Calcutta High Court (Appellete Side)
Dr. Satyadeo Prasad & Anr vs The State Of West Bengal & Ors on 4 September, 2018
Author: Arindam Sinha
Bench: Arindam Sinha
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Arindam Sinha
WP 14552 (W) of 2017
Dr. Satyadeo Prasad & Anr.
Vs.
The State of West Bengal & Ors.
For petitioner : Mr. Anurag Ojha, Adv.
Mr. Amarendra Chakraborty, Adv.
Mr. D.N Chaturvedi, Adv.
For respondent no.2 : Mr. Partha Sarathi Sengupta, Sr. Adv.
Mr. Soumya Majumder, Adv.
Mr. Victor Chatterjee, Adv.
For respondent no.4 : Mr. Joydip Kar, Sr. Adv.
Ms. Aparajita Rao, Adv.
For State : Mr. Tapan Kumar Mukherjee, Ld. AGP
Mr. Debashis Basu, Adv.
For UGC : Mr. Anil Kr. Gupta, Adv.
Heard on : 11.07.2018, 18.07.2018, 23.07.2018
and 06.08.2018.
Judgment on : 4th September, 2018.
Arindam Sinha, J.
Under challenge in this writ petition are communications both dated 21st April, 2017 made by Presidency University, separately to petitioners, text of which, being identical, is reproduced below :-
"I am directed to inform you that your performance during the probationary period of service has been found unsatisfactory. It has been decided not to further extend your period of probation which will expire on 26.05.2017 and not to confirm your service.
Therefore you are discharged from your probationary service of the Presidency University, Kolkata, forthwith."
Mr. Oja, learned advocate appeared on behalf of petitioners and drew attention to their also identically worded letters of appointment from which following is extracted :-
"Your service with the University will be governed by its service rules and this includes a probation period of one year from the date of joining this University."
Mr. Ojha relied on judgment of a learned single Judge of this Court in Ashok Kumar Singh vs. Vijaya Bank & Ors. reported in 2013 Lab IC
656. He relied on paragraphs 24 and 30 to submit, his clients are similarly situate as petitioner in that case. They have not been served, at any point of time, any communication pointing out defect in their work or deficiency, to give them opportunity to rectify their shortcomings. He submitted, in that case a judgment of Supreme Court was relied upon, which he relied upon as well. It is Dr. Mrs. Sumati P. Shere versus Union of India (UOI) and Ors. reported in AIR 1989 SC 1431 as also (1989) 3 SCC 311. He placed paragraph 5 of said judgment and submitted, the University in terminating probationary services of his clients acted arbitrarily in the facts and circumstances. He also relied on another judgment of Supreme Court in Coimbatore District Central Cooperative Bank versus Coimbatore District Central Cooperative Bank Employees Assn. and Another reported in (2007) 4 Supreme Court Cases 669, paragraph 20. He submitted, there is lack of proportionality on part of the University in terminating his clients' probationary service. In event their services were found to be deficient or there was otherwise unsuitability, it would have been proportional on part of the University to notify his clients. Termination orders are wholly out of proportion.
His further point was founded on disclosure in affidavit-in-reply of his clients, against affidavit-inopposition by respondent no.4. Referring to first annexure therein he submitted, another probationer given appointment as such, under same recruitment process, was given notice to improve herself and at present she is likely to be confirmed. Here again there is an act of discrimination palpable against his clients.
On later occasion Mr. Ojha, relied on two judgments of learned single Judges of different High Courts in support of his first point. First is in Ms. Chaula Kuruwa Vs. Tourism Corporation of Gujarat Ltd. & Ors., decided on 11th March, 1991 by High Court of Gujarat. He relied on paragraphs 8, 9, 11 and 14. Clear view taken is probationer must be put on notice, not only on deficiencies or unsuitability but by giving particulars. Second judgment is in Saroj Kumar Singh Vs. Union of India & Ors. decided on 15th March, 2010 by High Court of Gauhati, paragraphs 18 & 19. On point of discrimination he relied on judgment of Supreme Court in Punjab National Bank & Anr. Vs. Astamija Dash reported in (2008) 14 SCC 370, to paragraphs 37 & 40.
