Gauhati High Court
Prof. Guruprasad Khataniar vs The State Of Assam And 7 Ors on 28 June, 2024
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/55
GAHC010025602023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/712/2023
PROF. GURUPRASAD KHATANIAR
S/O- LATE RAJANI KANTA KHATANIAR, R/O- KRISHNA NAGAR, NEAR
HOLY CHILD SCHOOL, GHY- 781003
VERSUS
THE STATE OF ASSAM AND 7 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM,
EDUCATION (HIGHER) DEPTT, KAHILIPARA, GHY- 19
2:THE DIRECTOR OF HIGHER EDUCATION
ASSAM
KAHILIPARA
GHY- 19
3:THE BHATTADEV UNIVERSITY
REP. BY ITS VICE CHANCELLOR
BAJALI
PATHSALA
PIN- 781325
ASSAM
4:THE REGISTRAR (IN CHARGE)
BHATTADEV UNIVERSITY
BAJALI
PATHSALA
PIN- 781325
ASSAM
5:THE EXECUTIVE COUNCIL OF BHATTADEV UNIVERSITY
REP. BY ITS EX OFFICIO MEMBERS
BAJALI
Page No.# 2/55
PATHSALA
PIN- 781325
ASSAM
6:THE GAUHATI UNIVERSITY
REP. BY ITS VC
GHY- 14
7:THE REGISTRAR
GAUHATI UNIVERSITY
GHY- 14
8:PROF. BIRINCHI KUMAR DAS
VC
BHATTADEV UNIVERSITY
PATHSALA
PIN- 781325
ASSA
Advocate for the Petitioner : MR H K DAS
Advocate for the Respondent : SC, EDU
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
Judgment and Order (CAV)
Date : 28-06-2024
Heard Mr. H.K. Das, learned counsel for the petitioner. Also heard Mr.
K.N. Choudhury, learned Senior Counsel assisted by Mr. J. Patowary, learned
counsel for the respondent nos. 3, 4 & 5, Mr. S. Das, learned Standing Counsel,
Higher Education Department for the respondent no.1 & 2, Mr. P.J. Phukan,
learned Standing Counsel, Gauhati University for the respondent no.7 and Mr. I.
Choudhury, learned Senior Counsel assisted by Mr. S. Biswakarma, learned
counsel for the respondent no.8.
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2] The petitioner is before this Court put into challenge the order dated
31.01.2023 by which the Executive Council of Bhattadev University in exercise of
its power under Section 4.2.2.3 read with Section 4.2.3.2 of the first Statutes,
whereby the petitioner who was appointed as a Registrar of the said University
on probation was relieved from the services of the University with immediate
effect without holding any enquiry from 01.02.2023. The petitioner is aggrieved
that his release from services on probation is contrary to the provisions of the
Statutes and his release from service on probation was issued on the basis of
several false allegations of misconduct which have made against him which
according to the petitioner has a stigmatic effect on his career and therefore, he
is entitled to the protection under Article 311 of the Constitution of India.
3] The facts necessary for the purpose of this case are that the petitioner was
initially appointed as an Academic Registrar of the Gauhati University with effect
from 25.10.2016. On 06.05.2022 the petitioner applied for and was selected and
appointed as a Registrar Bhattadev University, Bajali in which post he joined
while holding lien to his post of Academic Registrar to Gauhati University.
According to the writ petitioner in his capacity as a Registrar of the University,
he pointed out several anomalies in matters relating to the functioning of the
University including the matters related to the selection of Officers in key
positions of the University. There were anomalies regarding utilization of the
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Government funds and various undue favours being shown to the contractors
during execution of works relating to the University. Because of the substandard
works found to have been carried out by the contractors, all these anomalies
and discrepancies were duly pointed out to the Higher Officer, more particularly,
the Vice Chancellor of the University, namely, the respondent no.8. However,
these anomalies which were pointed out by the petitioner were consistently
ignored and overlooked by the University Authorities including the respondent
no.8. In view of the complaints raised and anomalies pointed out by the
petitioner to the respondent no.8, he became inimical to the writ petitioner and
as a consequence thereof hatched a conspiracy against the petitioner in
connivance with one contractor, namely, Jiaur Pasha. In connection to the some
bills raised by the contractors relating to works allegedly stated to have been
executed pertaining to earth filling work, one file in this regard was placed
before the petitioner where the bills were approximately Rs.32.50 Lakhs. Upon
the file being placed before the writ petitioner, he intimated the respondent no.8
Vice Chancellor who in turn instructed him to place the file before the
Committee, which is looking after the development works of the University. The
Vice Chancellor, namely, the respondent no.8 instructed the writ petitioner to
request the Executive Engineer for joint inspection of the site. The said
instruction could not be carried out as the Executive Engineer was stated to be
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out of station. In connection with the release of bills, the said contractor met
the writ petitioner on several occasions requesting for release of the bills. The
petitioner however expressed his inability to do the same without joint
inspection. The said contractor put up a proposal to the petitioner that he can
arranged for government funds for development of the University. Keeping the
interest of the University in mind the petitioner agreed to the proposal of the
said contractor for a meeting with the Chief Engineer either in his office or in his
residence to discuss in detail about the development projects of the University.
On the day assigned which is on 06.08.2022, while the petitioner was waiting
for the said contractor to come for a meeting with the Chief Engineer, because
of some delay in the meeting the petitioner was invited to the house of the
contractor for a discussion prior to the meeting with the Chief Engineer. The
contractor suggested to the petitioner that they should go to the house of the
petitioner for a discussion of this project prior to the meeting with the Chief
Engineer. While the petitioner along with the said contractor was proceeding to
the apartment of the petitioner, some unknown persons in a vehicle blocked the
car of the petitioner and dragged him out of the car and took him to an
undisclosed location. They manhandled the petitioner inside the car.
Subsequently, the petitioner could learn that these unknown persons were the
personnel from the ACB Police Station, Directorate of Vigilance & Anti Corruption
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Bureau, of Assam and they had falsely laid a trap at the instance of the said
contractor. Later he came to be informed that an FIR was lodged on 06.08.2022
by Mr. Jiarur Pasa alleging that the petitioner had made a demand of bribe from
the contractor for releasing pending bills.
4] Since the petitioner was detained for more than 48 hours, he was
subsequently placed under suspension by the Bhattadev University Authorities
on 09.08.2022 with effect from 06.08.2022. The petitioner was given a
subsistence allowance as per the norms. The subsistence allowance was,
however, stopped after November, 2022 at the instance of the respondent no.8.
The petitioner submitted a communication to the respondent no.8 along with his
necessary documents before the Authorities that he is not engaged in any other
employment, business, profession or vocation and only thereafter, his
subsistence allowance was communicated. Since the petitioner's suspension was
not revoked and inspite of his several application he was kept under suspension,
he approached this Court by filing WP(C) No.7595/2022. While the said writ
petition was pending disposal, the respondent by the impugned order dated
30.01.2023 relieved the petitioner from his services during the probation period.
5] Learned counsel for the petitioner submits that the termination of the
petitioner during his probation is contrary to the provision of Rules and
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procedure as well as to the law laid down by the Apex Court. Referring to the
first Statute of the Bhattadev University, he submits that the term of office of a
Registrar as prescribed under Section 4.2.2 is 5 years from the date of resuming
his office. Under 4.2.2.3 the Executive Council may relieve the Registrar from
the post on recommendation of the Vice Chancellor on sufficient and convincing
grounds relating to the dereliction of his/her assigned duties/gross act, affecting
the administration and functioning of the University/violation of established
Rules and procedures of the University/ proven act of corruption-financial,
administrative and moral. Learned counsel for the petitioner further submits that
under Clause 4.2.3.2 the Registrar shall serve a probation period of one year
which may be extended to another one year after which on review of his/her
performances during the probation period by the Vice Chancellor, he/she shall
be confirmed with the proposition for the remaining period of the term.
