Madras High Court
Deputy General Manager, Export Import ... vs Presiding Officer, Industrial ... on 9 October, 2007
Equivalent citations: (2008)IILLJ119MAD
Author: R. Banumathi
Bench: F.M. Ibrahim Kalifulla, R. Banumathi
JUDGMENT R. Banumathi, J.
1. Aggrieved against the order of the learned single Judge dated July 17, 2000 made in W.P. No. 15369/1993, whereby, the learned single Judge, set aside the award in I.D. No. 66/1988 and remanded back the matter to Labour Court, the Management has preferred this Appeal.
2. The fact giving rise to this Appeal could briefly be stated thus:
(i) The second respondent was appointed as Driver-cum-Messenger for a period of six months on contract basis by an order dated July 12, 1984. By another order dated February 14, 1985, the second respondent was appointed as Driver-cum-Messenger on probation for a period of one year, on certain conditions. The second respondent's basic pay was fixed at Rs. 620/- per month + Dearness allowance, City Compensatory Allowance and House Rent Allowance, and his total salary per month was about Rs. 1,228.20.
(ii) By another order dated January 29, 1986, the second respondent was informed that on consideration of his work performance the Appellant-Management had considered it necessary to make another review of his performance and that his case for confirmation would be reviewed again in January 1987. By communication dated November 7, 1986, the Appellant-Management terminated the second respondent's probation as his services had not been found satisfactory to warrant confirmation in the Bank's employment. The Appellant-Management had deposited a sum of Rs. 1,347.25 being the amount of emoluments for one month in lieu of notice and also 45 days wages viz., Rs. 2,331.80 by way of retrenchment compensation. The services of the second respondent stood terminated w.e.f. November 8, 1986.
(iii) The order of termination was challenged by the second respondent before the first respondent-Labour Court in I. D. No. 66/1988. The Labour Court finding that the order of termination is not a stigma, dismissed the petition filed by the second respondent. The award was challenged in the writ petition and the learned single Judge has remanded the matter to Labour Court for fresh consideration, which is impugned in this writ appeal.
3. The Order, dated November 7,1986, by which the services of the second respondent were terminated reads as under:
We refer you to our letter of appointment dated February 14, 1985 and particularly clause 4 thereof, as also our letter dated January 29, 1986, continuing the period of your probation.
It has been decided to terminate your probation as your services have not been found satisfactory to warrant your confirmation in the Bank's employment.
We have deposited today with State Bank of Mysore in your account No. 3609 a sum of Rs. 1,347-25 being the amount of emoluments for one month in lieu of notice.
Accordingly, please note that your services; in the Bank will stand terminated with effect from November 8, 1986.
4. It was contended before the first respondent-Labour Court that the above order of termination is punitive in nature and' therefore, the services of the second respondent could not be terminated without holding a departmental enquiry. The Labour Court rejected the contention finding that the services of the second respondent were terminated as' having not been found satisfactory and the order of termination is not stigmatic and the same cannot be challenged.
5. In the writ petition filed challenging the award of the Labour Court, the learned single Judge took the view that no opportunity was given to the second respondent to defend the charge. The learned single Judge placing reliance upon V.N. Ahuja v. State of Punjab , took the view-that there was violation of principles of natural Justice and therefore, setting aside the award of the Labour Court, remanded back the matter to the Labour Court, to hear the matter afresh granting liberty to the parties to adduce evidence before the Labour Court
6. Challenging the order of remand, S. Jayaraman, the learned Counsel for the Appellant-Management submitted that the learned single Judge has committed an error in remanding back the matter to the Labour Court for deciding the matter afresh. Submitting that to attach stigma the order must be something more attaching over and above unsuitability of the employee, the learned Counsel contended that so long as the impugned order does not attach any stigma, the same cannot be challenged. Placing reliance upon Pavanendra Narayan Verma v. S.G.P.G.I. of Medical Science , and other decisions, the learned Counsel urged that a probationer is a person, who is on test and the termination of services of a probationer will not amount to termination for misconduct when the performance was found to be not satisfactory. The learned Counsel submitted that the impugned order of termination is a termination order simpliciter and the same cannot be equated with V.P. Ahuja's case. Taking us through the materials, the learned Counsel further submitted that the order of employment set out the conditions and when the services were found to be not satisfactory and so long as the order does not attach any stigma, what was in the mind of the Management cannot be gone into.
