Karnataka High Court
Kum Sowmya R vs The Registrar General on 14 June, 2023
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NC: 2023:KHC:20827
WP No. 11366 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
WRIT PETITION NO.11366 OF 2022 (S-RES)
BETWEEN:
KUM. SOWMYA R.
D/O P.S. RAJU,
AGED ABOUT 40 YEARS,.
STENOGRAPHER,
R/AT DOOR NO.16/10
MANGALADEVINAGARA,
MADAKERI - 571 201.
...PETITIONER
(BY SRI. RAVINDRA M. R., ADVOCATE)
AND:
1. THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
Digitally signed by
CHAYA S A
2. THE PRINCIPAL DISTRICT AND SESSION JUDGE
Location: HIGH COURT KODAGU-MADIKERI,
OF KARNATAKA
OFFICE OF THE DISTRICT AND
SESSION JUDGE COURT,
KODAGU,
MADIKERI - 571 201.
KARNATAKA.
3. THE SENIOR CIVIL JUDGE AND JMFC
OFFICE OF THE SENIOR CIVIL JUDGE AND JMFC
COURT AT PONNAMPET,
VIRAJPET,
MADIKERI DISTRICT - 571 201.
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NC: 2023:KHC:20827
WP No. 11366 of 2022
...RESPONDENTS
(BY SMT. B. V. VIDYULATHA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER PASSED IN PROCEEDINGS BY THE
RESPONDENT 2 BEARING DES NO.593/2019 DATED
15.09.2019 AS PER ANNEXURE-G AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this writ petition, the petitioner is assailing order dated 15.02.2019, (Annexure-G) passed by the respondent No.2.
2. It is the case of the petitioner that, petitioner was appointed as Stenographer, in the Court of Civil Judge and JMFC, Ponnmpet, Virajpet, Madikeri District as per appointment order dated 29.08.2012 (Annexure-B). It is further stated in the writ petition that, the petitioner has completed the relevant Department examination and was working honestly and sincerely, however, the respondent No.2 has not passed orders with regard to completion of -3- NC: 2023:KHC:20827 WP No. 11366 of 2022 the probation period and accordingly, the respondent No.2 has extended the probationary period till the impugned order dated 15.02.2020 (Annexure-G) is passed. Feeling aggrieved by the impugned order passed by the respondent No.2 dated 15.02.2019, (Annexure-G), the petitioner has presented this writ petition.
3. I have heard Sri. Ravindra M.R., learned counsel appearing for the petitioner and Smt. B.V.Vidyulatha, learned counsel appearing for the respondents.
4. Sri. Ravindra M.R., learned counsel appearing for the petitioner contended that, the petitioner having appointed for the post of Stenographer has worked for period of 08 years, however without assigning reasons, respondent No.2, has passed an order of discharge dated 15.02.2019, which requires to be interfered with this writ petition. He further contended that, impugned order is not a speaking order and no reasons have been assigned.
Further, he contended that, experience gained by the -4- NC: 2023:KHC:20827 WP No. 11366 of 2022 petitioner for a period of 08 years is ignored by the respondent No.8 while passing the impugned order and accordingly, he sought for interference of this Court. he also invited the attention to Rule 4 (ii) of Probation Rules, 1977 (hereinafter referred to as Rules) and argued that, the impugned order passed by the respondent No.2, suffers from legal sanctity and accordingly, he sought for interference of this Court.
5. Per contra, Smt. B.V.Vidyulatha, learned counsel appearing for the respondents, reiterates the averments made in the Statement of Objections and has invited the attention of the Court to the Rule 6 of the above Rules and contended that, after considering the performance of the petitioner, respondent No.2 has passed order of discharge and accordingly, she sought for dismissal of the petition.
6. In the light of the submission made by the learned counsel appearing for the parties, it is not in dispute that petitioner has been appointed as -5- NC: 2023:KHC:20827 WP No. 11366 of 2022 Stenographer by the respondent No.2, at Civil Judge and JMFC Court, Ponnmpet (Annexure-B). The petitioner also produced the relevant documents at Annexures-C and D to establish that, the petitioner has passed relevant Department examination. It is also forthcoming from memo/notice issued by Civil Judge and JMFC court Ponnment (Annexure-E), wherein, it is reflected that the petitioner was not working properly and in this regard, an explanation was sought for from the petitioner. The respondent No.2 being Appointing Authority by order dated 23.04.2004 (Annexure-M), has mentioned that, work and conduct of the petitioner was not satisfactory and remarked that the petitioner need interim training.
