Orissa High Court
Dr. Uttamkumar Samanta vs Kiit University And Others on 17 February, 2017
Author: D.Dash
Bench: D.Dash
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No. 23250 of 2014
In the matter of an application under Article 226 and 227 of the
Constitution of India.
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Dr. Uttamkumar Samanta ...... Petitioner
-Versus-
KIIT University and others ...... Opp. Parties.
For Petitioner : M/s. J.Das,
S.R. Biswal & associates,
advocate.
For Opp. Parties : Mr. R.K.Rath,
J.S.Mishra, H. Mishra
A. K. Bose, P.K.Padhi,
J.K.Mishra, P.C.Behera and
S.S.Mohanty, advocates
PRESENT:
THE HONOURABLE SHRI JUSTICE D.Dash
Date of hearing - 30.01.2017 : Date of judgment - 17.02.2017
The petitioner by filing this application seeks quashment of the
office order of the opp.party no.1 communicated under Annexure-13 by
opp.party no. 3 in so far as it relates to the decision of the probation period
as at clause-0.1; the office order communicated by opp.party no. 3 under
Annexure-16 seeking explanation from the petitioner as regards the
deliberate absence as also gross dereliction of duty and indiscipline; the
office order communicated by opp.party no. 3 calling upon the petitioner to
further explain as regards the absence and the final office order
communicated to the petitioner by opp. party no. 3 as regards the decision
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of opp.party no. 1 not to continue with the employment of the
petitioner, an Asst. Professor on probation in the school of
Biotechnology of the University-the opposite party no.1 beyond the period
of probation scheduled to be ending with effect from 23.11.2014 A.N.
2. The petitioner was appointed as an Asst. Professor in the
school of Biotechnology under University-opp.party no.1 vide appointment
letter dated 29.5.2010 and pursuant to the same, he joined. As per the
terms of the appointment, the petitioner was to continue as probationer for
a period of one year and it was the requirement for being regularized as
based on his performance and upon successful completion of the
probationary period.
It is alleged that the petitioner after his joining, found the non-
cooperation of the management in several matters of developmental
activities and other objectionable practices prevailing therein. It is stated
that in order to satisfy the Vice Chancellor of the University, though he had
also sought for some documents, those were not so provided.
When the matter stood thus, the petitioner received the letter
dated 20.6.2011 stating that his services are no longer required by
opp.party no. 1. It is stated that the management being vindictive did so.
This order was challenged by filing a writ application i.e. W.P.(C) No. 17171
of 2011 further attacking the same to be a non-reasoned one; passed
without initiation of any disciplinary proceeding and that too without
compliance of the principles of natural justice affording due opportunity to
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the petitioner and thus to have been done behind his back. It was
stated therein that by such termination the petitioner not only became
jobless but also a stigma got attached affecting his future career.
That writ application was contested firstly on the ground that
the opp.party no. 1 was not amenable to the writ jurisdiction. Next it has
been stated that since as per the condition of appointment, only on
successful completion of his probationary period based on the assessment
of performance the service of the petitioner was to be regularized, the
decision not to extend the probationary period and to say that the
petitioner's service no longer required by opp.party no. 1 had been rightly
taken.
3. This Court on that occasion first of all held as under:-
"Thus while answering the point no.i in affirmative, I declare that
the opposite party no. 1 university being a creature of a statute
and since performing public duty comes well within the meaning
of "State" under Article 12 of the Constitution of India and its
important organ the Teaching Staffs as a part of such public duty
as such their grievances can be amenable to the writ jurisdiction
of High Court in exercise of jurisdiction under Article 226 of the
Constitution of India."
4. In view of above, the writ application having been found to be
maintainable, the court next addressed the petitioner's contention on merit.
Going to the challenge advanced by the petitioner against the decision of
opp.party no. 1 not to extend the period of probation, the followings are the
discussion and conclusion at para-25 of the judgment:-
"25. Now, coming to answer on point no.ii, facts, as borne out
demonstrate that the university initiated an in-house enquiry
against the petitioner and the said in-house committee
admittedly holding an enquiry behind the back of the petitioner
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appears to have arrived against the petitioner, vide Annexure-
C/1 recommended the authority not to extend the petitioner's
probation and KIIT authority claims that it is only depending
on such recommendation the authority passed order dismissing
the petitioner from his services vide order under Annexure-4.
Since enquiry ended with a stigma and the impugned order of
dismissal was passed going away from the recommendation of
the in-house committee and considering the fact that petitioner
was a probationer compliance of natural justice was the
minimum requirement. Law is well settled vide AIR 1999 S.C.
983, AIR 2000 S.C. 1080, (2010) 8 S.C.C. 220 and the two
decisions of our own High Court referred to in paras N and O
holding that termination in case of a probationer also requires
compliance of principle of natural justice and the same having
not been followed the order of termination vide Annexure-4
cannot be sustained. There is gross violation of rights under
Articles 14, 16 and 19 of the Constitution of India. In (2010) 8
SCC 220 in para-43, the Hon'ble Apex Court has made it clear
that finding against a probationer arrived at behind him which
found to be the basis of discharge order such discharge order
can only be passed after following principle of natural justice. A
similar view is also taken by the Honble Apex Court as reported
in AIR 1989 S.C. 1431 at para-4 of the said judgment the
Hon'ble Apex Court held that there cannot be a termination
before the reason for termination is being communicated to the
concerned employee.
In a land mark judgment the Hon'ble Apex Court as
reported in AIR 1978 S.C. 597 in Paras 56 and 57 observed as
follows:-
"The principle of reasonableness, which legally as
well as philosophically, is an essential element of equality or
non-arbitrariness pervades Article 14 like a brooding
omnipresence and the procedure contemplated by Article 21
must answer the test of reasonableness in order to be in
conformity with Article 14. It must be "right and just and fair"
and not arbitrary, fanciful or oppressive; otherwise, it would be
no procedure at all and the requirement of Article 21 would not
be satisfied".
"The principle of audi alteram partem which
mandates that no one shall be condemned unheard is part of the
rules of Natural Justice."