7. Refuting the arguments of the Management, K.V. Ananthakrishnan, the learned Counsel for the second respondent submitted that the order of termination stigmatized the second respondent insofar as his services have been terminated for unsatisfactory service and it should have preceded by a full fledged enquiry. Taking us through the counter and the award of Labour Court, the learned Counsel submitted that when various allegations levelled against the second respondent, amount to attaching stigma and the Management ought to have conducted an enquiry and therefore, the learned single Judge rightly applied V.P. Ahuja 's case and remanded the matter to Labour Court and the same cannot be interfered with.
8. We have anxiously considered the contention of both parties and examined the materials of record. Before, we examine the respective contentions of the parties, few admitted facts need to be noted:
The second respondent was appointed as Driver-cum-Messenger by the order dated July 12, 1984 on a fixed remuneration of Rs. 800/-per month for a period of six months.
By another order dated February 14,1985, the second respondent was appointed as Driver-cum-Messenger on probation for a period of one year on certain conditions and his basic pay and other allowances were fixed. As. per Clause-4 of the order of appointment, if his work and conduct are not found satisfactory during the period of probation, his services are liable to be terminated by one month's notice or on payment of emoluments for one month in lieu of notice.
By the order dated February 14, 1985, the second respondent's probation was extended and he was informed that his performance would be reviewed again in January 1987.
By the impugned order dated November 7, 1986, the second respondent's services were terminated as having been not found satisfactory to warrant confirmation in the Bank's employment.
There is no denial that the second respondent was on probation.
9. The law in relation to service of an employee on probation is well settled. If any order terminating the services of a probationer be an order of termination simpliciter without attaching any stigma to the employee and if the order is not an order by way or punishment, there will be no question of the provisions of Article 311 being attracted. As to what is a "stigma" and whether termination amount to stigmatic order has been the subject matter of consideration in a catena of decisions. We may advert to few cases on this aspect.
10. Since the case of Dhingra (Purshotam Lal Dhingra v. Union of India , which is said to be Mama Carta of the Indian civil servant, although it has spawned diverse judicial trends, difficult to be disciplined into one single, simple practical formula applicable to termination of probationer or freshers and of the services of temporary employees. Therefore, we are requested to examine the various judicial pronouncements, rendered by the Apex Court from time to time.
11. 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 the use of the words "unsatisfactory work and conduct" in the termination order will not amount to a stigma. There is, however, considerable difficulty in finding out whether in a given case where the order of termination is not a simple order of termination, the word used in the order can be said to contain a "stigma".