6] It is submitted by the learned counsel for the petitioner that a bare
reading of these provisions will reveal that the Registrar shall serve a probation
period of 1 (one) year. In the facts of the present case, the petitioner was
appointed as a Registrar on probation on 06.05.2022 and his was under the
probation period. However, without following the due procedure prescribed
under the Statutes and on the basis of certain unfounded allegations against the
writ petitioner, he was terminated on 31.01.2023 and which order is presently
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being assailed. The learned counsel for the petitioner submits that this statute
clearly provides that the petitioner is required to be probation for the period of
one year and which may be extended for another year. The Section 4.2.3.2
provides that it is only after review of his/her performance during the period by
the Vice Chancellor that he/she shall be confirmed for the remaining period of
the term. He, therefore, submits that the appointment of the writ petitioner is
not for one year but for the whole terms of 5 years of which one year is to be
on probation. It is submitted that under the scheme of the Statue of Section
4.2.2.1 a Registrar can be appointed for a period of 5 (five) years. There is no
provision for appointing him for any lesser period. However, for a period of 1
(one) year after his appointment he shall be on probation and upon review of
his performance by the Vice Chancellor, his services will be confirmed. Learned
counsel for the petitioner makes a distinction between the appointment of a
Registrar and the appointment of a probationer - A Registrar is appointed under
the statutes as a probationer for a period of 1 (one) year or 2 (two) years as the
case may be. In the present case, the appointment of the petitioner was under
Section 4.2.2 and as per Section 4.2.3.2 he shall be in probation for a period of
1 (one) year which may further be extended for another year and upon
successful completion of the same satisfactorily, his service shall be confirmed
by the Vice Chancellor. It is strenuously submitted by the learned counsel for the
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petitioner that although the petitioner was appointed for a period of 5 (five)
years but he was terminated prior to completion of the period of 1 (one) year
which is a period for provision. It is submitted that there is no probation under
the statutes for release of the Registrar prior to completion of 1 (one) year.
Since the statute provides that the period of 1 (one) year will be a period of
probation for the Registrar appointed, it necessarily means that the performance
of the Registrar appointed is to be evaluated by the Vice Chancellor of the
University and the Vice Chancellor will take a conscious decision whether the
petitioner is to be confirmed for the rest of his/her terms of service. As such,
even before the petitioner could complete his term of service under probation,
the petitioner was terminated on allegations which have nothing to do with his
performance or duties. It is submitted that the very purpose of the probation
under Section 4.2.3 is to evaluate the performance rendered by the writ
petitioner during his period of probation. As such, the impugned order dated
31.01.2023 passed by the University Authorities relieving the petitioner from his
service during the period of probation is contrary to the very Statute itself.
Referring to the minutes of the assessment of the performance of the petitioner
which was placed before the Executive Council, it is submitted that there are
allegations made against the writ petitioner by the Vice Chancellor. These
allegations although are seen in the assessment report are not supported by
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necessary documents or particulars and furthermore, the petitioner during his
period of service was never confronted with any of these allegations in order
that he can have an opportunity of rebutting these allegations or to improve his
conduct, if required while in probation as a Registrar. This assessment of the
petitioner was conducted by the respondent no.8 on 24.01.2023. He further
placed before the Court the copy of the minutes of the 8 th Executive Council
Meeting of Bhattadev University held on 25.01.2023. Learned counsel for the
petitioner pointed out that the agenda in the meeting was in respect of the
suspension of the writ petitioner. Learned counsel for the petitioner submits that
it appears in the meeting held on 25.01.2023 that resolution was taken in
agenda item No.18 to continue the suspension of the petitioner and to consult
the Standing Counsel for further course of action. In so far as the agenda item
no 19 is concerned, the same relates to suitability assessment of the petitioner
during the probation period. Learned counsel for the petitioner has drawn the
attention to the discussions held in the meeting as well as the affidavit-in-reply
filed by the petitioner on 25.04.2023. He points out that there were several
instances of irregularities which were discussed in the meeting and that there
were several procedural lapses which were committed by the petitioner which
was also discussed. Learned counsel for the petitioner submits that none of
these were ever brought to the notice of the petitioner in written nor was he
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confronted with these allegations. The committee resolved that the petitioner be
relieved from the post of Registrar with effect from 01.02.2023 as per the
provisions of section 4.2.2.3 and 4.2.3.2 of the first statutes on the ground of
general unsuitability to hold the same post.
7] Learned counsel for the petitioner, therefore, submits that although the
petitioner has been relieved from his service, apparently being found unsuitable
during the probation period, however, upon a careful scrutiny of the allegations
made, the order relieving the petitioner cannot be accepted to be an innocuous
order finding the petitioner unsuitable to be retained as a Registrar, but the
basis and the background on which the order has been issued reveal that this
impugned order of relieving the petitioner was motivated by the allegations of
misconduct and procedural lapses brought against the writ petitioner. The
Executive Council had merely relied on the assessment made by the Vice
Chancellor and has thereby not given an independent consideration as per the
mandate of the provisions of Section 4.2.2.3 and Section 4.2.3.2 of the first
statutes. The petitioner ought to have been given an opportunity to rebut the
allegations brought against him. In the face of these allegations, without being
given that opportunity to rebut these allegations, the order of termination will
be a stigmatic order which will have further consequences on his career. It is
submitted that under such circumstances the impugned order dated 31.01.2023
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passed by the Executive Council, being not a termination simpliciter, but is a
termination which is based on the allegations made against the petitioner,
against which there was no departmental enquiry to find out the veracity and
the truth into the allegations. Accordingly, learned counsel for the petitioner
submits that since the impugned termination order dated 31.01.2023 has been
passed in contravention with the provisions of the statutes and thereby in
violation of the principles of natural justice, the impugned termination order
dated 31.01.2023 be set aside and petitioner be reinstated in service as a
Registrar with full back wages. The counsel for the writ petitioner, however, at
this stage submits that he does not have any personal grievance against the
respondent no.8 although he is arrayed as a party respondent by name.
8] Mr. H.K. Das, learned counsel for the petitioner submits that in order to
decide the real reasons behind the formal order of discharge of a probationer,
the Court can lift the veil and go behind the formal order of discharge to find
the real cause of action. It is submitted that since the order is punitive in
nature, the petitioner could not have been relieved or discharged in the absence
of the proper enquiry, and the same, therefore, violates the provisions of Article
311(2) of the Constitution of India. In support of his contentions, learned
counsel for the petitioner relied the judgment of Anoop Jaiswal vs. Govt. of
India reported in (1984) 2 SCC 369. He further submits that in order to find
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out whether termination is termination simpliciter or punitive in nature, it is
necessary to find the motive or foundation for termination. He presses into
service the judgment of the Apex Court rendered in Chandra Prakash Shahi vs.
State of Uttar Pradesh reported in (2000) 5 SCC 152 and Ratnesh Kumar
Chaudhary vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar reported
in (2015) 15 SCC 151. In so far as his claim of back wages is concerned,
learned counsel for the petitioner submits that in the event the petition is
allowed and the termination order is set aside and the petitioner is reinstated in
service his back wages be paid. He has relied on the judgment of the Apex
Court rendered in Union of India vs Madhusudan Prasad reported in (2004) 1
SCC 43 and Shobha Ram Raturi vs. Haryana Vidyut Prasaran Nigam Limited
reported in (2016) 16 SCC 663.
9] Per contra, Mr. K.N. Choudhury, learned Senior Counsel appearing for
the University strongly disputes the contentions of the learned counsel for the
writ petitioner. He submits that the law in respect of termination of a
probationer is well settled. He submits that the position of law was laid down as
far back as in 1957 by the Apex Court in Purushotom Lal Dinghra vs. Union of
India reported in AIR 1928 SC 36. He submits that a probationer has no right to
continue with the post. Where the probationer is not found suitable in the post
after due assessment of the performance of the probationer, the authorities
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concerned are within their rights to release the probationer on the ground that
he was not found suitable or that his services are found to be unsatisfactory.