Though, sufficient opportunity was given to the petitioner, even after reporting to duty to improve in taking short hand dictation and other related areas of her work, the petitioner has not come up to the satisfaction of the Appoint Authority and accordingly, the Appointing Authority has taken a decision to discharge the petitioner from service. The said communication of the respondent -6- NC: 2023:KHC:20827 WP No. 11366 of 2022 No.2 was considered by the Hon'ble Administrative Judge, Kodagu-Madikeri and having taken note of the entire material on record, it was communicated to the respondent No.2 to discharge the petitioner from service on the ground of non-satisfaction in work. In that view of the matter, I do not find any material in the writ petition.
7. Nextly, as the learned counsel appearing for the petitioner invited the attention court to the Rule 4 and the which is deduced as under:
4. Extension or reduction of period of probation. -
(1) The period of probation may, for reason to be recorded in writing, he extended-
(i) by the Governor or the Government by such period as he or it deems fit;
(ii) by any other appointing authority by such period not exceeding half the prescribed period of probation:
Provided that if within the prescribed or extended of probation, a probationer has appeared for any examination of tests required to be passed during the period of probation and the results thereof are not known before the expiry of such period, then the period of probation shall be deemed to have been extended until the publication of results of such -7- NC: 2023:KHC:20827 WP No. 11366 of 2022 examinations or tests or of the first of them in which he fails to pass.
(2) The Government may, by order, reduce the of probation of a probationer by such period not exceeding the period during which he discharged the duties of the post to which he was appointed or of a post the duties of which are in the opinion of the Government, similar or equivalent to those of such post.
8. On careful examination of the above Rules, it is not in dispute that the petitioner has been appointed on 29.08.2012, (Annexure-E) and the probationary period was to be declared within 2 years from the date of reporting to duty, however, though the memos have been issued by the Civil Judge and JMFC, Ponnampet, no improvement was made in the career of the petitioner and accordingly, I am of the view that, though the extension of time was granted for nearly about 8 years, there was no improvement in the work nature of the petitioner.
Following the declaration of law made by the Hon'ble Apex Court, in the case of Director Aryabhatta Research Institute of Observational Sciences and another vs. Devendra Joshi and others reported in (2018) 3 SLR -8- NC: 2023:KHC:20827 WP No. 11366 of 2022 125 (SC), wherein, it is held that, if the order of termination of a probationary is not founded on the misconduct, then, same cannot be considered as stigma.
In the case of Dipti Prakash Banerjee vs Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others reported in (1999) 3 SCC 60, paragraphs 18 to 37 reads as under:
"18. On the basis of the above contentions, the following points arise for consideration:
(1) In what circumstances, the termination of a probationer's services can be said to be founded on misconduct and in what circumstances could it be said that the allegations were only the motive?
(2) When can an order of termination of a probationer be said to contain an express stigma?
(3) Can the stigma be gathered by referring back to proceedings referred to in the order of termination?
(4) To what relief?
Point 1
19. As to in what circumstances an order of termination of a probationer can be said to be punitive or not depends upon whether certain allegations which are -9- NC: 2023:KHC:20827 WP No. 11366 of 2022 the cause of the termination are the motive or foundation. In this area, as pointed out by Shah, J. (as he then was) in Madan Gopal v. State of Punjab there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. This very question was gone into recently in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. and reference was made to the development of the law from time to time starting from Parshotam Lal Dhingra v. Union of India to the concept of "purpose of enquiry"
introduced by Shah, J. (as he then was) in State of Orissa v. Ram Narayan Das and to the seven-Judge Bench decision in Samsher Singh v. State of Punjab and to post- Samsher Singh case-law. This Court had occasion to make a detailed examination of what is the "motive" and what is the "foundation" on which the innocuous order is based.
20. This Court in that connection referred to the principles laid down by Krishna Iyer, J. in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha. As to "foundation", it was said by Krishna Iyer, J. as follows:
(SCC p. 617, para 53) "[A] termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, 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 different proceedings from the formal order, does not detract from its nature. Nor the fact that, after
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NC: 2023:KHC:20827 WP No. 11366 of 2022 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- injurious terminology is used."
(emphasis supplied) and as to motive: (SCC pp. 617-18, para 54) "54. 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 cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge."