He then moved on to his last point, of stigma. He submitted, it is not necessary in adjudication of stigma for termination letter to carry words that are stigmatic. Surrounding circumstances leading upto issue of termination letter might constitute stigma as does in case of his clients. He referred to paragraph 10 of the writ petition where petitioner no. 2 has said about beginning of his falling out with respondent no. 4, head of concerned department in the university. Incident referred to in said paragraph happened on 26th August, 2016. Subsequent thereto respondent no. 4 by electronic mail (email) dated 25th November, 2016 had alleged as follows:-
"This is to inform you that all the students of UG 3rd semester are very agitated with the question paper 0301 (Swatantrottar Hindi Kavita) of ODD semester Examination held on 22nd November, 2016. The have reported me that they could not answer the paper properly. But I feel that the students can easily answer the questions based on prescribed poems. Even the students admitted that the question paper was not tough. They informed me that though the syllabus was not completed by you, you told them to study only taught poems. You also told them that the questions will be only on those poems in the examination which you have taught them. Students have followed you instructions. As there are questions in the paper on the poems not taught by you, they could not answer them. This is the violation of the rules of the examination. The names of the paper setter and the examiner are highly confidential. You cannot inform these to the students and also cannot leak out the selected topics of the question paper. I want clarification from you in this 3 regard within seven days. I remind you that when the students had reported me of non- completion of you syllabus in October 2016, I instructed you to complete the syllabus and take extra classes on Saturday and holidays. I also want to know the number of allotted and extra classes taken by you in the last semester."
He submitted, petitioner no.2 almost immediately replied by letter dated 27th November, 2016. Serious allegation of leaking question papers was made after which comes letter of termination. This is stigmatic and entitles his clients to a departmental enquiry. He submitted, this contention is without prejudice to his earlier two points taken.
For stigma, he relied on judgment of Supreme Court in Samsher Singh Vs. State of Punjab reported in (1974) 2 SCC 831. There are two concurring views in that judgment. In first view per Ray, CJI, he relied on paragraphs 62 to 64 and 83 to 90. In second view per Krisha Iyer, J, to paragraphs 158 to 161.
Mr. Sengupta, learned senior advocate appeared on behalf of the University. Writ petition is not maintainable, according to him, as petitioners cannot join. Notwithstanding, he submitted, section 29 of Presidency University Act, 2010 has to be read as a whole. Second proviso to sub-section (4) cannot be read in isolation. Sub-sections in the section proceed as first providing for appointment under sub-section (1). Sub- section (2) provides for period of probation and its extension. Sub-section (3) gives authority to the University to discharge probationer if performance is not considered satisfactory. It is thereafter that sub- section (4) provides for completion of period of probation and its consequences. First proviso under sub-section (4) is regarding deemed confirmation and second, extension of period of probation as desired by a teacher or an officer or an employee. He submitted in elaboration, there are instances where a teacher on probation is on lien. Such probationer might desire extension of probation to consider incumbent's position regarding lien. Such a probationer would desire extension of period of probation in the circumstances rather than completion of it and confirmation.
He then dealt with submissions of law made on behalf of petitioner. Referring to Dr. M/s. Sumati P. Shere (supra) he relied on paragraphs 3, 5 and 6 with special emphasis on paragraph 5. He submitted, declaration of law is that in relationship of master and servant there is moral obligation to act fairly. An informal, if not, formal give and take, on the assessment of work of the employee should be there. He submitted, interaction between members of faculty in the University is informal rather than exchanging letters between themselves. He also relied on judgment of Supreme Court in Pradip Kumar versus Union of India reported in (2012) 13 SCC 182. This is a judgment included in compilation handed up on behalf of petitioner. He relied on paragraphs 4, 7, 8, 12 and 13. He submitted, controversy in that proceeding was limited to interpretation of rules 8 and 9 (2) of Customs Excise and Service Tax Appellate Tribunal Members (Recruitment and Conditions of Service), Rules 1987. He pointed out from the judgment, respondent had been given annual increments and Supreme Court found order of termination was prompted by a compliant made by members of the Bar and not regarding assessment of his performance.
