Calcutta High Court (Appellete Side)
Dr. Satyadeo Prasad vs The State Of West Bengal And Others on 30 July, 2019
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Dr. Sambuddha Chakrabarti
and
The Hon'ble Justice Hiranmay Bhattacharyya
MAT No. 1304 of 2018
With
CAN 8881 of 2018
Dr. Satyadeo Prasad
Vs.
The State of West Bengal and Others
For the appellant : Mr. Ashis Sanyal, Advocate
Mr. Amarendra Chakraborty, Advocate
For the respondent no. 2 : Mr. Partha Sarathi Sengupta, Sr. Advocate
Mr. Soumya Majumder, Advocate
Mr. Victor Chatterjee, Advocate
For the State respondent : Mr. Tapan Kumar Mukherjee, Advocate
For the respondent no. 4 : Mr. Joydip Kar, Advocate
Ms. Aparajita Rao, Advocate
Mr. V. Raja Rao, Advocate
Ms. Pallavi Gandhi, Advocate
For the UGC : Mr. Anil Kumar Gupta, Advocate
Heard on : 18.02.2019, 14.06.2019
Judgement on : 30.07.2019
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Sambuddha Chakrabarti, J.:
The very short question that has cropped up for consideration is whether the order of termination of a probationer teacher with the observation of unsatisfactory performance can at all the called stigmatic and is, therefore, bad and liable to be set aside.
The writ petitioners, two in number, were appointed as Assistant Professors of Hindi in the Presidency University (the university, for short) by two letters of appointment, both dated May 23, 2016. It was specifically mentioned in the letters of appointment that the service of the petitioners with the university would be governed by its service rules and this included a probation period of one year from the date of joining the university.
It has been the case of the writ petitioners that in spite of working very diligently they were the victims of academic malice of respondent no. 3 who was the Head of the department of Hindi. They have referred to an incident said to have taken place at a seminar where the respondent no. 3 was alleged to have been annoyed with the petitioner no. 2, Dr. Anil Kumar Puskar. According to them, this was the beginning of the "vendetta" against 3 Dr. Puskar and there was a conscious effort to find Dr. Puskar at fault.
The petitioners have alleged that the Head of the department of Hindi indulged in an unethical conduct of forcing the students to make complaint against Dr. Puskar. Dr. Puskar did not reply to the open rebukes. The Head of the Department made certain communications to Dr. Puskar based on untrue and false facts which were answered by him. There were some activities on the part of the respondent no. 3 to initiate tampering with the marking of the answer scripts as the Head of the department had directed Dr. Puskar to bring the answer script to her instead of the Controller of the Examinations. But no such communication was made to Dr. Satyadeo Prasad, the petitioner no. 1. He was unaware of any reason for which his performance could be treated as unsatisfactory. He also spent good deal of time in enhancing his learning and consistently devising an innovative approach during the course of his work at the university.
By a communication, dated April 21, 2017 the Registrar of the university informed the petitioners that their performance during the probationary period of service was found unsatisfactory and it was 4 decided not to further extend the period of probation which was to expire on May 26, 2017 and not to confirm their services. They were, therefore, discharged from the probationary period of service of the university forthwith.
The petitioners have challenged this action on the part of the respondents as stigmatic to their ability to teach and based on no material whatsoever. Even if there was some material against them, the authorities ought to have communicated the same to the writ petitioners which would have given them an opportunity to improve the unsatisfactory nature of service to make it satisfactory. According to the petitioners, by such action of the respondents they were victimized and this had great impact on their lives and livelihood.
By the writ petition the petitioners have inter alia prayed for a writ in the nature of mandamus directing the respondents to allow the petitioners to be in service and to confirm their services by making them permanent in their respective posts of Assistant Professors of Hindi.
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The writ petition was contested by the University by filing an affidavit. A very specific point was taken about the maintainability of the writ petition inter alia on the ground of misjoinder of parties and causes of action as well as on the ground that the writ petition called for an appreciation of question of facts and evidence. The petitioners had invited the court to sit in appeal over the performance assessment during the probationary period of their service. The answering respondents had denied the allegations made in the writ petition that their services were discharged in any arbitrary or unreasonable manner or that they were the victims of the administrative apathy or there was mala fide operating against them.
