servant relationship put the master on guard. In order that an incompetent or inefficient servant is not foisted upon him because the charge of incompetence or inefficiency is easy to make but difficult to prove, concept of probation was devised. To guard against errors of human judgment in selecting suitable personnel for service, the new recruit was put on test for a period before he is absorbed in service or gets a right to take post. Period of probation gave a sort of locus pententiae to the employer to observe the work, ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserved a 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. Viewed from this aspect, the Courts held that termination of service of a probationer during or at the end of a period of probation will not ordinarily and by itself be a punishment because the servant so appointed has no right to continue to hold such a post any more than a servant employed on probation by a private employer is entitled to. (See Purshottam Lal Dhingra v. Union of India). The period of probation therefore furnishes a valuable opportunity to the master to closely observe the work of the probationer and by the time the period of probation expires to make up his mind whether to retain the servant by absorbing him in regular service or dispense with his service. Period of probation may vary from post to post or master to master. And it is not obligatory on the master to prescribe a period of probation. It is always open to the employer to employ a person without putting him on probation. Power to put the employee on probation for watching his performance and the period during which the performance is to be observed is the prerogative of the employer.
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9. Having clearly ascertained the purpose and intendment underlying the concept of probationary period in service jurisprudence, one can confidently say, that it is not absolutely necessary to prescribe a period of probation in each case and the State Government as an appointing authority will have discretion in this matter subject to rules by which appointment is governed, otherwise the rule would be counter-productive. Highly qualified and experienced persons coming into service at a later stage in life like petitioners Ajit Singh and Rajinder Singh, who after rendering service for a long period of 26 years came to be appointed as direct recruits, would be disinclined to be on a probation for a period of two years. And the appointing authority, in this case the State Government, not any lower officer, noting their worth and value may either wholly dispense with the period of probation or reduce it considerably. If such be the purpose and intendment underlying the concept of probationary period, it is reasonable to infer that in respect of such experienced and highly qualified persons, the appointing authority, the State Government, must have prescribed the period of probation of one year. And that is why uniformly in each appointment order, the appointee concerned was told that his period of probation would be one year only. To hold with the respondents that this is a typographical-cum-clerical error is such oversimplification as would be doing violence to common sense. We are therefore, of the opinion that in case of each of the appointees the period of probation prescribed was one year only.
10. This conclusion is buttressed by another circumstance appearing in the record. When each of the petitioners completed his one year of service, which marked the expiration of the period of probation, an increment was released in his favour. Subject to the specific rule to the contrary, ordinarily no increment is earned during the period of probation. But at any rate, if an increment can be earned after the expiry of the period of probation, it would depend upon the satisfaction of the appointing authority that the work and conduct of the probationer was satisfactory. Further Rule 4.7 of the Punjab Civil Service Rules Vol. 1 provides that an increment shall ordinarily be drawn as a matter of course, unless it is withheld. An increment may be withheld from a Government employee by a competent authority if his conduct has not been good or his work has not been satisfactory. Now almost all the petitioners completed their one-year service by June, 1980. An increment was released in favour of each of them. It is implicit in release of increment that the petitioners had satisfactorily discharged their duty during the probation period, and at any rate the work and conduct was not shown to be unsatisfactory, which permitted an increment to be earned. Assuming, as contended for on behalf of the respondents that period of probation was two years, the fact that on the expiry of one year of service an increment was released, would imply that during the period of one year the work and conduct has not been unsatisfactory. If it was otherwise the release of increment could have been interdicted on the ground that neither the work nor the conduct was satisfactory. The fact that the increment was released would at least permit an inference that there was satisfactory completion of the probation period and that during the probationary period, the work and conduct of each of the petitioner was satisfactory. It was further contended that in case of the probationer it would not be necessary to advise him/her about his shortcomings in work. The Respondents have placed reliance on High Court of Judicature at Patna V. Pandey Madan Mohan Prasad Sinha and others, (1997) 10 SCC 409, in which the Honourable Supreme Court has held thus in paragraphs 6 and 7 of the judgement:
6.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. The obligation to communicate the adverse material to a person before taking action against him on the basis of the said material is a facet of the principles of natural justice. But principles of natural justice have no application in the case of termination of the services of a probationer during the period of probation since he has no right to hold the post. It is, therefore, not possible to hold that there is an obligation to communicate the adverse material to a probationer before a decision is taken on the basis of the said material that he is not fit for being retained in service. Such material can be relied upon to show that such a decision does not suffer from the vice of arbitrariness and is not capricious. In this context it may be mentioned that even with respect to persons who have been substantively appointed on a post and have a right to hold that post, it has been held that the failure to communicate the adverse remarks in the service record would not vitiate the order of compulsory retirement (See: Union of India v. M.E. Reddy and Baikuntha Nath Das v. Chief Distt. Medical Officer.)
