Himachal Pradesh High Court
Narender Kumar vs Of on 11 January, 2017
Bench: Mansoor Ahmad Mir, Sandeep Sharma
HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 4481 of 2015 with
CWP No. 4482 of 2015
.
Reserved on: December 29, 2016
Decided on: January 11, 2017
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1. CWP No. 4481 of 2015
Narender Kumar ..Petitioner
Versus
of
Union of India and others ...Respondents
2. CWP No. 4482 of 2015
Anil Kumar
rt ..Petitioner
Versus
Union of India and others ...Respondents
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Coram
Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice
Hon'ble Mr. Justice Sandeep Sharma, Judge
Whether approved for reporting?1 Yes.
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For the petitioner(s) Mr. Adarsh K. Vashishta, Advocate, in
both the petitions.
For the respondents: Mr. Ashok Sharma, Assistant Solicitor
General of India with Mr. Nipun Sharma,
Advocate, in both the petitions.
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Per Sandeep Sharma, Judge:
These two petitions were clubbed vide order dated 29.12.2016, for the reason that these are outcome of a common order dated 19.11.2015 made by the Central Administrative Tribunal (for short, 'impugned order'), are being disposed of by 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 2this common judgment. However, for the sake of clarity, facts from CWP No. 4481 of 2015 are being discussed herein.
.
2. Petitioner Narender Kumar, who was appointed as a 'Safaiwala' in the Rashtriya Military School, Chail, District Solan, H.P., on 5.11.2012 on probation for two years and joined on 20.11.2012. He had taken 55 days' Extra Ordinary Leave for of appearing in selection process for the post of Clerk with Assam Riffles in Nagaland. He was issued warning vide letter dated rt 03.09.2013, which was replied by him on 7.9.2013. Another disciplinary warning against him was issued on 11.7.2014 stating that he was sanctioned leave from 26.6.2014 to 28.6.2014 but he left the station on 25.6.2014 and reported back for duty on 30.6.2014. He was also directed to re-apply for leave from 25.6.2014 to 30.6.2014, which he did. Another disciplinary warning was issued on 5.8.2014 for remaining absent for seven days from 28.7.2014. It was also replied by the petitioner. One more disciplinary warning was issued on 18.9.2014 which was also replied by the petitioner. Probation period of the petitioner was extended from 23.3.2015 for another six months from 13.1.2015.
3. In terms of order dated 1.6.2015, services of petitioner were terminated. Petitioner questioned the same by the medium of OA ::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 3 No. 063/00092/2015-HP/2015 before the Central Administrative Tribunal, Chandigarh, and sought following reliefs:
.
"i The impugned order dated 01.06.2015
(Annexure A-1) may kindly be quashed.
ii. The respondents be further directed to reinstate
the applicant in service with all consequential benefits."
4. Similar are the facts of another case, wherein, petitioner of Anil Kumar was also appointed and working as a 'Safaiwala' in the Rashtriya Military School, Chail, District Solan, H.P., and two rt disciplinary warnings were issued on 7.7.2014 and 1.4.2015. In this case also, probation period was extended vide letter date 27.3.2015 for one year and six months from 25.5.2014. His services were terminated vide order dated 1.6.2015, which reads as under:
"NOTICE OF TERMINATION OF SERVICE"
1. Refer following:-
(a) Appointment letter No. AO104/RTG/Rul/VI/ dt. 22 May 2012
(b) This office letter No.AO103/Est/IV dt.27 Mar 2015
2. It is intimated that your services shall stand terminated with effect from the date of expiry of period of one month from the date on which the notice is served on, or, as the case be, tendered to you, since your performance is not satisfactory. You are, hereby, instructed to get your clearance done and handover charge, keys and any other government property held with you at the earliest.
3. Please acknowledge.
Sd/-
(Vineet Ohri) Lt. Col Principal"
::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 45. Petitioner Anil Kumar also sought similar reliefs in OA No. 063/00091/2015 as sought in aforesaid Original Application of .
Narender Kumar.
