Gujarat High Court
Hetal Shankarbhai Patel vs State Of Gujarat on 3 November, 2020
Equivalent citations: AIRONLINE 2020 GUJ 935
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/6737/2020 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.6737 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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HETAL SHANKARBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR HRIDAY BUCH(2372) for the Petitioner(s) No. 1
MR KM ANTANI, AGP (1) for the Respondent(s) No. 1
MR SIDDHARTH H DAVE(5306) for the Respondent(s) No. 2,3
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CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 03/11/2020
CAV JUDGMENT
1. Rule returnable forthwith. Mr. Siddharth Dave, learned advocate waives service of notice of rule for the respondent nos.2 and 3 while Mr. K.M. Antani, learned AGP waives service of notice of rule for the respondent no.1 - State. Page 1 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT
2. With the consent of the learned advocates appearing for the respective parties, the matter was taken up for final hearing. The arguments were concluded and the judgment was reserved on 12.10.2020.
3. In order to explore the possibilities whether the petitioner would want to go back to her original post as an Assistant Professor and whether the University was willing to accept that proposal, the matter was adjourned to 21.10.2020, on which date, the learned counsel for the respondent University expressed his reservations for accepting that proposal. Written arguments were filed and tendered on 26.10.2020.
4. In this petition, under Article 226 of the Constitution of India, the petitioner has challenged the order dated 7.3.2020 by which the probation period which was initially for a period of two years from 28.9.2017 to 28.9.2019, was Page 2 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT subsequently extended for a period of six months, however by the impugned order the University has found the services of the petitioner to be unsatisfactory and decided not to extend the period of probation. The consequential termination of service is a matter of challenge in this petition.
5. Facts of this case are as under:
* The case of the petitioner is that she is educationally well qualified, holding a Bachelors Degree in Arts in English with distinction. She also holds a Masters degree.
According to the petitioner, she possesses a degree in education and cleared State level eligibility tests in the first attempt in the year 2003. She got a doctorate in September, 2009. She also has guided 24 students in the degree of Master of Philosophy and some students in the Ph.D. Course. The petitioner highlights major academic and carrier Page 3 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT achievements inasmuch as it is her case that she has visited the Library of the Oxford University and also the British library, London. That she got an opportunity to attend world conference organized by a University of British Colombia etc. * The petitioner joined the respondent University as a Lecturer on 9.11.2004. On 12.6.2008, the petitioner was appointed on a probation for a period of two years as a Lecturer in the Department of English with protection of her pay. She was confirmed in service by an order dated 10.3.2011. The petitioner secured a higher grade of Rs.7,000/- and Rs.8,000/- under the UGC Career Advancement Scheme by orders of 2.9.2014 and 22.6.2016.
* On participation in the recruitment process for the post of professor in English, the Page 4 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT petitioner came to be appointed as a Professor in the Department of English on a probation of two years by an appointment order dated 28.9.2017. According to the petitioner, there were no complaints during the 13 years of her career as a Lecturer and one and half years as a Professor.
* According to the petitioner in January, 2019 on flimsy grounds, the University started creating issues, inasmuch as, they sent a team of non teaching staff for inspection in the department on January 8, 2019 and then, vide a notice dated 12.2.2019 sought explanation for alleged irregularities. The case of the petitioner is that on 12.2.2019 after the notice and her explanation, nothing was done and suddenly after five months, a show cause notice dated 22.7.2019 was issued asking for an explanation within two days. The petitioner explained. The other Page 5 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT incident, which according to the petitioner weighed with the authorities, the organization of a blood donation camp on 5.8.2019 by the petitioner, which according to the University was without the permission of the Vice Chancellor. A notice was issued on 9.8.2019 to which the petitioner replied. * According to the petitioner, on 23.9.2019, the petitioner was intimated that a resolution has been passed to hold a departmental inquiry against the petitioner and she was asked to submit her final reply pursuant to the show cause notice dated 22.7.2019. After the probation period was over on 28.9.2019, by an order dated 10.10.2019, the probation period was extended for a period of six months. The case of the petitioner is that no inquiry was held thereafter and suddenly by the impugned order, the services of the petitioner have Page 6 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT been terminated.
6. Mr.Hriday Buch, learned counsel for the petitioner would submit that the order of termination is malafide. It is the case of the learned advocate Mr. Buch that when the petitioner was posted as the head of the department in English, one Dr. Adesh Pal who was suspended as the then head for financial irregularities, the petitioner refused to cooperate with Dr.Pal in helping him and ultimately the University held Dr.Pal guilty. Once Dr.Pal was reinstated in service on 19.8.2019 and he took charge as the head of department in English, the travails of the petitioner began.