Such an order of release is an order of release simpliciter and is not punitive in
nature. He refers to the impugned order dated 31.01.2023 to submit that the
order is very clear and the petitioner is relieved from his services of the
University with effect from 01.02. 2023. A bare perusal of this order reveals that
this order is not punitive in nature. Consequently, prior to release of the writ
petitioner, no enquiry is called for either under the statues or the law prevailing
as laid down by the Apex Court. He submits that while it is open to the Court to
go behind the order to see the real reason or motive, but in the facts and
circumstances of the case, there was no other motive behind the petitioner
being relieved from his services, save and accept that his services were found to
be unsatisfactory or unsuitable by the University in his capacity, as the Registrar
of the University. It is submitted that the Vice Chancellor of the University is the
supervising and controlling authority of the Registrar and therefore, the Vice
Chancellor is one of the authorities who has to interact with the Registrar on a
day to day basis while running the affairs of the University. Whatever
discrepancies and shortcomings the Vice Chancellor has faced and noticed
during his interaction with the petitioner, he has made his assessment and
placed it before the executive committee. The minutes which are placed before
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this Court will reveal that there was a detailed deliberation on the assessment
made by the Vice Chancellor in respect of the writ petitioner and upon an
independent consideration by the members of the Executive Council on the
assessment placed before the Executive Council, it was decided that the services
rendered by the petitioner were not found suitable. The services rendered by
the petitioner are not suitable for the purposes of the University. It is submitted
by the learned Senior Counsel that there is no universal principle that a
probationer cannot be relieved from service prior to completion of his
probationary period. In view of the assessments made by the Vice Chancellor, it
was felt that the manner in which the petitioner is conducting himself or
performing the services acceptable for the purposes of the University and
consequently, the Executive Council deliberated in detailed on these aspects and
have passed the order dated 31.01.2023 which is impugned in the present writ
petition. He submits that the order relieving the petitioner does not carry any
stigma and is not punitive in nature and therefore, no prior enquiry or a notice
of hearing is required to be given in terms of the statutes as per law. He
submits that the assessment made by the Vice Chancellor is purely with the
object to decide the further continuance of the writ petitioner as a Registrar. It
is not punitive in nature and does not carry any stigma on the writ petitioner.
That apart the writ petitioner is on lien from the Gauhati University. Therefore, it
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is not a case that the writ petitioner will be without any employment. It is well
settled that such orders of relieving probationers are not to be considered as
punitive or stigmatic orders relieving or discharging government servants on
probation. In support of his contentions, learned Senior Counsel for the
respondents has extensively relied on the judgments of the Apex Court
rendered in Purshotam Lal Dhingra vs. Union of India reported in AIR 1958 SC
36 and Samsher Singh vs. State of Punjab reported in (1974) 2 SCC 831. He
further relies on the Judgment of the Apex Court in Gujarat Steel Tubes Limited
vs Mazdoor Sabha reported in (1980) 2 SCC 593 and Doctor Sumati P Shere
vs. Union of India reported in (1989) 3 SCC 311.
10] It is submitted that a release order or discharge order is not for his
arrest or the allegations against him in respect of the criminal proceedings filed
against him. In so far as the suspension is concerned, he has already
approached this Court by filing WP(C) No.7595/2022 and the matter is pending
disposal before the Co-ordinate Bench of this Court.
11] Mr. I. Choudhury, learned Senior Counsel for the respondent no.8
submits that the entire writ petition is not based on correct facts. Certain
statements made in the writ petition are contrary to the facts and therefore, this
Court ought not to entertain any writ petition which is not based on correct facts
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and the same should be dismissed with cost.
12] Learned Senior Counsel for the respondent no.8 further submits that
whether an order discharging probationer is an order of discharge simpliciter or
is punitive in nature will require examination into the motive and the foundation
on the basis of which such an order is issued. He submits that where an enquiry
is held ex parte not to find out the truth of the allegations made against the
petitioner, but only for the purpose to determine whether the petitioner should
be retained in service beyond the period of probation, then such an enquiry
shall be a motive for such termination. But where the enquiry is held on the
basis of the evidence and a definite finding is reached into the allegations
against the petitioner without the petitioner being given any opportunity to
rebut such allegations, then such finding in respect of the misconduct or
allegations becomes the foundation on the basis of which the order has been
passed. In such an event, an order of termination becomes punitive and the
petitioner would be entitled to an opportunity of being heard before such a
punitive order is passed. In the facts of the present case, the learned Senior
Counsel for the respondent no.8 strenuously urges that an assessment was
made in respect of the services rendered by the petitioner and it was found that
his services were not found satisfactory and various instances of such
unsatisfactory services being rendered are referred to in the assessment made.
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This assessment was placed before the Executive Council of Bhattadev
University and there was a detailed deliberation by the members of the
Executive Council and the Executive Council unanimously resolved to
release/discharge the petitioner from the post of Registrar of the University with
effect from 01.02.2023. He, therefore, submits that there is no malice against
the petitioner and furthermore, the assessment made by the Vice Chancellor
was only to the extent of deciding whether to retain the petitioner in service as
a Registrar of the Bhattadev University. He also submits that these statutes do
not preclude the Executive Council from releasing the petitioner on probation
prior to completion of his period of probation. He disputes the submission of the
learned counsel for the petitioner that the petitioner could not have been
released from his service prior to completion of his probation period. However,
he submits that the source of power is provided under the statutes that it is the
Executive Council who can terminate or release a Register on probation.
Therefore, where the source of power is clearly defined, it is implicit that the
authorities are competent to invoke such powers during the period of probation
of an employee and the same is not specifically curtailed under the statues.
13] In support of his contentions, Mr. I. Chowdhury, learned Senior Counsel
for the respondent no.8 relies upon the following judgments rendered by the
Apex Court
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1. K.D. Sharma vs. Steel Authority of India Limited and Ors
(2008) 12 SCC 481.
2. Radey Shyam Gupta vs. UP State Agro Industries Corporation Limited &
Anr (1999) 2 SCC 21,
3. Indu Kakkar vs. Haryana State Industrial Development Corporation Ltd & Anr.
(1999) 2 SCC 37
4. Kunwar Arun Kumar vs. UP. Hill Electronics Corporation Ltd. & Ors.
(1997) 2 SCC 191
5. Jaswantsingh Pratapsingh Jadeja vs. Rajkot Municipal Corporation & Anr.
(2007) 10 SCC 71,
6. Gujarat Steel Tubes Ltd. & Ors. vs. Gujarat Steel Tubes Mazdoor Sabha & Ors.
(1980) 2 SCC 593
7. N. Mani vs. Sangeetha Theatre & Ors.
(2004) 12 SCC 278
8. Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences,
Calcutta & Ors.
(1999) 3 SCC 60,
9. State of Punjab vs. Dharam Singh AIR 1968 SC 1210.
14] Learned Standing Counsel for the Gauhati University submits that the
petitioner is an employee of the Gauhati University and he is presently on lien.
Since the present petition is in respect of his release from his services under the
respondent nos. 3, 4 & 5 and therefore, has no submissions to offer on behalf of
Gauhati University. Learned Standing Counsel for the Higher Education
Department also submits that the Executive Committee of the Bhattadev
University has correctly passed the order of release. Since the said order is an
order of release/discharge of the writ petitioner during probation, there is no
infirmity in the said order as it is not punitive in nature. Learned counsel for the
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parties have been heard, pleadings on record have been carefully perused. The
minutes of the Executive Committee meeting is also carefully examined.
15] The essential facts in the present proceedings are not disputed. The
petitioner was absorbed as an Academic Registrar in the Guwahati University
and his service was confirmed as Academic Registrar on 25.10.2016. The offer
of appointment to the petitioner to the post of Registrar of the Bhattadev
University was given to him on the 25.04.2022. The petitioner was thereafter
granted lien for 2 (two) years by Gauhati University by its order dated
05.05.2022. The petitioner thereafter joined as a Registrar in the Bhattadev
University on 06.05.2022. Pursuant to an FIR lodged before the Officer-in-
charge, ACB Police Station, Directorate of Vigilance and Anti Corruption, Assam
on 06.08.2022, the petitioner was arrested on the same day in connection with
ACB P.S. case no. 24 of 2022. Since the petitioner was in custody for more than
48 hours, he was placed under suspension with effect from his date of arrest
i.e. 06.08.2022 by order dated 09.08.2022 for the period of 3 (three) months.
Subsequently, the petitioner was granted bail by the Court of Special Judge,
Assam on 08.09.2022. The petitioner was also paid his subsistence allowance as
per the rules and procedure. On 05.11.2022, the period of 3 (three) months of
his suspension was expired, however, since the University Authority did not take
any steps towards reinstatement or extension of the suspension period of the
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petitioner, he filed WP(C) No. 7595 of 2022 challenging the legality and validity
of his prolonged suspension. The said petition is presently pending disposal
before this Court. By order dated 31.01.2023 , the petitioner was relieved from
his services as a Registrar with effect from 01.02.2023 as per provisions under
Sections 4.2.2.3 and 4.2.3.2 of the First Statues, which was decided in the 8 th
Executive Council Meeting, Bhattadev University held on 25.01.2023.