6. The respondents in their written statement/ reply to the Original Applications, pleaded that performance of both the petitioners during probation period was not satisfactory and they of were issued various warnings.
7. Petitioner Anil Kumar had even stolen shoes of a school rt cadet. Cadets of Taxila House made complaint on 28.5.2015 against both the petitioners and Matron of Taxila House also made another complaint on 30.5.2015 against both the petitioners.
8. Petitioners filed replications to the written statement and while reiterating their stand in Original Applications, pleaded that they had made complaints to the Police regarding appointment of one Ms. Neelam Rani, Matron of Taxila House, which, as per them, was against Rules being ineligible and unqualified for the post, in repercussion whereof, complaints were filed against them.
9. The learned Tribunal below while clubbing both the Original Applications, has taken note of various incidents against both the petitioners. The plea taken on behalf of the petitioners that probation period was not extended within stipulated period and was not conveyed to them, was turned down by the learned Tribunal ::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 5 below observing that same was done within time and also communicated to the petitioners. Regarding complaints filed .
against Ms. Neelam Rani by the petitioners, the learned Tribunal below noted that same were made on 24.6.2015 and not prior to the complaint dated 30.5.2015 made by Neelam Rani against the petitioners. The learned Tribunal below dismissed both the of Original Applications vide order dated 19.11.2015.
10. The petitioners assailed the common order of the learned rt Tribunal below by filing two separate writ petitions. Since reliefs are similar in both the petitions, main reliefs of CWP No. 4481 of 2015 are reproduced below:
"i) That a writ in the nature of certiorari may kindly be issued for quashing the impugned notice of termination dated 1.06.2015, Annexure P-7 issued by the Respondent No. 3 and the order passed Annexure P-10, by Ld. Central Administrative Tribunal Bench at Chandigarh in OA No. 063/9991/305, titled 'Narender Kumar Vs Union of India & Others ' decided on 19.11.2015.
ii) That a writ of mandamus may kindly be issued directing the respondents to allow the petitioner to work on 'as is-where is basis"
11. The respondents filed separate replies in both the petitions, taking preliminary objections and preliminary submissions, refuting the claim stated that their action in terminating the services of petitioners is well within the Rules. Respondents have alleged suppression of facts on the part of the petitioners and further denied ::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 6 the averments made in the petitions that the work and conduct of the petitioners was satisfactory and there was no complaint against .
them during probation period.
12. Mr. Adarsh K. Vashishta, Advocate, appearing for the petitioners, in both the petitions has strenuously argued that the order passed by the Central Administrative Tribunal is illegal, of arbitrary and against the settled position of law. His clients were appointed as 'Safaiwala' and were on probation for a period of two rt years. His clients had been working diligently and to the best of their abilities. He further averred that there was no complaint against his clients during the period of probation. He has admitted the fact that disciplinary warnings were issued to his clients at different times, which were duly replied to. Mr. Vashishta, Advocate also admitted that the probation periods of his clients were extended. But unfortunately, the services of his clients were terminated unceremoniously after serving one month's notice. He further argued that principles of natural justice have been violated while serving notice of termination upon his clients and no opportunity of hearing was granted to them. Mr. Vashishta pleaded that the order of termination was not merely an order terminating services of his clients but same was a penalty under the garb of termination.
::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 713. Mr. Ashok Sharma, learned Assistant Solicitor General of India duly assisted by Mr. Nipun Sharma, Advocate, has supported .
the order passed by the learned Tribunal below. He pleaded that the petitioners have suppressed material facts. Mr. Sharma, further controverted the argument of the learned counsel representing the petitioners that there were no complaints against petitioners. Mr. of Sharma further cited Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 to support the action of the rt respondents in terminating services of the petitioners, who were on probation and were temporary employees. While referring to the pleadings, Mr. Sharma cited many instances, when complaints were made against the petitioners, by the staff of the Rashtriya Military School. He also stated that general assessment of the petitioners was not satisfactory and as such their names were not included in the DPC for confirmation of probationers and accordingly, their probation period was extended. Thereafter, their performance was not found satisfactory. In the aforesaid background, he prayed for dismissal of the petitions.
