Central Administrative Tribunal - Delhi
Hon Ble Mr. Ashok Kumar vs Uoi & Ors. Through on 23 April, 2015
Central Administrative Tribunal
Principal Bench
OA No.1584/2013
New Delhi, this the 23rd day of April, 2015
Honble Mr. Ashok Kumar, Member (A)
Honble Mr. Raj Vir Sharma, Member (J)
Mohit,
S/o Sh. Anil Kumar
R/o RzO-H/12, Tamil Enclave,
Dabri Road, Palam Dwarka,
New Delhi . Applicant
(By Advocate: Shri M.K.Bhardwaj)
Versus
UOI & Ors. through
1. The Secretary,
Ministry of Defence,
South Block,
New Delhi
2. Adjutant General Branch,
Integrated Headquarter of MoD,
DHQ PO, New Delhi
Through Provost Marshal,
3. The Sena Police Corps,
Abhilekh Karyalaya,
Corps of Military Police Records,
C/o 56 APO,
4. The Commanding Officer,
Delhi Area, Provost Unit,
Delhi Cantonment
New Delhi . Respondents
(By Advocate: Ms. Rinchen O Bhutia)
ORDER
Ashok Kumar, Member (A):
Applicant in the OA has challenged the impugned order dated 11.03.2013 and also order dated 05.09.2012.
2. Brief facts stated in the OA are that the applicant was selected as a Cook in February, 2011 and was made to work without appointment letter for six months. He has alleged that he was treated in inhuman manner and remained on medical leave after having collapsed on 17.02.2012. His salary was stopped after conducting exparte inquiry. Based on inquiry the impugned order of termination dated 05.09.2012 was passed.
3. The main contentions in the OA are that the impugned order dated 05.09.2012 could not have been passed under Rule 5 of CCS (Temporary Service) Rules, 1965 since his appointment was governed as per conditions mentioned in the appointment letter. Secondly, no approval was taken of the higher authority for terminating services even after resorting to Rule 5. It is also contended that the impugned order dated 05.09.2012 was stigmatic in nature since it was passed after holding exparte inquiry as stated by the respondents in their reply.
4. Reliefs sought in the OA are as under:-
i) To quash and set aside the impugned order dated 05.09.2012 & 11.03.2013 and direct the respondents to reinstate the applicant in service with all consequential benefits including arrears of pay.
ii) To direct the respondents to release the difference of salary from the date of appointment as the applicant was paid lesser salary from the date of appointment.
iii) To allow the OA with costs.
iv) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicants.
5. Counter affidavit has been filed on behalf of the respondents wherein it has been contended that the impugned order dated 05.09.2012 as well as that of 11.03.2013 are in consonance with the rules. In so far as the appointment of the applicant is concerned, during his period of probation of two years, the applicants conduct, efficiency and cooking standard were not found satisfactory and hence the competent authority had no other alternative but to exercise his powers and to pass instructions to terminate the services of the applicant under sub rule 1 of Rule 5 of the CCS (Temporary Service) Rules, 1965 vide impugned order dated 05.09.2012. Various other facts have been stated in the counter affidavit. In so far as his ACRs are concerned, the respondents have stated that no ACR is to be initiated during the probation period. Referring to Rule 5 (1) the CCS (Temporary Service) Rules, 1965, it has been averred that the appointment letter dated 25.08.2011 itself stipulated that the services of the applicant are liable to be terminated at any time on giving one month notice from either side as per Rule 5(1) of the CCS (Temporary Service) Rules, 1965. It is denied that the termination order is punitive, and further that the order being simplicitor, there is no violation of the principles of nature justice. Referring to the case of Ajit Singh Vs. State of Punjab (no citation provided), the respondents have stated in the counter affidavit that the period of probation provides an opportunity to the employer to observe the work, ability, efficiency, sincerity and competence of the employee and if he is not found suitable for the post, the employer reserves the right to dispense with his service during the prescribed period of probation. The mere holding of preliminary inquiry where explanation is called from the employee would not make an otherwise innocuous order of discharge or termination of service punitive in nature.
