Punjab-Haryana High Court
Jaipal Singh vs Punjab And Haryana High Court on 20 March, 2009
Bench: Ashutosh Mohunta, T.P.S Mann
C.M. No.15899 of 2007 in -1-
CWP No.19889 of 2006
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CASE NO.: C.M. No.15899 of 2007 in
CWP No.19889 of 2006
DATE OF DECISION: March 20, 2009
JAIPAL SINGH ...PETITIONER
VERSUS
PUNJAB AND HARYANA HIGH COURT ...RESPONDENTS
AND ANOTHER
CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA.
HON'BLE MR. JUSTICE T.P.S MANN.
PRESENT: MR. A.P. BHANDARI, ADVOCATE FOR THE PETITIONER.
MR. HARISH RATHEE, SR.DAG, HARYANA.
ASHUTOSH MOHUNTA, J.
This application has been filed by the applicant-petitioner under Section 151 of Code of Civil Procedure praying for recalling of the order dated 31.07.2007, passed by us in the aforementioned writ petition, which reads as under :-
"The petitioner has impugned the order Annexure P-4 dated 18.12.2002 by which the services of the petitioner as a Peon were ordered to be dispensed with and Annexure P-6 by which the appeal filed by the petitioner was dismissed by the Administrative Judge vide order dated 24.05.2006. The petitioner was appointed as a Peon on 10.9.2002. As per the appointment letter Annexure P-1, the appointment of the petitioner was purely on temporary basis and he was to remain on probation for a period of 2 years. As per condition No. 2 of C.M. No.15899 of 2007 in -2- CWP No.19889 of 2006 the appointment letter, the services of the petitioner were liable to be terminated at any time without any notice and without assigning any reason.
The District and Session Judge, Faridabad found the work and conduct of the petitioner to be unsatisfactory and hence, vide order Annexure P-4 ordered that the services of the petitioner be dispensed with. The appeal filed by the petitioner was also dismissed vide Annexure P-6.
The dispensation of services of the petitioner was in terms of his appointment letter (Annexure P-1) and we find no infirmity in the order as the petitioner was appointed on purely temporary basis. Accordingly, we find no merit in the writ petition and the same is dismissed."
We have heard the learned counsel for the parties. The learned counsel for the applicant - petitioner has vehemently argued that the termination of the petitioner is not termination simpliciter but the finding regarding the work and conduct of the petitioner being not satisfactory has been incorporated in the termination order. Hence the order is stigmatic and could not have been passed without a regular departmental inquiry in which the petitioner should have been given an opportunity of hearing in compliance of the applicable rules and the principles of Natural Justice. The learned counsel further contended that it has come on record that a show cause notice was issued to the petitioner and his reply was sought and thereafter the termination order has been passed, hence the order is punitive in nature. He has pleaded that the orders impugned in the writ petition are not sustainable in law and hence the order dated 31.07.2007 should be C.M. No.15899 of 2007 in -3- CWP No.19889 of 2006 recalled and the writ petition should be allowed.
At the time of issuing notice in the present application, as noticed in our order dated 27.09.2007, and even now at the time of hearing the learned counsel for the applicant-petitioner has laid stress that the words "Work and conduct was not found satisfactory" appearing in the termination order (Annexure P-4) are stigmatic in nature. Learned counsel has placed reliance on the judgments in V.P. Ahuja vs. State of Punjab and others [2000 (2) RSJ 127] and Sat Narain vs. Haryana State Cooperative Apex Bank Ltd. [1995 (1) RSJ 652] in support of his contention.
First of all there is not even a whisper in the writ petition that the impugned termination order is stigmatic in nature. This contention was not raised before us at the time of hearing of the writ petition, when order dated 31.07.2007 was passed, though Sh A.K. Sharma, learned counsel for the petitioner appeared on the said date. Any how, since the aforesaid contention has been raised before us now, we deem it proper deal with it, leaving aside the question regarding the right of the applicant - petitioner to raise it at this belated stage.