He next relied on judgment of a learned single Judge of Punjab and Haryana High Court in Satish Kumar Jind Cooperative Sugar Mills Ltd. reported in 1994 (1) S.L.R. 406, to paragraph 6. Case being dealt with was found to be distinguishable on facts against application of Dr. M/s. Sumati P. Shere (supra). Learned Judge found petitioner had worked for about six months. No annual confidential report regarding his performance could have been recorded. In such a situation occasion for conveying any adverse remarks etc. could not have arisen. Those were the distinguishing features.
His next case for reliance was Pavanendra Narayan Verma vs. Sanjay Gandhi P.G.I. of Medical Sciences reported in (2001) 8 Supreme 409, also reported in (2002) 1 SCC 520 wherein Supreme Court in dealing with Shamsher Singh (supra) said, 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. He placed reliance on paragraph 21 in the judgment to submit, even if there is an inquiry, any one of the stages mentioned in the paragraph, if not present, Supreme Court declared, termination following would be upheld.
He relied on another judgment of Supreme Court in Municipal Committee, Sirsa vs. Munshi Ram reported in 2005 (1) Supreme 818 also reported in (2005) 2 SCC 382. In paragraph 17 of the judgment Supreme Court declared, assuming there was an incident of misconduct or incompetency prior to discharge from service, same cannot ipso facto be termed as misconduct requiring an inquiry. It may be a ground for employer's assessment of workman's efficiency and efficacy, to retain him in service. He submitted, correspondence disclosed at pages 48 and 51 of the writ petition even if points to allegation of misconduct on part of petitioner no.2, the University was not obliged to launch inquiry but use it as a factor for assessing suitability of petitioners. He then relied on Registrar, High Court of Gujarat & Anr. vs. C.G. Sharma reported in 2005 (1) LLN 1 also reported in (2005) 1 SCC 132. He relied on paragraphs 34 to 39. Apart from facts considered by Supreme Court he relied on opinion given in paragraph 39, regarding scope of judicial review, being to ensure that delinquent receives fair treatment and not to ensure that conclusion which the authority reaches is necessarily correct in the view of Court or Tribunal. When the conclusion reached by authority is based on evidence, Tribunal is devoid of power to re- appreciate the evidence and come to its own conclusion on proving of the charge. Lastly, he relied on Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. & Anr. reported in (1999) 2 SCC 21, to paragraph 33 in which Supreme Court declared that termination of service 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 above facts are merely motive and not foundation.
On facts Mr. Sengupta referred to affidavit-in-opposition of respondent no. 2. He demonstrated from pages 30, 31 and 33, evaluation of answer scripts by petitioner no. 2 struck Departmental Examination Committee (DEC) as something which needed to be looked into. An external examiner was appointed. Results awarded by petitioner no. 2 and external examiner are respectively at pages 31 and 33. While petitioner no. 2 gave 'A' and 'A+' to all examinees in Hindi paper 301, results given by external examiner to them varied between 'A' to 'D', only one examinee being awarded 'A'. He submitted, as has been held in Dr. M/s. Sumati P. Shere (supra), interaction between head of the department and probationer such as petitioners would be informal. Still, some correspondence and documents regarding examination and evaluation are there. These are facts on which assessment was based.