Under the above facts, rulings and in view of
settled law that there cannot be a termination/dismissal order in
absence of non-compliance of principle of natural justice. Thus,
point no.ii is also answered against the opposite party University
holding the action of the University in terminating the services of
the petitioner in absence of compliance of Natural Justicwe as
bad and unsustainable."
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At para-26 taking up the matter as to if the order of
termination attached any stigma affecting the career of the petitioner, it
has been held in favour of the petitioner.
For better appreciation, para-26 of the said judgment is
reproduced herein below:-
"26. Now coming to answer on point no.iii, I find that the services
of the petitioner was terminated by order dated 20.06.2011 as
appearing at Annexure-4. Though the said order did not attach
any stigma but, while answering to the pleadings of the petitioner
the opposite party nos. 1 to 4 in their counter affidavit submitted
that before the order of termination vide Annexure-1 was passed
the case of the petitioner was being examined by an in-house
Enquiry Committee, who have an unanimous opinion that the
conduct of Dr.Uttam Kumar Samanta, the petitioner has not been
satisfactory and is highly unbecoming of a responsible faulty
member of the university as clearly appearing at Annexure-C/1. It
is based on such report his service was terminated vide Annexure-
4. Thus, in my considered opinion even though the order of
termination did not attach any stigma yet in view of finding of the
Enquiry Committee as appearing at Annexure-C/1 with the
strengthening of Right to Information Act and transparency in the
actions the future of the petitioner is very much likely to be
jeopardized. As such after coming to the above finding which
finding was arrived at by an internal enquiry committee held
behind the back of the petitioner, law minimum requires
compliance of natural justice by at least affording an opportunity
to the petitioner before issuing the terminal order vide Annexure-4
for this the termination order vide Annexure-4 cannot be
sustained in the eye of law. My such view also gets the support of
Hon'ble Apex Court decision vide AIR 2000 S.C. 1080 where in
para-7 the Hon'ble Apex Court held that order of termination
attaching stigma needs compulsory compliance of principle of
Natural Justice. Under the circumstances, I answer point no.iii
also in favour of the petitioner and against the opposite parties."
5. Finally the order of termination of the service of the petitioner
under Annexure-4 was set aside so also the consequential orders and the
petitioner was declared to be continuing in service for the period with
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further direction for payment of 60% back wages. While parting, it
has however been observed that-
"However, this judgment shall not preclude opposite party no. 1
University to restart the proceeding against the petitioner but to
conclude lawfully. I also make it clear that this Court has not
expressed any opinion on the merit on allegations against the
petitioner."
The petitioner thereafter joined.
6. This order was not challenged. So when the petitioner
joined thereafter, the following office order under Annexure-13 was
made:-
"OFFICE ORDER (Dated 16-10-2014)
The report of rejoining dated 9th October, 2014 submitted by Dr.
Uttamkumar Samanta after delivery of the judgment dated 29.09.
2014 by the Hon'ble Odisha High Court in W.P.(C) No. 17171 of
2011 filed by him against the KIIT University and others
challenging termination of his employment, is accepted with effect
from this date [i.e. 16.10.2014], in pursuance of the said
judgment. Acceptance of the joining report is subject to the
following:
01. The probation of Dr. U.K.Samanta had been disrupted by the
intervention period from 20.06.2011 till this date and so one
month and seven days out of the probation period of one year is
still left out to be completed.
02. The rejoining of Dr.U.K.Samanta would be accordingly on
probation to be completed after one month and seven days i.e.
23.11.2014.
03. The University reserves the right to initiate disciplinary
proceeding against Dr. U.K. Samanta on the previous allegations
as per the observation in the judgment."
7. The above order was objected as to be not in compliance
of the judgment of this Court and also by not taking all the relevant
aspects into consideration. After that there come out the office order
dated 3.11.2014 under Annexure-16 which reads as under:-
"OFFICE ORDER
Dr. U.K.Samanta had filed W.P.(C) NO. 17171 of 2011 in the
Hon'ble Odisha High Court challenging his termination from his
employment as Asst. Professor (on probation) in the School of
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Biotechnology, KIIT University, vide letter of termination dated
20.06. 2011. The Hon'ble High Court vide their judgment dated
29.09. 2014 has allowed the writ petition, setting aside the
letter of termination and further mentioning that since he has not
worked for all these period he may be paid 60% back wages.
Dr. U.K.Samanta submitted a report of rejoining in the office of
the Registrar of the University on 09.10.2014 his employment is in
the School of Biotechnology. However, the Registrar accepted his
joining report vide Office Order KIIT/HR/1527/14 dated
16.10..2014 categorically mentioning that the period of probation
of Dr.Samanta having been disrupted b the intervening period, it
would be completed on 23.11.2014 i.e. one month and seven days
after the said order dated 16.10.2014 and that the University
reserves the right to initiate disciplinary proceeding against Dr.
U.K.Samanta on the previous allegations as per the observation in
the judgment of the Hon'ble High Court. A copy of the order was
sent to Dr. Samanta also through his e-mail id and he has
received it.
It has come to the notice of the University that Dr.Samanta has
not been going to the School of Biotechnology or reporting for duty
before the Director of the School and taking instructions regarding
his duties from the Director, right from day one i.e. since
09.10.2014 when he submitted his report of rejoining or at least
since 16.10.2014 when the order of the said date was passed by
the Registrar accepting his rejoining report. Such deliberate
absence from duty by Dr.U.K.Samanta, indicates (i) abandonment
by Dr. U.K.Samanta of his employment in the School of
Biotechnology, KIIT University, Bhubaneswar and (ii) gross
dereliction of duty and indiscipline.
Dr.U.K.Samanta is therefore called upon to explain within one
week as to why such deliberate absence from duty by him shall
not be treated as (i) abandonment by him of his employment in the
School of Biotechnology, KIIT University and (ii) gross dereliction
of duty and indiscipline, failing which it shall be deemed that he
has no explanation to furnish in the matter."
Few correspondences being made thereafter, finally when the
order dated 22.11.2014 under Annexure-25 stating that on appraisal of the
performance, the petitioner's service is not required beyond the period of
probation, being served, this writ application has come to be filed advancing
the prayers as already stated in the first paragraph.