6. Rejoinder has been filed reiterating the facts and contentions as in the OA. It has been pointed out that the respondents have wrongly stated that the applicant was given regular weekly off and the attendance register stated to have been marked as Exhibit A & B to the counter affidavit has not been annexed.
7. We have heard learned counsel for the applicant Shri M.K.Bhardwaj. Apart from the contentions noted above, he has referred to the judgment of the Honble Supreme Court in Purshottam Lal Dhingra Vs. UOI (1958 SCR 828) and has pointed out that it has been held that if an inquiry on allegations made against an employee formed the foundation of discharge, without giving opportunity to defend himself, such an order of discharge would be bad and would be liable to be quashed. Shri Bhardwaj also cited the judgment in Nehru Yuva Kendra Sangathan Vs. Mehboob Alam Laskar ((2008) 2 SCC 479) wherein it has been held that if an order of discharge is based on misconduct, or if there is a live connection between the allegation of misconduct and discharge, then the same, even if couched in a language which is not stigmatic, would amount to punishment for which a departmental enquiry was imperative. The third judgment relied upon by the applicants counsel Shri Bhardwaj in the matter is UOI & Ors. Vs. Mahaveer C.Singhvi (2010 (7) SCALE 623 para 31 to the effect that if an order of discharge is passed as a punitive measure, the same would be invalid and would be liable to be quashed.
8. On the other hand Ms. Rinchen O.Bhutia argued for the respondents. She, apart from the contentions made in the counter reply referred to the recent judgment of the Honble High Court dated 11.12.2013 in W.P.(C ) No.97/2013 (Mr. S.P.Sharma Vs. I.F.C.I. Ltd. and another).
9. We have perused the pleadings and documents on record in detail and have given due consideration to the arguments of both the parties. It appears that the impugned order dated 05.09.2012 (Annexure A-1) was a simplicitor order terminating the services of the applicant. This order was issued in Form No.1 which is a notice of termination of services under Rule 5 (1) the CCS (Temporary Service) Rules, 1965 which reads as under:-
In pursuance of sub-rule (1) of rule 5 of the Central Civil Services (Temporary Service) rules, 1965, I hereby give notice to No.7856391L Civ/Cook Shri Mohit of Delhi Area Provost Unit, Delhi Cantt-10 that his services shall stand terminated with effect from the date of expiry of a period of one month from the date on which this notice is served on or, as the case may be, tendered to him.
10. It is apparent from the said order that no reason has been given nor any charge or allegations has been leveled against the applicant. The order appears to be non-stigmatic and simplicitor one.
11. After the impugned order was issued, the applicant had approached the Tribunal by way of OA No.3394 of 2012 being aggrieved by the impugned order dated 05.09.2012 by which the respondents had informed the applicant that his services as Cook would stand terminated with effect from the date of expiry of period of one month from which date such notice has been served or tendered. By this OA, the applicant had mainly sought the impugned order to be quashed and set aside. The Tribunal in its judgment dated 09.10.2012 observed in paragraph 9 that since the applicant was convinced that the order of termination in his case is a punitive action, he could have sought its review before he could file this OA in terms of the D.G.P&T letter dated 26.03.1984 which is of general application. The Tribunal finally held in paragraph 10 as follows:-
10. In view of above facts and circumstances of this case, we dispose of this Original Application at the admission stage itself with liberty to the applicant to seek review of the impugned order of termination as aforestated at the earliest, if so advised. On receipt of such an application for review, the competent authority of the respondents shall consider the same and dispose of it by a reasoned and speaking order within a period of one month from the date of its receipt. If the applicant is still aggrieved, he is permitted to approach this Tribunal again through appropriate proceedings, if so advised.
