Madhya Pradesh High Court
T.M. Varghese vs M.P. Public Service Commission And Anr. on 29 September, 1999
Equivalent citations: 2000(1)MPHT623
ORDER A.K. Gohil, J.
1. By this petition under Article 226/227 of the Constitution of India, the petitioner is seeking a writ of certiorari or any other suitable writ for quashing the order of termination Annexure P-9 and further direction that the petitioner be treated in service during the pendency of the petition also.
2. In short, the facts of the case are that the petitioner was appointed as Senior Stenographer (P. A.) on 07-11-90 on probation of two years. It was also one of the conditions in the appointment letter that the petitioner was to submit certificate of his having passed the English Shorthand and Typewriting Examination from the authorised Examination Board within one year from the date of appointment. On 02-08-91, the respondents wrote a letter to the petitioner asking him about the result of the Examination. On 05-08-91 another letter was written and by letter dated 06-08-91, the petitioner informed to the Respondent Ayog that in the month of February, 1991, he had appeared in the Shorthand Examination held by the M.P. Board of Shorthand and Typewriting Examination, Bhopal, but he could not pass and had also submitted that he will again appear in July, 1991. By order dated 12-08-91 (Annexure P-9) the services of the petitioner were terminated with immediate effect on the ground that during the period of probation, his work was not found satisfactory and one month's salary was paid to him in lieu of one month's notice. The petitioner has challenged this order of termination in this writ petition on the ground that the order of termination is illegal, arbitrary and malafide. The termination order passed by the Respondent is without affording him an opportunity of hearing and defending himself. It is also his contention that the same is in violation of the principles of natural justice. There was no justification to terminate his services within ten months even before completion of two years' period of probation. It is also submitted that too hasty memos were issued during the period of nine months. No enquiry was held and the order of termination amounts to punishment. The real nature of the order is penal. Alongwith the petition, the petitioner has filed one document (Annexure P-8) which is a representation submitted by the Secretary, Madhya Pradesh Laghu Vetan Karmachari Sangh, Indore to the Chairman of the Respondent Ayog in which the Karmachari Sangh had mentioned that the appointment of the petitioner is an illegal appointment. Therefore, it was the demand of the Employees' Union that the same should be set aside.
3. In reply, the submission of the Respondents is that the appointment of the petitioner was subject to his successful completion of the period of probation alongwith additional condition of passing the Stenographers' Examination. The Respondents also filed a copy of the note-sheet which is Annexure R-1 which was prepared at the time of the termination of the petitioner's services. At the relevant time the petitioner was working with the Chairman of the Ayog and on the note-sheet, the following note was made by the Chairman:--
^^Jh oxhZl dk dk;Z lark"ktud ugha gSA bUgsa fgUnh Hkk"kk dk fcydqy Kku ugha gSA vaxzsth 'kh?kzys[[email protected][ku dk Lrj Hkh Bhd ugha gSA mijksä lHkh fLFkfr;ksa dks n`f"Vxr j[krs gq, budh lsok,¡ lekIr djus gsrq ,d ekg dk uksfVl fn;k tkosA** Therefore, in reply, the defence of the Respondent Ayog is that the work was not found satisfactory during the period of probation and he could not pass the required Examination, his knowledge of English was very poor and, therefore, his services were terminated. In reply, it is also the contention of the Respondents that it is true that there was dissatisfaction expressed by the M.P. Lok Seva Ayog Karmachari Sangh, but the termination of the services of the petitioner has nothing to do with the representation received from the Sangh. But the services were terminated due to the aforesaid reasons of unsatisfactory work. Therefore, the order is perfectly legal and justified. It is further contended that passing of D Stenographers' Examination was one of the conditions of appointment and the other condition was about the satisfactory work during the probation period and the other condition was not controlled by the condition regarding passing of the Examination within the specified period. But it was an over-riding condition in evaluating the performance of the petitioner during the period he worked in the Commission. It was found that his work was not found satisfactory in accordance with the condition No. 5 of the appointment order, and therefore, the services of the petitioner were terminated. It is the further submission on behalf of the Respondents that the order is not punitive in nature and has been passed upon the proper and bonafide assessment of the work of the petitioner. There is no malice and the same is not on the basis of extraneous pressure. The termination does not carry any stigma. Therefore, there was no question of making an enquiry or providing any opportunity of hearing. The order has been passed as per the condition of the appointment on the basis of unsatisfactory work. The petitioner has no case for reinstatement, and therefore, the petition was liable to be dismissed.