8. Mr. Jayant Das, learned Senior Counsel on behalf of the
petitioner raises the following points:-
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(A) That the petitioner's service is deemed to have been
confirmed at the end of one year of probation in view of the order of
reinstatement passed by this Court in W.P.(C) No. 17171 of 2011 by which
he has been deemed to be in service. As per the stipulation in clause-2 of
the appointment letter under Annexure-2 read with Regulation 11.0 of UGC
(Minimum qualifications for appointment of Teachers and other Academics
Staff in Universities and Colleges and measures for maintenance of
standards in Higher Education) Regulation, 2010 (hereinafter called as the
UGC Regulation, 2010) specifically providing the original period of one year
of probation, the petitioner's service must be deemed to have been
confirmed and regularized at the end of one year of probation pursuant to
the order of this Court in the earlier writ application even though no express
statement has come out as regards confirmation.
(B) That the disruption of the probation of the petitioner
leaving 01 month and 07 days for full completion as alleged by opp.party
no. 1 in the impugned office order is not correct. The disruption being due
to the fault of opp.party no. 1, the performance of successful completion of
probation on the part of the petitioner would have to be taken and accepted
as such and the opp.party no. 1 in such situation lacks the power to issue
order of confirmation anymore and further in law that is not required as the
opp.party no. 1 had illegally and arbitrarily prevented the petitioner to
perform his duty and complete the probation successfully.
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(C) That in above view of the matter, the impugned
decision of opp.party no.1 not to continue with the employment of the
petitioner again treating him as a probationer on the allegations made in the
office orders dtd. 3.11.2014 and 15.11.2014 which describe the acts of
misconduct without enquiry is undoubtedly punitive in nature and therefore
the way and manner in which the order has been passed is unsustainable
in the eye of law.
(D) That even assuming for a moment that the petitioner was
still a probationer, the impugned order on the allegations made in the office
orders are in violation of the principles of natural justice particularly in
opposition to the Article 14 and 311 of the Constitution as its foundation is
alleged misconduct and the petitioner is visited with stigma affecting his
future career to be pursued.
9. Mr. R.K. Rath, learned Senior Counsel on behalf of opp.party
no. 1 contends that:-
(A-1) That once the termination and dismissial of the
petitioner's employment then on probation was held by this Court as bad in
law, the natural consequence is that the petitioner stood relegated to the
stage where he was at the time of the termination and that he got placed on
probation again for the residue period as it stood then. The petitioner having
been terminated from employment, while he was on probation and in terms
of the appointment, no confirmation or regularization having been issued
upon reinstatement, he would have to complete the period of probation.
10
Therefore, in this case, the period of probation being over, he has not been
given further extension as he was not found to have satisfactorily
completed the period of service as a probationer.
(B-1) That in this case there has been no enquiry nor any
finding of guilt has been recorded against the petitioner which is in clear
difference to the earlier case under consideration and facts situation when
the petitioner was terminated on the last occasion that this Court held to be
stigmatic and without any opportunity to meet the allegation. Therefore, the
petitioner's performance having been found to be not satisfactory, there has
been the right order in not further extending the employment of the
petitioner and regularizing the same.
10. In order to address the first submission the undeniable facts to
be taken note of are that the petitioner joined in service on 28.7.2010 and
the probation as per the order of appointment under Annexure-2 was to
continue till 27.7.2011.
The stipulation of the said letter of appointment being relevant,
for proper appreciation may be stated hereunder:-
"You will be on probation for a period of one year. Based on your
performance and on successful completion of your probationary
period, your services will be regularized."
In view of that when on 20.6.2011 termination of service of the
petitioner was passed under Annexure-6, this Court has quashed the same
in W.P.(C) No. 17171 of 2011 by order dated 29.9.2014. At the cost of
repeatation, the relevant part of the order runs is stated as under:-
"xx xx xx xx xx xx
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I further declare that the petitioner whose services has been taken
away by order under Annexure-4 be deemed to be continuing
in service for the entire period but, since he has not worked
for all these periods he may be paid 60% back wages.
xx xx xx xx
xx xx xx xx
However, this judgment shall not preclude opp.party no.1-
University to restart the proceeding against the petitioner but to
conclude lawfully. I also make it clear that this Court has not
expressed any opinion on the merit on allegations against the
petitioner."
So the question now arises that when by this order the
petitioner has been declared as deemed to be continuing in service, whether
the period of probation would get covered therein or the service of the
petitioner would relegate back to the same stage where he was prior to the
passing of earlier order of dismissal or termination. In other words to be
more specific, if the balance period of probation has to be reckoned from
the date of his joining pursuant to the order of this Court or the order of
deemed continuance of this Court would go to mean that the petitioner has
to be deemed to have completed the period of probation during this
intervening period despite the condition in the order of appointment that
there shall be probation period of one year and the services would stand
to be regularized based on performance and successful completion of
the probationary period.(emphasis supplied) The direction is undoubtedly
to deem the petitioner to be continuing in service which obviously means
that the petitioner is reinstated in service as he was enjoining on the date of
termination/dismissal which had been held to be bad in law.
When we look at the factum satisfactory performance during the
probation period as mandated in the order of appointment, it undeniably
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goes to say that there has to be actual performance and
discharge of duty as ordained and those cannot thus also be deemed to
have been so done or performed which certainly requires some assessment
so as to arrive at a satisfaction. Thus in my considered view, the petitioner
would go back to the same stage where he was prior to the order of
termination and the balance period is to commence and run from that
rejoining after the order.
11. In this connection, it is pertinent to take note of the decision of
the Apex Court in case of Deepali Gundu Surwase vs. Kranti Junior
Adhyapak Mahavidyalaya (D.E.D.) and others: (2013) 10 SCC 324 as
has been discussed at para- 21 and 22:-
"21. The word "reinstatement" has not been defined in the Act and
the Rules. As per Shorter Oxford English Dictionary, Vol.2, 3rd Edn.