12. Subsequent to the aforenoted order of the Tribunal, it appears that the applicant made a petition for review for cancellation of the impugned notice for termination dated 05.09.2012 which was examined and the impugned order dated 11.03.2013 was passed. This order is a reasoned and speaking order upholding the earlier order of termination. It would thus appear that the reason for termination of applicants services was given in the speaking order in compliance of the aforenoted directions of the Tribunal in OA-3394/2012 dated 09.10.2012. It appears from this order that the applicants contention that he was not given leave, was incorrect and that even after giving warnings and show cause notices dated 07.02.2012 and 28.03.2012, there was no improvement in the work of the applicant, nor was any reply given by the applicant to the show cause notices issued to him. In paragraph 8 of the impugned order dated 11.03.2013, it is mentioned that the applicants services were terminated on account of unsatisfactory service. Paragraph 11 mentions about the lack of interest and lack of proficiency in the field and further in paragraph 12 of the impugned order, it was mentioned that the applicant were to remain on probation for a period of two years from the date of appointment i.e. till 24.09.2013, and the respondents had the right to terminate his service during the period of probation as per para 1(c ) of appointment letter.
13. We have perused the appointment letter dated 25.08.2011 issued to the applicant which is at page 57 of the paper book. The relevant sub-paras 1(c) and (d) read as follows:-
(c ) Your services are liable to be terminated at any time on giving one month notice from either side ion terms of Central Civil Services ( Temporary Services) Rules, 1965.
(d) The appoing authority however reseves the right of terminating your services forthwith before the expiry of the stipulated period ofnotice by making payment to you a sum equivalent to the pay and allowances for the period of notice or the un-expired portion thereof. (emphasis supplied) It is clear from the above mentioned appointment letter that the applicant was on probation for a period of two years and under the provisions in paragraph (c ) and (d) his services were liable to be terminated under the CCS (Temporary Services) Rules, 1965.
014. The issue that needs consideration is whether reasons specified in the impugned order dated 11.03.20-13 (Annexure A-2) passed on the review petition filed by the applicant subsequent to the directions of the Tribunal in OA No. 3394/2012 would render the order of termination bad because of its being stigmatic. As noted above, learned counsel for the applicant has referred to the three judgments referred to above to argue that according to these judgments if there was an inquiry on allegations made without giving opportunity to the applicant to defend himself, that order of discharge would be bad and would be liable to be quashed. Learned counsel Mr. Bhardwaj argued that in the light of the judgment in Nehru Yuva Kendra Sangathancase (supra), any matter in which there existed a live connection between the allegation of misconduct and discharge, even if the order was non-stigmatic in its language but were such as would amount to punishment a departmental inquiry would be necessary. In the judgment in Mahaveer C Singhvis case (supra) on which the learned counsel for the applicant has specifically relied on paragraph 31 , it was observed as follows:
..If an order of discharge passed as a punitive measure, the same would be invalid and liable to be quashed...
15. We have perused the detailed judgment of the Honble Delhi High Court in S.P.Sharmas case (supra) wherein the issue as to whether a communication casts stigma even when it is stated in the order that there were lapses committed by the employee while performing the job. The Honble High Court in paragraph 9 of its judgment, which is reproduced below, examined the recent judgments of the Honble Supreme Court and observed as follow:-
9. So far as the issue as to whether the impugned letter dated 11.9.2012 casts a stigma, in my opinion, stating that there are lapses committed while performing the job will not amount to casting a stigma in view of various recent judgments of the Supreme Court. These judgments of the Supreme Court have been considered by me in the judgment in the case of Himanshu Bhatt Vs. Indian Railway Catering and Tourism Corporation Limited and Ors. in W.P.(C) No.5293/2013 decided on 27.8.2013. Paras 4 to 9 of the said judgment are relevant and the same read as under:-
4. Law with respect to termination of services of a probationer is now well-settled. Termination has to be by a non-stigmatic order. However, it has been held that stating that the performance is not satisfactory will not amount to the termination order being a stigmatic one. Also the principles of natural justice have not to be followed before termination of services of a probationer. If an enquiry is held and the enquiry report forms the foundation of termination of services of a probationer, only then, principles of natural justice are required to be followed, however, where the enquiry against a probationer is only for determining his suitability for continuing in service or the enquiry report only forms the motive for removal, as differentiated from a foundation for removal, then a detailed enquiry in terms of the service rule is not necessary. In the recent judgment in the case of Muir Mills Unit of NTC (U.P.) Ltd. Vs. Swayam Prakash Srivastava & Anr. (2007) 1 SCC 491 Supreme Court has observed that even if the termination order states that services of a probationer has been terminated on account of the work being not satisfactory, the order cannot be said to be stigmatic. It is also held in this judgment that the principles of natural justice need not be followed for termination of service of the probationer. Paras 44 to 46 of the said judgment are relevant and the same read as under:-
44. Also in the case of Registrar, High Court of Gujarat and Anr. v. C.G. Sharma it was observed that an employee who is on probation can be terminated from services due to unsatisfactory work.