7. Shri Swarup has invited our attention to the decision of this court in State of U.P. v. Mohd. Waqar Hussain. The said decision does not lend any assistance to his submission. In that case, after noticing the submission urged on behalf of the State on the basis of the decision in Baikuntha Nath Das that uncommunicated adverse entries could be relied upon for the limited purpose of assessing the suitability of a candidate, this court has observed that it was not necessary for the court to go into the question whether the decision of the public service commission was vitiated on account of uncommunicated adverse entries for the reason that there was nothing to show that the said decision was based on the said entries. Shri Swarup has also relied upon the decision of this court in Ranendra Chandra Banerjee v. Union of India. In that case this court was dealing with Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules, 1930 wherein it was provided that where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it before orders are passed by the authority competent to terminate the employment. Having regard to the said provision contained in Rule 55-B, this court held that the government employee was entitled to be informed of the grounds on which his services were sought to be terminated and given an opportunity to show cause against the same. The said decision cannot be construed as laying down a general proposition that in every case where services of a probationer are terminated during the period of probation, he must be apprised of the grounds for such proposal and given an opportunity to show cause against it. Since there is no provision similar to Rule 55-B in the rules governing the post of Munsif on which Respondent 1 had been appointed on probation, he cannot seek any assistance from the said decision of this court. (emphasis added) Reliance has also been placed on Progressive Education Society and another V. Rajendra and another, (2008) 3 SCC 310, in which it was held thus in paragraph 15 of the judgement:
15. .The law with regard to termination of the services of a probationer is well established and it has been repeatedly held that such a power lies with the appointing authority which is at liberty to terminate the services of a probationer if it finds the performance of the probationer to be unsatisfactory during the period of probation. The assessment has to be made by the appointing authority itself and the satisfaction is that of the appointing authority as well. Unless a stigma is attached to the termination or the probationer is called upon to show cause for any shortcoming which may subsequently be the cause for termination of the probationer's service, the management or the appointing authority is not required to give any explanation or reason for terminating the services except informing him that his services have been found to be unsatisfactory. The learned counsel for the Respondents would contend that the Honourable Supreme Court considered the judgement in Dharam Singh (supra) in High Court of MP through Registrar and others V. Satya Narayan Jhavar, (2001) 7 SCC 161 and observed thus in paragraph 37:
37. Ordinarily a deemed confirmation of a probationer arises when the letter of appointment so stipulates or the Rules governing service condition so indicate. In the absence of such term in the letter of appointment or in the relevant Rules, it can be inferred on the basis of the relevant Rules by implication, as was the case in Dharam Singh (supra). But it cannot be said that merely because a maximum period of probation has been provided in Service Rules, continuance of the probationer thereafter would ipso facto must be held to be a deemed confirmation which would certainly run contrary to Seven-Judge Bench Judgment of this Court in the case of Shamsher Singh (supra) and Constitution Bench decisions in the cases of Sukhbans Singh, G.S. Ramaswamy and Akbar Ali Khan. Reliance has also been placed on Registrar, High Court of Gujarat and another V. C G Sharma, (2005) 1 SCC 132, in which it was observed as under by the Honourable Supreme Court:
43. But the facts and circumstances in the case on hand are entirely different and the administrative side of the High Court and the Full Court were right in taking the decision to terminate the services of the respondent, rightly so, on the basis of the records placed before them. We are also satisfied, after perusing the confidential reports and other relevant vigilance files, etc. that the respondent is not entitled to continue as a judicial officer. The order of termination is termination simpliciter and not punitive in nature and, therefore, no opportunity needs to be given to the respondent herein. Since the overall performance of the respondent was found to be unsatisfactory by the High Court during the period of probation, it was decided by the High Court that the services of the respondent during the period of probation of the respondent be terminated because of his unsuitability for the post. In this view of the matter, order of termination simpliciter cannot be said to be violative of Articles 14, 16 and 311 of the Constitution. The law on the point is crystallised that the probationer remains a probationer unless he has been confirmed on the basis of the work evaluation. Under the relevant Rules under which the respondent was appointed as a Civil Judge, there is no provision for automatic or deemed confirmation and/or deemed appointment on regular establishment or post, and in that view of the matter, the contentions of the respondent that the respondent's services were deemed to have been continued on the expiry of the probation period, are misconceived.
