Gujarat High Court
Dilipsinhji D. Rathod vs Vijaysinh Parmar on 4 July, 1991
Equivalent citations: (1991)2GLR1307
JUDGMENT S.D. Shah, J.
1. The petitioner was appointed to the post of Information Assistant in the pay-scale of Rs. 425-700/- on probation for a period of one year vide order, dated 30th July, 1984. He resumed his duties on 7th August, 1984 and as per the order of his appointment the period of probation expired on 6th August, 1985. It is required to be noted that in absence of rules providing to the contrary, simply because period of probation expired, the petitioner did not become a regular employee permanently absorbed and so long as he was not confirmed he continued to be a probationer.
2. On 19th December, 1985 the respondent communicated to the petitioner adverse remarks for the period commencing from 7th August, 1984 to 31st March, 1985. The said adverse remarks are reproduced hereinbelow:
New appointment". "But because of enthusiam to learn to work if he works with more attention his performance would be far better as he is possessed of such capability.
By that very letter, dated 19th December, 1985 he is informed that for above referred deficiency he should make positive attempts and that deficiency was brought to his notice so that he can improve his performance. He was also called upon to make representation against adverse remarks/comments, if he so desired.
3. The petitioner made representation against said adverse remarks on 2-1-1986 and, inter alia, submitted that since his appointment was new he has performed his duties as per his ability under the instructions received by him from time to time from his superior officer. He has further stated that he would continue to perform his duties with ability and as per the instructions given to him from time to time. From his reply it appears that he rightly considered this letter, dated 19-12-1985 as one of appreciation and he promised to the reporting officer that he would work as per his ability and under the instructions of his superiors.
4. Thereafter, the petitioner did not hear anything from the respondent nor was he informed as to whether his representation against adverse remarks was accepted or not. He was also not informed that his representation against adverse remarks was rejected nor was he informed that the adverse remarks sought to be placed in his confidential dossier were deleted. To his surprise, he thereafter, received a letter, dated 23-4-1986 passed by the Director of Information-respondent herein who informed him that the period of his probation was expiring on 30-4-1986 and therefore after office hours he was being terminated from his post of Information Assistant. It is this order of termination of probation dated 23-4-1986 which is the subject-matter of challenge in this petition.
5. One further fact was pleaded by the petitioner. On 20th November, 1985 a memo was issued to the petitioner and his explanation was sought with respect to his conduct on 13-2-1985 at village Rapargadh. By the said memo it was alleged against him that when a film show in connection with prohibition was arranged at village Rapargadh on 13-2-1985, the petitioner consumed alcohol and misbehaved and started abusing and therefore film show was required to be abandoned. It was further alleged that he was thereafter required to be removed by the village people to panchayat office where he was made to sleep. To this memo petitioner filed reply on 29th November, 1985 and denied the charges. His defence was that at the village Rapargadh the film show was complete success and large number of village people including respectable persons of the village, such as, Ratibhai Patel, Shri Joshi and the Sarpanch of the village attended the show. He completely denied the charge of consumption of alcohol and or misbehaviour at the film show. On 17th November, 1986 the Dy. Director of Information informed the petitioner that in his explanation dated 29th November, 1985 he has made reference to the presence of leading village people such as Shri Ratibhai Patel, Joshi and Sarpanch of village. Petitioner was therefore directed to obtain certificate from said persons within 15 days and to send the same to the Dy. Director of Information. Petitioner has thereafter approached said persons who were present at the film show including Sarpanch of the village and has sent their certificates to the Dy. Director of Information. It is the case of the petitioner that because of this incident and the memo issued to him, the Director of Information subsequently issued order, dated 20th March, 1986 extending the period of his probation retrospectively with effect from 7th August to 20th April, 1986. Petitioner further submitted that in fact this incident has weighed with the respondents and based on this incident the petitioner was sought to be punished by terminating the period of his probation instead of holding a regular departmental enquiry.