The word "reinstate" means to reinstall or re-establish (a person or
thing in a place, station, condition, etc.; to restore to its proper or
original state; to reinstate afresh and the word "reinstatement"
means the action of reinstating; re-establishment. As per Law
Lexicon, 2nd Edn., the word "reinstate" means to reinstall; to re-
establish; to place again in a former state, condition or office; to
restore to a state or position from which the object or person had
been removed and the word "reinstatement" means establishing in
former condition, position or authority (as) reinstatement of a
deposed prince. As per Merriam-Webster Dictionary, the word
"reinstate" means to place again (as in possession or in a former
position), to restore to a previous effective state. As per Black's Law
Dictionary, 6th Edn., "reinstatement" means:
"To reinstall, to re-establish, to place again in a former
state, condition, or office; to restore to a state or position from
which the object or person had been removed."
22. The very idea of restoring an employee to the position
which he held before dismissal or removal or termination of service
implies that the employee will be put in the same position in which
he would have been but for the illegal action taken by the employer.
The injury suffered by a person, who is dismissed or removed or is
otherwise terminated from service cannot easily be measured in
terms of money. With the passing of an order which has the effect
of severing the employer-employee relationship, the latter's source
of income gets dried up. Not only the employee concerned, but his
entire family suffers grave adversities. They are deprived of the
source of sustenance. The children are deprived of nutritious food
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and all opportunities of education and advancement in life. At
times, the family has to borrow from the relatives and other
acquaintance to avoid starvation. These sufferings continue till
the competent adjudicatory forum decides on the legality of the
action taken by the employer. The reinstatement of such an
employee, which is preceded by a finding of the competent
judicial/quashi-judicial body or court that the action taken by the
employer is ultra vires the relevant statutory provisions or the
principles of natural justice, entitles the employee to claim full back
wages. If the employer wants to deny back wages to the employer or
contest his entitlement to get consequential benefits, then it is for
him/her to specifically plead and prove that during the intervening
period the employee was gainfully employed and was getting the
same emoluments. The denial of back wages to an employee, who
has suffered due to an illegal act of the employer would amount to
indirectly punishing the employee concerned and rewarding the
employer by relieving him of the obligation to pay back wages
including the emoluments."
12. Learned Senior Counsel for the petitioner submits that in view
of regulation 11.0 of UGC Regulation 2010 which is applicable to the
present case since opp.party no. 1 is a creature under the provisions of
UGC Act, 1956 as has been said in the earlier writ application, had the
period of probation of the petitioner not been illegally and arbitrarily
disrupted by opp.party no. 1 which has been quashed by this Court for the
fault of the opp.party no. 1-University and since the petitioner thus has not
been allowed to perform his duty and complete his period of probation
successfully; he should not be made to suffer again as a probationer to
further complete the balance period of probation. It is submitted that had
the petitioner not been restrained from performing his duty and on the
contrary would have been allowed to perform his duty, he would have
successfully completed the said period of one year of probation. Therefore,
it is contended that the service of the petitioner is deemed to have been
confirmed.
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Careful reading being given to the regulation 11.0 of UGC
Regulation 2010, it is seen that by the same, minimum period of
probation has been prescribed to be one year extendable by maximum
period of one year more in case of unsatisfactory performance and that the
confirmation at the end of the one year shall be automatic unless extended
for another year by specific order, before expiry of the first year. That is
thus clear that the probation period of one year can only be extended by
one more year i.e. the maximum period of probation is two years. However,
in case of extension, order to that effect is to be passed before expiry of first
year otherwise the confirmation would be automatic.
13. Learned Senior Counsel for opp.party no. 1 submits that the
petitioner as per the appointment order has to be on probation for a period
of one year. In the appointment order said sentence does not end there nor
there remains any embargo with regard to further extension of probation
and on the other hand it is having a sentence as rider that the servicewould
be regularized based on performance and upon successful completion of
said probationary period. Thus as it provides for a particular period for
probation and also simultaneously for order of confirmation or
regularization, the performance and successful completion of service of
period of probation when further stand as the requirement, the
confirmation cannot be deemed thereof without actual performance and
discharge of duty which in that event leaves no scope for their assessment.
It is also contended that such deemed confirmation concept
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does not at all come in the facts and circumstances of the case
in hand and if it is so taken, the said sentence in the order of
appointment would be otiose, making no sense and of no practical
significance as intended thereby, though it has been accepted by the
petitioner with eyes wide open and without any demur.
14. The order of appointment in the instant case does not prescribe
the maximum period of probation for the court to make an exception and
say that there would be deemed confirmation.
Reliance for the purpose may be placed on the decision in case
of Satya Narayan Athya vrs. High Court of M.P.; 1996 (1) SCC 560. In the
case even though the rules prescribed for the probationary period not to
exceed two years, and an order of confirmation was also necessary, the
termination order having been issued within the extended period of
probation, the same has been upheld.
It has also been authoritatively held in case of Wasim Beg vs.
State of U.P. and others: (1998) 3 SCC 321 that:-
"15. Whether an employee at the end of probationary period
automatically gets confirmation in the post or whether an order of
confirmation or any specific act on the part of the employer
confirming the employee is necessary, will depend upon the
provisions in the relevant Service Rules relating to probation and
confirmation. There are broadly two sets of authorities of this Court
dealing with this question. In those cases where the Rules provide for
a maximum period of probation beyond which probation cannot be
extended, this Court had held that at the end of the maximum
probationary period there will be deemed confirmation of the
employee unless Rules provide to the contrary. This is the line of
cases starting with State of Punjab v. Dharam Singh (1968 [3] SCR
1), M.K. Agarwal v. Gurgaon Gramin Bank & Ors. (1987) Supp. SCC
643), Om Prakash Maurya v. U.P. Cooperative Sugar Factories
Federation, Lucknow & Ors. (1986 Supp. SCC 95), State of Gujarat v.
Akhilesh C. Bhargav & Ors. (1987 [4] SCC 482).