(emphasis added) It was further contended that the arguments about deemed confirmation are merely academic in the present context considering the fact that the Applicant had not completed the period of three years prescribed for probation.
9. The learned counsel for the Respondents would further argue that the Tribunal cannot go into the reasons for termination of probation. He would contend that the probationer had no vested right to the post and that there was no concept of deemed completion of probation. He would contend that the order of discharge of the Applicant from service could not be considered to be punitive. In support of his argument paragraphs 21 and 22 of the judgement of the Honourable Supreme Court in Pavanendra Narayan Verma V. Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520 have been cited:
21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive, is to see whether prior to the termination, there was (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present, the termination has been held to be punitive irrespective of the form of the termination order. Conversely, if any one of the three factors is missing, the termination has been upheld.
22. The three factors are distinguishable in the following passage in Shamsher Singh v. State of Punjab where it was said: (SCC p. 851, para 64) "Before a probationer is confirmed, the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any rules governing a probationer in this respect, the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude, the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases, the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption and if his services are terminated without following the provisions of Article 311(2) he can claim protection."
Reliance has also been placed on Rajesh Kohli V. High Court of J and K and another, 2010 (10) SCALE 134. The contentions of the petitioner had been noted in paragraphs 6 and 8 of the judgement as follows:
6. Further, during the period when the petitioner was posted to District Kargil as Principal District & Sessions Judge, he did not join there, w.e.f., 24.12.2001 to 18.01.2002 and an explanation was sought from him in that regard. Even thereafter, a complaint from a judicial employee of District Kargil was received wherein it was alleged that the petitioner had been abusing the employees and had created lot of problems at the District Kargil. These matters are recorded in the personal records of the petitioner. After completion of the initial two years of his probationary period, his records and his case were required to be placed before Full Court for consideration of his case for confirmation or extension of period of probation or otherwise. Consequently his records were considered by the High Court in its full court meeting held on 26.04.2003 at Jammu, wherein it was resolved as under: -
..resolved that services of Shri Rajesh Kohli, District and Sessions Judge are not found satisfactory and thus the probation of the officer is not extended His services are dispensed with The aforesaid resolution of the full court meeting with the recommendation was forwarded to the State Government and the State Government passed an order on 03.07.2003, whereby the services of the petitioner was dispensed with as recommended by the Honble High Court. This action was taken in exercise of the powers vested on the competent authority under sub Rules 3 and 4 of Rule 15 of the Judicial Service Rules.
. . .
8. The petitioner appeared in person before us and submitted that the aforesaid order issued by the Government of Jammu & Kashmir of 03.07.2003 is illegal and without jurisdiction as the said order was not issued by the Governor but was issued by the Government of Jammu & Kashmir. He also submitted that the recommendation of the High Court as communicated under letter dated 05.05.2003 is also illegal and liable to be set aside as the High Court terminated the service of the petitioner under the aforesaid order for which no power is vested on the High Court to dispense with the service under its own order. It was also submitted by him that he had completed his two years probation period on 23.08.2002 and since there was no order of extension of his probation period prior to and immediately after 23.08.2002, he should be deemed to have been confirmed in the judicial service and therefore his service could not have been terminated on the ground that he was on probation. It was held thus in the judgement:
13. Since the rule permits probation to be extended for another one year and since there was no order of confirmation passed by the respondents confirming his service, the petitioner would be deemed to be continuing on probation immediately after his expiry of the initial two years of probation. In this regard, we may refer to the case of Satya Narayan Athya v. High Court of M.P. reported in (1996) 1 SCC 560 in which a judicial officer was not given any confirmation letter even after the completion of his two years of probation period. The rules in the said case provided for the extension of initial two years of probation period for a further period of two years. This Court in that case held at Paragraphs 3 & 5 that : -
3. .A reading thereof would clearly indicate that every candidate appointed to the cadre shall undergo training initially for a period of six months before he is appointed on probation for a period of two years. On his completion of two years of probation, it may be open to the High Court either to confirm or extend the probation. At the end of the probation period, if he is not confirmed on being found unfit, it may be extended for a further period not exceeding two years. It is seen that though there is no order of extension, it must be deemed that he was continued on probation for an extended period of two years. On completion of two years, he must not be deemed to be confirmed automatically. There is no order of confirmation. Until the order is passed, he must be deemed to continue on probation.