14. We have heard the learned counsel for the parties and gone through the record.
15. Both the petitioners namely Narender Kumar and Anil Kumar, were appointed as 'Safaiwalas', in respondent No.3 ::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 8 School, after going through due selection process and they were appointed vide appointment letters dated 5.11.2012 and 22.5.2012, .
respectively on probation for two years. Documents available on record further suggest that pursuant to aforesaid appointment, both the petitioners joined as Safaiwalas on 20.11.2012 and 26.5.2012, respectively. Since during probation period, their performance was of found to be unsatisfactory, they were not confirmed and perusal of documents placed on record alongwith petitions as well as rt sequence of events as stands mentioned in the impugned order having been passed by the learned Tribunal below clearly suggests that both the petitioners were issued repeated warnings qua their performance during probation. It clearly emerges from the various notices/ reminders issued that despite of that their performance was not satisfactory.
16. It also emerges from the record that repeated complaints were made by the students regarding their behaviour and conduct.
Record further reveals that petitioner namely Narender Kumar overstayed his leave and he left the station without there being sanctioned leave in his favour. Despite above, authorities taking a lenient view, advised petitioner Narender Kumar to re-apply for leave for the period of absence. As per petitioners, since their work and conduct was found satisfactory, their probation period was ::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 9 extended for one year and six months and as such there is no force in the allegations having been made by the authorities that .
petitioners were found wanting in their service.
17. This Court, solely with a view to ascertain the genuineness and correctness of the aforesaid arguments having been made by the learned counsel representing the parties, carefully perused the of documents available on record, perusal whereof clearly suggests that there were lot of complaints against the petitioners, who were rt appointed as, 'Safaiwalas' but despite there being numerous complaints by the students and staff of the School, authorities instead of taking drastic step of terminating services of the petitioners, issued repeated warnings. It also emerges from the record that documents were called from Narender Kumar, by the authorities enabling them to take decision with regard to his confirmation after completion of probation period but before, decision if any, could be taken with regard to confirmation of petitioners, numerous complaints were received by the authorities from students as well as other staff with regard to their performance and as such their case could not be considered for confirmation. This Court, after carefully perusing impugned order of learned Tribunal below, wherein various incidents with regard to performance of both the petitioners have been noticed, has no ::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 10 hesitation to conclude that there was ample material on record before the learned Tribunal below suggestive of the fact that the .
performance of both the petitioners was not satisfactory.
18. Learned Tribunal below while agreeing with the decision of the authorities in terminating services of the petitioners has taken note of the facts discussed herein above.
of
19. This Court also finds no force in the contentions of the learned counsel representing the petitioners that, as per clause 10 of rt the Consolidated Instruction of Probation dated 21.7.2014, issued with regard to extension of probation period was to be decided within 6-8 weeks prior to expiry of initial probation period and same was required to be communicated to the petitioners, because it emerges from the record that in case of Narender Kumar, decision was taken and communicated within ten weeks of expiry of probation period, whereas in the case of Anil Kumar, though it was belated but instructions as contained in clause 10 were further modified vide OM dated 19.5.1983 as mentioned in clause 24 of the Consolidated instructions, wherein it was provided that confirmation of probationer after completion of probation is not automatic but it is to be followed by formal orders and as long as no specific order of successful completion of probation is not issued, such probationer would be deemed to have been on ::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 11 continued probation. In the instant case, as clearly emerges from documents on record, since no specific order of confirmation on .
satisfactory completion of probation was issued, both the petitioners were deemed to be on probation till the termination orders were made.
