Orissa High Court
Ajay Kumar Jena vs The Principal, Sainik School on 18 May, 2007
Equivalent citations: 104(2007)CLT537, 2007 LAB. I. C. 2840, (2007) 60 ALLINDCAS 841 (ORI) (2007) 104 CUT LT 537, (2007) 104 CUT LT 537
Author: I. Mahanty
Bench: B.P. Das, I. Mahanty
JUDGMENT I. Mahanty, J.
1. The Petitioner in this writ application Shri Ajay Kumar Jena seeks to challenge the order of termination of his services dated 3rd June, 1998 under Annexure-7 issued by the Opp. Party from the post of Master (Computer) in Sainik School, Bhubaneswar. The said order of termination impugned herein is as follows:
TERRMINATION OF SERVICE ON PROBATION AS MASTER(COMPUTER)
1. You were appointed as Master (Computer) on probation with effect from 12 July, 96 vide appointment order No. SSB/ 1008/PC/ 1221 dated 04 Jul. 96.
2. Your overall performance was not found satisfactory in spite of Counseling as well as grant of extension of the probation periods upto 11 July. 98. It is regretted that in spite of several opportunities, extended, you have failed to show any improvement in your overall performance.
3. You are therefore, informed that you services will stand terminated with effect from 11 July 98 (AN) vide Sainik Schools Society Rule No. 7.08 of 1997. One months notice as per rules is given from 12 June 98 to 11 July 98 and you will be paid your salary upto & including 11 July 98.
4. You are further informed that you will hand over the complete charge of your duty & documents placed under your charge to Shri H.S Das, Asst. Master latest by 30 June 98.
5. You are also required to complete the attached clearance and submit in duplicate to the Registrar latest by 08 Jul 98 for further action.
6. Please acknowledge.
Sd/ - V.K. Bhargava Lt Col.
Principal
2. The Petitioner had obtained Degree in M.Sc. (Math) and P.G. Diploma in Computer Science and while working as a Technical Assistant applied for the post of Master (Computer Education) at the Sainik School, Bhubaneswar, and stood first amongst thirty-five candidates and was selected in the written test conducted by the Opp. Party, pursuant to which, he was appointed on probation for one year, extendable up to two years vide letter of appointment under Annexure-2 and he joined the said post on 12.7.1996.
It is further submitted that his one year of probation came to an end on 11.7.1 997 and his performance during the said period was highly satisfactory. The school achieved cent per cent successful result in Computer Science during the academic year 1996-97.
While the Petitioner was the only teacher in the subject of Computer Science, the academic result again for the following year, i.e., 1997-98 was also cent per cent success. Annexures 5 and 6 dated 1.5.1997 and 26.4.1998 respectively indicate that he was the only teacher in Computer Science and he had adequately and satisfactorily completed his period of probation.
In this respect, Mr G.A.R. Dora, Learned Senior Advocate for the Petitioner, submitted to that the yardstick for performance of a teacher has to be Judged from the result in the examination of the students and the Petitioner being the only computer teacher and the school had achieved 100 % successful result in Computer Science during the period, no justification whatsoever existed for the termination of the services of the Petitioner on the ground of "lack of performance".
The Petitioner relied upon Annexure-4 issued by Cdr. M.V. Vasudevan, who was the Principal of Sainik School during the academic year 1996-97, recording that the Petitioner had performed his duty adequately.
3. Mr Dora in his usual fairness accepts the principle of law that an employee may be discharged from service during the probation period if his performance is not satisfactory, but from the facts as narrated above he submits that it would be clear that the Petitioner's performance having been more than satisfactory not only during the first year but also in the second year, the order of termination of his services must be held to be baseless and quashed.