It is the further case of the respondents that the students of the university evaluate the teachers' performance in a confidential manner where their identities remain secret. The Heads of the departments have a very major role to play in conducting examinations of the university but the Departmental Examination Committee of the university is vested with the duty of overseeing the examination process. Both the writ petitioners had poor evaluation of the students. A chart showing comparative assessment of the teachers in the Hindi department of the university has been annexed which is based on students' feedback. The students of 6 undergraduate 2nd year and postgraduate 1st year classes had reported to the Head of the department that the petitioner no. 2 had given them attendance without taking classes and consequently about 80% of the syllabus of a certain paper was not taught. The petitioner no. 2 was found to have taken only 34 classes of the undergraduate 3rd semester till that date. In the 1st semester of the postgraduate course the petitioner no. 2 was found to have taught only two texts partially. The affidavit contains details of the performance of the petitioner no. 2 which are not required to be discussed here for reasons to be mentioned later.
The writ petitioner no. 1 was reportedly told verbally about his lack of teaching capability. That was a subjective assessment made by the Head of the department which was submitted to the Vice- Chancellor and was ultimately placed before the governing body. Extension of probationary period of service was neither the proper remedy nor a possible step towards their confirmation. The object of the university was not to compromise with the standard of education for the sake of confirmation of service of any person.
The respondents further mentioned in the affidavit that the immediate reaction of both the petitioners subsequent to their 7 discharge from service did neither refer to nor reveal any attributed malice against any one of them. The allegation of malice or academic mala fide or "personal vendetta" was clearly the result of an afterthought. The allegation of any coterie of the respondent no. 4 is not borne by the records of the case. There was no complaint ever made by the petitioners in this regard against the respondent no. 4 during the period of service in the university. The governing body of the university considered the performance of the petitioner no. 1 in the light of his capability to be confirmed in the service.
The respondents have also denied that the finding of unsatisfactory performance was stigmatic or that no opportunity was given to them to improve their standard of service to make it satisfactory. There was no need to hold any departmental enquiry since the discharge was not effected by casting stigma. There was also no requirement to compulsorily extend the probationary period of service. Both the petitioners were informed of their shortcomings in performance during their probationary period and as such the requirement of law, if at all, to ask the petitioners to improve their performance, had become insignificant. The respondent university prayed for dismissal of the writ petition.
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The Head of the department of Hindi of the university filed an affidavit-in-opposition. The affidavit was confined only to such allegations leveled by the petitioners against her personally. She has mentioned that during the probationary period of service she had no administrative apathy or malice against any of them. Both the petitioners were found to be lacking in teaching qualities and sincerity in completing the syllabus for which the academic excellence of the university was bound to suffer if they were confirmed in service. She had assessed their performance only to maintain academic excellence of the university with the object of protecting the students' interest and not on any extraneous factor. She had always counseled both the petitioners but having found the petitioners incapable of rendering effective service in line with the academic excellence of the university it was felt that no useful purpose would be served by extending their probationary period.
The petitioners had also filed an affidavit-in-reply reiterating their stands in the writ petition. They have repeated the allegation of personal malice and described the impugned action as a preconceived device which was sought to be given a colour of unsatisfactory performance. It is their case that a decision which imposes a disability upon a person must be an informed one 9 inasmuch as the authority taking such decision must possess the requisite power derived from the statute. If the process leading up to the decision under challenge failed to look into the relevant materials having a nexus to the object and purpose of the legislation or has taken into the account irrelevant circumstances the decision would stand vitiated on the ground of official arbitrariness. If the respondents had the knowledge of the evaluation in December, 2016 the impugned decision was delayed in April, 2017. They again placed the responsibility upon the Head of the department to curb academic freedom of the petitioners and the university also "succumbed" to it.
A learned single Judge of this Court by the impugned judgment and order dismissed the writ petition inter alia holding that the petitioners have failed to show anything regarding the appreciation of their work. It has been held that the use of the word "unsatisfactory" by itself could not be said to be stigmatic.
It is worth noting that against the said judgment and order Dr. Satyadeo Prasad, i.e. the writ petitioner no. 1, alone has filed the appeal impleading Dr. Anil Kumar Puskar as a proforma respondent. Thus, in the present appeal we are not concerned with the case 10 made out by the writ petitioner no. 2 in trying to establish either any malice or mala fide said to have been done against him.
Assailing the order Mr. Sanyal, the learned Advocate for the appellant submitted that mere recording of the performance of the appellant as unsatisfactory will not do. The authorities were also required to record why such performance was considered to be so. He raised a further issue about whether the word "unsatisfactory" also could be said to be stigmatic. If there is an adverse entry against an employee that provides the foundation for discharge with the observation that his performance was not satisfactory, irrespective of recording of words, the adverse entry itself would provide the reasons for discharging the appellant from service. He has relied on page 307 of the paper book which is the same as Annexure P-5 to the writ petition. Mr. Sanyal argued that such communication by the Head of the department actually provided the foundation for the dismissal of the appellant.