(emphasis supplied) As to motive, one other example is the case of State of Punjab v. Sukh Raj Bahadur where a charge-memo for a regular enquiry was served, reply given and at that stage itself, the proceedings were dropped and a simple termination order was issued. It was held, the order of simple termination was not founded on any findings as to misconduct. In that case, this Court referred to A.G. Benjamin v. Union of India where a charge-memo was
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NC: 2023:KHC:20827 WP No. 11366 of 2022 issued, explanation was received, an enquiry officer was also appointed but before the enquiry could be completed, the proceedings were dropped and a simple order of termination was passed. The reason for dropping the proceedings was that "departmental proceedings will take a much longer time and we are not sure whether after going through all the foundation, we will be able to deal with the accused in the way he deserves". The termination was upheld.
21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as "founded" on the allegations and will be bad. But if the enquiry was not held, no findings were 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. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid.
22. In the light of the above principles laid down in R.S. Gupta case we do not think anything more is to be added. Point 1 is decided accordingly.
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NC: 2023:KHC:20827 WP No. 11366 of 2022 Point 2
23. In the present case before us, the order of termination dated 30-4-1997 is not a simple order of termination but is a lengthy order which we have extracted above. It not only says that performance during probation is not satisfactory but also refers to a letter dated 30-4-1996 by which the period of probation was extended by six months from 2-5-1996, and to letters dated 17-10-1996 and 31-10-1996. It concludes by saying that the appellant's "conduct, performance, ability and capacity during the whole period of probation" was not satisfactory and that he was considered "unsuitable" for the post for which he was appointed.
24. The contention for the appellant is that if the appellant is to seek employment elsewhere, any new employer will ask the appellant to provide the copies of the letters dated 30-4-1996, 17-10-1996 and 31-10-1996 referred to in the impugned order and that if the said letters contain findings which were arrived at without a full-fledged departmental enquiry, those findings will amount to stigma and will come in the way of his career.
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
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NC: 2023:KHC:20827 WP No. 11366 of 2022 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.
27. As to what amounts to stigma has been considered in Kamal Kishore Lakshman v. Pan American World Airways Inc. This Court explained the meaning of "stigma" as follows: (SCC p. 150, para 8) "8. According to Webster's New World Dictionary, it (stigma) is something that detracts from the character or reputation of a person, a mark, sign etc. indicating that something is not considered normal or standard. The Legal Thesaurus by Burton gives the meaning of the word to be blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame. The Webster's Third New International Dictionary gives the meaning as a mark or label indicating a deviation from a norm.
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NC: 2023:KHC:20827 WP No. 11366 of 2022 According to yet another dictionary 'stigma' is a matter for moral reproach."
Similar observations were made in Allahabad Bank Officers' Assn. v. Allahabad Bank.
28. At the outset, we may state that in several cases and in particular in State of Orissa v. Ram Narayan Das it has been held that use of the word "unsatisfactory work and conduct" in the termination order will not amount to a stigma.
29. We may advert to a few cases on the question of stigma. We shall refer initially to cases where a special rule relating to termination of a probationer required a particular condition to be satisfied and where the said condition was referred to in the order of termination. In Hari Singh Mann v. State of Punjab the probationer was governed by Rule 8(b) of the Punjab Service Rules, 1959 and the fact that the word "unfit" as required by the Rules was used, was held not to be a ground for quashing the order on the ground of "stigma", for to hold that it amounted to a "stigma" would amount to robbing the authority of the right under the Rule. Similarly, where a rule required a show-cause notice to be issued and an enquiry to be conducted before terminating probation, such as Rule 55-B of the Central Civil Services (CCA) Rules, there would be no question of characterising the simple order of termination as one founded on the allegations which were the subject of the enquiry. That was because, in such a case, the purpose of the enquiry was to find out if the officer was to be continued in
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NC: 2023:KHC:20827 WP No. 11366 of 2022 service and not to find out if he was guilty (State of Orissa v. Ram Narayan Das, Ranendra Chandra Banerjee v. Union of India. In State of Gujarat v. Akhilesh C. Bhargav: the termination order merely referred to Rule 12(bb) of the Indian Police Service (Probationer) Rules, 1959. It was contended that the reference to the said Rule 12(bb) itself amounted to a stigma but this was rejected following Ram Narayan Das case.