45. This Court's decision in the case of P.N. Verma v. Sanjay Gandhi PGI of Medical Sciences can be referred to in this context, where it was held by this Court that, the services of a probationer can be terminated at any time before confirmation, provided that such termination is not stigmatic. This Court in State of Madhya Pradesh v. Virendera Kumar Chourasiya also has held that in the event of a non-stigmatic termination of the services of a probationer, principles of audi alteram partem are not applicable.
46.We are also of the view that the award of the Labour Court is perverse as it had directed grant of back wages without giving any finding on the gainful employment of respondent No.1 and held that the discontinuance of the services of a probationer was illegal without giving any finding to the effect that the disengagement of respondent No.1 was in any manner stigmatic. The decision in the case of MP State Electricity Board v. Jarina Bee (Smt) (supra), this Court held that payment of full back wages was not the natural consequence of setting aside an order of removal. In the instant case, though the termination was as far back as in 1983, the Industrial Adjudicator has not given any finding on unemployment. This Court in a recent case of State of Punjab v. Bhagwan Singh (2002)9SCC636 has held that even if the termination order of the probationer refers to the performance being not satisfactory, such an order cannot be said to be stigmatic and the termination would be valid.
5. In a very similar case to the facts of the present case, the Supreme Court in the judgment in the case of State of W.B. and Others Vs. Tapas Roy (2006) 6 SCC 453 has held that where the discharge order mentions other instances of unauthorized absence of the probationer and concluding that he was not interested in training and had no respect for discipline, making of such remarks in the termination order cannot be said to make the termination order a stigmatic one. Paras 4,5 7 and 8 of the judgment in the case of Tapas Roy (supra) read as under:-
4. The High Court allowed the writ petition holding that Rule 10 of the Rules did not apply in the facts of the case. It was also of the view that the statement, quoted below; in the order of discharge casts a stigma on the respondent. Since no opportunity of hearing had been granted to the respondent, therefore, the order could not be sustained. The decision of the Tribunal was, accordingly, set aside and the appellants were given liberty to take appropriate action against the respondent on the same grounds in accordance with law.
5. The particular passage from the order of discharge which the High Court found to be stigmatic reads as follows:
I am convinced that he is not likely to make an efficient constable and is unsuitable for the Police Department. His frequent unauthorised absence from training centre also indicates his lack of interest in training and his scant respect for discipline.
7. The order of discharge has, as we have already indicated, set out several instances of the respondent absenting himself unauthorisedly from the training centre. These facts have been relied upon for the purpose of concluding that the respondent was not interested in the training and had no respect for discipline. This conclusion was a ground for holding that the respondent was unsuitable for the Police Department.