Mr. Sengupta submitted on judgement dated 18th October, 2012 of learned single Judge of this Court in Ashok Kumar Singh Vs. Vijaya Bank & Ors. reported in 2013 Lab IC 656. He placed paragraphs 3, 4, 6-9, 11, 13, 16, 23, 25- 29 and 36 from Manupatra report. He demonstrated manner in which learned Judge found petitioner therein to have suffered order of suspension during his probation, which was withdrawn. He received high praise from Deputy Controller of Accounts who advised all banks of zone to contact petitioner for any difficulty arising during implementation of the project. Apart from that petitioner had pointed out breach of tender condition by Wipro Ltd., who had then got wiped out such condition and petitioner was transferred to a branch where there was no scope for application of his expertise. Suspension order having been withdrawn thereafter without employer resorting to disciplinary proceeding, his probation was extended twice. It is in these facts that Dr. M/s. Sumati P. Shere (supra) was applied by learned Single Judge. Petitioners' case here comes nowhere close.
Mr. Kar, learned senior advocate appeared on behalf of respondent no. 4 and submitted, allegations made in paragraphs 10 & 11 in the writ petition do not stand substantiated by contemporaneous exchange of emails. He demonstrated from disclosures in the petition, petitioners individually approached Vice Chancellor for appointment as well as for considering their respective representations. The letters are similarly worded. What is same is omission of petitioners to have made allegations of academic bias in those letters/representations. He submitted, his client even tried to help petitioners get on with their jobs. For that he referred to page 49 of the writ petition which carries, inter alia, said offer by his client, to help and also take extra classes, if required.
Mr. Ojha made submissions in reply. On maintainability point he submitted, petitioners' challenge in this writ petition arises out of same facts to give rise to same questions of law. Hence, writ petition should not be held to be not maintainable on technicality. He submitted, Dr. M/s. Sumati P. Shere (supra) lays down three conditions for applicability of it as law declared. First is, service must be of the kind probationary. Second, termination must be on the ground of unsuitability and third, it is proper and necessary that probationer before termination should be told in advance that work and performance are not up to the mark. He submitted, Satish Kumar Jind (supra) is not applicable in the way it was sought to be made, as being a view on applicability of law declared by Supreme Court in Dr. M/s. Sumati P. Shere (supra). Mr. Ojha submitted, none of decisions relied upon on behalf of the University are applicable to facts of his clients' case. His clients' case is simple. They were not told nor given any indication, informal or otherwise, that their performance was deficient leading to their appraisal as unsuitable for the post.
Petitioners' challenge to their termination of probationary service appears to be two fold. Firstly, they were never given intimation of deficiency of service for them to improve themselves, on notice thereof. Secondly, their termination is stigmatic in facts and circumstances made.
Dr. M/s. Sumati P. Shere (supra) petitioners have relied on for their challenge to impugned letters of termination. This decision was rendered on 3rd April, 1989. Arguments by parties have brought to notice of Court judgments of Supreme Court and High Courts in applying the same. Earliest in point of time (of judgments relied upon as aforesaid) is Miss. Chaula Kuruwa (supra), decided by High Court of Gujarat on 11th March, 1991. Said Court considered distinguishing facts in applying the judgment, to be that petitioner had got two extensions. She sought clarifications as to alleged deficiency in her work. Concerned authority observed a saint-like silence. She then made representation requesting authorities to consider her case for release of her due increments wherein she again requested to point out deficiency in her work so that she can turn out better performance. Facts were, authorities sat over it, no reason whatsoever was given to her. She, as probationer, was given increment.
In Satish Kumar (supra) decided on 15th October, 1993, learned single Judge of Punjab and Haryana High Court distinguished that case against application of Dr. M/s. Sumati P. Shere (supra) on finding petitioner had worked six months only. No annual confidential report regarding his performance could have been recorded. In such a situation occasion for conveying any adverse remark etc. would not have arisen. Saroj Kumar Singh (supra) was decided on 15th March, 2010 by High Court of Guahati. Learned single Judge formulated question for consideration as appears from paragraph 1 in the judgment, quoted below.