The controversy now sought to be raised in the present case is squarely covered by the decision in Pavanendra Narayan Verma v. Sanjay Gandhi P. G. I. of Medical Sciences [AIR 2002 SC 23]. In the said case where the language used in order of termination was that probationer's "work and conduct has not been found to be satisfactory", the Hon'ble Supreme Court held that the termination order is not ex facie stigmatic. In the said case after noticing the various judgment rendered by the Apex Court from time to time beginning from Parshottam Lal Dingra v. Union of India [AIR 1958 SC 36] to Dipti Prakash Banerjee v. Satyendra Nath C.M. No.15899 of 2007 in -4- CWP No.19889 of 2006 Bose National Centre for Basic Science, Calcutta [AIR 1999 SC 983] and Chandra Prakash Shahi v. State of U.P. [AIR 2000 SC 1706], the Hon'ble Supreme Court held as under :-
"28. Therefore, whenever a probationer challenges his termination the courts 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 Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences (supra) C.M. No.15899 of 2007 in -5- CWP No.19889 of 2006 "At the outset, we may state that in several cases and in particular in State of Orissa v. Ram Narayan Das [AIR 1961 SC 177] it has been held that use of the word "unsatisfactory work and conduct" in the termination order will not amount to a stigma."
31. Returning now to the facts of the case before us. The language used in the order of termination is that the appellant's "work and conduct has not been found to be satisfactory". These words are almost exactly those which have been quoted in Dipti Prakash Banerjee's case as clearly falling within the class of non stigmatic orders of termination . It is, therefore safe to conclude that the impugned Order is not ex facie stigmatic.
32. We are also not prepared to hold that the enquiry held prior to order of termination turned this otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A charge sheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. None of the three factors catalogued above for holding that the termination was in substance punitive exist here."
(emphasis supplied) C.M. No.15899 of 2007 in -6- CWP No.19889 of 2006 In view of the aforementioned observations of the Hon'ble Supreme Court, we are of the considered opinion that merely because the words "Work and conduct was not found satisfactory" appear in the termination order, does not make it stigmatic. The fact that a show-cause notice was issued to the applicant - petitioner prior to his termination also can not turn a otherwise innocuous termination order into one by way of punishment requiring a regular departmental inquiry.
The judgments cited by the learned counsel for the applicant- petitioner are not relevant in the facts and circumstances of the present case. In Sat Narain's case supra, the Court found that the termination of services of the petitioner therein though innocuously worded, was in reality and substance a termination of services based upon 'a specific allegation of misconduct'. It was in this context the Court held that denial of opportunity to submit his defence in regard to the allegations of misconduct rendered the impugned termination order contrary to the principles of Natural Justice. In V.P.Ahuja's case supra, the Hon'ble Supreme Court found the termination order "exfacie is stigmatic as also punitive" as the order was founded on the ground that the appellant had failed in the performance of his duties administratively and financially. In and Krishnadevaraya Education Trust v. L. A. Balakrishna [AIR 2001 SC 625], Hon'ble Supreme Court while dealing with the issue of termination of the services of a probationer, made the following observations :-
"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 C.M. No.15899 of 2007 in -7- CWP No.19889 of 2006 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.
7. In the instant case, the second order which was passed terminating the services of the respondent was innocuously C.M. No.15899 of 2007 in -8- CWP No.19889 of 2006 worded. Even if we take into consideration the first order which was passed which mentioned that a Committee which had been constituted came to the conclusion that the job proficiency of the respondent was not up to the mark, that would be a valid reason for terminating the services of the respondent. That reason cannot be cited and relied upon by contending that the termination was by way of punishment."
(emphasis supplied) The Hon'ble Supreme Court has held in the said case that normally, it is preferred that the order itself does not mention the reason why the services are being terminated. If the order on the face of it states that employee's 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. However the Hon'ble Supreme Court has specifically stated that such a contention may not succeed in each and every case. Each case has to be decided on the basis of its peculiar facts and circumstances. In the present case, we find no illegality in the impugned termination order.
We find no merit in the present application. The application is misconceived and the same is accordingly dismissed.
(ASHUTOSH MOHUNTA)
JUDGE
March 20, 2009 (T.P.S MANN)
Gulati JUDGE