12. Considering various case laws, whether particular words employed in the order of termination of probationer and whether the words employed amount to stigma or not in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences , the Supreme Court has held as under at p. 1062, 1063 & 1064 of LLJ:
30. We shall next advert to some more cases and to particular words employed while passing orders of termination of probationers. In State of Bihar v. Gobi Kishore Prasad , a show-cause notice was given seeking a reply to the allegation regarding the officer's bad reputation and in regard to certain perverse decisions given by him in his judicial functions during the period of probation. The termination order stated that certain facts were brought to the notice of the Government about his unsatisfactory work and conduct and that grave doubts had arisen about his integrity which indicated that he was a corrupt and an unreliable officer. It was also said that confidential enquiries revealed that he was a corrupt officer and that annual confidential reports of his superior officer referred to his bad reputation and therefore his work during the period of probation was not satisfactory. The Constitution Bench of this Court held that it was a clear case of stigma and the matter indeed required a full-fledged departmental enquiry under Rule 55 of the CCS (CCA) Rules. In Jagdish Miner v. Union of India the use of the words "undesirable to be continued" in service was held by the Constitution Bench to amount to a stigma. This case was followed in State of U.P. v. Madan Mohan Nagar where the order said that the officer had "outlived his utility" and such an order was held to amount to a stigma. Jagdish Miner (supra) was approved by the seven-Judge Bench in Samsher Singh case , on this point. But in Kunwar Arun Kumar v. U.P. Hill Electronics Corporation Limited the termination order used "the word "unsatisfactory" and the same was upheld as it did not amount to a stigma. In two cases arising under Industrial law, one in Chandu Lal v. Pan American World Airways , and Kamal Kishore Lakshman v. Pan American World Airways Inc. , where the termination order used the word "loss of confidence", the said orders were held to contain a stigma and therefore punitive. In Jagdish Prasad v. Sachiv, Zila Ganna Committee , the termination order stated that the Officer had concealed certain facts relating to his removal from an earlier service on the charge of corruption and therefore not suitable for appointment. This was held to amount to a stigma. But in Union of India v. R.S. Dhaba where the order merely said "found unsuitable", it was held not to amount to a stigma. In Allahabad Bank Officers Association v. Allahabad Bank , the order was one of compulsory retirement and said that a Special Committee had unanimously recommended retirement and said that a Special Committee had unanimously recommended for the officer's compulsory retirement, that the Chairman and Managing Director agreed with the Committee's views regarding 'want of application to the Bank's work and lack of potential" and that the officer was also found to be not "dependable". This Court after referring to a number of case explained that the words "not dependable" were used in the context of the facts of the case and not as an aspersion on his reputation but in relation to his work and were to be understood in that sense in the setting of the words "want of application' and /or "lack of potential". It was observed (SCC p. 513, para 19):
Any person reading the letter or the order of compulsory retirement would not be led to believe that there was something wrong with appellant 2 as regards his conduct or character. They would only indicate that he had ceased to be useful to the Bank in his capacity as a Manager.
Again in High Court of Judicature at Patna v. Pandey Madan Mohan Prasad Sinha , it was held that termination of a probationer on the basis of uncommunicated adverse remarks was valid.
31. Thus, it depends on the facts and circumstances of each case and the language or words employed in the order of termination of the probationer to judge whether the words employed amount to a stigma or not. Point 2 is decided accordingly.
13. In S.R. Tewari v. District Board, Agra (through its Secretary) and Anr. , it was held by the Apex Court that the form of the order under which the employment of a servant is determined is not conclusive of the true nature of the order. The form may be merely to camouflage an order of dismissal for misconduct and 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 merely of determination of employment is in reality a cloak for an order of dismissal as a matter of punishment, the Court would not be debarred merely because of the form of the order in giving effect to the rights conferred by statutory rules upon the employees.
(See also (State of Bihar and Ors. v. Shiv Bhikashuk Mishra and Samsher Singh and Ishwar Chand Agarwal v. State of Punjab and Anr. 1975(1) LLN 4.
14. In State of Maharashtra v. Veerappa R. Saboji , the Supreme Court observed: thus:
Ordinarily and generally the rule laid down in most of the cases by this Court is that you have to look to the order on the face of it and find whether it casts any stigma on the Government servant. In such a case there is no presumption that the order is arbitrary or mala fide unless a very strong case is made out and proved by the Government servant who challenge such an order.