6. Mr. Ajit D. Padival, learned Advocate for petitioner has made following submissions:
(i) The impugned order, dated 23-4-1986 is non-speaking order inasmuch as it does not contain any reason nor does it contain the recital that the work of the petitioner was unsatisfactory, and hence, the order is required to be quashed and set aside.
(ii) The impugned order of termination of probation period, though innocuous in form, is really punitive and stigmatic in nature and since the order is passed by way of penalty without affording reasonable opportunity of being heard to the petitioner, same is violative of Article 311(2) of the Constitution of India and therefore it is required to be quashed and set aside.
(iii) In any case, the order terminating the period of probation was uncalled for inasmuch as by adverse remarks communicated to the petitioner, in fact, the work of the petitioner was appreciated and he was called upon to put better performance and thereafter at no point of time he was called upon to improve his performance nor was any other adverse remark communicated to him, and therefore, at least opportunity ought to have been provided to the petitioner to know his deficiencies and to improve his performance.
7. As regards first submission of Mr. Padival, the order of termination, dated 23-4-1986 states that the period of probation of the petitioner expires on 30-4-1986 and his services were terminated with effect from that date after office hours. Except stating that his services were being terminated on completion of his period of probation on 30-4-1986 nothing more is stated in the impugned order. Mr. Padival relies upon the decision of the Division Bench of this Court in the case of Anopsinh Jatubha v. V.K. Gupta, Dist. Supdt. of Police, Jamnagar and Ors. reported in 1986 GLH 136 : 1986(2) GLR 753. The Division Bench of this Court in the said case was called upon to decide the validity of the order of termination of services of probationer and while meeting with identical contention it observed as under:
There is nothing in the termination order that such termination was made on the ground of unsuitability, unsatisfactory conduct or the like, if it is the question of misconduct, the authorities concerned ought to have followed the procedure set up under Article 311(2) or otherwise, they will be condermning a person without being heard. If it is for the purpose of simply terminating the services of a probationer, the order should have stated that he is not suitable to be continued in service.
Similar observations are to be found in the case of Miss Chaula Kuruva v. Tourism Corporation of Gujarat reported in 1991(1) GLH 383 : 1991(2) GLR 775. The learned single Judge of this Court found that in the termination order of a probationer no reasons have been assigned for terminating the services. It was not stated in the order that the services were terminated on account of unsatisfactory work or performance. The learned single Judge therefore was pleased to quash and set aside such an order on the ground that it was a non-speaking order.
8. Undoubtedly, in this case also the order of termination in the sense in which the Division Bench of this Court has described the order of termination is a non-speaking order inasmuch as it does not state any reason as to why the services of the petitioner were terminated. However, in my opinion, it is permissible for the Court to find out the reasons by referring to the affidavit-in-reply and that was the exercise undertaken by the Division Bench of this Court in the case of Anopsinh Jatubha (supra). If that exercise is undertaken in this case two-fold reasons are given by the respondents, i.e. (i) the work of the petitioner was unsatisfactory and (ii) on enquiry he was found not upto the mark and his conduct on a particular occasion was unbecoming of a Government servant. I, therefore, would not invalidate this order solely on the ground that it is an order which does not contain any reasons, though in my opinion, in the order itself the authority could have stated that either his work was unsatisfactory or that because of his unsatisfactory work he was not found suitable for the post.
9. There is no dispute about the fact that the appointment of the petitioner as Information Assistant was on probation for a period of one year. The petitioner resumed his duties on 7th August, 1984 and therefore, on 6th August, 1985 the period of probation would ordinarily expire. In the absence of any rule to the contrary, the petitioner would continue on probation and Mr. Padival, learned Advocate for petitioner does not seriously challenge that position of law. It shall have, therefore, to be accepted that the petitioner continued to be a probationer till the order under challenge came to be passed.