16] A reference to the first statues is necessary in this context. Under
Section 4.2.2.3 the Executive Council may relieve the Registrar from the post of
recommendation of the Vice Chancellor on sufficient and convincing ground
relating to dereliction of her/his assigned duties/gross act of delinquency
affecting the administration and functioning the University/violation of the
established Rules and Procedures of the University/Proven Act of corruption-
financial, administrative and moral. Under Section 4.2.3.2, it is provided that the
Registrar shall serve a probation period of one year which may be further
extended to another year after which, on review of his performance during the
probation period by the Vice Chancellor, she/he shall be confirmed in the
position for the remaining period of term. The relevant the Sections 4.2.2.3 and
section 4.2.3.2 are extracted below for ready reference:
"4.2.2.3. The Executive Council may relieve the Registrar from the post on
recommendation of the Vice-Chancellor on sufficient and convincing ground relating to
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dereliction of her/his assigned duties/gross act of delinquency affecting the administration
and functioning of the University/violation of the established Rules and procedures of the
University/proven act of corruption-financial, administrative and mora.
.....
4.2.3.2. The Registrar shall serve a probation period of 1 (one) year which may be
further extended to another year, after which on review of her/his performance during the
probation period by the Vice Chancellor she/he shall be confirmed in the position for the
remaining period of the term."
17] From a perusal of these sections what is evident is that the Registrar is
appointed as a whole time Officer for a period of 5 (five) years from the date of
assuming his/her office and under Section 4.2.3.2., the Registrar shall serve a
probation period of 1 (one) year which may be extended to another year and
after which, on review of his/her performance during the probation period, the
Registrar may be confirmed for the remaining period of the term.
18] As such, it is clear from the first statutes that the Registrar of the
University will be a whole time Officer of the University and the term of the
office is for 5 (five) years from the date of assuming of the Office. For this 5
(five) years term, the Registrar shall be on probation for a period of 1 (one)
year which may be extended to another year, and thereafter, upon evaluation of
his performance during the probation period by the Vice Chancellor, the
incumbent may be confirmed in the position for the remaining period of term.
As such, it is clear that the term of the Office of the Registrar has a period
Page No.# 23/55
which the Registrar will have to function on probation and it is only upon an
assessment made by the Vice Chancellor of the University that the probation
period of a Registrar can be confirmed. The statutes do not elaborate on how
the assessment is to be made by the Vice Chancellor. However, what is evident
is that the Registrar may be relieved from the post by the Executive Council of
the University upon such recommendation made by the Vice Chancellor.
19] The grounds on which the order of release of the petitioner from the
post of Registrar of Bhattadev University has been assailed are primarily two:-
(i) that the assessment of the petitioner required to be made by the Vice
Chancellor shall be only after completion of the period of one year or such other
extended period of provision. So in the present case, the petitioner was released
well prior to the completion of his period of probation. (ii), that the order
releasing the petitioner, although prima facie, does not appear to be stigmatic,
but the assessments which was made by the Vice Chancellor and the minutes of
the 8th Executive Council Meeting held on 25.01.2023 where the assessments
made by the Vice Chancellor were elaborately discussed, will reveal that there
are several findings arrived at against the petitioner without any enquiry and
therefore, the same is stigmatic in nature and therefore, calls for interference by
this Court.
Page No.# 24/55
20] The law in respect of discharge of the probationer and as to whether
an order of discharge can be considered to be discharge simpliciter or an order
having order carrying stigma on the incumbent has been discussed and laid
down by the Apex Court in catena of judgments. It will be necessary to examine
the various judgments rendered by the Apex Court on these aspects. It will be
prudent to first deal with the matter in respect of discharge of a probationer
considering that it has been extensively dealt with by the Apex Court in its
several judgments. This question has been considered by the Apex Court in the
judgment of Purshotam Lal Dhingra (supra) as well as in Shamsher Singh
(supra) and other subsequent judgments.
21] The history of the various precedents in this aspect has been
elaborately discussed in the judgment of the Apex Court rendered in State Bank
of India vs Palak Modi & Anr. reported in (2013) 3 SCC 607. To appreciate the
law considered and laid down by the Apex Court in this respect a detailed
discussion of the said judgment would be necessary. In Paragraph-15 of the said
judgment it has been held that in Parishotam Lal Dhingra (supra), the
Constitution Bench was called upon to decide whether the order of reversion of
an official or holding a higher post in an officiating capacity would be treated as
punitive. The Apex Court held that if the termination of service is founded on
the right flowing from the contract or the service rules then prima facie, the
Page No.# 25/55
termination is not a punishment and carries with it no evil consequences and so
Article 311 is not attracted. But even if the Government has, by contract or
under the Rules, the right to terminate the employment without going through
the procedure prescribed for inflicting the punishment of dismissal or removal or
reduction in rank, the Government may, nevertheless, choose to punish the
servant and if the termination of service is sought to be founded on misconduct,
negligence, inefficiency or other disqualification, then it is a punishment and the
requirements of Article 311 must the complied with.
22] In State of Punjab vs. Sukh Raj Bahadur Mitter reported in AIR 1968
SC 1089 the Apex Court culled out the following provisions.
"1. The services of a temporary servant or a probationer can be terminated
under the rules of his employment and such termination without anything more would
not attract the operation of Article 311 of the Constitution.
2. The circumstances preceding or attendant on the order of termination
have to be examined in each case, the motive behind it being immaterial.
3. If the order visits the public servant with any evil consequences or casts
an aspersion against his character or integrity, it must be considered to be one by way
of punishment, no matter whether he was a mere probationer or a temporary servant.
4. An order of termination of service in unexceptionable form preceded by an
enquiry launched by the superior authorities only to ascertain whether the public servant
should be retained in service does not attract the operation of Article 311 of the
Constitution.
5. If there be a full-scale departmental enquiry envisaged by Article 311 i.e.
Page No.# 26/55
an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and
considered, any order of termination of service made thereafter will attract the operation
of the said article."
23] In State of Bihar vs. Shiva Dikshuk Mishra reported in (1970) 2 SCC
871, the Apex Court while considering a reversion of the incumbent from the
post of Subedar-Major to that of Sergeant in the backdrop of an enquiry made
into the allegation of the assault on the subordinate was held to be punitive.
The Apex Court held as that :
The test as previously laid and which was relied on was whether the misconduct or
negligence was a mere motive for the order of reversion or whether it was the very foundation of
that order. In Dhaba case, it was not found that the order of reversion was based on misconduct
or negligence of the officer. So far as we are aware no such rigid principle has ever been laid
down by this court that one has only to look to the order and if it does not contain any imputation
of misconduct or words attaching a stigma to the character or reputation of a Government
Officer it must be held to have been made in the ordinary course of administrative routine and the
court is debarred from looking at all the attendant circumstances to discover whether the order
had been made by way of punishment. The form of the order is not conclusive of its true nature
and it might merely be a cloak or camouflage for an order founded on misconduct. It may be that
an order which is innocuous on the face and does not contain any imputation of misconduct is a
circumstance or a piece of evidence for finding whether it was made by way of punishment or
administrative routine. But the entirety of circumstances preceding or attendant on the impugned
order must be examined and the overriding test will always be whether the misconduct is a mere
motive or is the very foundation of the order."
24] Again in Samsher Singh (supra) a constitution Bench of seven-judges
of the Apex Court considered the legality of the discharge of two judicial officers
of the Punjab Judicial Service who were serving as probationers. It was held
Page No.# 27/55
that "No abstract proposition can be laid down that where the services of a
probationer are terminated without saying anything more in the order of
termination than that the services are terminated it can never amount to a
punishment in the facts and circumstances of the case. If a probationer is
discharged on the ground of misconduct, or inefficiency or for similar reason
without a proper enquiry and without his getting a reasonable opportunity of
showing cause against his discharge it may in a given case amount to removal
from service within the meaning of Article 311(2) of the Constitution.
It was held by the Apex Court that the form of the order is not decisive
as to whether the order is by way of punishment. Even an innocuously worded
order terminating the service may, in the facts 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 of
Article 311. In such a case, the simplicity of the form of the order will not give
any sanctity. That is exactly what has happened in the case of Ishwar Chand
Agarwal. The order of termination is illegal and must be set aside.
25] Justice Krishna Iyer who was a part of the Bench having agreed with
the view of the majority made the following concluding observations :
"Again, could it be that if you summarily pack off a probationer, the order
is judicially unscrutable and immune? If you conscientiously seek to satisfy yourself about
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allegations by some sort of enquiry you get caught in the coils of law, however harmlessly the
order may be phrased? And so, this sphinxcomplex has had to give way in later cases. In some
cases the rule of guidance has been stated to be 'the substance of the matter' and the 'foundation' of
the order. When does 'motive' trespass into 'foundation'? When do we lift the veil of 'form' to
touch the 'substance'? When the Court says so. These 'Freudian' frontiers obviously fail in the
work-a-day world and Dr Tripathi's observations in this context are not without force."