15. Whenever, the work of the probationer was never satisfactory observing that termination on the ground of unsuitability did not attract Article 311 in the oft-quoted decision Oil & Natural Gas Commission v. Md. S. Iskander Ali , the Supreme Court held as follows:
Where the short history of the service of the probationer appointed in a temporary post clearly showed that his work had never been satisfactory and he was not found suitable for being retained in service and that was, why even though some sort of an enquiry was started, it was not proceeded with and no punishment was inflicted on him and in these circumstances, if the appointing authority considered it expedient to terminate the services of the probationer it could not be said that the order of termination attracted the provisions of Article 311, when the appointing authority had the right to terminate the service without assigning any reasons. In such a case even if misconduct, negligence, inefficiency might be the motive or the inducing factor which influenced the employer to terminate the services of the employee a power which the employer undoubtedly possessed, even so as under the terms of appointment of the employees such a power flowed from the contract of service, termination of service could not be termed as penalty or punishment. Further adverse remarks in the assessment roll and recommendation therein to extend the probationary period could not be said to indicate that the intention of the appointing authority was to proceed against the employee by way of punishment.
9. ...In the case of Samsher Singh v. State of Punjab , the matter was considered in all its aspects by a Constitution Bench comprising seven Judges of this Court and the Court adumbrated the following propositions:
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 pence must be discharged. No punishment is involved in this.... The fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of punishment.... A probationer whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311(2)....
An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article 311.
16. In Union of India v. P.S. Bhatt AIR 1982 SC 957, the respondent was appointed as an announcer In the All India Radio. He was selected by direct appointment for the post of producer and was appointed as such on probation. While, he was on probation, he was reverted to the post of announcer. The respondent alleged that the motive behind the order was that he had indulged in loose talk and had used filthy language against his superior which was tape recorded and sent to the Station Director. The Supreme Court has observed that even if the conduct of the respondent in indulging in loose talks and using filthy and abuse language may be considered to be the motive or the inducing factor which influenced the Authorities to pass the impugned order, the Supreme Court held that the order was an order of termination of the employment on probation simpliciter and reversion to the old post without attaching any kind of stigma. Referring to Md. Iskander Ali's case, the Supreme Court has held that even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the authority to terminate the service of the employee on probation, such termination cannot be termed as penalty or punishment.
17. In this context, the learned Counsel for the Appellant-Management has submitted that the employer had given ample opportunity to the second respondent by extending the probation twice and this was not a case of unfairness and while so, the learned single Judge ought not to have remanded the matter back to the Labour Court. It was further submitted that when the second respondent was given a long rope by way of extension or probation, the termination order cannot be held to be punitive in nature. Placing reliance upon Pavanendra Narayan Verma's case (supra) the learned Counsel submitted that, when an employee has been placed on probation, employer is entitled to satisfy himself as to the competence of the probationer to be confirmed in service. The learned Counsel has further submitted that the probationer is a person, who is on test and the termination of service of a probationer will not amount to punitive order. Referring to various case laws, in Pavanendra Narayan Verma's case (supra), the Supreme Court has laid down the law as under:
16. In Krishnadevaraya Education Trust v. L.A. Balakrishna , the first letter of termination mentioned that the Committee appointed to go into the question of general performance of each staff, had found that the employee, who had been appointed on probation, "was not upto the mark". This was followed by a second order of termination which did not refer to the employee's performance at all. The Court held that it was preferable that the order of termination did not mention that the employee's performance was not satisfactory as then "the employer runs the risk of the allegation being made that the order itself casts a stigma." Nevertheless, the Court held that the reasons stated in the first order did not mean that the termination may be by way of punishment because "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 service."
17. Finally, this Court in H.F. Sangati v. Registrar General, High Court of Karnataka , dealt with the question whether an order terminating the appointment of a probationer Munsiff could be considered to be punitive. In that case during the period of probation, several adverse remarks had been made in the confidential records of the probationer. The Administrative Committee of the High Court considered these confidential records and came to the conclusion that the appellant was not fit to be confirmed in the post of a Judicial Officer. They recommended to the High Court accordingly. The High Court accepted the recommendation at a Full Court meeting and referred the matter to the State Government. The State Government accepted the recommendation and discharged the probationer from service. The order of termination mentioned that the employee was "unsuitable to hold the post of Munsiff. The Court held that the order did not cast any stigma on the employee and was not punitive.