10. In the affidavit-in-reply filed by the respondents, their main defence is that the appointment of the petitioner was on probation and while on probation his work was not found to be satisfactory and therefore by order, dated 23-4-1986 his service was terminated. It is their further case that ample opportunities were given to the petitioner to improve his work but he did not improve his work and therefore he was not found suitable for the work of Information Assistant. It is their further case that, in fact, his period of probation was extended so as to provide him an opportunity to improve but on enquiry it was found that the work of the petitioner was not upto the mark and that he was not likely to become a good and sincere Information Assistant and therefore his service came to be terminated. It is further case that shortcomings of the petitioner were duly informed to him vide communication of adverse remarks dated 19th December, 1985. It is their case that the petitioner behaved in a manner not befitting to a Government servant and was called upon to give his explanation with regard to misbehaviour when a film namely. "NASHO KE NASH" was screened by the department of Information. It was reported that the petitioner had perhaps consumed liquor at the time when he misbehaved and based on this misbehaviour also the authority was satisfied that his probation was required to be terminated.
11. It is now abundantly clear that except the communication of adverse remarks vide letter, dated 19-12-1985 which I have already referred, at no point of time petitioner was informed that his work was not satisfactory or that his work needed some improvement. How his work was not satisfactory or what type of improvement was expected of the petitioner was never intimated to him. In my opinion, letter dated 19-12-1985 whereby adverse remarks were sought to be communicated to the petitioner did not carry the matter any further. In fact, the said letter did not amount to communicating any adverse remarks to the petitioner and it simply informed the petitioner that his appointment was new and that there was enthusiasm in him to learn work and further that if he worked with more attention he was possessed of abilities to perform still better. These remarks could hardly be said to be adverse remarks. In fact, by this letter it was admitted by the authority that petitioner was enthusiastic employee who wanted to learn new work. It was also admitted that the petitioner was possessed of such capabilities whereby he could perform still better if he was more attentive. This would not amount to saying that the petitioner was not attentive to his work. What was expected of the petitioner was that he should be more attentive. I do not find this letter to be a letter of adverse remarks and even if the same is treated to be adverse remarks, it does not inform the petitioner about the deficiencies or any lapse in his working. Except this letter, nothing was produced on record to establish that the performance of the petitioner as a probationer was poor or that it was not satisfactory. No official record was also produced before the Court to establish that his performance was found to be poor, that he was not upto the mark. The assertion made in the affidavit-in-reply that number of opportunities were given to the petitioner to improve his work was not supported by any material on record. It was nowhere stated as to whether the petitioner was given oral warnings or as to whether written memos were issued to him to improve his performance. It was also not stated as to how the performance of the petitioner was not found to be satisfactory. It was also not stated as to in what respect the petitioner was found to be lacking. In the absence of any substantive material on record and in view of letter, dated 19-12-1986 I do not hesitate to hold that, in fact, the petitioner, till December, 1985, was found to be enthusiastic employee ready to learn and it was found that he was possessed of such capabilities that he could still perform better if he was more attentive. In my opinion, till December, 1985, nothing adverse against the petitioner was noticed nor was there any material before the respondents to record the suggestion that his work needed improvement or that his work was unsatisfactory. In the absence of any contemporaneous material, notice or intimation about the unsatisfactory work or performance of the petitioner I am of the view that the assertion of the respondents cannot be accepted more so because the letter, dated 19-12-1985 belies the assertion of the respondents that the work of the petitioner was unsatisfactory. Something, therefore, must have happened after December, 1985 and before the order of termination of probation, dated 23-4-1986. It is the case of the petitioner that a memo was issued to him on 20-11-1985 for alleged misbehaviour or misconduct of the petitioner at village Rapargadh on 13-2-1985 and based on that incident alone that the petitioner was sought to be punished by this order of termination of his probation. It may be noted that the incident is of 13-2-1985. Memo is issued to the petitioner on 20-11-1985. Petitioner has also tendered his explanation and the authority has called upon the petitioner to produce certificates of respectable persons who were present at the time of film show. The respondents, therefore, did not regard this incident as a serious one or serious misconduct and therefore when it issued adverse remarks to the petitioner on 19-12-1985 it did not refer to the incident of 13-2-1985. However, in the affidavit-in-reply the Joint Director of Information, who is not the authority who has passed the order, states as under:
It is submitted that upon enquiry it was found that work of the petitioner was not upto the mark and he was not likely to become a good and sincere Information Assistant....