4. The petitioner has submitted rejoinder of the return and his contention was that the condition No. 5 of the appointment letter which states about the termination during the period of probation after giving one month's notice or payment of one month's salary in lieu thereof, is contrary to Section 23 of the Contract Act and opposed to public policy and also violative of the provisions of Article 14 of the Constitution of India.
5. I have heard the learned counsel for the parties, perused the record and considered the rival submission of the learned counsel for the parties. The only question for consideration is whether the services of the petitioner can be terminated during the period of probation on account of his unsatisfactory work without any enquiry.
6. Shri Shekhar Bhargava, Senior Counsel cited various cases before me and his main submission was that a probationer is also entitled to Constitutional protection under Articles 14, 16 and 311 of the Constitution of India like any other Government servant including temporary employee. He cited the case of Madan Gopal v. State of Punjab (AIR 1963 SC 531), which is a case about the termination of a temporary Government servant who enjoys the protection of Article 311(2) of the Constitution of India. Therefore, the same is not applicable to the facts of the present case.
In the case of Manager Government Press and Anr. v. D.V. Beliappa (AIR 1979 SC 429), services were terminated without any reason of a temporary Government servant. In the case of Ajit Singh and Ors. v. State of Punjab and Anr. (AIR 1993 SC 494), the services of Punjab Town Improvement Trust Executive Officers who were appointed on probation for one year were dispensed with after dissolving Board of Trustees. Each appointee had completed one year of service, the increments were also released in their favour. The other staff was retained and other functions continued, but the Director of Local Government had dispensed with the services of each of the 11 Trust Executive Officers and the aforesaid action was found to be arbitrary and violative of the Articles 14 and 16 of the Constitution. The petitioner cited another case of Shamshersingh v. State of Punjab (AIR 1974 SC 2192) wherein the Larger Bench of the Supreme Court has held as under :--
"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 getting his 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. Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If on the other hand, the probationer is faced with an enquiry on discharges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2) he can claim protection. In State of Bihar v. Gopi Kishore Prasad, AIR 1960 SC 689, it was said that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment. Instead of taking the easy course, the Government chose the more difficult one of starting proceedings against him and branding him as a dishonest and incompetent officer."
7. In the case of Shamsher Singh, before termination he was asked to show cause as to why his services should not be terminated. There were four grounds. It was observed that:
"The appellant was asked to show cause as to why his services should not be terminated. There were four grounds. One was that the appellant's behaviour towards the Bar and the litigant public was highly objectionable, drogatory, non-co-operative and unbecoming of a Judicial Officer. The second was that the appellant would leave his office early. The third was the complaint of Om Prakash Agriculture Inspector that the appellant abused his position by proclaiming that he would get Om Prakash involved in case if he did not co-operate with Mangal Singh, a friend of the appellant and Block Development Officer, Sultanpur. The fourth was the complaint of Prem Sagar that the appellant did not give full opportunity to Prem Sagar to lead evidence. Prem Sagar also complained that the decree-holder made an application for execution of the decree against Prem Sagar and the appellant without obtaining office report incorporated some additions in the original judgment and warrant of possession."
8. In view of the aforesaid facts and circumstances of the case, it was held that the substance of the order is that the termination is by way of punishment then a probationer is entitled to attract Article 311 of the Constitution. In a separate judgment, Krishna Aiyer J., relied on the case of State of Bihar v. Gopi Kishore Prasad (AIR 1960 SC 689), in which the Supreme Court had ruled that:--
"where the State holds an enquiry on the basis of complaints of misconduct against a probationer or temporary servant, the employer must be presumed to have abandoned his right to terminate simpliter and to have undertaken disciplinary proceedings bringing in its wake the protective operation of Article 311. At first flush, the distinguishing mark would therefore, appear to be the holding of an inquiry into the complaints of misconduct. C.J. observed :
"It is true that, if the Government came to the conclusion that the respondent was not a fit and proper person to hold a post in the public service of the State, it could discharge him without holding any enquiry into his alleged misconduct..... Instead of taking that easy course, the Government chose the more difficult one of starting proceedings against him and of branding him as a dishonest and an incompetent officer. He had the right, in those circumstances, to insist upon the protection of Article 311(2) of the Constitution." The learned Chief Justice summarised the legal position thus :
"(1) Appointment to a post on probation gives the person so appointed no right to the post and his services may be terminated, without taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant, or removing him from service.