"1. Can the period of probation after expiry of initial period be extended repeatedly, to be precise, as many as 4(four) times, advising the probationer to improve his performance without specifically indicating the area in which he is required to improve and simultaneously initiating departmental proceeding for alleged misconduct? Is such an action bona fide, legal and justified calling for no interference in judicial review?...."
Facts found were, Reporting Officer in probation reports of petitioner commented, he meets all requirements of job and, therefore, there was no occasion to point out or inform him about any deficiency. Court was of view, impugned action of respondent authority in terminating petitioner was actuated by so-called charge of misconduct against him for filing FIR.
In Arun Kumar Singh (supra), a learned single Judge of this Court in applying Dr. M/s. Sumati P. Shere (supra) found petitioner therein to have suffered order of suspension during his probation, which was withdrawn. He received high praise from Deputy Controller of Accounts. Petitioner had pointed out breach of tender condition by tenderer, who had got wiped out such condition and petitioner transferred to a branch where there was no scope for application of his expertise. Employer had, without resorting to disciplinary proceeding, withdrew suspension order and his probation had been extended thrice. In these facts application of the judgment was made, to interfere. Supreme Court decided Pradip Kumar (supra) on 14th December, 2012. Clear finding was, discharge of probationer was founded on complaint made by advocates to President, CESTAT.
From above analysis what emerges is application of Dr. M/s. Sumati P. Shere (supra) in aid of probationer, whose service stood terminated, was, without exception, in cases where probation had been extended, no adverse remarks were there in probation period, rather increments and high praise received. Other factors were suspension and its withdrawal without initiation of disciplinary proceeding and dismissal on grounds not related to performance. Facts in this case do not have any similarity for application of the judgment. There is some correspondence regarding head of the department having noticed and took action including offering help to petitioner no.2. There was no extension of probation period. Petitioners were not able to show anything regarding appreciation of their work. The letters of termination simply say performance during probationary period of service have been found unsatisfactory. As such petitioners' this contention cannot be accepted.
Identical text of letters of termination dated 21st April, 2017, impugned herein, have been reproduced above. The only ground given in the letters is that petitioners' performance during probationary period of service have been found unsatisfactory. There is no dispute at the bar that use of word 'unsatisfactory' by itself cannot be said to be stigmatic. In Pavanendra Narayan Verma (supra) Supreme Court considered its earlier judgment in Shamsher Singh (supra) and said, 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. Petitioners' contending stigma in the facts and circumstances as to have led to their termination is a case of stigma based not on order of termination. Mr. Sengupta had relied on Munshi Ram (supra), in paragraph 17 of which Supreme Court said, assuming there was an incident of misconduct or incompetency prior to discharge from service, same cannot ipso facto be termed as misconduct requiring an enquiry. It can be a ground for employer's assessment of workman's efficiency and efficacy, to retain him in service. Following said authority this Court finds, the University was not obliged to launch inquiry regarding its position taken of leak of question paper said to be by petitioner no.2. Supreme Court in Radhey Shyam Gupta (supra) declared, termination of service of a temporary servant or one on probation, on the basis of adverse entries or on the basis of assessment that his work is not satisfactory, will not be punitive inasmuch as such are merely motive and not foundation.
Coimbatore District Central Cooperative Bank (supra) is not applicable since doctrine of proportionality will not apply to termination of probationer, on contention that instead, extension ought to have been granted. Extension of probation appears to be in domain of employer. Dr. M/s. Sumati P. Shere (supra) does not declare extension is to be granted. Said decision is not applicable to petitioners' case, as has already been discussed above.
Further contention of petitioner that there has been discrimination also cannot be accepted. On the contrary, University having had pointed out deficiency to another probationer is seen by Court as it having had decided not to do the same regarding petitioners. This discretion, in matter of probationary service, employer has.
For above reasons this Court is not inclined to interfere. Writ petition is dismissed and interim order vacated.
(Arindam Sinha, J.)