26] In Gujarat Steel Tubes Limited (supra) the Apex Court held that a
termination effected because the master is satisfied of the misconduct and of
the consequent desirability of terminating the service of the delinquent servant,
is a dismissal, even if he had the right in law to terminate with an innocent
order under the standing order or otherwise. Whether, in such a case, the
grounds are recorded in different proceedings from the formal order, does not
detract from its nature. Nor the fact that, after being satisfied of the guilt, the
master abandons the enquiry and proceeds to terminate. Given an alleged
misconduct and a live nexus between it and the termination of service, the
conclusion is dismissal, even if full benefits as on simple termination, are given
and non-injurious terminology is used. On the contrary, even if there is suspicion
of misconduct, the master may say that he does not wish to bother about it and
may not go into his guilt but may feel like not keeping a man he is not happy
with. He may not like to investigate nor take the risk of continuing a dubious
servant. Then it is not dismissal but termination simpliciter, if no injurious record
of reasons or punitive cut-back on his full terminal benefits is found. For, in fact,
Page No.# 29/55
misconduct is not then the moving factor in the discharge.
27] In Anoop Jaiswal (supra) the Apex Court had considered the legality of
the termination of the incumbent's service, who was appointed to the Indian
Police Service and was on probation and as to whether the same was punitive in
nature. The Apex Court held that it is 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.
28] The Apex Court further held that 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 gymnasium and acting
as one of the ringleaders 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
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with severely in the end. The cases of other probationers who were also
considered to be ringleaders 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 in Article
311(2) of the Constitution.
29] In Dipti Prakash Banerjee (supra) the Apex Court was considering the
termination of the appellant service and had formulated the following points:
"(1) In what circumstances, the termination of a probationer's services can be said to be founded
on misconduct and in what circumstances could it be said that the allegations were only the
motive?
(2) When can an order of termination of a probationer be said to contain an express stigma?
(3) Can the stigma be gathered by referring back to proceedings referred to in the order of
termination?
(4) To what relief?"
30] The Apex Court further held that as to in what circumstances an order
Page No.# 31/55
of termination of a probationer can be said to be punitive or not depends upon
whether certain allegations which are the cause of the termination are the
motive or foundation. In this area, as pointed out by Shah, J. (as he then was)
in Madan Gopal v. State of Punjab there is no difference between cases where
services of a temporary employee are terminated and where a probationer is
discharged. This very question was gone into recently in Radhey Shyam Gupta
v. U.P. State Agro Industries Corpn. Ltd. and reference was made to the
development of the law from time to time starting from Parshotam Lal Dhingra
v. Union of India to the concept of "purpose of enquiry" introduced by Shah, J.
(as he then was) in State of Orissa v. Ram Narayan Das and to the seven-Judge Bench decision in Samsher Singh v. State of Punjab and to post-Samsher Singh case-law. This Court had occasion to make a detailed examination of what is the "motive" and what is the "foundation" on which the innocuous order is based. 31] The Apex Court also held that if findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as "
founded " on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the Page No.# 32/55 order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid.
32] In Chandra Prakash Shahi (supra) the Apex Court considered the correctness of an order passed by the High Court which allowed the writ petition filed by the State and set aside the order passed by the Tribunal for reinstatement of the appellant. The Apex Court held as under:
"The whole case-law is thus based on the peculiar facts of each individual case and it is wrong to say that decisions have been swinging like a pendulum; right, the order is valid; left, the order is punitive. It was urged before this Court, more than once including in Ram Chandra Trivedi case that there was a conflict of decisions on the question of an order being a simple termination order or a punitive order, but every time the Court rejected the contention and held that the apparent conflict was on account of different facts of different cases requiring the principles already laid down by this Court in various decisions to be applied to a different situation. But the concept of "motive" and "foundation" was always kept in view.
The important principles which are deducible on the concept of "motive" and "foundation", concerning a probationer, 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 24 Page 25 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 Page No.# 33/55 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".
"Motive" is the moving power which impels action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry.
Applying these principles to the facts of the present case, it will be noticed that the appellant, who was recruited as a Constable in the 34th Battalion, Pradeshik Armed Constabulary, U.P., had successfully completed his training and had also completed two years of probationary period without any blemish. Even after the completion of the period of probation under para 541 of the U.P. Police Regulations, he continued in service in that capacity. The incident in question, namely, the quarrel was between two other Constables in which the appellant, to begin with, was not involved.
When the quarrel was joined by few more Constables on either side, then an inquiry was held to find out the involvement of the Constables in that quarrel in which filthy language was also used. It was Page No.# 34/55 through this inquiry that the appellant's involvement was found established. The termination was founded on the report of the preliminary inquiry as the employer had not held the preliminary inquiry to find out whether the appellant was suitable for further retention in service or for confirmation as he had already completed the period of probation quite a few years ago but was held to find out his involvement. In this situation, particularly when it is admitted by the respondent that the performance of the appellant throughout was unblemished, the order was definitely punitive in character as it was founded on the allegations of misconduct."
33] In Union of India vs Mahaveer C. Singhvi reported in (2010) 8 SCC 220, the Apex Court considered the question whether termination of the respondent's therein, who was serving as an IFS probationer, by way of discharge in accordance with the terms of employment was punitive. The Apex Court referred to the principles laid down in the earlier judgments and approved the view taken by the High Court that even though the order of discharge did not contain any stigma, the same was not conclusive and the High Court had rightly termed the same as punitive. The Apex Court in the judgment of Palak Modi (supra), after examining the earlier precedents, held that the ratio of precedence discussed above clearly reveals that the probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post held by him. It was held that if the competent authority holds an enquiry for judging the suitability of the probationer or for his further continuance in service or for Page No.# 35/55 confirmation and such enquiry is the basis for ticking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive.
34] However, it was held that when the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision of the competent authority can be nullified on the ground of violation of the rules of natural justice. The Apex Court then went on to discuss relevant rules related to that particular case. The relevant paragraph of the judgment is extracted below:-
"there is a marked distinction between the concepts of satisfactory completion of probation and successful passing of the training/test held during or at the end of the period of probation, which are sine qua non for 40 Page 41 confirmation of a probationer and the Bank's right to punish a probationer for any defined misconduct, misbehaviour or misdemeanor. In a given case, the competent authority may, while deciding the issue of suitability of probationer to be confirmed, ignore the act(s) of misconduct and terminate his service without casting any aspersion or stigma which may adversely affect his future prospects but, if the misconduct/misdemeanor constitutes the basis of the final decision taken by the competent authority to dispense with the service of the probationer albeit by a non stigmatic order, the Court can lift the veil and declare that in the garb of termination simpliciter, the employer has punished the employee for an act of misconduct."
35] It is also interesting to note that the Apex Court in Paragraph no.45 of that judgment held that the abstract proposition laid down in Paragraph-29 in Pawanendra Narayan Burma versus Sanjay Gandhi, PGI of Medical Sciences reported in (2002) 1 SCC 520, is not only contrary to the Constitution Bench judgment of Samsher Singh (supra), but a large number of other judgments, namely, State of Bihar vs Shiva Bhikshuk Mishara reported in (1970) 2 SCC 871, Page No.# 36/55 Gujarat Steel Tubes Ltd (supra) and Anoop Jaiswal (supra). The Apex Court, therefore, held that the said proposition must be read as confined to the facts of that case and cannot be relied upon for taking a view that a simple order of termination of service can never be declared as punitive, even though it may be found on serious allegations of misconduct or misdemeanour on the part of the employees. Upon due examination of the entire matter, the appeal was dismissed by the Apex Court.