8. The High Court was of the view that Rule 10 of the Rules did not apply to orders which were stigmatic. As has already been held by this Court in Pavanendra Narayan Verma v. Sanjay Gandhi Post Graduate Institute Medical Sciences 2002(92)FLR349(SC) that in order to constitute a stigmatic order necessitating a formal inquiry, it would have to be seen whether prior to the passing of the order, there was an inquiry into the allegations involving moral turpitude or misconduct so that the order of discharge was really a finding of guilt. If any of these three factors are absent, the order would not be punitive. We have also held that a stigma in the wider sense of the word is implicit in every order of termination during probation. It is only when there is something more than imputing unsuitability for the post in question, that the order may be considered to be stigmatic. In our view, the language quoted earlier in the discharge order, cannot be said to be stigmatic as it neither alleges any moral turpitude or misconduct on the part of the respondent nor was there an inquiry as such preceding the order of discharge. The order has been passed strictly in terms of Rule 10 of the Rules. We are, accordingly, of the view that the appeal must be allowed. It is, accordingly, allowed and the impugned order is set aside. (emphasis added)
5. Also, the Supreme Court in the judgment reported as Chaitanya Prakash and Anr. Vs. H. Omkarappa (2010) 2 SCC 623 has held that there is no need for following the principles of natural justice while terminating the services of a probationer and even if the termination order refers to the unsatisfactory services of the probationer, the order is not stigmatic. Paras 18 and 21 of this judgment read as under:-
18. It is no longer res integra that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. In this connection, we make a reference to the decision of the decision of the Supreme Court in Abhijit Gupta v. S.N.B. National Centre, Basic Sciences (supra), wherein also a similar letter was issued to the concerned employee intimating him that his performance was unsatisfactory and, therefore, he is not suitable for confirmation. We have considered the ratio in light of the facts of the said case and we are of the considered opinion that the basic facts of the said case are almost similar to the one in hand. There also, letters were issued to the concerned employee to improve his performance in the areas of his duties and that despite such communications the service was found to be unsatisfactory. In the result, a letter was issued to him pointing out that his service was found to be unsatisfactory and that he was not suitable for confirmation, and, therefore, his probation period was not extended and his service was terminated, which was challenged on the ground that the same was stigmatic for alleged misconduct. The Supreme Court negatived the said contention and upheld the order of termination.
21. In Abhijit Gupta (Supra.), this Court considered as to what will be the real test to be applied in a situation where an employee is removed by an innocuous order of termination i.e whether he is discharged as unsuitable or he is punished for his misconduct. In order to answer the said question, the Court relied and referred to the decision of this Court in Allahabad Bank Officers Assn. v. Allahabad Bank (1996) 4 SCC 504; where it is stated thus:
14. ...As pointed out in this judgment, expressions like "want of application", "lack of potential" and "found not dependable" when made in relation to the work of the employee would not be sufficient to attract the charge that they are stigmatic and intended to dismiss the employee from service.
7. In the case of Rajesh Kumar Srivastava Vs. State of Jharkhand and Ors. (2011) 4 SCC 447 Supreme Court has held that while taking a decision to terminate the services of the probationer, no notice is required to be given to the probationer nor is the probationer required to be given any opportunity of hearing. Para 10 of the said judgment reads as under:-
10. The aforesaid decision to release him from service was taken by the Respondents considering his overall performance, conduct and suitability for the job. While taking a decision in this regard neither any notice is required to be given to the Appellant nor he is required to be given any opportunity of hearing. Strictly speaking, it is not a case of removal as sought to be made out by the Appellant, but was a case of simple discharge from service. It is, therefore, only a termination simpliciter and not removal from service on the grounds of indiscipline or misconduct. While adjudging his performance, conduct and overall suitability, his performance record as also the report from the higher authorities were called for and they were looked into before any decision was taken as to whether the officer concerned should be continued in service or not.