* He would further submit that during her service as a Lecturer and Assistant Professor, the petitioner's service record was excellent. There was not a single adverse remark ever received for the entire service Page 7 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT period from 2004 to 2017. With the additional affidavit, Mr.Buch has tendered the copies of the adverse confidential reports which the petitioner received through the Right To Information Act. He would submit that the reports w.e.f. 29.9.2017 to 31.3.2018, w.e.f. 1.4.2018 to 30.9.2018 and from 1.10.2018 to 31.3.2019 have been excellent, so also for the period from 1.4.2019 to 18.9.2019. Self appraisal reports were called for and the Vice Chancellor has accepted the same. It is only after Dr. Pal was reinstated on 19.8.2019, ACRs for the period from 19.8.2019 are severely adverse. It is on the basis of these adverse remarks that the petitioner's period of probation was extended from 10.10.2019. The ACRs are the subject matter the challenge inasmuch as, according to Mr.Buch, learned advocate for the petitioner, the ACRs were submitted by Dr.Pal without calling for self appraisal Page 8 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT report, such adverse reports have never been communicated. Dr.Pal had an axe to grind against the petitioner and, therefore, such adverse remarks. It was a well orchestrated design to ruin the career of the petitioner. * Mr.Buch would further submit that before the extended period of probation came to an end, Dr.Pal submitted another ACR for the period from 28.9.2019 to 29.9.2020 which is severely adverse. These adverse remarks were not communicated to the petitioner. The order of termination based on such adverse remarks which are not communicated is an order which violates the principles of natural justice and is stigmatic. * Mr.Buch would rely on a decision in the case of Dr.Ms.Sumati P. Shere v. Union of India and another reported in 1989(3) SCC 311. He also relied on a decision in the Page 9 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT case of Sukhdev Singh v. Union of India and others reported in 2013(9) SCC 566 and the case of Sushman R. Sharma v.
SNGU reported in Manupatra/GJ/0813/2018.
7. To the preliminary contention raised by the other side that the petition is barred by an alternative remedy, inasmuch as, the petitioner can approach the Gujarat Educational Institutions Services Tribunal, Mr.Buch would cite the decisions in the case of Balkrishna Ram V. Union of India reported in 2020 (2) SCC 442, Maharashtra Chess Association v. Union of India reported in 2019 SCC Online, SC 932, & Whirlpool Corporation V. Registrar of TM, 1998 (8) SCC 1 to submit that when the order of termination is in gross violation of principle of natural justice and, there is a glaring illegality, this Court should not oust the petitioner only on the ground of an alternative and an efficacious remedy. Page 10 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT
8. Mr.Sidhharth Dave, learned counsel appearing for the respondent No.2 - University would submit as under:
* That the petition challenging the order dated 7.3.2020 is not maintainable and deserves to be dismissed, inasmuch as the petitioner has a remedy of a statutory appeal before the learned Gujarat Educational Institutions Services Tribunal. He would rely on the decision in the case of SCA No.2239/2016 in the case of Kailashben Priteshkumar Patel v. State of Gujarat whereby this Court by order dated 11.3.2016 refused to entertain a petition on merits on the ground of an alternative remedy before the Gujarat Educational Institution Services Tribunal.
He also relied on a decision in the case of Adesh Pal v. University Grants Commission and others in SCA No.4715/2016. Mr.Dave would submit that Page 11 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT the decisions of the Supreme Court relied upon by Mr.Buch in the case of Balkrishna Ram (Supra) has been considered by the Delhi High Court in the case of Prabhat Ranjan Deo v. UPSC and so also the decision in the case of the Maharashtra Chess Association (Supra) and considering the said decision, the Delhi High Court has held that the case of Balkrishan Ram, (Supra) was question of entertaining an appeal against the order of the single Judge and was, therefore, not germane to the controversy. Mr.Dave also relied on the decision in the case of Ritu Hooda v. The Directorate of Education and another decided on 9.9.2020 by Delhi High Court in context of his plea that the petition was barred by an alternative remedy. Reliance is also placed on the decision of this Court in SCA No.7306/2020 dated 19.8.2020 and a decision of this Court dated 22.9.2020 in Page 12 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT SCA No.9622/2020.
* On merits, Mr.Dave would submit that it is a well established principle of law that the probationer has no right to the post while an employee is working on a probation, it gives the employer time and opportunity for watching the performance of the probationer and if found unsuitable, services can be dispensed with. It cannot be said that any right is infringed or the order is stigmatic. He would rely on the decision in the case of State of Punjab and others v.