(2) The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, therefore, no punishment.
(3) But if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Article 311(2) of the Constitution.
(4)...........
(5) But, if the employer simply terminates the services of a probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service the probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct, or inefficiency, or some such cause."
The petitioner also cited the case of Anup Jaiswal v. Government of India and Anr. (AIR 1984 SC 636), in which it has been held that--
"It is, therefore, now well settled that where the form of the order is merely a comoglage 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."
In the case of Radheshyam Gupta v. U.P. State Agro Industries Corporation Ltd. and Anr. (1999 (2) SCC 21), it has been held that :--
"The termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. The purpose of the enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed- if at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. The departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. The employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.
But in cases where the termination is proceeded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is based, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegation with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or bounded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employee's conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee- even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases."
In the case of Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre For Basic Science (1999 (3) SCC 60) the Apex Court laid down the same test about the termination of services whether punitive or simpliciter, allegation made against the probationer there by way of foundation or motive for his termination. The criteria for differentiating between the foundation and motive is indicated. It has been held--
"It was in this context argued for the Respondent that the employer in the present case had given ample opportunity to the employee by giving him warnings, asking him to improve and even extended his probation twice and this was not a case of unfairness and this Court should not interfere. It is true that where the employee had been given suitable warnings, requested to improve, or where he was given a long rope by way of extension of probation, this Court has said that the termination of orders cannot be held to be punitive. [See in this connection Hindustan Paper Corporation v. Purnendu Chakrobarty, (1996) 11 SCC 404, Oil & Natural Gas Commission v. Dr. Md. S. Iskender Ali, (1980) 3 SCC 28 :1980 SCC (L & S) 446, Unit Trust of India v. T. Bijaya Kumar, (1992) 5 SLR 855 (SC), Principal, Institute of Postgraduate Medical Education & Research, Pondicherry v. S. Andel, 1995 Supp (4) SCC 609, and a labour case Oswal Pressure Die Casting Industry v. Presiding Officer, (1998) 3 SCC 225 : 1998 SCC (L & S) 862]. But in all these cases, the orders were simple orders of termination which did not contain any words amounting to stigma. In case we come to the conclusion that there is stigma in the impugned order, we cannot ignore the effect it will have on the probationer's future whenever be the earlier opportunities granted by the Respondent-Organisation to the appellant to improve."
9. In reply, the Respondents cited the case of Amritlal Darshibhai Jhankharia v. State of Gujrat (1998) 8 SCC 767, wherein it has been held that:--
"The appellant has challenged his termination from service. It has been contended by the learned counsel for the appellant that after the appointment the appellant by the resolution of 10-9-70, he has completed two years' probationary period, hence, he must be deemed to be confirmed. His termination on the basis that it was during the probationary period on account of his unsatisfactory work must, therefore, be set aside since he was not on probation on the date of the termination order. No material has been produced before us to show that the appellant was confirmed after the completion of probationary period or that there was any provision in the relevant rules applicable to his service which conferred automatic confirmation on completion of two years' probationary period. No such material was produced before the High Court either and the learned Single Judge of the High Court has observed in his judgment that from the record of the case, it is not possible to come to a conclusion that the appellant was holding a permanent post either on the basis of an order confirming him on the post which he was holding or by rules of the department or by any other provision of law. This judgment has been upheld by the Division Bench. We also do not have any material on record for coming to a conclusion that he had been confirmed in the post either by an express or by virtue of any rule or by any other provision of law."
The respondents also cited another case of State of Gujrat v. Sharadchandra Manohar Neve (1987 (Supp) SCC 7).