20. Leaving everything aside, bare perusal of impugned of termination orders nowhere suggests that same have been passed on the basis of misconduct by way of penalty as claimed by the rt learned counsel representing the petitioners. Perusal of impugned termination order clearly suggests that the performance of petitioners during probation was not found satisfactory, notices were issued to them intimating therein that their services shall stand terminated after expiry of one month of the date, on which notices were served, as such, by no stretch of imagination, it can be concluded that termination orders are violative of Article 311(2) of Constitution of India and as such they are null and void. True it is that as per settled law, if order of discharge or termination is based on misconduct, they become unsustainable, if same are passed without holding any inquiry. But, in the instant case, as has been noticed above, termination orders are not by way of punishment and are not stigmatic in any manner, as such, there was no occasion, if any, for authorities to hold inquiry before passing ::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 12 termination orders. Rather, in the present case, as clearly emerges from the record, performance of the petitioners was not found .
satisfactory during probation period and as such authorities took a conscious decision not to extend their probation beyond stipulated period and as such this Court sees no illegality or infirmity in the decision having been taken by the authorities, which otherwise of appears to be based upon correct appreciation of material available on record.
21. rt Mere reference of unsatisfactory service of a person in termination order can not be said to be 'stigmatic'. It is well within the domain of the authorities to examine service record of the incumbents before deciding extension, if any, of the probation period. It is always open for the authorities to record such satisfaction regarding unsatisfactory service and mere mention of same in the order, in no manner, would amount to casting any aspersions on the incumbent. In this regard, reliance is placed upon judgment of Apex Court in Rajesh Kohli v. High Court of J & K reported in (2010) 12 SCC 783, wherein it is held as under:
"21. In the present case, two orders are challenged, one, which was the order of the High Court based on the basis of the resolution of the full court and the other one issued by the Government of Jammu & Kashmir on the ground that they were stigmatic orders.
22. In our considered opinion, none of the aforesaid two orders could be said to be a stigmatic order as no stigma is ::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 13 attached. Of course, aforesaid letters were issued in view of the resolution of the full court meeting where the full court of the High Court held that the service of the petitioner is unsatisfactory. Whether or not the probation period could be or .
should be extended or his service should be confirmed is required to be considered by the full court of the High Court and while doing so necessarily the service records of the petitioner are required to be considered and if from the service records it is disclosed that the service of the petitioner is not satisfactory it is open for the respondents to record such satisfaction regarding his unsatisfactory service and even mentioning the same in the order would not amount to casting any aspersion on the petitioner nor it could be said that stating of in the order that his service is unsatisfactory amounts to a stigmatic order.
23. This position is no longer res integra and it is well- settled that even if an order of termination refers to rt unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI Of Medical Sciences reported in (2002) 1 SCC 520, this Court has explained at length the tests that would apply to determine if an order terminating the services of a probationer is stigmatic. On the facts of that case it was held that the opinion expressed in the termination order that the probationer's "work and conduct has not been found satisfactory" was not ex facie stigmatic and in such circumstances the question of having to comply with the principles of natural justice do not arise.
29. One of the issues that were raised by the petitioner was that he was granted two increments during the period of two and a half years of his service. Therefore the stand taken by the respondents that his service was unsatisfactory is belied according to the petitioner because of the aforesaid action even on the part of the respondents impliedly accepting the position that his service was satisfactory.
30. The aforesaid submission of the petitioner is devoid of any merit in view of the fact that since the petitioner was continuing in service, therefore, the case for granting increment was required to be considered which was so granted. The mere granting of yearly increments would not in any manner indicate that after completion of the probation period the full court of the High Court was not competent to scrutinize his records and on the basis thereof take a decision as to whether or not his service should be confirmed or dispensed with or whether his probation period should be extended."::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 14
22. Apex Court, in a catena of cases, has held that, if a probationer is discharged on the ground of unsatisfactory service or .
inefficiency or for similar reason without proper inquiry and without giving a reasonable opportunity of showing case against his discharge, it may, in the given facts, amount to removal from service within the meaning of Article 311 (2) of the Constitution of of India and, in such a case, the simplicity of the form of the order will not give any sanctity. Apex Court in recent judgment in rt Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical Sciences reported in (2015) 15 SCC 151, held that if ex-
parte enquiry or report is the motive for the termination order, then the termination is not to be called punitive merely because the principles of natural justice have not been followed. Apex Court further held that if the facts revealed in the enquiry are not the motive but the foundation for the termination of the services of the temporary servant or probationer, it would be punitive and principles of natural justice are bound to be followed and failure to do so would make the order legally unsound.