Sukhwinder Singh reported in 2005 (5) SCC 569. He also relied on the decision in the case of Om Prakash Mann v. Director of Education (Basic) and others reported in 2006(7) SCC 558.
9. Mr.Dave would submit that Mr.Buch is unnecessarily mixing up the issues of the show Page 13 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT cause notice and the adverse remarks in branding the order as stigmatic. Admittedly, the show cause notice was preceding the period extending the order of probation. It was for a period which happened before the extension of probation i.e. before 24.9.2019. By way of an additional affidavit, the contention of Mr.Buch that since the ACRs for a relevant period are not communicated, the order becomes bad for violation of principles of natural justice, apart from the malafides, Mr.Dave would submit that these are not facts which indicate the order to be stigmatic. The case of Dr.Ms.Sumati P. Shere (Supra) cited by Mr.Buch would not be applicable. Even the decision in the case of Sukhdev Singh (Supra) was in the case of a permanent employee and it was in this context that the communication of adverse remarks was material. The order of termination was simplicitor and therefore deserves no interference.
Page 14 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT
10. No other submissions were made by the learned counsels for the respective parties.
11. Having considered the submissions of the learned advocates for the respective parties, without entering into the question of whether an alternative remedy is a bar to entertaining a petition under Article 226 of the Constitution of India, this Court on the request made by the learned counsel for the petitioner has sought to examine the validity of the order of discontinuing the probation period on merits.
12. It is the case of the petitioner that she was working as a Lecturer and, thereafter as a Professor for a period of 13 years preceding her appointment on probation as a professor on 24.9.2017. Her career was bright and her academic performance was above board.
13. Facts indicate that on 28.9.2017, the petitioner Page 15 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT was appointed as a professor on a probation for a period of two years. The order appointing the petitioner on probation as a Professor is at page no.43 of the paper-book. As the order of probation was for a period of two years, from the date of her joining on 28.9.2017, the probation would have ended on 27.9.2019.
14. Extensive averments have been made in the petition with regard to some complaints albeit, in the perception of the petitioner being frivolous, in January, 2019 with regard to a visit of the non- teaching staff for inspection in the department. A reference is also made to a show cause notice issued on 12.2.2019 and 22.7.2019 calling for an explanation from her in detail for certain irregularities as explicitly set out in the show cause notice. It is the case of the petitioner that again on 9.8.2019, she received a show cause notice for organizing a blood donation camp. Perusal of the decision rendered by the committee Page 16 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT concerning whether the period of probation in the case of the petitioner should be continued or should be extended, would indicate that a resolution was passed on 19th August that looking to the departmental inquiry pending against the petitioner and looking to the adverse remarks, it shall be in the fitness of things to extend the period of probation of the petitioner for a period of six months. Accordingly, the period of probation of the petitioner was extended for a period of six months by virtue of the resolution so passed by the University.
15. The order would indicate that on 7.3.2020 the services of the petitioner were put to an end on the ground that her services were unsatisfactory and it was decided to put an end to her probation.
16. The question that needs to be answered by this Court whether can the termination or refusal to extend probation be said to be punitive. Page 17 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT
17. Mr.Buch would contend that the foundation of the termination of probation/non extension of probation was the departmental proceedings pursuant to the show cause notices of August, 2019 and the non communication of the adverse confidential reports for the period from 19.8.2019 to 23.9.2019 and from 28.9.2019 to 29.2.2020. The support that Mr.Buch would draw is that for these period since the ACRs were not communicated, non extension of probation was in violation of principles of natural justice, that the order was not termination simplicitor but was stigmatic for putting into end a service for non performance and that it would violate the principles of natural justice.
18. It is in this context that Mr.Buch would rely on the decision of the Supreme Court in the case of State Bank of India and others v. Palak Modi and another reported in 2013(3) SCC 607 in Page 18 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT support of his submission that in such cases, it is the Court which should lift the veil and see whether the order of termination is simplicitor or stigmatic.
19. What is evident from the facts of the present case is that the petitioner was on probation for a period of two years from September, 2017 to September, 2019. Preceding the period of probation being about to end, some show cause notices were issued for which a departmental inquiry was contemplated. It is undisputed that no departmental inquiries were held. As far as the adverse remarks are concerned, they were also concerning a period pre termination albeit in the extended period of probation.
20. Dealing with the first contention whether the Court on lifting the veil finds the foundation of the termination as bad or it is only a motive of termination. It will be in the fitness of things to Page 19 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT consider the decision of the Supreme Court in the Case of State of Punjab and others v. Sukhwinder Singh reported in 2005 (5) SCC
569. Paragraph Nos.18 & 19 of the decision read 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 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 Page 20 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT probationer is on 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 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 Page 21 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT 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 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."