18. But the law does not rest there. In Shamsher Singh v. State of Punjab , the Courts were asked to look behind the form of the order to find out whether the termination was in substance, punitive. So when a full scale inquiry is held against a probationer or a temporary appointee and he is found guilty, an order terminating his services for this reason has been seen as punitive and bad. It is this search for the 'substance' behind the 'form' of the order of punishment which has led to some apparently conflicting decisions.
19. Thus some Courts have upheld an order of termination of a probationer's service on the ground that the enquiry held prior to the termination was preliminary and yet other Court have struck down as illegal a similarly worded termination order because an inquiry had been held. Court continue to struggle with semantically indistinguishable concepts like 'motive' and 'foundation'; and terminations founded on a probationer', 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.
20. As observed by Alagiriswamy, J. in S.L. Vasudeva v. State of Haryana :
After all no Government servant, a probationer or temporary, will be discharged or reverted arbitrarily, without any rhyme or reason. If the reason is to be fathomed in all cases of discharge or reversion, it will be difficult to distinguish as to which action is discharge or reversion simpliciter and which is by way of punishment. The whole position in law is rather confusing.
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 (c) which 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 :
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 of 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)
18. In Pavanendra Narayan Verma's case (supra), the Supreme Court has also referred to following case laws, where the termination order was held to be stigmatic:
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 Science 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. 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 'substances' 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.
19. Coming to the facts of the case before us, as we have noticed earlier, the employer has extended the probation two times. The services of the second respondent were terminated on the ground of "having been not found satisfactory to warrant confirmation in the Bank's employment". We find that the second respondent was given a long rope by way of extension of probation. In our considered view the termination order cannot be held to be punitive in nature and the impugned order termination order simpliciter.
20. In the Labour Court, Exhibit M. 8 (Memo issued to second respondent) dated June 3, 1985 was produced alleging that the second respondent has made an improper correction in a voucher by correcting a bill for Rs. 2/-, as the bill for Rs. 12/-, which was issued by a hotel for eatables taken by the second respondent in the course of his official duties, at the cost of the Management. It was alleged that under Exhibit M-9 (reply given by the second respondent), the second respondent has admitted that he has improperly made the said correction. The Deputy General Manager was examined on the side of Management as M.W.I, who has narrated in his evidence about the alleged omissions and commissions committed by the second respondent. M.W.I in his evidence has alleged that the second respondent was coming late to the Office and that he was carrying passengers unauthorizedly in the Office car and that the second respondent was insubordinate and indisciplined. Taking us through the counter and the evidence of M.W. 1, the learned Counsel for the second respondent has submitted that the various allegation made before the Labour Court amount to attaching stigma and when such serious misconduct has been alleged against the employee, the Appellant-Management ought to have conducted the enquiry. Placing reliance upon Dipti Prakash Banerjee's case, the learned Counsel has further submitted that the words amounting to "stigma" need not be contained in the order of termination, but may also be contained in an order of proceeding referred to in the order of termination and the various allegations levelled against the second respondent would vitiate the order of termination.
21. We have gone through the award of the Labour Court and the evidence of M. W. 1. The impugned order of termination is a termination order simpliciter and the order of termination neither refer to any misconduct nor it contain any annexure or other proceeding or words amounting to "stigma". In Dipti Prakash Banerjee's case the termination order itself] referred to three other letters. One of the letter 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. In such facts and circumstances, of the case, the termination was held to be stigmatic and was set aside. The facts of the present case is clearly distinguishable from Dipti Prakash Banerjee's case. Since, the evidence of M.W.I in the proceedings before the Labour Court is not a part of impugned order of termination, it is not possible for us to interpret the impugned order beyond its logical end.