23. In the aforesaid judgment, Apex Court, while dealing with the case of a person, who was offered appointment for a period of two years on probation, has specifically dealt the issues; (i) Whether the order of termination passed by the authority is ::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 15 stigmatic or not; and, (ii) whether there had been violation of principles of natural justice, since no regular enquiry was .
conducted. In the aforesaid judgment, Apex Court took note of various judgment passed by it while dealing with the issue of termination of services of probationer holding as under:
"14. The aforesaid submissions have been controverted by of the learned counsel for the respondents.
15. To appreciate the controversy, we may refer to certain authorities which are pertinent to appreciate the controversy. In rt Samsher Singh v. State of Punjab[1], a seven-Judge Bench was considering the legal propriety of the discharge of two judicial officers of the Punjab Judicial Service who were serving as probationers. The majority laying down the law stated 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." And again:-
"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."
16. In Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and Another[2], the services of the appellant were terminated as he was a probationer. He challenged the order of termination before the Administrative Tribunal, ::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 16 Lucknow, U.P., alleging that though the termination order appeared to be innocuous, it was really punitive in nature, inasmuch as it was based on an ex-parte report of enquiry which indicated that he had accepted the bribe and, therefore, it .
was not merely the motive, but the very foundation of the order of termination. The tribunal allowed the application of the appellant and quashed the order of termination. The High Court in the writ petition, placing reliance on the decisions rendered in State of U.P. vs. Kaushal Kishore Shukla[3], Triveni Shankar Saxena vs. State of U.P.[4] and State of U.P. vs. Prem Lata Misra[5], came to hold that the order of termination had not been founded on any misconduct, but on the other hand, the competent authority had found that the employee was not fit to of be continued in service on account of unsatisfactory work and conduct. The High Court also observed that even if some ex- parte preliminary enquiry had been conducted or a disciplinary enquiry was initiated to inquire into some misconduct, it was the option of the competent authority to withdraw the rt disciplinary proceedings and take the action of termination of service under the terms of appointment and the same would not be by way of punishment. This Court after taking note of the submissions of the learned counsel for the parties posed the following question:-
"Whether the report of Shri Ram Pal Singh was a preliminary report and whether it was the motive or the foundation for the termination order and whether it was permissible to go behind the order?"
17. This Court noticed that there are two lines of authorities. In certain cases of temporary servants and probationers, it had taken the view that if the ex-parte enquiry or report is the motive for the termination order, then the termination is not to be called punitive merely because the principles of natural justice have not been followed; and in the other line of decisions, this Court has ruled that if the facts revealed in the enquiry are not the motive but the foundation for the termination of the services of the temporary servant or probationer, it would be punitive and principles of natural justice are bound to be followed and failure to do so would make the order legally unsound. The Court referred to the judgments rendered in Samsher Singh (supra), Parshotam Lal Dhingra vs. Union of India[6], State of Bihar vs. Gopi Kishore Prasad[7] and State of Orissa vs. Ram Narayan Das[8] and, eventually, opined that if there was any difficulty as to what was "motive" or "foundation" even after the Samsher Singh's case the said doubts were removed in Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha[9]. The clarification given by the Constitution Bench in the said case, being instructive, the two-Judge Bench reproduced the same, which we think we should do:-
::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 17"53. Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psychic .
processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is.
If, thus scrutinised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. To put it slightly differently, a termination effected because the of 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 rt the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding 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.
54. 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 pecuniary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge. We need not chase other hypothetical situations here."