8. In the case of Abhijit Gupta Vs. S.N.B.National Centre, Basic Sciences & Ors. (2006) 4 SCC 469 the Supreme Court has held that even when a termination order of a probationer referred to earlier letters which called the probationer a person of perverted mind and dishonest, duffer having no capacity to learn yet, the order would not be stigmatic one, and merely that if such an order was read by a prospective employer which would prejudice the probationers future employment, the same is not to be a correct test to determine the termination order as stigmatic. Paras 4,5,8,10,13, 15,16 and 17 are relevant which read as under:-
4. On 20th November 1995 the appellant was served with a letter informing him that his performance during the probationary period was "far from satisfactory" and that it had been observed that he lacked drive, imagination and initiative 'in the performance of his duties'. He was informed that, despite being told time and again to improve performance in the said areas, but with no effect. He was advised to improve "in order to enable us to consider your case for confirmation favourably". He was issued several such letters drawing his attention to the fact that his services left much to be desired. His probationary service came to be extended from time to time, the last such extension being granted till 9 th April 1998. Finally, by the letter dated 7.4.1998 the petitioner was informed that his service was "unsatisfactory in the areas of drive, initiative, promptness and leadership" and that despite advised verbally and through letter, what were deficiencies in his work he had shown no improvement. His attendance, office work and attention to the academic work and the affairs of the guest house were also unsatisfactory. The first respondent, therefore, said "your performance, ability and capability during the period of probation has been examined and your service during the period of probation is found to be unsatisfactory and hence you are considered unsuitable for the post you have to. The governing body is of the view that your performance was unsatisfactory and you are not suitable for confirmation". For these reasons the appellant's probationary period was not extended on the expiration of his probation period on 9th April 1999.
5. The appellant challenged the order of termination of his service on the ground that it was a stigmatic termination by way of punishment for alleged misconducts. The learned single Judge of the High Court allowed the writ petition and quashed the order of termination and directed reinstatement of the appellant with full back- wages. The Division Bench of the High Court, however, allowed the letters patent appeal and held that the letter dated 7th April 1998 was not stigmatic and that it was a legitimate exercise of assessment of probationer's service by the employer, and, therefore, there was no scope for judicial interference therewith. In this view of the matter, the Division Bench allowed the appeal, set aside the judgment of the learned single Judge and dismissed the writ petition. Hence, this appeal.
8. Heavy reliance was placed on Dipti Prakash Banerjee v. Satyendra Nath Bose National center for Basic Sciences, Calcutta and Ors. [1999]1SCR532 ,where this Court held that the termination of service of the employee in similar circumstances amounted to misconduct. We may mention here that it is common ground that while the matter was pending before the learned single Judge, sometime in the year 2005, the appellant attained the age of superannuation. The learned Counsel for the appellant contended that in the letter dated 7.4.1998 there is reference to certain earlier letters in which the appellant had been called a person of "perverted mind" and "dishonest, duffer having no capacity to learn". A reading of all the letters referred to in the letter of 7.4.1998 would clearly make out a case of allegations of misconduct against the appellant, in the submission of the learned Counsel.
9. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. (2002)ILLJ690SC this Court considered what should be the best to determine whether a letter of termination of service was termination simpliciter or stigmatic termination. After referring to a number of authorities including the judgment in Parshotam Lal Dhingra v. Union of India (1958)ILLJ544SC and Dipti Prakash Banerjee (supra) the Court observed (vide para 19):
Courts continue to struggle with semantically indistinguishable concepts like motive" and "foundation"; and terminations founded on a probationer's misconduct have been held to be illegal while terminations motivated by the probationer's misconduct have been upheld. The decisions are legion and it is an impossible task to find a clear path through the jungle of precedents.
13. In the case of the appellant before us, the record in uncertain terms makes it clear that every time the appellants attention was drawn to his deficiencies and he was repeatedly advised to improve his behavior, conduct and discharge of work. True, that in some of the letters there was intemperate language used (the appellant was also equally guilty of doing that). Notwithstanding the intemperate language, we are unable to accept the contention of the appellant's counsel that the letter dated 7.4.1998 indicates that the appellant was being charged with the misconduct and, therefore, being removed from service. Read as a whole, the letter gives the impression that the removal of the appellant from service was only because the respondents, after giving a long rope to the appellant, had come to the conclusion that the appellant's service was unsatisfactory and there was no hope of his improvement.
15. The learned Counsel for the appellant, however, strongly contends that the "stigma" cast on the employee may not be confined to his personal character but may also affect his capacity to work. The test, learned Counsel for the appellant submitted, is that, if what is stated in the order of termination is read by a future employer, it prejudices the future employment of the employee. In the face of the law laid down in the judgment just referred, we are unable to accept this as the correct test.