21. Even in the case of Om Prakash Mann v.
Director of Education (Basic) and others reported in 2006(7) SCC 558, the Apex Court in paragraph No.10 held as under:
"10. Admittedly, the inquiry was also initiated against the appellant when he was on probation. It is well settled principle of law that if the probationer is dismissed/terminated during the period of probation no opportunity is required to be given and, therefore, the question of violation of principle of natural justice does not arise in the given facts of this case. The appellant was appointed as Head Master of the Institute. The conduct of the appellant, therefore, must be a role model. Considering the conduct of the appellant as revealed in the chargesheet, in our view, the appellant has committed a grave misconduct which would warrant his termination from service."Page 22 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT
22. Admittedly, therefore, what is evident is that the concept of probation is to test the ability of an employee. While testing the ability of the petitioner for being continued in service, albeit, it came to the knowledge of the respondent University about certain misconduct/irregularity and show cause notices were issued in February 2019 and July 2019, they were before the period of probation expired. No departmental proceedings were held. The University took a decision to extend the period of probation for a period of six months. In this period of extension, having found the petitioner not being suitable to be continued, the period of probation was not extended further and the petitioner was relieved from the service. It cannot be said to be an exercise being the foundation of the order of termination though may it be a motive, in that case, it cannot be held to be punitive. Page 23 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT
23. Mr.Buch's reliance on the decision in the case of Palak Modi (Supra) also can be distinguished on facts. In the case of Palak Modi (Supra), the Supreme Court extensively discussed all the decisions on the law of termination of probationer in context of "motive" and "foundation." In the facts of that case, the Court culled out the ratio of this judgment in para 25 of the decision. Paragraph No.25 thereof reads as under:
"25. The ratio of the above noted 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 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."
24. Reading the aforesaid paragraph therefore Page 24 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT indicates that only if the foundation is bad then the competent authorities order can be set aside. On the facts of the case, the Court found that the respondent therein was terminated as a result of using unfair means in the departmental examinations that were held for the purposes of confirming in service. The order of termination was founded on the allegation that the respondent had used unfair means and was guilty of using such unfair means to pass such examinations. It was in this context that the Supreme Court held the order to be punitive. Paragraph No.36 of the said decision would read as under:
"36. 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 misdemeanor. In a given case, the competent authority may, while deciding the issue of suitability of probationer to be confirmed, ignore the act(s) of misconduct and terminate his service without casting Page 25 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT any aspersion or stigma which may adversely affect his future prospects but, if the misconduct/misdemeanor constitutes the basis of the final decision taken by the competent authority to dispense with the service of the probationer albeit by a non stigmatic order, the Court can lift the veil and declare that in the garb of termination simplicitor, the employer has punished the employee for an act of misconduct."
Reading paragraph 36 as quoted hereinabove would squarely apply to the facts of the present case where the Supreme Court categorically held that in a given case the competent authority may while deciding the issue of suitability of a probationer to be confirmed ignore the acts of misconduct and terminate the services without casting any aspersion or stigma which may adversely affects the future prospects, but, if the misconduct constitutes the basis of the final decision the Court can lift the veil and hold that the termination was founded on misconduct.
25. Facts of the present case would indicate that though a very assertive submission is made by Page 26 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT the learned counsel for the petitioner that the departmental inquiry that was sought to be held by virtue of the show cause notices and the adverse remarks which are not communicated, were the foundation of termination, it cannot be so held in light of para 36 of the decision in the case of Palak Modi (Supra) as quoted above.
26. Even on the question of non-communication of adverse remarks being held to be violative of the principles of natural justice, the decision in the case of Sukhdev Singh (Supra) would not help the petitioner which was a case of a promotee officer who was deprived of his promotion on the basis of uncommunicated adverse remarks. The test would not apply to the facts of the case where the termination of service or continuance of service of a probationer was to be considered. The University was well within its rights to consider the service record of the petitioner in context of its suitability to continue the petitioner on probation. Page 27 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020 C/SCA/6737/2020 CAV JUDGMENT
27. Having found that it was not possible and plausible for the petitioner to be continued on probation on the basis of the service record, the contention of the petitioner that these aspects should weigh to hold the termination of the petitioner as stigmatic would certainly fail. Furthermore, by way of a probation period, the suitability of an employee can be ascertained by the employer. It is not for the court to substitute its view with regard to the suitability of the employee unless the act of the employer is arbitrary or perverse.
28. Accordingly, the petition is dismissed. Rule is discharged with no order as to costs.
[ BIREN VAISHNAV, J. ] *** VATSAL Page 28 of 28 Downloaded on : Tue Nov 03 23:36:27 IST 2020