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16. However, even when the Rules prescribe a maximum
period of probation, if there is a further provision in the Rules for
continuation of such probation beyond the maximum period, the
courts have made an exception and said that there will be no deemed
confirmation in such cases and the probation period will be deemed
to be extended. In this category of cases we can place Samsher Singh
v. State of Punjab & Anr. (1974 [2] SCC 831) which was the decision
of a Bench of seven judges where the principle of probation not going
beyond the maximum period fixed was reiterated but on the basis of
the Rules which were before the Court, this Court said that the
probation was deemed to have been extended. A similar view was
taken in the case of Municipal Corporation, Raipur v. Ashok Kumar
Misra (1991 [3] SCC 325). In Satya Narayan Athya v. High Court of
Madhya Pradesh & Anr. (1996 [1] SCC 560), although the Rules
prescribed that the probationary period should not exceed two years,
and an order of confirmation was also necessary, the termination
order was issued within the extended period of probation. Hence the
termination was upheld.
17. The other line of cases deals with Rules where there is no
maximum period prescribed for probation and either there is a Rule
providing for extension of probation or there is a Rule which requires
a specific act, on the part of the employer (either by issuing an order
of confirmation or any similar act) which would result in confirmation
of the employee. In these cases unless there is such an order of
confirmation, the period of probation would continue and there would
be no deemed confirmation at the end of the prescribed probationary
period. In this line of cases one can put Sukhbans Singh v. State of
Punjab (1963 [1] SCR 416), State of Uttar Pradesh v. Akbar Ali
Khan (1966 [3] SCR 821), Shri Kedar Nath Bahl v. The State of Punjab
& Ors. (1974 [3] SCC 21), Dhanjibhai Ramjibhai v. State of
Gujarat (1985 [2] SCC 5) and Tarsem Lal Verma v. Union of India and
Ors. (1997 [9] SCC 243), Municipal Corporation, Raipur v. Ashok Kumar
Misra (supra) and State of Punjab v. Baldev Singh Khosla (1996 [9]
SCC 190). In the recent case of Dayaram Dayal v. State of M.P. and
Anr. (AIR 1997 SC 3269) (to which one of us was a party) all these
17
cases have been analysed and it has been held that where the Rules
provide that the period of probation cannot be extended
beyond the maximum period there will be a deemed confirmation at
the end of the maximum probationary period unless there is anything
to the contrary in the Rules."
In that case there was no time limit of the period up to which
probation can be extended. The appointing authority was required to issue
certificate of the appellant having satisfactorily completed the period of
probation. Thus it has been held therein that the provision of deemed
confirmation would come into effect on his satisfactorily completing
probationary period.
15. In case of Dayaram Dayal vrs. State of M.P.; (1997) 7 SCC 443
analysing all the earlier decisions covering the field and especially the
subject, it has been held that-
"Where the Rules provide that the period of probation cannot be
extended beyond the maximum period there will be a deemed
confirmation at the end of maximum probationary period unless
there is anything to the contrary in the Rules."
It has again been held in Mohd. Salman vs. Committee of
Management and others: (2011) 12 SCC 308 that:-
"17. In Kedar Nath Bahl Vs. The State of Punjab and Others reported
in 1974 (3) SCC 21, this Court clearly laid down the proposition of
law that where a person is appointed as a probationer in any post
and a period of probation is specified, it does not follow that at the
end of the said specified period of probation he obtains confirmation
automatically even if no order is passed on that behalf. It was also
held in that decision that unless the terms of appointment clearly
indicate that confirmation would automatically follow at the end of
the specified period or that there is a specific service rule to that
effect, the expiration of the probationary period does not necessarily
lead to confirmation. This Court went on to hold that at the end of the
period of probation an order confirming the officer is required to be
18
passed and if no such order is passed and if he is not reverted to his
substantive post, the result merely is that he continues in his post
as a probationer."
It has also been said at para-18:-
"18. In our considered opinion, the ratio of the aforesaid decision is
also clearly applicable to the facts of the present case. In the present
case, in the appointment letter issued to the appellant, it was
specifically mentioned that his service would be regularised only
when his performance during the probation period is found to be
good/satisfactory. In view of the aforesaid stipulation, so long an
order is not passed holding that the service of the appellant is good
and satisfactory, it could not have been held that his service could
be regularised automatically by a deeming provision."
16. In case of Headmaster, Lawrence School, Lovedale vs.
Jayanthi Raghu and another: (2012) 4 SCC 793, the Hon'ble Supreme
Court has said that the status of confirmation in the circumstances has to
be earned and conferred. Considering the relevant rule applicable in that
case it has been further said that had there been the concept of automatic
confirmation as intended, the relevant rule would have been couched in a
different language. No wider interpretation on the rules to infer that the
probationer gets the status of a deemed confirmed employee after expiry of
three years of probationary period as that would defeat the basic purpose
and intent of the rule which clearly postulates "if confirmed" A confirmation
as is demonstrable from the language employed in the rule, does not occur
with efflux of time. As it is hedged by a condition, an affirmative or positive
act is the requisite by the employer. So saying it was said that the order of
confirmation stands as the requirement.
19
17. In case of State of Punjab vrs. Dharam Singh: AIR 1968
SC 1210 the position has been expressed as under:-
"3. This Court has consistently held that when a first appointment
or promotion is made on probation for a specific period and the
employee is allowed to continue in the post after the expiry of the
period without any specific order of confirmation, he should be
deemed to continue in his post as a probationer only, in the absence
of any indication to the contrary in the original order of appointment
or promotion or the service rules. In, such a case, an express order-
of confirmation is necessary to give the employee a substantive right
to the post, and from the mere fact that he., is allowed to continue
in the post after the expiry of the specified, period of probation it is
not possible to hold that he should deemed to have been confirmed.
This view was taken in Sukhbans Singh v. The State of Punjab,
1963-1 SCR 416 at pp. 424-426 = (AIR 1962 SC 1711 at pp. 1714-
1715, G. S. Ramaswamy v. The Inspector- General of Police, Mysore
State, Bangalore, (1964) 6 SCR 279 at pp. 288-289 = (AIR 1966 SC
175 at pp. 179-180, Accountant General, Madhya Pradesh, Gwalior
v. Beni Prasad Bhatnagar. Civil Appeal No. 548 of 1962, D/-23-1-
1964 (SC). D.A. Lyall v Chief Conservator of. Forests, U.P. Civil
Appeal No. 259 of 1963, D/- 24-2-1965 (SC) and State of U.P.v
Akbar Ali, (1966) 3 SCR 821 at pp.825-826=(AIR 1966 SC 1842 at p.