5. Under these circumstances, the High Court was justified in discharging the petitioner from service during the period of his probation. It is not necessary that there should be a charge and an enquiry on his conduct since the petitioner is only on probation and during the period of probation, it would be open to the High Court to consider whether he is suitable for confirmation or should be discharged from service.
14. During the period of probation an employee remains under watch and his service and his conduct is under scrutiny. Around the time of completion of the probationary period, an assessment is made of his work and conduct during the period of probation and on such assessment a decision is taken as to whether or not his service is satisfactory and also whether or not on the basis of his service and track record his service should be confirmed or extended for further scrutiny of his service if such extension is permissible or whether his service should be dispensed with and terminated. The services rendered by a judicial officer during probation are assessed not solely on the basis of judicial performance, but also on the probity as to how one has conducted himself.
15. The aforesaid resolution taken by the full court on its administrative side clearly indicates that the matter regarding his confirmation or otherwise or extension of his probation period for another one year was considered by the full court but since his service was not found to be satisfactory on consideration of the records, therefore, the full court decided not to confirm him in service and to dispense with his service and accordingly recommended for dispensation of his service. On the basis of the aforesaid recommendation of the High Court, an order was passed by the Government of Jammu & Kashmir dispensing with the service of the petitioner.
. . .
18. In our considered opinion, none of the aforesaid two orders could be said to be a stigmatic order as no stigma is attached. Of course, aforesaid letters were issued in view of the resolution of the full court meeting where the full court of the High Court held that the service of the petitioner is unsatisfactory. Whether or not the probation period could be or should be extended or his service should be confirmed is required to be considered by the full court of the High Court and while doing so necessarily the service records of the petitioner are required to be considered and if from the service records it is disclosed that the service of the petitioner is not satisfactory it is open for the respondents to record such satisfaction regarding his unsatisfactory service and even mentioning the same in the order would not amount to casting any aspersion on the petitioner nor it could be said that stating in the order that his service is unsatisfactory amounts to a stigmatic order.
. . .
20. In the case of Krishnadevaraya Education Trust v. L.A.Balakrishna reported in (2001) 9 SCC 319, the services of respondent-Assistant Professor were terminated on the ground that his on the job proficiency was not upto the mark. This Court held that merely a mention in the order by the employer that the services of the employee are not found to be satisfactory would not tantamount to the order being a stigmatic one. This Court held in para 5 thus: -
5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say that such a contention will succeed. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated.
6. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services. . . .
23. In the present case, the order of termination is a fall out of his unsatisfactory service adjudged on the basis of his overall performance and the manner in which he conducted himself. Such satisfaction even if recorded that his service is unsatisfactory would not make the order stigmatic or punitive as sought to be submitted by the petitioner. On the basis of the aforesaid resolution, the matter was referred to the State Government for issuing necessary orders.
24. One of the issues that were raised by the petitioner was that he was granted two increments during the period of two and a half years of his service. Therefore the stand taken by the respondents that his service was unsatisfactory is belied according to the petitioner because of the aforesaid action even on the part of the respondents impliedly accepting the position that his service was satisfactory.