4. Mr Bijan Ray, Learned Senior Advocate appearing on behalf of the Opp. Party-Sainik School, submitted that during the period of probation of the Petitioner there were three Principals, namely, Commander Mr. Vasudevan from the Indian Navy, Lt. Col. Mr V.K. Bhargava from the Indian Army and Wg Cdr Mr A.K. Mittal from the Indian Air Force and all of them were from three different Defence Wings, i.e., Indian Navy, Indian Army and Indian Air Force, and all three of them had found the Petitioner not suitable for his retention as a teacher and in view of such unsatisfactory performance, the order of terminating the services simpliciter was passed during the period of probation.
5. Mr Ray further submitted that it is well settled in law and cited various Judgments on the principles that a probationer has no right to hold the post until his services are confirmed, and that termination of services of a probationer does not attract any Constitutional impediment. In this respect, Learned Counsel further submitted that termination of the Petitioner's service as a probationer was in terms of the contract of employment and, therefore, the order of termination of his services cannot be challenged in a writ application, especially when the said order is not stigmatic, but an order of termination simpliciter. In conclusion, Learned Counsel submitted that termination of the Petitioner's services was based solely on an evaluation of the Petitioner's all round performance, and on being found to be the unsatisfactory performance of duty and was, in effect, terminated simpliciter since his performance being not satisfactory, the employer had every right to terminate his services without assigning any reason therefor.
6. Mr Dora on the other hand, submitted that the impugned order of termination under Annexure-7 as quoted above has to be read along with the counter affidavit filed by the Opp. Party to Misc. Case No. 1309 of 2004. In paragraph 4, the Opp. Party has stated that the Petitioner had been creating lots of trouble and polluting the entire atmosphere of the school. The statements were undoubtedly stigmatic and since no enquiry was held prior to termination of the services of the Petitioner to prove the allegation against him, if any, the order of termination cannot be said to be a termination simpliciter and therefore the Petitioner was to be given an opportunity to disprove the allegation, if any, against him in a Disciplinary Proceeding. He further submitted that since the Petitioner's services had been terminated, in effect, for alleged misconduct, Article 311(2) of the Constitution of India is required to be complied with and that having not been done, the order of termination under Annexure-7 was unconstitutional and unlawful.
7. The Petitioner contended that Clause-5 of the letter of appointment of the Petitioner does not authorize the Opp. Party to issue the impugned order, which is quoted hereunder:
Clause - 5 :You will be on probation for a period of one year ordinarily, extendable to two years at the discretion of the Principal. You will not be deemed to have been confirmed until you are so informed in writing. Please note that your services during the period of probation can at any time be terminated by the Principal without assigning any reason/ reasons, by giving one month's notice. If however, you wish to leave the service, you will have to give one month's notice in writing on pay an amount equal to one month's salary together with all allowances in lieu of the notice period subject to acceptance by the Principal.
Learned Counsel for the Petitioner submitted that since in terms of the aforesaid letter of appointment (Annexure-2) the Petitioner joined service on 12.7.96, the period of probation came to an end on 11.7.1996 on completion of one year.
8. This fact is however found to be incorrect and unacceptable since, in terms of Clause-5 of Annexure-2, it is clear that the mere completion of the period of one year would not automatically bring the period of probation of the Petitioner to an end since it was stipulated that the period of probation was extendable up to two years at the discretion of the Principal. Further the employee would not be deemed to have been confirmed until he was so informed in writing. Therefore, the mere passage or lapse of time by itself could not/ did not bring the period of probation to an end.
9. In the light of the rival contentions advanced by the Learned Counsel for the parties in course of hearing of the present proceeding, the personal file of the Petitioner was called for by the Court, which has been duly produced by the Learned Counsel for the Opp. Party. On a perusal of the service book of the Petitioner, we find that at Sl. No. 2 thereof the following entry has been made:
Probation is extended on compleation of one year probationary service on 11.7.97 (S.O.II/245/125-97).