1845). The reason for this conclusion is that where on the
completion of the specified period of probation the employee is
allowed to continue in the post without an order of confirmation, the
only possible view to take in the absence of anything to the contrary
in the original order of appointment or promotion or the service
rules, is that the initial period of probation has been extended by
necessary implication. In all these cases, the conditions of service of
the employee permitted extension of the probationary period for an
indefinite time and there was no service rule forbidding its extension
beyond a certain maximum period.
4. xxx xxx xxx xxx
5. In the present case, Rule 6(3) forbids extension of the
period of probation beyond three years. Where, as in the present
case, the service rules fix a certain period of time beyond which the
probationary period cannot be extended, and an employee appointed
or promoted to a post on probation is allowed to continue in that
post after completion of the maximum period of probation without
an express order of confirmation, he cannot be deemed to continue
in that post as a probationer by implication. The reason is that such
an implication is negatived by the service rule forbidding extension
of the probationary period beyond the maximum period fixed by it.
In such a case, it is permissible to draw the inference that the
employee allowed to continue in the post on completion of the
20
maximum period of probation has been confirmed in the post by
implication.
With the above in the facts and circumstances of that case where
rule was forbidding extension of probationary period beyond three years
fixing certain period of time beyond which probationary period cannot be
extended, when the employee appointed or promoted to a post of promotion
is allowed to continue in that post after completion of maximum period of
probation without an expressed of confirmation. He cannot be deemed to be
continuing tat post as probationer by implication. The reason being that
such an implication indicate the certain rules forbidding extension of
probationary period beyond the maximum period fixed by it and in that
situation it has been held as permissible to draw the inference that to be
allowed to continue completion of maximum period of probation has been
confirmed in the post by implication.
18. The facts and circumstances of the case being tested in the
touchstone of the above settled position of law and in the light of what
already discussed, the submission of learned Senior Counsel for the
petitioner that here in this case the confirmation of the service of the
petitioner at the end of the period of probation as per the appointment order
i.e. on 28.7.2011 has been automatic is not acceptable.
19. Now coming to the next submission, it has to be borne in mind
that the petitioner in this case having joined after the order of this Court
and as held to be on probation, the opp. party no. 1 has passed the order
stating that the matter of satisfactory completion of the service on probation
21
by the petitioner having been assessed by an independent appraisal
committee, the University does not want to continue with the
employment of the petitioner on probation in the School of Biotechnology of
the University, the opp.party no. 1 beyond the period of probation as
scheduled on expiry of 23.11.2014.
Pertinent, it is to mention here that there has been no enquiry nor
any finding of guilt has been recorded against the petitioner. This is
specifically in difference to the earlier order quashed. When the petitioner
had questioned his termination this Court held that there was a finding in
any enquiry which is stigmatic for which the petitioner has not been given
the opportunity to meet the allegation and thus there has been violation of
principles of natural justice.
The fact situation of all the cited cases are also not akin to the
case in hand where the period of probation has undergone disruption and
thus without the performance and discharge of duty as such by the
petitioner during then. This has been very much taken into account on that
occasion by this Court that while holding the continuance of service, the
direction on that score is for payment of 60% of back wages. The petitioner
has surrendered to it without demur.
20. In this connection, reference need be made to the decision of the
Apex Court in case of Radhey Shyam Gupta vs. U.P. State Agro
Industries Corporation Ltd.: AIR 1999 SC 609. It has been held therein:-
22
"27. If there was any difficulty as to what was 'motive' or
'foundation' even after Shamsher Singh's case, the said doubts, is
our opinion, where removed in Gujarat Steel Tubes vs. Gujarat Steel
Tubes Mazdoor Sangh (1980 (2) SCC 593) again by Krishna Iyer, J.
No doubt. it is a Labour matter but the distinction so far as what is
'motive' or 'foundation' is common to Labour cases and cases of
employees in government or public sector. The learned Judge again
referred to the criticism by Shri Tripathi in this branch of law as to
what was 'motive' or what was 'foundation', a criticism to which
reference was made in Samsher Singh's case. The clarification given
by the learned Judge is, in our opinion, very instructive, It reads as
follows (at page 616-617 (of SCR: (at p.1911 of AIR):
"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 if slightly differently, a termination
effected because the master is satisfied of the misconduct and of the
consequent desirability of terminating the service of the delinquent
servant, it is a dismissal, even if he had the right in law to terminate
with an innocent order under the standing order or otherwise.
Whether, in such a case the grounds are recorded in a different
proceedings from the formal order does not detract from is 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-inqurious terminology is used.
23
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.
28. In other words, it will be a case of motive if the master,
after gathering some prima facie facts, does not really wise to go into
their truth out besides merely not to continue a dubious employee.
The master does not want to decide or to direct a decision about the
truth of the allegations, but if he conducts an inquiry only for
purpose proving the misconduct and the employee is not heard, it is
a case where the inquiry is the foundation and the termination will
be bad.
29. Subsequent to the above cases, there have been a number
of other cases where the above principles have been applied. We shall
refer to a few of them where some more principles have been
discussed. In State of U.P. vs. Ram Chandra Trivedi {1997 (1) SCR
462] the employee's service were terminated as he allowed some other
employee to impersonate him in an examination. The order was
innocuous put the case was preceded by an inquiry and it was held
that the petitioner in his pleadings had not made out a case for
calling for departmental records to examine if it was a case of
punishment. That was how this case was explained by Pathak, J. (as
he then was) in State of Maharashtra vs. S.R. Saboji [1971 (4) SCC
466]. In Anoop Jaiswal vs. Government of India [1984 (2) SCC 369] it
was held while quashing the order of termination, that it was open to
the Court to go behind the order and find out if the
report/recommendation of the superior authority was a camouflage
and if that was the basis or foundation for the order the
report/recommendation, then it should be read along with the order
24
for the purpose of determining the true character of termination.