10. Now as cited above, it is the settled position under the law that if the termination is a discharge simpliciter without any stigma, the order of termination of a probationer would not be punitive and if there is stigma in the impugned order, it should not be ignored because it will have the effect on the appellant's future, in that case, the order of termination may not be treated as a discharge simpliciter and an opportunity has to be given to the incumbent.
11. The facts of the present case have to be tested on the dictum of the aforesaid decision as to whether the termination of the petitioner as a probationer is simpliciter or is by way of punishment after putting an stigma ?
12. The facts of the case in hand are short and simple. The petitioner was appointed on the post of Stenographer (Personal Assistant) on the scale of Rs. 1650-2900 on probation for a period of two years as per Annexure P-1 dated 07-11-90 and by order dated 12-08-91, (Annexure P-9), his services were terminated after giving one month's salary in lieu of one month's notice on the ground that his work was not found satisfactory during the probation period. The reasons recorded in the note-sheet prepared for his termination which is Annexure P-1 are already stated in the foregoing paragraphs. In reply, the clear stand of the Respondent is that the services of the petitioner were terminated purely on account of the fact that his work was not found satisfactory during the period of probation. It is also the submission of the Respondents that the order is not by way of punishment. Therefore, no reason is required to be disclosed and the question of holding any enquiry also did not arise for the simple reason that the discharge is not because of any misconduct, but based on the assessment of his performance during the period of probation and the order is based on the condition of appointment on proper evaluation of the work of the petitioner.
13. In the case of Shamsher Singh (supra) the Larger Bench of the Supreme Court was of the view that before a probationer is confirmed, the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any rules, governing a probationer in this respect, the authority may come to the conclusion that on account of inadequacy of job, or for any other temperamental or other object not involving moral turpitude, the petitioner is unsuitable for the job and hence, must be discharged. No punishment is involved in this. In the case of State of Bihar v. Gopi Kishore (supra) it was said that if the Government proceeding against the petitioner in the direct way, without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment. In the present case, it is clear from the termination order itself that no stigma is cast against the petitioner. The copy of the note-sheet (Annexure R-1) also does not disclose that the services of the petitioner were terminated on the ground of any misconduct or allegations. No show-cause notice was given to the petitioner. Therefore, in the facts and circumstances of the case, it is clear that the substance of the order is that the termination is simple discharge and is not by way of punishment.
14. In the case of Gopi Kishore Prasad (supra) the following observations were summarised regarding termination of services or discharge of a probationary public servant:--
"(1) Appointment to a post on probation gives to the person so appointed no right to the post and his service may be terminated, without taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant, or removing him from service.
(2) The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, therefore, no punishment.
(3) But, if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Article 311(2) of the Constitution.
(4) In the last mentioned case, if the probationer is discharged on any one of those grounds without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it will amount to a removal from service within the meaning of Article 311(2) of the Constitution and will, therefore, be liable to be struck down.
(5) But, if the employer simply terminates the services of a probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service, the probationary civil servant can have no cause of action even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct, or inefficiency or some such cause."
15. From the aforesaid discussion, it is clear that in this case, since the respondents found him unsuitable for the post during the probation period without casting any stigma, his services were discharged purely in accordance with the terms of letter of appointment. Therefore, in any case and also on the basis of the tests laid down in the cases by the Supreme Court, termination of the probationer is not by way of punishment and, therefore, it cannot be said that the termination is illegal or the petitioner was entitled for any opportunity.
16. In this case, none of the parties submitted anything before this Court about the appointment of the petitioner whether the same was regular or not. The petitioner has also not pleaded anything whether the appointment was made after advertising the posts and inviting applications on regular basis and whether the same was against a vacant post. A back-door appointee who is not a regular appointee on a vacant post in accordance with law, also cannot enjoy the status at par with the employees regularly appointed. In view of the above, the petitioner was a probationer whose services were discharged during the probation period on the ground that his performance was not found satisfactory. The probationer is not entitled for any constitutional protection under Articles 14, 16 and 311 of the Constitution and the order also cannot be said to be punitive in the facts and circumstances of the present case as the same has not been done on the basis of any misconduct.
17. In view of the reasons stated hereinabove, the petitioner has no case on merit, and therefore, the petition deserves to be and is hereby dismissed, but without any orders as to costs.