25. The aforesaid submission of the petitioner is devoid of any merit in view of the fact that since the petitioner was continuing in service, therefore, the case for granting increment was required to be considered which was so granted. The mere granting of yearly increments would not in any manner indicate that after completion of the probation period the full court of the High Court was not competent to scrutinize his records and on the basis thereof take a decision as to whether or not his service should be confirmed or dispensed with or whether his probation period should be extended. The High Court has a solemn duty to consider and appreciate the service of a judicial officer before confirming him in service. The district judiciary is the bedrock of our judicial system and is positioned at the primary level of entry to the doors of justice. In providing the opportunity of access to justice to the people of the country, the judicial officers who are entrusted with the task of adjudication must officiate in a manner that is becoming of their position and responsibility towards society. (emphasis added)
10. We have also perused the file number 26/8/2006-Ad1C, which is the personal file of the Applicant, of the Department of Revenue, in which the matter regarding the discharge of the Applicant has been dealt with. The background of the case has been discussed in a note dated 19.11.2009 of the Under Secretary of the First Respondent. The note has recorded the contents of the letter dated 16.11.2009 of the President of the CESTAT regarding the transgression of the jurisdiction by the Applicant. In paragraphs 4 to 6 of the note it has been recorded that:
4. President, CESTAT has stated that all the details and materials for the purpose of formation of just and appropriate opinion on confirmation/termination of service of Sh. P.K. Das had been placed before RS and had been elaborately discussed during the meetings. He has further stated that many of the orders passed by Sh. P.K. Das exfacie disclose that he not only entertains the appeals filed against the orders of Commissioner (Appeals) which are specifically barred under Section 35C, first proviso of the Central Excise Act, 1944, but invariably interferes in such orders contrary to the provision of law. The orders by him also disclose that in spite of being assigned the work of single member, he entertains and decides the appeals which are to be entertained and decided exclusively by a Division Bench. It is further stated in the letter that the jurisdiction of a single member bench is restricted to the matters involving a dispute to the maximum limit of Rs. 10,00,000/- and those wherein the issues relation to rate of duty or value of goods for the purpose of assessment are not involved as those matters are required to be dealt with by a Diviison Bench in terms of Section 35D of the Central Excise Act, 1944 and Section 129C of the Customs Act, 1962 as well as Section 86 (7) of the Chapter v of Finance Act, 1944 in respect of service tax matters. Repeated disposal of matters in this manner in spite of specific statutory bar also apparently discloses dissatisfactory performance by a member (judicial) of the tribunal.
5. In support of the above allegations, President, CESTAT has enclosed several orders passed by Sh. P.K. Das, member (judicial) falling under the following categories:
Appeals relating to remission of duty, for loss of goods, shortage in storage of goods, drawback and rebate of duty dealt with without jurisdiction:
Remand orders Valuation and rate of duty appeals dealt with without jurisdiction:
Submission of the Departmental Representations not recorded:
Miscellaneous orders contradictions and other difficulties.
6. From the above, it is clear that on overall appreciation of the record of service of Sh. P.K.Das, President, CESTAT is of the considered opinion that Sh. P.K.Das, Member (Judicial) is unsuitable for being confirmed in CESTAT. The matter was discussed with Solicitor General of India on 17-11-2009 and as per his advice, the recommendation tendered by President, CESTAT for termination of services of Sh. P.K.Das, Member (Judicial) may be accepted and he may be discharged from service on or before 21-11-2009, the date of completion of probation, under clause 8 (3) of the RRs.
Submitted for kind approval of Honble FM. The proposal has been approved by the Finance Minister.
11. We have given utmost consideration to the rival contentions and have gone through the record placed before us.
12. The matter regarding the deemed confirmation of probation is now well-settled. The judgement in Dharam Singh (supra) has been considered in High Court of MP V. Satya Narayan Jhavar (supra) and after considering various judgements of the Honourable Supreme Court including the seven-Judge Bench judgement in Samsher Singh V. State of Punjab, (1974) 2 SCC 831 and the judgement in Dharam Singh (supra) held that the deemed confirmation would certainly run contrary to the aforementioned seven-Judge Bench and other Constitution Bench decisions. In registrar High Court of Gujarat and another V. C G Sharma (supra) it was held thus:
26. A large number of authorities were cited before us by both the parties. However, it is not necessary to go into the details of all those cases for the simple reason that sub-rule (4) of Rule 5 of the Rules is in pari materia with the Rule which was under consideration in the case of State of Maharashtra v. Veerappa R. Saboji and we find that even if the period of two years expires and the probationer is allowed to continue after a period of two years, automatic confirmation cannot be claimed as a matter of right because in terms of the Rules, work has to be satisfactory which is a prerequisite or precondition for confirmation and, therefore, even if the probationer is allowed to continue beyond the period of two years as mentioned in the Rule, there is no question of deemed confirmation. The language of the Rule itself excludes any chance of giving deemed or automatic confirmation because the confirmation is to be ordered if there is a vacancy and if the work is found to be satisfactory. There is no question of confirmation and, therefore, deemed confirmation, in the light of the language of this Rule, is ruled out. We are, therefore, of the opinion that the argument advanced by learned counsel for the respondent on this aspect has no merits and no leg to stand. The learned Single Judge and the learned Judges of the Division Bench have rightly come to the conclusion that there is no automatic confirmation on the expiry of the period of two years and on the expiry of the said period of two years, the confirmation order can be passed only if there is vacancy and the work is found to be satisfactory. The Rule also does not say that the two years' period of probation, as mentioned in the Rule, is the maximum period of probation and the probation cannot be extended beyond the period of two years. We are, therefore, of the opinion that there is no question of automatic or deemed confirmation, as contended by the learned counsel for the respondent. We, therefore, answer this issue in the negative and against the respondent. . . .
