Dishan Singh Dahariya vs State Of Chhattisgarh on 1 November, 2022

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Chattisgarh High Court

Dishan Singh Dahariya vs State Of Chhattisgarh on 1 November, 2022

1. The Petitioner who was appointed as Stenographer (Hindi) in the Court of District and Sessions Judge, Durg was on probation and was posted at 16th Civil Judge, Class II, Durg has filed the present writ petition challenging the termination order dated 24.12.2019 passed by the District and Sessions Judge, Durg on the count that services of the petitioner are no more required. He has been terminated after paying him one month's salary as per the terms of appointment order dated 20.03.2018.

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2. Brief facts as reflected from the record are that the petitioner was appointed as Stenographer (Hindi) vide order dated 20.03.2018 in the Court of District and Sessions Judge, Durg along with other 12 candidates. It has been further contended by the petitioner that the presiding Officer of Court of 3rd Civil Judge, Class I Durg where the petitioner was sent to discharge his duties has misbehaved with him on 30.01.2019, therefore, he has made complaint to the District Judge, Durg. It has been contended that it was alleged by the District and Sessions Judge, Durg vide its memo dated 05.08.2019 that the petitioner has directly sent the photocopy of the complaint dated 01.02.2019 before the Hon'ble High Court of Chhattisgarh, which is misconduct as defined in Rule 3(3)(d)(x) of the Chhattisgarh Civil Services (Conduct Rules),1965 and punishable under Rule 10 of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966.

3. He was directed to explain the Show Cause Notice within 3 days.

Pursuant to the show cause notice dated 05.08.2019, petitioner submitted reply on 07.08.2019 contending that he has not made correspondence with the Registrar General of this Court. Thereafter, the learned District Judge, Durg vide memo dated 27.08.2019 Annexure P/6 directed to explain as to how his complaint has been sent to the Hon'ble Registrar General and explain who has sent the complaint directly, otherwise it will be presumed that it has been sent by the petitioner only. The petitioner could not submit reply therefore, a show cause notice was issued on 25.11.2019 why his services shall not be terminated with immediate effect? The petitioner submitted reply to the District and Page 3 of 8 Sessions Judge, Durg vide its letter dated 27.11.2019 explaining that the office bearer of the union has sought copy of the complaint from the petitioner, one of the union leaders has taken photo of the same and posted the same in Whatsup group without his knowledge and permission. Thereafter, the print out of the complaint has been submitted before the Registrar General of this Court. He was not involved in sending the complaint directly to the Registrar General. In support of his submission he has submitted affidavit and prayed that the proceedings be kindly closed. The Additional District Judge, Durg again sought clarification vide memo dated 05.12.2019 that the explanation given by him is not satisfactory, therefore, the petitioner has again submitted reply which was pending consideration, in the meantime, the impugned order Annexure P/1 dated 24.11.2019 has been issued by the District and Sessions Judge, Durg directing that the services of the petitioner are not required and one month's salary has been paid to him. The petitioner has filed the present writ petition assailing the termination order on the count that without inquiry his services have been terminated which is in violation of Article 311 of the Constitution of India and prayed for reinstatement with full back wages.

4. Respondent No. 2 has filed return contending that the petitioner has tried to dilute the issue. Earlier memo was issued to him wherein certain misconduct has been alleged. But they have not taken into consideration the said memo on the count that the petitioner is on probation and his performance was unsatisfactory therefore, the services have been terminated which is not stigmatic Page 4 of 8 and no stigmatic order has been passed. He would further submit that the petitioner being a probationer and his services have not been terminated on account of any misconduct, therefore, no departmental inquiry is required. As such, there is no illegality or perversity in passing of the impugned order (Annexure P/1) and would pray for dismissal of the writ petition.

5. Learned counsel for the petitioner in support of his contention has referred to the judgment passed by the Hon'ble Supreme Court in case of Anup Jaiswal vs. Government of India 1 and would refer to paragraph 11, 12 and 13 wherein the Hon'ble Supreme Court has held as under:-

"11. On behalf of the Union of India reliance has been placed on State of Punjab & Anr. v. Shri SukhRaj Bahadur, Union of India & Ors. v. R.S. Dhaba, State of Bihar & Ors. v. Shiva Bhikshiuk Mishra, R.S. Sial v. The State of U.P. & Ors., State of U.P. v. RamChandra Tridi and I.N. Saksena v. State of Madhya Pradesh. We have gone through these decisions. Except the case of Ram Chandra Trivedi supra) all other cases referred to above were decided prior to the decisions in Shamsher Singh's case (supra' which is a judgment delivered by a Bench of seven Judges. As pointed out by us in all these cases including the case of Ran Chandra Trivedi (supra) the principle applied is the one enunciated by Parshotam Lal Dhinga's case (supra) which we have referred to earlier. lt is urged relying upon the observation in Shri Sukh Raj Bahal's case (supra) that it is only when there is a full scale Departmental enquiry envisaged by Article 311(2) of the Constitution i.e. an enquiry officer is appointed, a charge sheet submitted, explanation called for and considered, any termination made thereafter will, attract the operation of Article 311(2). It is significant that in the very same decision it is stated that the circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. As observed by Ray, C.J. in Shamsher Singh's case (supra) the form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the service may in the fact and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision 1 (1984) 2 SCC 369 Page 5 of 8 of Article. 311(2).