36] From a careful examination of the judgments referred to above, it can be observed that it has been clearly decided by the long line of precedents that the recital in the order is not what determines whether an order of discharge or release is an order of discharge simpliciter or is punitive in nature. Each case will have to be decided on the basis of its own facts which are relevant for the purpose. There is no universal proposition laid down that the recital in the order will determine whether an order of discharge is discharged simpliciter or is punitive in nature. It is also clear from the precedence discussed above, that in order to decide the true nature of the order, it is open for the Writ Court to lift the veil and go behind the order and examine the circumstances under which the impugned order was passed. It is a settled law that a probationer has no right to the post. The employer upon due examination of the services rendered by probationer, may come to a finding that the probationer is not fit for the Page No.# 37/55 concerned employment and therefore, his further continuance in the employment is not warranted and consequently, the probationer can be released or discharged from service. Ordinarily such a discharge or release from service, if it does not refer to any specific allegations against the probationer, which is punitive in nature, the same will not have any civil consequences and other forms of employment may still be available to such a probationer, who was released or discharged from service during probation. The precedents discussed above clearly lay down the law that in order to decide the suitability of a probationer to be confirmed in service, some enquiry may be made by the employer. However, this enquiry ordinarily should be restricted to the nature of the service rendered by the probationer to determine his/her suitability to continue in the same employment. However, where there are serious allegations against the probationer and an enquiry is made to get to the truth of these allegations, and that too, without due participation of the probationer, and the very basis of the release of the probationer are the findings of such enquiries being made, then such an order of release can be termed to be punitive in nature, notwithstanding the findings of the enquiry not being referred to in the order of release or discharge.
37] Coming to the facts of the present case, an assessment was made by the Vice Chancellor of Bhattadev University and a copy of which has been Page No.# 38/55 placed before the Court. It will be necessary to refer to the assessment made. The same is extracted below for convenience:
"Assessment of performance of Dr. Guruprasad Khataniar, Registrar during Probation Period (For consideration of the Hon'ble Members of the EC, Bhattadev University) Dr. Guruprasad Khataniar was appointed as the Registrar of the University vide order No.Bhatt.U/E&A Sec/NTS/OCR/01/20221639 dated 25.04.2022 and he had joined as the Registrar on 06.05.2022. As per conditions of First Statute 4.2.3.2 of the University, which condition is also reflected in the aforesaid appointment order, he was to be on Probation for a period of one year, which was extenable by another year. His further continuance in service was to be decided after review of his probatioinary service.
Unfortunately, Dr. Khataniar was involved in a trap case laid down by the Directorate of Vigilance and Anti-Corruption, Assam. Dr. Khataniar was thereafter caught red-handed for accepting a bribe of Rs.50,000/- and arrested on the same day itself i.e. 6/8/2022 and remanded to police custody on 7/8/2022. The Directorate of Givilance and Anti-Corruption, Assam had submitted a report on 12/08/2022 to the office of the undersigned, which has been perused along with the certified copy of the FIR culminating in ACB P.S. Case No.24/2022.
It is to be noted that the post of Registrar is a highly sensitive and key administrative post, which is reposed with extreme trust and maintenance of an impeccable, trustworthy and clean image in the public arena. Responsibilities of the post include being custodian of official records etc., officer in charge to issue and receipt of all official communications, to represent the University in the Court of Law in suits or proceedings by or against the University, sign Powers of Attorney and verify pleadings, official signatory in all Memorandum of Understanding (MoU), Memorandum of Agreement (MoA) or any Agreement of Mutual Cooperation between the University and other institutions/organizations, responsible for creation and maintenance of the comprehensive digital database of the University, responsible for coordinating with the Finance Officer and the Vice-Chancellor for preparation of budget and statement of accounts, University balance sheet, annual report of the University, conduct of the internal audit and the annual audit of the accounts of the University and Registrar is Page No.# 39/55 also responsible for coordinating with all the concerned officers for regular and timely conduct of the academic and administrative audit etc. Be that as it may, during the period of 3 (three) months of probationary service (06-05- 2022 to 05-08-2022) rendered by Dr. Khataniar it is observed that the performance as well as the general activities of Dr. Guruprasad Khataniar as the Registrar, Bhattadev University was largely unsatisfactory as indicated by the following instances among many others that may be listed.
1. Dr. Khataniar would often abstain from his duty as Registrar, Bhattadev University without leave/ prior permission. In one such instance he did not submit an application for admissible leave even when the undersigned directed him to do so via email.
2. ON several working days Dr. Guruprasad Khataniar entered the office chamber of the Vice-Chancellor early in the afternoon to tell the undersigned that he would like to leave office for unofficial reasons leaving the Administration to be run by the Vice-Chancellor and others and even though sometimes permission was not granted to leave office early, he did so.
3. While for all external activities of a university the Registrar needs prior approval of the Vice-Chancellor, Dr. Khataniar attended a meeting held in Tihu area for which approval was neither sought nor secured.
4. The complainant Dr: Guruprasad Khataniar oversaw as the Chairman of the Auction Committee the auctioning a substantial amount of scrap iron material and by keeping the Vice-Chancellor in the dark deposited the sale proceeds (cash collected) into a bank account of the University of his choice. When reminded of the lack of transparency, he argued that he thought the Head Assistant had or would inform the Vice-Chancellor of the auction process and/or regarding fund generated through auctioning
5. In yet another instance of financial irregularity, Dr. Khataniar of his own reinvested the maturity value or the originally invested amount of Rs. 50 lakhs without taking approval of the Vice-Chancellor, thus leaving room for audit objections in future.
6. Dr. Khataniar refused to submit the mandatory medical fitness certificate signed by a registered medical practitioner within the stipulated 10 days as per terms and conditions given in the appointment letter issued to him.
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7. The lack of responsibility displayed by Dr. Khataniar also came to fore when he refused to write his tour diaries mentioning kilometres reversed by him on official duty and also the days on which he took the official trips for which he needed to spend for the purchase of diesel fuel to run the vehicle used by him. He refused draw advances to be made available by the university for the purchase of fuel for the official vehicle and instead submitted a series of dubious-looking cash memos mostly collected from counters of the fuel pumps instead of electronic receipts that could obtained directly from the pumps. Some of the receipts and the patterns of expenditures indeed look absurd and reimbursements against such bills are extremely hard to make.
8. Dr. Khataniar refused to share the vehicle, purchased as a pool car, with others including the Controller of Examinations in connection with some of his works of confidential nature even on the instruction of the Vice-Chancellor. On the other hand, it was reported that frequently he left the official vehicle at his Guwahati residence while attending office at Pathsala by undertaking his trip in shared private vehicles with some staff members of Bhattadev University between Guwahati and Pathsala.
9. The complainant unduly pressurised the Vice-Chancellor to include him in 'Examination Advisory Committee' and also the statutory 'Tender Committee' in which the Registrar isn't usually a member for obvious reasons.
10. During the three-month long tenure of Dr. Khataniar as Registrar it was practically impossible to ensure progress of any work leading to the transformation and growth of the fledgling university due primarily to the lack of acumen or intent on the part of the Registrar. For instance, Bhattadev University, and for that matter another University, follows a practice of calling for price quotes of various items and once a given rate is approved by the Tender Committee of which the Finance Officer (in our case it was the OSD, Finance during the tenure of Dr. Khateaniar) is the Convener, it is the Registrar who would prepare and submit a supply order based on the approved rates. It has came to the knowledge of the undersigned that Dr. Khataniar would ask the OSD, Finance to take necessary action (n/a") by refusing to take the due responsibility and in the process, unduly delaying the work to be effected early. Advice in this regard from the Vice-Chancellor also was ineffective in the matter and all works suffered hugely - and there is a host of them that may be enumerated.
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11. Dr. K hataniar, in spite of being the Registrar, was not acquainted with his subordinate staffs/ offices of Bhattadev University and in one instance he assigned additional responsibility of 'accounts' to one employee who was already working in the 'Finance and Accounts Section' of the University and the Vice-Chancellor had to intervene.
12. The Vice-Chancellor offered constant guidance and counseling to Dr. Guruprasad Khataniar regarding work both verbally and in written form and he was found mostly unreceptive and sly regarding advices received.
13. In one instance, the undersigned in his capacity as the Vice-Chancellor instructed Dr. Khataniar to find suitable premises outside the campus for use as Boys' Hostel because the existing on-campus hostel was being renovated for academic use. The undersigned also had directed the Registrar (Dr. Khataniar) to take measures to set up classrooms and laboratories for the Chemistry Department in the above-mentioned on-campus Boys' Hostel under renovation. The undersigned also had directed the Registrar (Dr. Khataniar) to write a letter to the State Government's Water Resources Department to evaluate the condition of the Pohumara River Embankment near Medhikuchi village where a plot of land was allocated for the construction of a new campus of the University. Dr. Guruprasad Khataniar did not pay heed to any of the above directives of the Vice-Chancellor and in the last case, which was to prove rather prophetic in due course, there was indeed a breach of the embankment by the rising waters of Pohumara causing devastation of the village. Literally, the river flew through the new campus land of the University. These are definitely some clear instances of dereliction of duty on the part of Dr. Khataniar as the Registrar.