43. But the facts and circumstances in the case on hand are entirely different and the administrative side of the High Court and the Full Court were right in taking the decision to terminate the services of the respondent, rightly so, on the basis of the records placed before them. We are also satisfied, after perusing the confidential reports and other relevant vigilance files, etc. that the respondent is not entitled to continue as a judicial officer. The order of termination is termination simpliciter and not punitive in nature and, therefore, no opportunity needs to be given to the respondent herein. Since the overall performance of the respondent was found to be unsatisfactory by the High Court during the period of probation, it was decided by the High Court that the services of the respondent during the period of probation of the respondent be terminated because of his unsuitability for the post. In this view of the matter, order of termination simpliciter cannot be said to be violative of Articles 14, 16 and 311 of the Constitution. The law on the point is crystallised that the probationer remains a probationer unless he has been confirmed on the basis of the work evaluation. Under the relevant Rules under which the respondent was appointed as a Civil Judge, there is no provision for automatic or deemed confirmation and/or deemed appointment on regular establishment or post, and in that view of the matter, the contentions of the respondent that the respondent's services were deemed to have been continued on the expiry of the probation period, are misconceived. (emphasis added).
The maximum period for probation, as per rules, in the instant case was to be three years. In view of the law laid down as extracted above, even after expiry of three years, unless an order of confirmation is passed, there would be no automatic or deemed confirmation. In the context of the rules governing the Applicant, in any case, there could not be any deemed confirmation. We have already reproduced rules 8 and 9 of the Rules of 1987. It may be true that by virtue of sub-rule (2) of rule 8, the Central Government may extend the period of probation for a further period of one year at a time so that the period of probation in aggregate may not exceed three years, and it may appear, as is also the contention of the learned counsel for the applicant that once no extension was given after the period of one year, it would be a case of deemed confirmation, but provisions contained in rule 9, which in terms state that a person appointed as Judicial Member directly from the Bar, unless he is confirmed, his appointment may be terminated by the Central Government at any time without assigning any reason, would completely negate the plea raised by the learned counsel for the Applicant that if the period of probation is not extended after one year, it would be a case of automatic confirmation. If the plea aforesaid is to be accepted, rule 9 will become redundant. Moreover, in case of the Applicant the period of three years, which is prescribed for the completion of probation had not been completed. We are unable to agree with the argument of the Applicant that the probation should have been considered to have been completed after one year because it had not been extended thereafter. It would be contrary to the law laid down by the Honourable Supreme Court in the judgement cited above. The instructions that the shortcomings of the probationer should be brought to his notice are only administrative instructions and would not create any right in his favour.
13. As regards the issue about the order of discharge being punitive as it was based on the letter dated 16.11.2009 of the President, it is our considered view that eventually the discharge of the Applicant has been on the basis of his unsuitability for the job and unsatisfactory performance of his duties. There is a distinction between the case of the Applicant and the case of Dr. Punita K. Sodhi in as much as in the latter case the service of the said Dr. Sodhi was terminated on the basis of several allegations against her brought out in the note and not on the basis of her unsuitability for the job or unsatisfactory performance of duties. The semantic minefield of 'form', 'motive' and 'foundation' has been clarified in Pavanendra Narayan Verma (supra), already adverted to above. Paragraph 19 of the judgement has been reproduced below:
Thus some courts have upheld an order of termination of a probationers services on the ground that the enquiry held prior to the termination was preliminary and yet other courts have struck down as illegal a similarly worded termination order because an inquiry had been held. Courts continue to struggle with semantically indistinguishable concepts like motive and foundation; and terminations founded on a probationers misconduct have been held to be illegal while terminations motivated by the probationers misconduct have been upheld. The decisions are legion and it is an impossible task to find a clear path through the jungle of precedents. It was then observed in paragraphs 21 to 30 thus:
21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive, is to see whether prior to the termination, there was (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present, the termination has been held to be punitive irrespective of the form of the termination order. Conversely, if any one of the three factors is missing, the termination has been upheld.