The above referred shortcomings of the petitioner were duly informed to him under letter, dated 19-12-1985. It was also found that during the period of probation that the petitioner had behaved in a manner which would not befit a Government employee. It is submitted that the petitioner was also asked to give his explanation with regard to his misbehaviour when a film named "Nasho Ke Nash" was being screened by the Dept. of Information. It was reported that the petitioner had perhaps consumed liquor at the time when he had misbehaved.
12. From the aforesaid stand taken by the respondents in the affidavit-in-reply it becomes clear that the incident of 13-2-1985 had heavily weighed with the respondent. In fact, specific reference is made to the said incident. It is also recorded that the behaviour of the petitioner in the said incident was not befitting a Govt. employee. It was unbecoming of a Government employee. It is also found that he had misbehaved. The respondents have thus relied upon the incident of 13-2-1985 and has regarded the conduct of the petitioner on that day as a misconduct or misbehaviour. It was found that the said conduct was unbecoming of a Government servant. Once that conduct of the petitioner had weighed with the respondents and when that conduct has become the foundation based on which the order is required to be passed, I am of the opinion that the order is not one of termination of period of probation simpliciter but the order becomes a punitive order. As pointed out hereinabove by letter, dated 19-12-1985, in fact, no shortcomings were intimated to the petitioner. The only factor that weighed with the authorities was his behaviour on 13-2-1985. If that was the only factor, then that factor became the foundation for the order and if that incident was the foundation for the order, then I cannot resist the conclusion that the order was one of penalty and not of termination of probation simpliciter. It is now well accepted position of law that if the order of termination of probation is couched in unequivocal terms it was for the Court to lift the veil and to find out as to whether any misconduct was the foundation of the order. As discussed hereinabove in the present case it was only misconduct of the petitioner on 13-2-1985 that was the foundation for the order of termination of probation. Except said misconduct there was nothing on record nor was anything produced before me to establish that the performance of the petitioner was in any way unsatisfactory. If the petitioner was to be condemned for the incident of 13-2-1985, in my opinion, a regular charge-sheet ought to have been given to him for that misconduct and after affording opportunity of being heard and opportunity to establish his innocence a regular order imposing penalty could have been passed. With a view to overcoming that rigmarole of departmental enquiry respondents have resorted to power of termination of probation. In my opinion, it was not permissible to resort to that power especially when the power was sought to be exercised based on the sole incident of 13-2-1985. The said behaviour of the petitioner is described by the Joint Director of Information as misbehaviour and the conduct of the petitioner on that day is described as conduct unbecoming of a Government servant. I have, therefore, no hesitation in holding that the order under challenge in this petition is punitive order. Admittedly, the same is passed without following procedure of giving charge-sheet and holding regular departmental enquiry. Such order, therefore, is required to be quashed and set aside.
13. The position of law is now well accepted and in the case of Anoop Jaiswal v. Govt. of India Supreme Court observed as under:
It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.
The Supreme Court having so stated the law, in para 13 of the judgment further observed as under:
Even though the order of discharge is 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 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.
14. I, therefore, hold that the impugned order, dtd. 23-4-1986 being punitive and stigmatic in character is required to be quashed and set aside since the same is passed without affording reasonable opportunity to defend to the petitioner.