In support of his contention Mr. Sanyal has relied on the judgment in the case of Shri V. Raman Vs. The Lt. Governor and Others, reported in (2014) 2 CLJ (cal) 484, where a Division Bench of this Court observed that the issue whether an order of termination of 11 service of temporary/ad hoc employee or discharge of a probationer is punitive or not has to be examined bearing in mind whether an allegation of misconduct was the motive or the foundation behind the order of termination or discharge. A court or a tribunal is entitled to lift the veil to see the true nature of the order. If the basis of the order of termination is not misconduct it deserves to be sustained.
The appellant next relied on the case in The State of Bihar and Another Vs. Shiva Bhikshuk Mishra, reported in AIR 1971 SC 1011. The Supreme Court observed that there was no rigid principle that one has only to look to the order and if it does not contain any imputation of misconduct or words attaching a stigma to the charter or reputation of a government officer it must be held to have been made in the ordinary course of administrative routine and the court is debarred from looking at all the attendant circumstances to discover whether the order had been made by way of punishment. The form of the order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct. It may be that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of 12 the circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the foundation of the order.
The appellant further relied on the case of Chandra Prakash Shahi Vs. State of U.P. and Others, reported in AIR 2000 SC 1706, for a proposition that the important principles which are deducible on the concept of motive or 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 or his further retention in service or for confirmation an enquiry is held and it is on the basis of that enquiry 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 enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of the allegation of misconduct 13 against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of motive.
The Supreme Court observed in Chadra Prakash Shahi (Supra) that 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.
Undoubtedly the proposition of law held in the above judgments embodied the settled principles for finding out if the order of discharge of a probationer is bad and not sustainable in law. But in a given case if a discharged probationer seeks to assail the order passed by the authority as the culmination of some process which formed the foundation for such order of discharge he has to establish the circumstances which he believes had laid to the order of discharge. If such is his case that the order of discharge is a cloak or a camouflage for an order founded on misconduct the onus is definitely on him to establish the same. An employee who claims that the order of discharge is punitive in nature is under an obligation to establish the factual basis therefor or the circumstances or the events from which such a conclusion can be reached. 14
Needless to mention the appellant has not established how the order impugned in the writ petition could be said to have a foundation in any prior incident or any allegation against him or an act of alleged misconduct or anything of that nature. The appellant cannot succeed by relying on Annexure P-5 to the writ petition as the foundation of the order of discharge. It had nothing to do with him. It was communicated to the writ petitioner no. 2 who has not filed any appeal. Therefore, anything communicated to discharged probationer cannot be taken advantage of by the appellant merely because he and the writ petitioner no. 2 had jointly filed the writ petition. So far as the appellant is concerned, the respondents have clarified their position that he was reportedly told verbally about his lack of teaching capability.
The question to be decided is whether discharge of a probationer on the ground of his unsatisfactory performance can be said to be a stigmatic one warranting an intervention by the court. The persistent view expressed in various judgments appears to answer it in the negative. A mere mention of unsatisfactory performance without anything more has been consistently held to be not stigmatic in nature. In the case of State of Orissa and Another Vs. Ram Narayan Das, reported in AIR 1961 SC 177, the respondent 15 who was appointed as a Sub-Inspector on probation in the Orissa Police force was discharged from service for "unsatisfactory work and conduct". He challenged the same before the High Court and it was held that an "indelible stigma affecting his future career" had been cast. In appeal, the Supreme Court observed that the respondent had no right to the post held by him. Mere termination of employment does not carry with it any evil consequences. The Supreme Court did not agree with the view taken by the High Court.
Judgment in the case of Union of India and Others Vs. R. S. Dhaba, reported in (1969) 3 SCC 603, though a case of reversion of a government servant holding an officiating post, may be applied to the facts of the present case. There the respondent was promoted to officiate as an Income Tax Officer. Subsequently he was reverted as he was found unsuitable after trial to hold the post. It was sought to be argued that the order of reversion was made by way of punishment. The Supreme Court did not accept this contention and observed that there was nothing to show that a stigma was attached to the respondent. No reference was made to the imputation on the integrity of the respondent and the only reason given was that he was found unsuitable to hold the post of an Income Tax Officer. The 16 Supreme Court further observed that it could not be held that the order of reversion was made by way of punishment.