18. On that basis, the Court proceeded to opine thus:-
"In other words, it will be a case of motive if the master, after gathering some prima facie facts, does not really wish to go into their truth but decides merely not to continue a dubious employee. The master does not want to decide or direct a decision about the truth of the allegations. But if he conducts an enquiry only for the purpose of proving the misconduct and the employee is not heard, it is a case where the enquiry is the foundation and the termination will be bad."::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 18
19. After stating the said principle, the Court traced the history and referred to Anoop Jaiswal vs. Govt. of India[10], Nepal Singh vs. State of U.P.[11] and Commissioner, Food & Civil Supplies vs. Prakash Chandra Saxena[12] and opined as .
follows:-
"33. It will be noticed from the above decisions 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 of not done with the object of finding out any misconduct on the part of the officer, as stated by Shah, J. (as he then was) in Ram Narayan Das case. It is done only with a view to decide whether he is to be retained or rt 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. It has been so decided in Champaklal case. The purpose of the preliminary 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. That is what is held in Sukh Raj Bahadur case and in Benjamin case. In the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case 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.::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 19
34. But in cases where the termination is preceded 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 issued, 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 allegations 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 founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the of 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 rt 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."
20. Appreciating the facts of the said case, the Court set aside the judgment of the High Court and restored that of the tribunal by holding that the order was punitive in nature.
21. In Chandra Prakash Shahi vs. State of U.P. and Others[13] after addressing the history pertaining to "motive" and "foundation" and referring to series of decisions, a two- Judge Bench had held that:-
"28. 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 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 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".::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 20
29. "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 of be founded on the allegations of misconduct which were found to be true in the preliminary inquiry."
22. A three-Judge Bench in Union of India and Others vs. Mahaveer C. Singhvi[14], dwelled upon the issue whether the rt order of discharge of a probationer was simpliciter or punitive, referred to the authority in Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences[15] and came to hold thus:-
"It was held by this Court in Dipti Prakash Banerjee case that whether an order of termination of a probationer can be said to be punitive or not depends on whether the allegations which are the cause of the termination are the motive or foundation. It was observed that if findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, a simple order of termination is to be treated as founded on the allegations and would be bad, but if the enquiry was not held, and 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's services, it would only be a case of motive and the order of termination of the employee would not be bad."
23. At this juncture, we must refer to the decision rendered in Pavanendra Narayan Verma vs. Sanjay Gandhi P.G.I. of Medical Sciences and Another[16], wherein a two-Judge Bench struck a discordant note by stating that:-
"Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, ::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 21 whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states .
what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job."
24. The said decision has been discussed at length in State Bank of India and Others vs. Palak Modi and Another[17] and, of eventually, commenting on the same, the Court ruled thus:-
"The proposition laid down in none of the five judgments relied upon by the learned counsel for the rt appellants is of any assistance to their cause, which were decided on their own facts. We may also add that the abstract proposition laid down in para 29 in Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences is not only contrary to the Constitution Bench judgment in Samsher Singh v. State of Punjab, but a large number of other judgments-- State of Bihar v. Shiva Bhikshuk Mishra, Gujarat Steel Tubes Ltd. v. Mazdoor Sabha and Anoop Jaiswal v.
Govt. of India to which reference has been made by us and to which attention of the two-Judge Bench does not appear to have been drawn. Therefore, the said proposition must be read as confined to the facts of that case and cannot be relied upon for taking the view that a simple order of termination of service can never be declared as punitive even though it may be founded on serious allegation of misconduct or misdemeanour on the part of the employee." We respectfully agree with the view expressed herein-above.
25. In Palak Modi's case, the ratio that has been laid down by the two- Judge Bench is to the following effect:-
"The ratio of the abovenoted judgments is that a 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. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if the allegation of misconduct constitutes the ::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 22 foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice.
.
26. In the facts of the case, the Court proceeded to state that 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 confirmation of a probationer and the Bank's right to punish a probationer for any defined misconduct, misbehaviour or misdemeanour. In a given case, the competent authority may, while deciding the issue of suitability of the probationer to be confirmed, ignore the act(s) of of misconduct and terminate his service without casting any aspersion or stigma which may adversely affect his future prospects but, if the misconduct/misdemeanour constitutes the basis of the final decision taken by the competent authority to dispense with the service of the probationer albeit by a non- rt 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."