15. Once is impugned order is set aside the next question that arises for consideration is that of grant of relief. In the affidavit-in-reply filed by the State it is pointed out that the present petition is hopelessly barred by delay. It is true that the order is passed in the year 1986. Petition is filed in the year 1991. In the memo of Special C.A. petitioner has pointed out that he has filed civil suit being Regular Civil Suit No. 140 of 1989 in the Court of Civil Judge (S.D.), Bhuj-Kutch challenging the order and prior thereto be made two representations to the Government to reconsider his case. Said Civil Suit was withdrawn on 18-4-1991 with liberty to the petitioner to file fresh proceedings on the same subject-matter. Having withdrawn the suit petitioner has filed present petition in the month of April, 1991. It is, thus, clear that from the date of the order, i.e. 23-4-1986 the petitioner has chosen to come to this Court only in the month of April, 1991. For the period during which the petitioner did not come to this Court and prosecuted his remedy by filing civil suit which he ultimately abandoned no relief can be granted to the petitioner. I am, therefore, of the opinion that when the petitioner has not worked and when he has chosen to come to the Court only in the month of April, 1991, he is not entitled to relief of back wages for the period for which he has not chosen to come to Court. Therefore, while allowing the petition and quashing and setting aside the order of termination, dated 23-4-1986 and while directing the respondents to reinstate the petitioner in the post of Information Assistant as probationer and to treat him in continuous service I would not pass the order for payment of back wages. I would confine the order of back wages only from 1-5-1991 till the petitioner is reinstated.
16. In the result, petition succeeds. The order of termination, dated 23-4-1986 is hereby quashed and set aside. The respondents are directed to reinstate the petitioner in service as Information Assistant and to treat the petitioner as on probation and to pay to him back wages with effect from 1-5-1991 till he is reinstated. Respondents are also directed to treat the petitioner in continuous service and as on probation and given him all the consequential benefits. Petitioner shall be treated as on probation and appropriate order shall be passed after seeing his performance as Information Assistant. Rule is made absolute to the aforesaid extent with no order as to costs.
17. After judgment was pronounced in this case on 3-7-1991 and before it could be signed, Mrs. T.M. Sheikh learned Asstt. Government Pleader appeared today (4-7-1991) before me and stated that she has further submissions to make based on the files and records of service of the petitioner maintained by the department. She submitted that unfortunately, no reference is made to such record in the affidavit-in-reply filed by the Joint Director of Information, but in the interest of justice it is necessary for the Court to refer to the record and performance of the petitioner which would speak volumes about his performance. Though no foundation is laid for this submission in the affidavit-in-reply and therefore I could have refused permission to her to refer to the material which was not part of the record of this petition, I permitted her to show me the record and she has tendered the record for my perusal. It appears that on 31-8-1984, 20-4-1985, 24-4-1985 and on 22-8-1985 memos were issued to the petitioner. By the said memorandums he was informed that he should not attend any private institution and should not send any information or news about private or voluntary institutions. Second memorandum is as regards decrease in exhibition of film shows and the third memo is about his attending a private function and news coverage based on his attending such functions and the fourth memo is that he is not taking prior permission before telephoning directly to the Deputy Director of Information.
18. From these four incidents, in my opinion, a decision of unsatisfactory performance or poor performance cannot be reached. Had these incidents been of any importance, the Dy. Director of Information while issuing adverse remarks on 19-12-1985 ought to have made reference to these incidents and ought to have called upon the petitioner to improve in future. In fact, non-mentioning of these incidents in the adverse remarks of 19-12-1985 would go to establish that even the Deputy Director of Information did not regard these four incidents as of any importance so as to warn the petitioner to improve his behaviour in future. In fact, the Dy. Director of Information has totally ignored all these four incidents while communicating the adverse remarks on 19-12-1985. For the subsequent conduct the memo issued on 20-11-1985 has assumed importance. I have already discussed in the earlier part of this judgment as to how this memo and this incident of 13-2-1985 has become foundation for passing the order of termination.
19. I am, therefore, of the opinion that even from the record which is produced before me for my perusal by Mrs. T.M. Sheikh, learned A.G.P. for respondents to which no reference is made in the affidavit-in-reply of the Joint Director of Information, I am not in a position to hold that the order of termination is one of termination of probation simpliciter. In my opinion, the order is penal in character and is based on misconduct of 13-2-1985 for which memo was given to the petitioner on 20-11-1985, and therefore, I do not see any reason to alter or change my ultimate decision I have declared yesterday, i.e. 3-7-1991.