Calcutta High Court (Appellete Side)
Arup Kumar Bhaumik vs The State Of West Bengal & Ors on 8 March, 2017
Author: Subrata Talukdar
Bench: Subrata Talukdar
08.03.2017
S.L-60(KB)
W. P. 3691 W) of 2017
Arup Kumar Bhaumik
Versus
The State of West Bengal & Ors.
Mr. Pratik Dhar
Mr. Manabendra Thakur
Mr. Samir Halder
... For the petitioner.
Mr. Sauvik Nandy
Mr. Supratick Roy
... For the Respondent No.4.
Mr. Partha Sarathi Sengupta Mr. Biplab Ranjan Bose ... For the Respondent Nos. 5 to 8.
Mr. Achintya Kumar Banerjee Mrs. Era Ghose ... For the Respondent No.9.
Ms. Chaitali Bhattacharya Ms. Shukla Das Chanda ... For the State-respondents. .
Mr. Pratik Dhar, Learned Senior Counsel appears for the writ petitioner.
The solitary grievance of the writ petitioner in this writ petition relates to the impugned order of termination of service issued by the Respondent/RCC Institute of Information Technology (for short the Institute) dated 2nd February, 2017. By the said impugned order the probationary period of the writ petitioner, which was extended for a period of six months, stood terminated on the following grounds:
"The undersigned (the appointing authority) and the members of Board of Management (BOM) were not satisfied with the service rendered by you in the capacity of Principal, RCCIIT and your overall conduct. As a result it was decided to monitor your service for an extended period of probation instead of confirming you to the post of Principal at the end of the nitial probationary period. Consequently, the period of your initial probation was extended for a further period of six months through a letter dated 24.08.2016 bearing No.16-17/rcciit/042 issued by the undersigned. Unfortunately, you have failed to satisfy the authority even during the extendedperiod of your probation inspite of advices/direction given to you from time to time. Your role as a custodian of confidential information related to the affairs of the management is questionable. You have failed to behave upon the expected standard of conduct which has given rise to a situation involving a loss of confidence on you.
Moreover, it appears from your actions that you are in no mood to cooperate with the decision making process of the BOM. In fact, your recent legal notice expresses not only your loss of confidence towards the BOM and points out purported irregularities/infirmities in the decision making process of the BOM but also threatens the Institute with legal action.
In view of the above, the management of the Institute has no other option but to terminate your service as Principal of the Institute with effect from 02.02.2017 as per relevant clause of service rules.
As per service rules, you will be paid one month's salary in lieu of one month's notice. We are advising Accounts department of the Institute to settle your final accounts."
Mr. Dhar, on the strength of the decision of the Hon'ble Apex Court reported in (1999) 3 Supreme Court Cases 60 makes the fundamental point that any order of termination, qua a probationer, will be bad if stigmatic. The material which leads to a conclusion of stigma is required to be gathered from the language of the order. Such material, if is the 'foundation' of the order of 'termination' shall render such termination bad and if, only a 'motive', shall lead to an ordinary presumption that the employer was dissatisfied with the requirement of any future service from the employee.
The above noted decision in (1999) 3 Supreme Court Cases 60 has been noticed by several subsequent decisions of the Hon'ble Apex Court and notably in (2002) 1 Supreme Court Cases 520 of which paragraph 29 reads as follows:-
"29. 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 sigma? 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, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit 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."
Mr. Partha Sarathi Sengupta, Learned Senior Counsel appearing for the Respondent/Institute relies on a subsequent decision of the Hon'ble Apex Court in (2006) 4 Supreme Court Cases 469 which considers the decision in (1999) 3 Supreme Court Cases 60 (supra) at Paragraph 12 as follows:-
Mr. Sengupta relies particularly on paragraph 12 of (2006) 4 Supreme Court Cases 469 which reads as follows:
" 12. It referred to Dipti Prakash Banerjee and pointed out that in Dipti Prakash Banerjee the termination letter expressly made reference to an earlier letter which had explicitly referred to all the misconducts of the employee and a report of an inquiry committee which had found that the employee was guilty of misconduct and so the termination was held to be stigmatic and set aside. Finally, this Court said whenever a probationer challenges his termination the court's first task will be to apply the test of stigma or the "form" test. If the order survives this examination the "substance" of the termination will have to be found tout. What this Court further observed in para 29 is crucial and of great relevance: (SCC pp.529-30).
"29 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, 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 (sic otherwise). 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."
On behalf of the Respondents/Association of Employees, notwithstanding the academic nature of their presence in the adjudication, Mr. Achintya Kumar Banerjee, Learned Counsel appears.
The State-respondents are represented by Ms. Chaitali Bhattacharya, Learned Senior Government Advocate.
Having heard the parties and considering the materials placed, this Court notices as follows:
A) That the foundation of the discussion on termination simpliciter of a probationer or, a termination with stigma stands laid down in (1999) 3 Supreme Court Cases 60 (supra).
B) The law on the point evolved at paragraph 29 in (2002) 1 Supreme Court Cases 520 (supra) wherein it was underscored that the language of the termination order must impute material over and above simple unsuitability for the job.
C) In (2006) 4 Supreme Court Cases 469 the principles as laid down in (1999) 3 Supreme Court Cases 60 and in (2002) 1 Supreme Court Cases 520 were applied to the facts of the case to record that the petitioner/employee stood removed by treating him as unsuitable for the job which however, did not carry a stigma or, a punishment for his perceived misconduct.
D) In the backdrop of the above discussion, this Court is required to notice the language of the order of termination served on the petitioner dated 2nd February, 2017. This Court cannot lose sight of the fact that the petitioner held the office of Principal of the Respondent/Institute and, therefore deserved to be evaluated and, if necessary, terminated simpliciter, on probation by employing language commensurate to such position.
At this juncture the attention of this Court is drawn to the imputation of misconduct drawn against the petitioner on the ground that "his role as custodian of confidential information related to the affairs of the management is questionable" (supra, letter of 2nd February, 2017) strikes the mind of this Court to be stigmatic. The petitioner may not be in a position to claim future eligibility in a corresponding responsible position/post in the light of the above noted prejudicial comment which is likely to cast a deep shadow in the mind of a future employer.
Therefore, applying the principles laid down in the judgments referred to above to the facts of the present case, this Court is persuaded to extend protection to the petitioner at this stage.
This Court is informed that during the pendency of this matter, appointment order has been issued in favour of another individual on 7th March, 2017 to act as Principal. This Court is of the view that the order dated 7th March, 2017 carries with it the tendency to preempt a decision, whether interim or final, in the writ petition.
Accordingly, this Court is persuaded to restrain the Respondent/Institute as well as the State-respondents who, in terms of the documents attached to the writ petition exercise supervisory control over the Board of Management of the Respondent/Institute from time to time, from giving any effect or further effect to the Memo dated 7th March, 2017 till further orders.
Let the matter next appear under the heading "For Orders" in the Combined Monthly List of April, 2017.
It is expected that the parties shall complete their exchange of affidavits to the writ petition by the next date of hearing.
(Subrata Talukdar,J.)