14. It may be added here that on the 6 th of August, 2023 (third Saturday, hence a holiday) University was to carry out admissions of undergraduate students. It was reported to the undersigned by several teachers that it was a normal practice for the institution to conduct admissions even on holidays and no untowards incidence was ever known to have taken place on admission days. Now, citing possibilities of undesirable law and order situation, showing uncalled for authority and stating that due to his inability to remain personally present on campus that day owing to a pre-scheduled engagement, Dr. Guruprasad Khataniar did not allow the Admission Committee including some senior teachers to conduct the admission process on the above pre-scheduled date. The undersigned does not support such behavior on the part of the Registrar.
Page No.# 42/55 Having considered the responsibilities and the decorum which is expected from the post, I am of the considered view that further retention of Dr. Guruprasad Khataniar in the post of Registrar of the University would not be beneficial for the University on the grounds of his general unsuitability to hold the post in question. Further, Dr. Khataniar is on probation and therefore, relieving him from the post of Registrar at this stage without commenting on the veracity of the allegations or without raising questions on his character or conduct and by keeping the better interest of the University in mind would not hamper his future prospects in any manner.
I would, in view of the above, recommend that the probationary services of Dr. Guruprasad Khataniar as the Registrar of this University be discontinued in the interest of the University considering his general unsuitability to hold the post while ensuring his liberty to go back to Gauhati University as he is still holding lien therein."
38] The 8th Executive Council Meeting of the Bhattadev University which was held on the 25.01.2023, considered the suitability assessment of the petitioner under suspension during the probation period. It was shown as Agenda item No.19. The Discussion, the resolution adopted by the Executive Council and its appreciation comes in as agenda No.19 is also extracted below for proper appreciation:
"Agenda Item 19: Suitability assessment of Dr. Guruprasad Khataniar, Registrar under suspension, during probation period.
The house was of the view that the presence of a regular registrar is essential for the effective functioning of the university. Thus, it had a threadbare discussion to consider if Dr. Guruprasad Khataniar, Registrar (on Probation), who is presently under suspension in view of his arrest on 06.08.2022 in connection with ACB P.S.Case No. 24/2022, should continue in the said post of Registrar (on probation) of the University. During the course of the discussion the house was apprised that Dr. Guruprasad Khataniar joined as Registrar (on Probation) on Page No.# 43/55 06.05.2022 but he is still holding his lien in the Gauhati University. Further, the house has been apprised by the Hon'ble Vice-Chancellor about his own assessment of performance of Dr. Guruprasad Khataniar as probationer from 06.05.2022 to 05.08.2022. Several instances, which occurred during the said tenure, have been brought to the notice of the house wherein the Hon'ble Vice-Chancellor had to intervene regarding the actions of Dr. Guruprasad Khataniar during his three-month service period under probation to ensure smooth functioning of the administrative mechanism of the University Details of several instances in which the then Registrar's actions were found inappropriate were presented / read out to the house in the form of various office notes. The house was further informed about the instances of irregularities in financial matters on the part of the said Registrar which are evident in the official notes of the Hon'ble Vice-Chancellor aimed at making Dr. Khataniar to discharge his duties properly. The house noticed the administrative lapses of Dr. Guruprasad Khataniar as Registrar which delayed important matters which needed to be taken care of promptly in the interest of the University which is at its nascent stage. All these factors / circumstances led the house to the unanimously conclude that Dr. Guruprasad Khataniar's performance during the probation period was not satisfactory and, as such, he is not suitable to continue as the Registrar of the University. The house discussed the provisions of the Statutes with a view to dealing with the situation in the larger interests of the institution. In this regard, the house was apprised of the legal opinion received from the Standing Counsel of the University on the feasibility of relieving Dr. Guruprasad Khataniar, Registrar (under suspension) from the said post during his probation period. The house went through the legal opinion of the Standing Counsel, read and delibereted upon the provisions under sections 4.2.2.3 and 4.2.3.2 of the First Statutes in detail and upon much deliberations decided to relieve Dr. Guruprasad Khataniar from the post of Registrar, Bhattadev University with immediate effect in the interest of the University. The house also had a threadbare discussion on the matter of advertising for the post of the Registrar keeping in view the need of a permanent Registrar to take care of the administrative matters of the university, however, suggested to take opinion from the Standing Counsel of the University.
Resolution No: EC/08/2023/17 The Executive Council of Bhattadev University unanimously resolved to relieve Dr. Page No.# 44/55 Guruprasad Khataniar from the post of Registrar of this University with effect from 01.02.2023 as per provisions under Sections 4.2.2.3 and 4.2.3.2 of the First Status on the ground of his general unsuitability to hold the said post and it further resolved that he be released from the services of Bhattadev University on the same date through a written communication. The house further resolved to direct the Registrar i/c to initiate the process of advertising for the post of Registrar after consulting the Standing Counsel of the University."
39] From a careful perusal of the assessment made by the Vice Chancellor of Bhattadev University, it is seen that there are several instances of lapses or shortcomings in performing the duties as a Registrar by following new rules and formalities as narrated in the assessments made by the Vice Chancellor. The copies of the assessment of the Vice Chancellor as well as the resolution adopted by the Executive Council have been placed before the Court and were made available for perusal by the learned counsel for the petitioner. Under Section 4.2.4 duties and responsibilities of the Registrar are prescribed. For instance the Registrar shall be the custodian of the records, seal and property of the University and of any other objects, documents as the Executive Council/Vice-chancellor shall commit to her/his charge. The Registrar shall be responsible for regular updating and maintenance of the University Stock Book and the University Asset Register. It is provided that he shall be responsible for issue and receipt of all official letters and communications and the various officer to put up all official Notification, Circular, office Order in the University Page No.# 45/55 website, University Notice Board and the News paper after due approval of the Vice Chancellor. As such, from the Statutes it is seen that the Registrar is the Principal Administrative Officer of the University for undertaking and is also the Officer who may be authorised and entrusted with all such functions as may be prescribed under the Statute. The Statutes provide that the Registrar is the principal officer in the University after the Vice Chancellor. The responsibilities and duties of the Registrar are also elaborately provided for in the Statute. Also there is no parameters specified as to how the assessments are to be made by the Vice Chancellor. However, the detailed assessment made by the Vice Chancellor is placed before the Court as also the deliberations and resolution adopted by the Executive Council in its 8 th Executive Council Meeting. Several complaints are seen in the assessment. Although the assessment and the resolution of the EC are before this court and were available to the petitioner no attempt has been made by the petitioner to rebut the allegations/ complaints. 40] No attempt has been made by the petitioner to dispute that the complaints made against him by the Vice Chancellor are false or malicious or to show that these complaints could not have been made by the Vice Chancellor without holding a proper enquiry in view of the facts involved. No such pleadings or contentions are raised before this Court even when the copy of the Page No.# 46/55 assessment and the minutes were placed in Court during the proceedings. The petitioner reiterated his case as projected in the writ petition as well as the rejoinder affidavits, that because of his objections raised in respect of the selection process for an Academic Registrar under the University, as well as non release of the bills raised by the contractor, that the respondent No.8 is inimical to the petitioner and as a consequence thereof the petitioner has been relieved/discharged from his service.
41] The term "probation" is not defined in the statute or any other service order or rules governing the services of the employees of the University. In order to understand the true meaning and import of the term "probation", a reference is required to be made. In Black's Law Dictionary 10 th Edition "probation" is defined as " a period of the time during which an employer can see whether a new worker is suitable." Reference may also be made to the judgment of the Apex Court rendered in Purshotam Lal Dhingra (supra), wherein it was held that the appointment to a permanent post on probation means that the servant is taken on trial. Such an employment on probation under the ordinary law of master and servant comes to an ends if during or at the end of the probation the servant so appointed on probation is found unsuitable and his service terminated by a notice. It is clear that the Page No.# 47/55 appointment to a permanent post either on probation or on an officiating basis is of a transitory character and in the absence of any special contract or specific rule regulating the conditions of service, the implied term of such appointment is that it is terminable at any time.