If on a reading of the two together, the Court reached the
conclusion that the alleged finding of misconduct was the cause or
basis of the order, and that but for the report containing such a
finding, the order would not and could not have been passed, the
termination order would have to fall to the ground as having been
passed without the officer being afforded a reasonable opportunity. It
was also held that it was wrong to presume that an order would be
punitive only if a regular inquiry was conducted exparte or behind
the back of the officer. Even if it was not a regular inquiry, any other
inquiry where evidence was taken and findings were arrived behind
the back of the officer, would make the subsequent termination bad.
Vankataramiah, J.(as he then was) pointed out in the above case the shift in the law as brought about by Samsher Singh's case (AIR 1974 SC 2192).
30. So far as Triveni Shankar Saxena vs. State of U.P. [1992 Suppl. (1) SCC 524] and State of U.P. vs. Prem Lata Motors, [1994 (4) SCC 189], relied upon by the High Court are concerned, in the former case, the termination order was a simple order which did not cast any stigma and there were several adverse entries in his confidential reports. The termination was as per rules. In the latter case the employee's superiors complained that the employee was not regular in her work, and was in the habit of leaving office during office hours. A simple order of termination appointment. There was no prior inquiry. In both these cases, the termination orders were upheld.
31. We shall now refer to a different type of cases where a departmental inquiry was started, then dropped and a simple order of termination was passed. In State of Punjab vs. Sukh Raj Bahadur [1968 (3) SCR 234], the charge memo was served, reply given and at that stage itself, the proceedings were dropped and a termination order was passed. The High Court felt that the 'object of departmental inquiry, being to punish the employee, the order of termination must be treated as punitive. This was not accepted by a three Judge Bench consisting of Justice Shah (as he then was) who 25 had laid down in Madan Gopal's case (AIR 1963 SC 531) the principle of 'object of the inquiry'. This court reversed the High Court Judgment and held that neither Madan Gopal's case nor Jagdish Mitter's case (AIR 1964 SC 449) applied. This was because in the case before them the inquiry did not go beyond the stage of the explanation. No findings were given and no inquiry report was submitted as in the above two cases. In that case (i.e. Sukh Raj Bahadur) this Court felt that the decision in A.G. Benjamin vs. Union of India (Civil Appeal No. (341 of 1966 dated 13.12.1966) (SC) was more direct. In Benjamin's case, a charge memo was issued, explanation was received and an Enquiry Officer was also appointed but before the inquiry could be completed, the proceedings were dropped stating that: 'departmental proceedings will take a much longer time and we are not sure whether after going through all the formalities, we will be able to deal with the accused in the way he deserves." There also, the order was held not to be punitive. Following the above case, this court in Sukh Raj Bahadur's case stated that the position before them was similar to what happened in Benjamin's case and concluded as follows:
"the departmental inquiry did not proceed beyond the stage of submission of a chargesheet followed by the respondent's explanation thereto. The inquiry was not preceded with, there were no sittings of any inquiry officer, no evidence recorded and no conclusion arrived at in the inquiry."
32. The underlined words are very important and demarcate the line of distinction. If the inquiry officer held no sittings, did not take evidence nor record any conclusions and if at that stage the inquiry was dropped and a simple order of termination was, passed, the same would not be punitive.
33. In Nepali Singh vs. State of U.P. (1988 (3) SCC 370) a three Judge Bench held the order to be punitive as it was passed after issuing a charge memo, a reply received, even though no evidence was adduced and no findings were given. But in a latter three Judge 26 Bench case in State of U.P. vs. Kaushal Kishore Shukla, [1991 (1) SCC 691], Nepali Singh's case was not followed as being a judgment rendered per incuriam as it did not consider Champak Lal's case (AIR 1964 SC 1854). Of course, the above case, i.e. Kaushal Kishore Shukla's case was one where there was an adverse entry and only a preliminary report and then a simple order of termination was issued. That order was upheld. Similarly, in Commission of Food & Civil Supply vs. P.C. Saxena [1994 (5) SCC 177]. the facts were that the departmental inquiry was started and dropped and this Court held the order not to be punitive.
34. 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 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's case. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary inquiry is held because the purpose of a preliminary inquiry is to find out if there is prima facie evidence or material to initiate a regular departmental inquiry. It has been so decided in Champaklal's case. The purpose of the preliminary inquiry 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 inquiry is started, a charge memo issued, reply obtained, and an enquiry Officer is appointed - if at that point of time, the inquiry is dropped and a simple notice of termination is passed, thee 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's case and in Benjamin's case. In the latter case, the departmental inquiry was stopped because the employer was not sure of establishing the quilt of the employee. In all these cases the 27 allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujrat 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."
21. Learned Senior Counsel on behalf of the petitioner submits that since the facts and circumstances alleging misconduct on the part of the petitioner have been indicated to him under Annexure-16 and 21, those are required to be enquired into in regular disciplinary proceeding to be followed with necessary finding in that regard and without that merely on the basis of the assessment made by the independent appraisal committee, the order of termination of service of the petitioner is clearly in violation of the principles of natural justice which offends Articles 14 and 311 of the Constitution.
Plethora of decisions have been cited by him in support of the said contention and those be first gone through to find out how far those come to the aid of the case of the petitioner.
22. In case of "Anoop Jaiswal vrs. Government of India and another": (1984) 2 SCC 369 cited by the learned Senior Counsel on behalf of the petitioner, the narration of facts was found to be leaving no doubt 28 that the alleged misconduct on a particular day was the real foundation for the action taken. The other instances stated in counter affidavit were found to be mere allegations put forward for purposes of strengthening the defence which was otherwise found to be very weak. So the termination was found to be by way of punishment calling for an enquiry which having not been done, the order had been quashed.
23. The Hon'ble Supreme Court in case of Dipti Prakash Banerjee vs. Satyendra Nath Bose National Center for Basic Sciences, Calcutta and others; (1999) 3 SCC 60 found the allegations to be the foundation and not mere motive for his termination. The positions have been discussed that:-
"25. In the matter of "stigma", this Court has held that the effect which an order of termination may have on a person's future prospects of employment is a matter of relevant consideration. In the seven-Judge Bench decision in Samsher Singh v. State of Punjab Ray, C.J. observed that if a simple order of termination was passed, that would enable the officer to "make good in other walks of life without a stigma". It was also stated in Bishan Lal Gupta v. State of Haryana that if the order contained a stigma, the termination would be bad for "the individual concerned must suffer a substantial loss of reputation which may affect his future prospects.