24. Similarly, Apex Court in State of Punjab and others v.
Sukhwinder Singh decided on 14.7.2005, has held that period of probation gives time and opportunity to the employer to watch the work ability, efficiency, sincerity and competent of the servant and if he is found not suitable for the post, the master reserves a right to dispense with his service without anything more during or at the end of the prescribed period, which is styled as period of probation.
The Apex Court has held as under:
"18. It must be borne in mind that no employee whether a probationer or temporary will be discharged or reverted, arbitrarily, without any rhyme or reason. Where a superior officer, in order to satisfy himself whether the employee concerned should be continued in service or not makes inquiries for this purpose, it would be wrong to hold that the inquiry which was held, was really intended for the purpose of imposing punishment. If in every case where some kind of fact finding inquiry is made, wherein the employee is either given an opportunity to explain or the inquiry is held behind his back, it is held that the order of discharge or termination from service ::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 23 is punitive in nature, even a bona fide attempt by the superior officer to decide whether the employee concerned should be retained in service or not would run the risk of being dubbed as an order of punishment. The decision to discharge a probationer .
during the period of probation or the order to terminate the service of a temporary employee is taken by the appointing authority or administrative heads of various departments, who are not judicially trained people. The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. As mentioned earlier a probationer is on of test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry "for the purpose of imposing punishment" and an rt order of discharge or termination of service as a result thereof "punitive in character", the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong.
19. In the present case neither any formal departmental inquiry nor any preliminary fact finding inquiry had been held and a simple order of discharge had been passed. The High Court has built an edifice on the basis of a statement made in the written statement that the respondent was habitual absentee during his short period of service and has concluded therefrom that it was his absence from duty that weighed in the mind of Senior Superintendent of Police as absence from duty is a misconduct. The High Court has further gone on to hold that there is direct nexus between the order of discharge of the respondent from service and his absence from duty and, therefore, the order discharging him from service will be viewed as punitive in nature calling for a regular inquiry under Rule 16.24 of the Rules. We are of the opinion that the High Court has gone completely wrong in drawing the inference that the order of discharge dated 16.3.1990 was, in fact, based upon the misconduct and was, therefore, punitive in nature, which should have been preceded by a regular departmental inquiry. There cannot be any doubt that the respondent was on probation having been appointed about eight months back. As observed in Ajit Singh and others etc. vs. State of Punjab and another (supra) the period of probation gives time and opportunity to the employer to watch the work ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserves a right to dispense with his service without anything more during or at the end of the prescribed period, which is styled as period of ::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 24 probation. The mere holding of preliminary inquiry where explanation is called from an employee would not make an otherwise innocuous order of discharge or termination of service punitive in nature. Therefore, the High Court was .
clearly in error in holding that the respondent's absence from duty was the foundation of the order, which necessitated an inquiry as envisaged under Rule 16.24(ix) of the Rules."
25. Careful perusal of aforesaid judgments having been rendered by the Apex Court, clearly suggests that satisfactory of completion of probation and successful passing of training/test held during or at the end of period of probation are sine qua non for confirmation of a probationer and authorities, while deciding issue rt of suitability of the probationer can take note of conduct of probationer during period of his probation. Order, if any, of termination if is based upon inquiry, then principles of natural justice are required to be adhered to by affording due opportunity of hearing to the person concerned.
26. In the instant case, as clearly emerges from the termination orders, same have been passed because of unsatisfactory performance of the petitioners during probation period and in no terms, same can be said to be stigmatic or by way of penalty and on the face of documents made available on record by the authorities, no inquiry was required to be held against the petitioners, rather the work, conduct and performance of the petitioners was sufficient to pass the termination orders.
::: Downloaded on - 15/04/2017 21:53:41 :::HCHP 2527. In view of the law laid down by the Hon'ble Apex Court, petitions at hand lack merit and are dismissed accordingly.
.
Impugned order is upheld. Pending applications are also disposed of.
(Mansoor Ahmad Mir) Chief Justice of (Sandeep Sharma) Judge January 11, 2017 (Vikrant) rt ::: Downloaded on - 15/04/2017 21:53:41 :::HCHP