42] As such, it is evident that probation is that period when a newly engaged employee is required to undergo in order that the employer may ascertain the suitability of retaining and/or confirming the services of the said employee in that particular post. The Statutes which are which are referred to in this case provides for a period of probation as discussed. Under Section 4.2.3.2 it is provided that the Registrar shall serve a period of probation of 1 (one) year and which may be extended to another year. As such, it cannot be disputed that there is a provision for a probation period with regard to the post of Registrar. How the period is to be assessed or the parameter for assessing the performance or suitability of the Registrar is not prescribed under the Statutes. 43] The argument made on behalf of the petitioner is that it is only the Executive Council of the University which may relieve the Registrar from the post as prescribed under section 4.2.2.3. It is the contention of the petitioner that it is the only provision by which a Register of the University can be relieved. Such an action can only be taken by the Executive Council on the Page No.# 48/55 recommendation of the Vice Chancellor on sufficient and convincing ground relating to dereliction of his/her assigned duties/gross act of delinquency affecting the administration and functioning of the University/ violation of the established rules and procedures of the University/proven act of corruption- financial, administrative and moral. The arguments of the petitioner are that notwithstanding Section 4.2.3.2 wherein a probation period is prescribed of one year extendable by another one year is prescribed for the post of Registrar, only the Executive Council can relieve the registrar after following the procedure prescribed under Section 4.2.2.3. It is argued on behalf of the petitioner that as there is no other clause or section under these statutes which provides for release or discharge of the Registrar, save and accept section 4.2.2.3, the Executive Council can only relieve the Registrar by following the process prescribed under section 4.2.2.3. It is argued on behalf of the petitioner that in order to invoke Section 4.2.2.3 there must be sufficient and convincing ground relating to dereliction of his/her assigned duties/ gross act of delinquency affecting the administration and functioning of the University/ violation of the established rules and procedures of the University/proven act of corruption- financial, administrative and moral and in order to satisfy these conditions there must be a proper enquiry which ought to have been instituted against the petitioner and in the absence thereof, the step taken by the Executive Council Page No.# 49/55 only on the assessment made by the Vice Chancellor is contrary to Section 4.2.23 and therefore, it is required to be interfered with, set aside and quashed. 44] If the argument made by the petitioner that the procedure prescribed under Section 4.2.2.3 is the only procedure to be followed, then it will nullify the effect of section 4.2.3.2 of the statutes which provides for a period of probation of one year extendable to another year.
45] As discussed above, probation is the period to be undergone by the employee which will enable the employer to make a proper assessment as to the suitability of retaining the said employee or confirming the said employee in the said post. If a period of probation as prescribed under Section 4.2.3.2 is to be accepted, then the power of the employer to relieve or discharge an employee after the end of the probation or during the probation must also be accepted. In the judgments which are discussed above, it is clear that where an assessment is made in respect of the functioning or performance of the employee as regards his/her suitability, and on that basis, if the employee is discharged, then such an assessment is the " motive for discharging or relieving the employee". Where, however, any enquiry was instituted or conducted against the petitioner without his/her participation and the consequential discharge order is passed on the findings of such an inquiry, then such findings Page No.# 50/55 for the enquiry will be "foundation for discharge of the employee under probation". The law culled out by the Apex Court clearly holds that where enquiry or assessment is the motive for the discharge of the employee, then such discharge is not stigmatic in nature and does not call for judicial review. However, when the findings of an enquiry conducted are the foundation of the discharge order, then the discharge employee is entitled to proper hearing as such findings will have a stigmatic effect on the employee who has been discharged. Therefore, from the proper analysis of the judgments referred above and due consideration of the facts involved, it has to be held that a period of probation prescribed under the Statues will entail an assessment of the services rendered by the employee on probation to decide whether the services are required to be retained/confirmed by the employer, or whether the employee can be discharged as he or she, who is found to be unsuitable. 46] In Hari Singh Man vs State of Punjab and Others reported in (1975) 3 SCC 182, the Apex Court was examining an order terminating the services of an employee on probation. The Apex Court held that the words "unfit to be appointed" are a stigma as it will drop the authorities of the power to judge fitness for work or suitability to the post at the time of confirmation. Termination of services on account of inadequacy for the job or for any temperamental or other defect not involving moral turpitude is not a stigma which can be called Page No.# 51/55 discharge by way of punishment. Fitness for the job is one of the most important reasons for confirmation. The Apex Court, therefore, on the facts and circumstances of that case held that there was no stigma attached to the order of termination.
47] To sum up, a reference to the another judgment of the Apex Court rendered in Rajasthan High Court vs. Dev Priya and Another reported in (2021) 13 SCC 151 is necessary. In this case the Apex Court was examining the Judicial Officer of the Rajasthan High Court whose service was not confirmed by the Administrative Committee because of a Vigilance report. The Rajasthan High Court on the administrative side held that he was proven to act negligently or had tendency to usurp powers not vested in him, was justified and was relevant for adjudging his suitability. The High Court of Rajasthan interfered with this order and against which the appeal was filed before the Apex Court. While allowing the appeal and interfering with the order of the Rajasthan High Court, the Apex Court held on the facts of that case that a Court in exercise of judicial review was entitled to lift the veil and determine the termination order as to whether it is punitive or simpliciter. If it is found punitive then the Court can always strike down the same for want of reasonable opportunity of being heard. The Apex Court held that the termination order was passed against the respondent therein neither attributed him any specific misconduct nor made any Page No.# 52/55 allegations against him. Termination order was based on his overall performance during the probation period which was found unsatisfactory and consequently the service of the Judicial Officer was terminated without holding any enquiry was held to be valid.
48] Since the Statutes provide for a period of probation for 1 (one) year and for extension for another year and since there is no dispute on facts that the petitioner was rendering his services on probation holding that the petitioner can only be released in terms of Section 4.2.2.3, as contended by the writ petitioner, will negate the very concept of an employee being on probation. The prescription under Section 4.2.2.3 of this first statute is in respect of release of a Registrar upon proper enquiry and proven acts of indiscipline or misconduct will only be applicable in case of a Registrar who has been confirmed pursuant to his probationer period. The case laws as have been discussed above hold that the employer has an inherent right to discharge an employee, whether during or after probation. The only interpretation as sought to be projected by the petitioner that the release from service of Registrar even during the probation period is required to be made only in terms of Section 4.2.2.3 of the first statutes. If such an interpretation is given, then the employer will lose its power to make proper assessments of any Registrar who is required to undergo probation in terms of Section 4.2.3.2. The very term "Probation" signifies a Page No.# 53/55 period of service to be rendered by the employee which will require assessment at the hands of the employer to decide whether the suitability or retention of the employee in the said post. If it is to be held that the Register is required to undergo a period of probation in terms of Section 4.2.3.2 and which is otherwise not disputed by the petitioner, then it will necessarily require an assessment to be undertaken by the employer during or after the period of probation to decide whether the employer is to be retained or discharged. The law discussed above, as culled out by the Apex Court clearly holds that during probation period an employee has no right to the post.
49] The assessment made by the employer is only to the effect of determining the suitability of the employee. If after making such an assessment, the employer is of the view that the employee is not suitable to be retained in the post and if it is to be held that under such circumstances the employee/the Registrar, as in the facts of this case, can only be released or relieved under Section 4.2.2.3 then an interpretation will run contrary to the judicially evolved definition of probation and the rights of the employer and the employee during the period of probation as have been discussed above.
50] In view of such discussions as held above, the assessments made by the Vice Chancellor and its acceptance by the Executive Council in its meeting Page No.# 54/55 held on 25.01.2023 and the consequential impugned release order dated 31.01.2023 in the present writ petition does not call for any interference. The services of the petitioner having been rendered during his probation period and considering the due assessment made by the Vice Chancellor and consideration of the assessments by the Executive Council in it's Meeting held on 25.01.2023, the impugned order dated 31.01.2023 is not found to be punitive and the same is termination or discharge simpliciter. Accordingly, it does not call for interference under judicial review. The submissions made by the learned counsel for the petitioner, therefore, fail and are rejected. The judgments referred to and relied upon by the petitioner will have no application in the facts of the present case and the discussions above.
51] In the result, the writ petition is found to be devoid of merit and the same is dismissed. Since it has been held that the impugned order of termination/discharge is not punitive and is discharge simpliciter, consequently, the impugned order dated 31.03.2023 will not have any adverse impact on the service of the petitioner in the parent Department as it is stated that he was on lien at the time of his probation as the Registrar of Bhattadev University.
Interim order, if any, stands vacated. Pending Interlocutory Application, if Page No.# 55/55 any, stands dismissed. No order as to cost. Records be returned back to the University.
JUDGE Comparing Assistant