26. There is, however, considerable difficulty in finding out whether in a given case where the order of termination is not a simple order of termination, the words used in the order can be said to contain a "stigma". The other issue in the case before us is whether even if the words used in the order of termination are innocuous, the court can go into the words used or language employed in other orders or proceedings referred to by the employer in the order of termination."
In the circumstances of that case the allegations were not found to be merely the motive but as the foundation of the order of termination. So the same was refused to be held as a simple order of 29 termination. It was also held that said order in view of the word used therein contains 'stigma'.
24. In case of Union of India vs. Mahaveer C.Singhvi: (2020) 8 SCC 220, the order of discharge of the respondent therein upon analysis of the facts and circumstances was found to be punitive character and motivated by consideration not reflected in the said order. So the finding against the probationer being arrived at behind his back on the basis of an enquiry conducted into the allegations made against him and when that has been found to have formed the foundation order of charge, it was set aside as to have been passed without giving the probationer as chance of hearing. In case of "Dr.Mrs. Sumati P.Shere vs. Union of India and others": (1989) 3 SCC 311, the termination was no doubt for unsatisfactory performance. However, in that case from time to time orders were made by continuing the appellant's services and she had also earned increments during the period. In that case when respondent took the stand that they were not satisfied with the performance of the appellant when also at no point of time she was informed about her deficiency, the termination order was found to have come to her like a thunder blow from the blue. So it was set aside. In the other case of Pradip Kumar vs. Union of India and others: (2012) 13 SCC 182, the order of discharge on analysis of facts and circumstances of the case and all the documents was clearly found to be stigmatic and therefore it has been held that the same could not have been 30 passed giving opportunity of hearing and thus the order of discharge was found to be bad with oblique motive and accordingly, was set aside.
25. In case of V.P. Ahuja vs. State of Punjab and others: AIR 2000 SC 1080, although the order terminating the services was on the ground of unsatisfactory work yet it was found to be stigmatic when it has been said therein that he failed to perform his duty administratively and technically.
26. In the light above settled position of law as we find with the ratio of the decisions referred to and discussed as above, in the instant case, it is seen that on rejoining of the petitioner he has been specifically appraised of the fact that he has to perform and discharge his duties for the residue period of probation being indicated therein, satisfactorily. This was by office order dated 16.10.2014. By further order dated 03.11.2014 the petitioner has been informed about his absence from duty and non adherence to the standing orders in the matter and having nexus with the maintenance of general discipline in the institution. Though explanation to that effect has been sought for, no further action based on that has been taken. It is thus seen to have remained at that stage of informing the petitioner to take care of those aspects and further act accordingly. The final order of termination that has been made on 22.11.2014 run as under:-
31
"OFFICE ORDER.
The period of probation of Dr. U.K.Samanta, appointed as Assistant Professor on probation in the School of Biotechnology, KIIT University, is due to end on 23.11.2014.
The question of satisfactory completion of probation by Dr. U.K.Samanta has been assessed through an independent Appraisal Committee.
The University decides not to continue employment of Dr. U.K.Samanta, Assistant Professor on probation in the School of Biotechnology, beyond the period of probation scheduled to end on 23.11.2014. As a result his employment under the KIIT University comes to an end with effect from the afternoon of 23.11.2014."
The above order appears to have been passed in relation to and keeping confined to the satisfactory completion of service of the petitioner as probationer which is said to have been assessed by the Independent Appraisal Committee as ultimately also coming to be accepted by the opposite party no.1 without setting any different tone. There remains no such hint to the objectionable or blameworthy conduct. Undoubtedly, no enquiry at any given point of time has been conducted specifically with regard to the facts stated under Annexures 16 and 21, i.e. the office orders dated 03.11.2014 and 15.11.2014 respectively. The narrations in those office orders touching the duty of the petitioner are said to be having their foundation and facts as available on official record coming to be maintained in regular course. The tone and tenor of lengthy response of the petitioner to the above office orders, being cumulatively viewed go to indicate that it is the petitioner who instead of keeping the matter confined to the very subject has rather stated such other matters 32 also in raising issues unrelated to those narrations in the orders. The opposite party no.1 having sought for the explanation has not further proceeded in those matters by initiating any proceeding and in causing enquiry for recording any finding on those scores. So, here the ground for the termination now is found to have been based on the performance of the petitioner during the period having no such punitive flavour in cause or consequence. Thus the present case falls short of the tests as laid down with approval in Radhashyam Gupta's case (supra). There remains no material to indicate that the same is based on satisfaction of any such misconduct. The opposite party no.1 in any event has not adopted the course of holding an enquiry and has also not proceeded to terminate by recording the ground from any other proceeding. It thus does not appear to be a case based on misconduct being attached to the petitioner having live nexus with the termination. Merely because this order of termination under Annexure-25 has come out sometime after rejoining of the petitioner being successful in the writ application filed by him and by virtue of the order of this Court which in the facts and circumstances and earlier finding is obvious and not avoidable in view of order of appointment stating for confirmation and regularization, no such inference can be drawn that the present order of termination is founded upon those allegations which rather have been left at that stage without further investigation touching the question of guilt or otherwise of the petitioner. Further, this order of termination is found 33 to have recorded no such injurious reasons, so as to say that the petitioner has consequentially been visited with any stigma getting so attached to the rest of his career so as to lead this Court to hold the order to be punitive.
In view of above discussion and reasons, the submission of the learned Senior Counsel for the petitioner that the impugned order being based on those allegations and relating to the misconduct on the part of the petitioner squarely portraying him as blameworthy and as such stigmatic is not acceptable.
27. In the wake of aforesaid, the writ application stands dismissed. However, in the facts and circumstances, there shall be no order as to cost.
.......................
D.Dash, J.
Orissa High Court, Cuttack, Dated, the 17th day of February, 2017/Aswini.