Sd/- Sd/- Superintendent Sainik School, Registrar, Sainik School, Bhubaneswar Bhubaneswar
10. The records produced in course of hearing show that a confidential letter dated 21.12.1996 had been addressed to the Petitioner and was duly received by him. The Petitioner had been intimated that his performance was not up to standard and that Cdr. Vasudevan, the then Principal, had received complaints from students of Class-12 regarding non-completion of the course by the Petitioner and the inability of the students to understand various topics of the subject taught by the Petitioner. Accordingly, the Petitioner had been advised to improve his method of assessment in the class continuously and progressively and hence another opportunity to improve his professional performance had been afforded.
11. That apart, from the confidential report of the teachers, which contains a self-declaration by the Petitioner and signed himself on 13.2.1998 as well as 4.7.1997 at Sl. No. 8 under the heading "Type of employment (Confirmed/Probationary and date)" the Petitioner had in his own hand filled in the form by stating that he was a "probationer". In fact, in the said Special Confidential Report of Teachers signed by the Petitioner on 13.2.1998 the following was endorsed by the Petitioner himself "Extended Period of Probation". From this document, it would be apparently clear that the Petitioner himself was aware of the extension of the period of probation and, therefore, the contention of the Learned Counsel for the Petitioner that the probation period had come to an end on completion of one year is wholly without any basis. Therefore, we are of the considered view that on the date on which the order of termination was passed, i.e., 3rd June, 1998, the Petitioner was continuing on probation and the period of probation had not come to an end. No contrary written evidence indicating confirmation of the Petitioner in the post at any time earlier has been brought to our notice in the present proceedings.
From the evaluation made in the service book of the Petitioner, we find that during the period 1997 and 1998 the performance and the personality assessment of the Petitioner such as, Intelligence, he has been noted as "average". Insofar as General Knowledge and Understanding are concerned, he has been evaluated under the category of "poor" and so far as Petitioner's capacity to train and help and guide students he has also been categorized as "poor". We have noted this only to indicate that annual assessment of the Petitioner has been made by the employer during the period of probation and this is well settled that a Writ Court ought not to enter into the question of evaluation of the Petitioner's service which is a matter in the domain of the employer.
12. Having reached the conclusion as above, i.e., the Petitioner was continuing on probation on the date of his termination it has to be adjudicated as to whether the order of termination was a termination simpliciter or not.
13. While Mr Ray vehemently contended that the order of termination which speaks for itself clearly indicates that overall performance of the Petitioner had not been found satisfactory in spite of Counselling as well as extension of probation period up to 11th July, 1998 and since he failed to show any improvement in his overall performance, the order of termination had been issued. According to Mr Ray, the order of termination was nothing but an order of termination simpliciter without any stigma and, therefore, no allegation of breach of compliance with the requirements of Article 311 as contended by the Learned Counsel for the Petitioner is entertainable.
Mr Dora drew our attention to the counter affidavit filed by Opp. Party in Misc. Case No. 1309 of 2004 and submitted that a reading of the order of termination along with the averments made in the said counter affidavit would clearly indicate that the order of termination was stigmatic and, therefore, was to be preceded by an enquiry in terms of Article 311 of the Constitution.
14. In consideration of the aforesaid contentions, we are of the view that the order of termination in the present case has to be read by itself. On a reading of the order of termination under Annexure-7 we are of the view that the same is an order of termination simpliciter, the averments made in the counter affidavits by the Opp. Party cannot form part thereof, since admittedly the averments made therein were made in the proceeding before this Hon'ble Court, i.e., after the order of termination had been passed and, therefore, there cannot be any conjoint reading of order of the termination and the averments contained in the counter affidavit in order to presume that the termination carried any stigma.
15. We are, therefore, of the view that this contention of Mr Dora fails and Article 311 does not come into operation in the present case. Since we are of the considered view that the period of probation stood extended and that the order of termination was passed during the period of probation, such order is an order of termination simpliciter, based solely on unsatisfactory performance of the Petitioner. The employer had the right to terminate the service of such employee whose service was found to be not satisfactory and such action being in consonance with the contract of service was justified. The Writ Petition being devoid of merits stands dismissed, but in the circumstances, without cost. All interim orders passed in this Writ Petition stand vacated.
B.P. Das, J.
16. I agree