16. In Ravindra Kumar Misra v. U.P. State Handloom Corporation Ltd. and Anr.(1988)ILLJ73SC this Court pointed out that in a large corporation administration is bound to be impersonal and in regard to public officers assessment of service has got to be in writing for purposes of record, though it cannot be assumed that such an assessment recorded and the order of termination made with reference to that record would automatically take a punitive character.
17. The High Court has carefully considered all the circumstances placed before it and arrived at the conclusion that the respondent's work was under observation during the probationary period and that he was given repeated opportunities to improve his performance for which purpose his probation was extended from time to time. The fact that the authority did not find him fit for confirmation was also brought to his notice several times and yet he was given opportunities of improving by extending his probationary service. The High Court has correctly found that the letter dated 7.4.1998 was not punitive in nature and stated, albeit in prolix fashion, that the service of the appellant were unsatisfactory. The High Court points out, and we agree, that detailed reference to all other correspondence was not necessary, but it did not reflect any malice or bias. Finally, as this Court pointed out in P.N. Verma's case (supra) "a termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, does not ipso facto become stigmatic (underlining added)
9. A reference to the impugned order dated 21.9.2012 shows that the petitioner has been found guilty of taking unauthorized leaves. Nothing could be pointed out to me that the leaves which were taken were sanctioned by the respondent No.1. Therefore, the undisputed position which emerges before me is that the petitioner has decided at his own convenience when to report for duty and when not to, and therefore, there is nothing stigmatic by stating facts in the termination order. In terms of various judgments of the Supreme Court stated above narration of facts and giving the motive for termination cannot make the termination order stigmatic in a case like this where it is an undisputed fact which has emerged on record that the petitioner not once but repeatedly was guilty of taking leaves without sanction. If therefore it is stated in the impugned order that services of the probationer were hence not satisfactory, the termination order will not be stigmatic in view of ratios of the Supreme Court judgments in the cases of Muir Mills Unit (supra), Tapas Roy (supra), Chaitanya Prakash (supra), Rajesh Kumar Srivastava (supra) and Abhijit Gupta (supra). However, in the interest of justice, I direct that the respondent No.1 will now issue a formal few lines order of termination of services in terms of para 7 of the appointment letter. The termination order now to be issued by the respondent No.1, which should be a simplicitor termination order, will however operate from 21.9.2012, the date of the original termination order. This I am doing so in the interest of justice and to benefit the petitioner. (emphasis added)
14. From the aforenoted facts, we find that the applicant was on probation and during probation period he was given opportunities to improve himself. As per the impugned speaking order dated 11.03.2013, he was in the habit of taking leave. Another aspect mentioned in the speaking order is regarding unsatisfactory service of the applicant. Stating this in the impugned speaking order and that the applicant was in habit of a lackadaisical turnout, behavior, health and hygiene and the reference to the conduct of the applicant regarding his work and performance not being satisfactory cannot be treated as stigmatic because this was merely the assessment of the conduct of the applicant and hence a statement of fact.The conclusion regarding unsatisfactory service of the applicant was only to make an assessment whether the applicant should be allowed to continue on probation or not. In the judgment in State of Punjab Vs. Bhagwan Singh (supra) cited by the Honble High Court of Delhi in the matter of S.P.Sharma (supra), the Honble Supreme Court has held that even if the termination order of the probationer refers to the performance being not satisfactory , such an order cannot be said to be stigmatic and the termination would be valid. The impugned order dated 05.09.2012 giving notice of termination did not contain any reason or assign any stigma and was actually issued in the Form prescribed under Rule 5(1) of the CCS (Temporary Service) Rules, 1965. The speaking order dated 11.03.2013 was passed in compliance of the order of the Tribunal. Since a reasoned and speaking order was required to be passed in terms of the order of the Tribunal, the respondents seem to have assigned reasons in the speaking order and this cannot form basis of concluding that the termination order was stigmatic.
15. In view of above, we do not find any reason to interfere either with the decision of the respondents or with the impugned order of termination. Finding no merit in the matter, the OA is dismissed. No order as to cost.
(Raj Vir Sharma) (Ashok Kumar) Member(J) Member(A) /usha/