22. The learned Counsel for the second' respondent has submitted that Exhibit M-8-Memo was issued to the employee dated June 3, 1985, calling upon him to offer his explanation, for which, the second respondent, had also submitted his explanation and Exhibit M-9 and such issuance of Memo, which preceded the termination has to be regarded that his service was terminated founded on the allegation of misconduct. In our view, such contention is not acceptable. Exhibit M-8 is1 dated June 3, 1985, whereas, the impugned order of termination is dated November 7,1986, we find that Exhibit M-8 has no nexus to the order of termination. Reviewing entire case law including Constitutional Bench decision in Samsher Singh v. State of Punjab in State of U.P. v. Rama Chandra Trivedi the Supreme Court has held that the "motive", in passing an order of termination or reversion operating in the minds of the Government was not a relevant factor for determining whether the order was passed by way of punishment.
23. Referring to various case law in Chandra Prakash Shahi v. State of U.P. , considering the meaning of "motive" and "foundation" the Supreme Court has held as under:
21. In Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha , it was laid down that a Court or Tribunal is entitled to find out the true nature of the termination order, namely, whether it is punitive or not. In this regard, the form of the order will not be decisive and the Court can lift the veil to see the true nature of the order. The Court observed that the substance, not semblance, governs the decision. The Court further observed that what was decisive was the plain reason for the discharge and not the strategy of a non-inquiry. If the basis was not the misconduct, the order could be saved. The Court further observed that the mere fact that after being satisfied of the guilt the Government abandons the inquiry and proceeds to terminate the services by a simple order, would not be the relevant factor in considering the true nature of the order. Given an alleged misconduct and a live nexus between it and the termination of service, the conclusions would be "dismissal" even if full benefits, as on simple termination, are given and non-injurious terminology is used.
28. The important principles which are deducible on the concept of "motive" and "foundation", concerning, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive".
24. Applying these principles to the facts of the present case, we have already noticed that probation of the second respondent was extended and he was informed that his performance will be reviewed again in January 1987. Since, his services were not considered satisfactory, the second respondent was terminated on November 7, 1986. In our view, whether the issues of Exhibit M-8 was the motive in passing the order is not a relevant factor, more so, when Exhibit M-8 was issued in August 1985, long prior to the issuance of the termination order.
25. For remanding the matter to Labour Court, the learned single Judge placed reliance upon V.P. Ahuja 's case (supra). In the said case, the order of termination stated that "the employee failed in the performance of his duties administratively and technically and therefore, the services of V.P. Ahuja were terminated. The Supreme Court construed the language of the order that the employee failed in the performance of the duties administratively and technically and found that it was ex facie stigmatic. The principles laid down in V.P. Ahuja's case (supra) are not applicable to the facts of the present case, the services of the second respondent were terminated on the only ground that his services were found unsatisfactory.
26. We are unable to endorse the view taken by the learned single Judge applying V.P. Ahuja's (supra) case. As rightly submitted by the learned Counsel for the appellant-Management, probation means the performance of the employee was on test. The language used in the impugned order of termination is that "the second respondent's; services were terminated as having been not found satisfactory to warrant confirmation in the Bank's employment" and these words cannot be said to be stigmatic.