22. The three factors are distinguishable in the following passage in Shamsher Singh v. State of Punjab where it was said: (SCC p. 851, para 64) "Before a probationer is confirmed, the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any rules governing a probationer in this respect, the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude, the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases, the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption and if his services are terminated without following the provisions of Article 311(2) he can claim protection." (emphasis supplied)
23. Thus in Benjamin case complaints had been received against a temporary employee. A notice had been sent to the employee to show cause why disciplinary action should not be taken against him. The inquiry officer was appointed but before the inquiry was completed, the services of the employee were terminated with one month's salary in lieu of notice. The Constitution Bench upheld the order of termination and drew a distinction between a preliminary inquiry and a departmental inquiry. It was held that a preliminary inquiry held to satisfy the Government whether there was no reason to dispense with the services of the temporary employee should not be mistaken for a departmental inquiry held to decide whether punitive action should be taken.
24. In State of U.P. v. Kaushal Kishore Shukla the employee had been appointed on a temporary basis for a fixed tenure. During the period of his service, adverse entries were made in his character roll. Complaints were also received by the auditors of the employer. A summary inquiry was held. It was found that the auditor's complaint was correct. The employee was transferred to another post. He did not join and the employer terminated his services. This Court, while upholding the order of termination said that the mere fact that prior to the issue of the termination an inquiry was held against the employee did not make the order of termination into one of punishment.
25. In Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. a full-scale inquiry was held into the allegations of bribery against a temporary employee. The Court set aside the termination because it found that the report submitted was not a preliminary inquiry report but it was in fact a final one which gave findings as to the guilt of the employee.
26. In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta the termination order itself referred to three other letters. One of the letters explicitly referred to misconduct on the part of the employee and also referred to an Inquiry Committee's report which report in its turn had found that the employee was guilty of misconduct. The termination was held to be stigmatic and set aside.
27. The case of Chandra Prakash Shahi v. State of U.P. related to a constable who was on probation after successfully completing his training. The constable completed his period of probation without blemish. One year later, his services were terminated by issuance of a notice in terms of rule 3 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. An inquiry was held into the allegations of misconduct. The Court found as a fact that the inquiry was not held to judge the suitability of the constable but with a view to punish him. The order was held to be punitive and set aside.
28. Therefore, whenever a probationer challenges his termination, the court's first task will be to apply the test of stigma or the form test. If the order survives this examination, the substance of the termination will have to be found out.
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.
30. As was noted in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences: (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 it has been held that use of the word `unsatisfactory work and conduct in the termination order will not amount to a stigma."
It is thus clear that there has not been any full-scale formal enquiry, but only facts have been brought to the notice of the competent authority about the unsatisfactory performance of the Applicant. Although it has been mentioned that the Applicant has exceeded his jurisdiction, yet it is not judgemental in the sense that allegation of favouring anyone has been made. It is only in support of general unsuitability of the Applicant. No allegations of moral turpitude are involved in this case. The competent authority could not have passed the order of discharge of the Applicant without having any material for doing so before him. The facts regarding the transgression of jurisdiction mentioned in the letter of the President have brought such material to the notice of the Finance Minister, who is the competent authority. The discharge is only on the basis of unsuitability for the job and unsatisfactory performance, as clearly mentioned in the noting in the file. We are of the considered opinion that in view of this the order of discharge is not punitive in nature. We are not going into the question whether there has been a violation of first proviso of Section 35 (C) of the Central Excise Act, 1944, which specifically bars the hearing of appeals against the orders of the Commissioner (Appeals) or violation of Section 35D(3) ibid, which bars the jurisdiction of Single Member in disputes relating to rate of duty or value of good or fine or penalty exceeding ten lakh rupees, by examining the cases decided by the Applicant, as it is a positive case of the Respondents that he has violated these instructions. The argument that such irregularities have been committed by other Members also, who have remained unchastised, cannot also be gone into in deciding this case and there is no need also to do so.
14. On the basis of the above we do not find any merit in the OA, which is accordingly dismissed. No costs.
( L.K.Joshi ) ( V.K.Bali ) Vice Chairman (A) Chairman sk