12. 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.

13. In the instant case, the period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the Gymansium acting as one of the ring leaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries-were made behind the back of the appellant, only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ring leaders were not seriously taken note of. Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the' file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If. On reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided ill Article 311(2) of the Constitution."

6. He would further submit that before passing of the impugned order some action has been taken by the District Judge, Durg and various memos have been issued to him pointing out certain alleged misconduct of the petitioner, therefore, it is incumbent upon the respondents to conduct regular inquiry as held by the Hon'ble Supreme Court in case of Anup Jaiswal (supra). In support of his submission he has also referred to the judgment of Hon'ble Supreme Court in case of Deepti Prakash Banerjee vs Page 6 of 8 Satendranath Bosh, National Centre for Basic Science, Culcutta and others 2 and he would further submit that stigma may be inferable from the reference quoted in termination order though the order itself has not contained anything offensive and he would submit that termination order is bad as it contains stigma and no inquiry has been conducted against him. On above factual and legal submission, he would pray that the impugned order (Annexure P/1) be kindly set aside and he be reinstated with back wages.

7. On the other hand learned counsel for the State would submit that termination order is not stigmatic and he was in probation, therefore, the impugned order is justified.

8. I have learned counsel for the parties and perused the records with utmost satisfaction.

9. From the facts as projected by the petitioner it is evident that certain action of issuance of show cause notice and explanation were initiated against the petitioner but it has not reached to its logical end. Thereafter, the impugned order has been passed, therefore, it is not incumbent upon the respondent No. 2 to conduct inquiry against the petitioner being probationer. The law with regard to termination of probationer has continusouly core of contention before the High Court and Hon'ble Supreme Court in case of Rajasthan High Court vs. Ved Priya and Ors. 3 { AIR 2020 SC 2811} wherein the Hon'ble three judges bench has held as under: -

2 (1993) 3 SCC 60 3 AIR 2020 SC 2811 Page 7 of 8

14. The present case is one where the first respondent was a probationerand not a substantive appointee, hence not strictly covered within the umbrella of Article 311. The purpose of such probation has been noted in Kazia Mohammed Muzzammil v. State of Karnataka4:

"25. The purpose of any probation is to ensure that before the employee attains the status of confirmed regular employee, he should satisfactorily perform his duties and functions to enable the authorities to pass appropriate orders. In other words, the scheme of probation is to judge the ability, suitability and performance of an officer under probation. ..."

16. It is thus clear that the entire objective of probation is to provide the employer an opportunity to evaluate the probationer's performance and test his suitability for a particular post. Such an exercise is a necessary part of the process of recruitment, and must not be treated lightly. Written tests and interviews are only attempts to predict a candidate's possibility of success at a particular job. The true test of suitability is actual performance of duties which can only be applied after the candidate joins and starts working.

24. Even otherwise, it may not be true that just because there existed on record some allegations of extraneous considerations that the High Court was precluded from terminating the services of Respondent No.1 in a simplicitor manner while he was on probation. The unsatisfactory performance of a probationer and resultant dispensation of service at the end of the probation period, may not necessarily be impacted by the fact that meanwhile there were some complaints attributing specific misconduct, malfeasance or misbehavior to the probationer. If the genesis of the order of termination of service lies in a specific act of misconduct, regardless of over all satisfactory performance of duties during the probation period, the Court will be well within its reach to unmask the hidden cause and hold that the simplicitor order of termination, in fact, intends to punish the probationer without establishing the charge(s) by way of an enquiry. However, when the employer does not pickup a specific instance and forms his opinion on the basis of over all performance during the period of probation, the theory of action being punitive in nature, will not be attracted. Onus would thus lie on the probationer to prove that the action taken against him was of punitive characteristics.

26. Since Respondent No.1 has failed to establish that the High Court intended or has actually punished him for any defined misconduct, it stands crystallized that the object of the High Court on the administrative side Page 8 of 8 was to verify the suitability and not enquire into the allegations against the first respondent. Independently also, we do not find that the foundation was the allegations but it was based upon a holistic assessment of the respondent's service record. Even taking an effectsbased approach, we do not feel that the order of nonconfirmation or the preceding circumstances would prejudice the respondent, meriting a higher procedural requirement."

10. Now, coming to the facts of the case that petitioner's probation period has not been completed, he was still in probation and from bare perusal of the termination order it is quite vivid that no material as alleged by the petitioner has been considered by respondent No.2 with regard to his past conduct, therefore, it cannot be presumed that petitioner's service has been terminated on the count of certain misconduct for which inquiry was necessary.

11. It is not in dispute that petitioner is on probation. He was appointed on 20.03.2018 for a probation period of two years which would have expired on 19.03.2020. But he has been terminated as his services were not required which is not stigmatic and is not punitive in nature.

12. Considering the entire facts and circumstances of the case and law on the subject, it is quite vivid that the petitioner is on probation and a probationer's services can be terminated if it is not required in view of the law laid down by the Hon'ble Supreme Court. Accordingly, the writ petition deserves to be and is hereby dismissed.

13. No order as to costs.

Sd/-

(Narendra Kumar Vyas) Judge Deshmukh

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Chattisgarh High Court