27. Placing reliance upon Governing Council of Kidwai Memorial Institute of Oncology v. Dr. Pandurang Gadwalkar and Anr. 1993-I-LLJ-308, the learned Counsel for the second respondent has submitted that the probationer is entitled to confirmation and if the services of probationer were terminated with stigma because of specific charge, an enquiry has to be necessarily held, affording sufficient opportunity to show that the charge is without any basis. In our view, the aforesaid judgment is of no help to the second respondent. On the other hand, it only supports the case of the appellant-Management. In the case referred above, the respondent was appointed as a Lecturer in Surgical Oncology and he was to be on probation for a period of one year from the date of his appointment, which period could have been extended at the discretion of the competent authority. But, before the expiry of one year, the impugned order of termination was issued and the respondent was paid one months' salary in lieu of one month's notice required as per Rules. In the said case, the Supreme Court has held that after taking into consideration the overall performance and some action or in-action on the part of the employee when a decision is taken to terminate the service of an employee, then it cannot be said that it amounts to removal from service as punishment. Referring to one of the condition of appointment provided that on failure to complete the period of probation to the satisfaction of the competent Authority, the employee will be liable to be discharged from service, the Supreme Court has further held that an order of termination simpliciter of a probationer will not be vitiated merely because some preliminary enquiry or examination of some allegations had been made,
28. In the present case also, there is no dispute that the second respondent was on probation and his services have been terminated during the period of probation. The appointment of the second respondent was subject to conditions of appointment. Clause-4 of the conditions of appointment is to the following effect:
If the second respondent's work and conduct are not found satisfactory during the period of probation, his services are liable to be terminated by one month's notice or on payment of emoluments for one month in lieu of notice.
29. If an employee, who is on probation or holding an appointment on temporary basis is removed from service by an order of termination simpliciter, it cannot be said that] some enquiry has been held against him before the issuance of order of termination and it really amounts to his removal from service on a charge and as such penal in nature. As rightly submitted by the learned Counsel for the Appellant-Management, so long as the order does not attach any stigma, what was in the mind of the Management cannot be gone into.
30. Placing reliance upon Mamundiraj. N. v. Bharat Heavy Electricals Limited 1999-1-LLJ-622, the learned Counsel for the second respondent has submitted that the second respondent having completed 850 days, ought to have been conferred permanent status as per Tamil Nadu Industrial Establishment-conferment of Permanent Status of Workmen) Act, 1981. The learned Counsel for the second respondent has made an elaborate submission contending that when the second respondent has acquired permanent status by having served, more than 850 days, his services cannot be* terminated without following the procedure in accordance with law. We find it difficult to countenance such an argument, as we have noted earlier the appointment of the second respondent was for a period of one year and he was placed on probation and the Appellant Management has made it clear that his performance would be reviewed again on January 1987. Under Tamil Nadu Industrial Establishment (Conferment of Permanent' Status to Workmen) Act, 1981, a Special Machinery is provided for determining the status of workman and the prescribed registers are also to be maintained.
31. In Metal Powder Co. Ltd. v. State of Tamil Nadu and Anr. 1985-II-LLJ-376 (Mad), the constitutional validity of Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, was challenged. The First Bench of this Court referred to Rules, which clearly provide for maintenance of register and rectification of the register in Form-I or for issue of orders conferring permanent status on the workmen. Form-I contains the proforma of the Register of workmen, which has to be maintained by the employer. The information incorporated therein is useful for ascertaining whether the workman is entitled to the benefits of the Act. Whether the workman is entitled to the benefit of the Act is a question of fact to be determined in reference to the various registers to be maintained under the Act. Such question of fact cannot be examined in the matter where the workman challenges the termination order, more so, when the second respondent has not raised that point before the Labour Court.
32. On examining the entire gamut of case laws right from Dhingra 's case, it is seen that the employer is entitled to satisfy itself as to the competence of the probationer to be confirmed in service and for which purpose, it has to satisfy itself as to the performance and truthfulness of allegations made. On examination of facts and circumstances of the case, we see no justification for interfering with the order of termination and the award of the Labour Court.
33. In our considered view, the impugned order of termination is not in any way stigmatic. While so, the learned single Judge was not Justified in setting aside the award of the Labour Court and remanding the matter for Labour Court for adducing further evidence. For the aforesaid discussions, we set aside the order of the learned single Judge and confirm the award of the Labour Court in I.D. No. 66/1988.
34. For the foregoing reasons, we set aside the order of the learned single Judge dated July 17,2000 made in W.P. No. 15369/1993, which is under challenge in this Appeal. The award of the Labour Court In I. D. No. 66/1988, is confirmed. No costs.