That takes us to the consideration of larger issue whether if in respect of a certain probationer employee his performance is found to be unsatisfactory and if he is assessed as not suitable to hold the post and if the employer discharges him by simply recording that only, the action cannot be said to be stigmatic. In whatever language it may be expressed, all that the employer has to do is to evaluate his performance to find out his suitability for the post. 'Unsatisfactory performance', 'unsuitable for the post' or 'unfit to hold the post' are expressions of the same import. They are basically tweedle-dum and tweedle-dee meaning the same thing. An employer has the ultimate right to find the suitability of an employee, no matter in which manner it is expressed. The requirement of such assessment by the employer has been recognized in the case of Hari Singh Mann Vs. State of Punjab and Others, reported in (1975) 3 SCC 182. The Supreme Court observed that at the time of confirmation fitness is the matter to be considered. The order terminating the service on the ground of unfitness of appointment at the time of confirmation, is not the same as one passed on the ground of any turpitude like misconduct or inefficiency. The Supreme Court observed that to hold 17 that the words 'unfit to be appointed' are a stigma would rob the authorities of the power to judge fitness for work or suitability to the post at the time of confirmation. Termination of service on account of inadequacy for the job or for any temperamental or for other defect not involving moral turpitude is not a stigma which can be called a discharge by punishment. Fitness for the job is one of the most important reasons for confirmation.
In the case of Pavanendra Narayan Varma Vs. Sanjay Gandhi PGI of Medical Sciences and Another, reported in 2002 (1) SCC 520, the Supreme Court observed that one of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all the three factors are present the termination is held to be punitive irrespective of the form of the termination order. The Supreme Court further observed that generally speaking when a probationer's appointment is terminated it means the probationer is unfit for the job, whether by reason by misconduct or inaptitude, whatever the language used in the termination order may be. Although strictly speaking stigma is implicit in the termination simple termination is not stigmatic. A 18 termination order which explicitly states what is implicit in every order of termination of a probationer's appointment is also not stigmatic. In order to amount to a stigma the order must in a language which imputes something over and above mere unsuitability for the job.
The same issue came up for consideration in Dipti Prokash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Others, reported in 1999 (3) SCC 60. The Supreme Court made a distinction between the foundation and motive behind the termination of a probationer. If findings are arrived at in an enquiry as a 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 will be bad. If, however, enquiry was not held, no findings are 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 against whom there were complaints, it would only be a case of motive and the order would not be bad.
In Chandu Lal Vs. Management of M/s. Pan American World Airways INC, reported in 1985 (2) SCC 727, the Supreme Court 19 observed that want of confidence in an employee does point out to an adverse facet in his character as the true meaning of the allegation is that the employee had failed to behave upto the expected standard of conduct which has given to rise to a situation evolving loss of confidence.
In State Bank of India and Others Vs. Palak Modi and Another, reported in 2013 (3) SCC 607, the Supreme Court held 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 enquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such enquiry is the basis for taking a decision to terminate his service, the action of the competent authority cannot be castigated as punitive. However, if an 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.
Thus, it appears very clearly that discharging a probationer on the ground of his unsatisfactory performance by itself cannot be 20 treated as punitive unless of course, the order had its foundation in some previous incident or allegation. In the present case, there is nothing to establish that there was anything which can be said to have formed the foundation for the order of discharge. After all, an employer has every right to assess the suitability of a probationer for the concerned post and for that purpose, he is required to assess his performance while he was a probationer. The exercise of assessment may take various forms. In the absence of any allegation of misconduct or anything relating to moral turpitude a poor assessment about his work is not a stigmatic one.
Until and unless the appellant establishes that the order of termination was preceded by certain incidents which might have led to the authoritys' passing the order impugned there is no question or scope of lifting the veil as the appellant has not been able to make out any case for holding that the order of discharge had a foundation before. Mr. Sanyal argued that the authorities are also required to record the reasons why they considered the performance of the appellant to be unsatisfactory. This is not the requirement of law. In an order discharging a probationer the authorities are not required to give detailed reasons why they consider an employee unsuitable for a particular post.
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Mr. Sanyal lastly argued that the order of discharge may still be punitive as after this discharge it may be very difficult for the petitioner to get a subsequent employment.
An order does not become punitive in nature depending on its future consequence upon a probationer. The nature of an order is to be determined with reference to any allegation that may be made prior to the passing of the order and from the language used in the order. Merely because it may eventually land a probationer in some difficulty in finding a subsequent employment cannot be said to be a factor either rendering the order to be punitive in nature or can even be said to be fatal to the sustainability of such an order if it is otherwise found to be in consonance with the legal provisions. If what the appellant submitted is to be accepted probably in no case an employer will be able to pass an order of discharge or termination of a probationer as in many such cases a probationer may find it difficult to find a job in future. Future difficulty of a probationer cannot be a consideration for deciding the nature of the order of discharge.
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I find no merit in the appeal. The appeal is dismissed. There shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities. I agree (Sambuddha Chakrabarti, J.) I agree (Hiranmay Bhattacharyya, J.) S. Banerjee