30. We shall next advert to some more cases and to particular words employed while passing orders of termination of probationers. In State of Bihar v. Gopi Kishore Prasad a show-cause notice was given seeking a reply to the allegation regarding the officer's bad reputation and in regard to certain perverse decisions given by him in his judicial functions during the period of probation. The termination order stated that certain facts were brought to the notice of the Government about his unsatisfactory work and conduct and that grave doubts had arisen about his integrity which indicated that he was a corrupt and an unreliable officer. It was also said that confidential enquiries revealed that he was a corrupt officer and that annual confidential reports of his superior officer referred to his bad reputation and therefore his work during the period of probation was not satisfactory. The Constitution Bench of this Court held that it was a clear case of stigma and the matter indeed required a full- fledged departmental enquiry under Rule 55 of the CCS (CCA) Rules. In Jagdish Mitter v. Union of India the use of the words "undesirable to be continued" in service was held by the Constitution Bench to amount to a stigma.
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NC: 2023:KHC:20827 WP No. 11366 of 2022 This case was followed in State of U.P. v. Madan Mohan Nagar where the order said that the officer had "outlived his utility" and such an order was held to amount to a stigma. Jagdish Mitter was approved by the seven-Judge Bench in Samsher Singh case on this point. But in Kunwar Arun Kumar v. U.P. Hill Electronics Corpn. Ltd. the termination order used the word "unsatisfactory" and the same was upheld as it did not amount to a stigma. In two cases arising under industrial law, one in Chandu Lal v. Pan American World Airways and Kamal Kishore Lakshman v. Pan American World Airways Inc. where the termination order used the word "loss of confidence", the said orders were held to contain a stigma and therefore punitive. In Jagdish Parsad v. Sachiv, Zila Ganna Committee the termination order stated that the officer had concealed certain facts relating to his removal from an earlier service on the charge of corruption and therefore not suitable for appointment. This was held to amount to a stigma. But in Union of India v. R.S. Dhaba where the order merely said "found unsuitable", it was held not to amount to a stigma. In Allahabad Bank Officers' Assn. v. Allahabad Bank the order was one of compulsory retirement and said that a Special Committee had unanimously recommended for the officer's compulsory retirement, that the Chairman and Managing Director agreed with the Committee's views regarding "want of application to the Bank's work and lack of potential" and that the officer was also found to be not "dependable". This Court after referring to a number of cases explained that the words "not dependable" were used in the context of the facts of the case and not as an
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NC: 2023:KHC:20827 WP No. 11366 of 2022 aspersion on his reputation but in relation to his work and were to be understood in that sense in the setting of the words "want of application" and/or "lack of potential". It was observed: (SCC p. 513, para 19) "Any person reading the letter or the order of compulsory retirement would not be led to believe that there was something wrong with Appellant 2 as regards his conduct or character. They would only indicate that he had ceased to be useful to the Bank in his capacity as a Manager."
Again in High Court of Judicature at Patna v. Pandey Madan Mohan Prasad Sinha it was held that termination of a probationer on the basis of uncommunicated adverse remarks was valid.
31. Thus, it depends on the facts and circumstances of each case and the language or words employed in the order of termination of the probationer to judge whether the words employed amount to a stigma or not. Point 2 is decided accordingly.
Point 3
32. The next question is whether the reference in the impugned order to the three earlier letters amounts to a stigma if those three letters contained anything in the nature of a stigma even though the order of termination itself did not contain anything offensive.
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33. Learned counsel for the appellant relies upon Indra Pal Gupta v. Managing Committee, Model Inter College decided by a three-Judge Bench of this Court. In that case, the order of termination of probation, which is extracted in the judgment, reads as follows: (SCC p. 386, para 1) "With reference to the above (viz. termination of service as Principal), I have to mention that in view of Resolution No. 2 of the Managing Committee dated April 27, 1969 (copy enclosed) and subsequent approval by the D.I.O.S., Bulandshahr, you are hereby informed that your service as Principal of this Institution is terminated...."
Now the copy of the resolution of the Managing Committee appended to the order of termination stated that the report of the Manager was read at the meeting and that the facts contained in the report of the Manager being serious and not in the interests of the institution, that therefore the Committee unanimously resolved to terminate his probation. The report of the Manager was not extracted in the enclosure to the termination order but was extracted in the counter filed in the case and read as follows: (SCC p. 388, para 3) "It will be evident from the above that the Principal's stay will not be in the interest of the Institution. It is also evident that the seriousness of the lapses is enough to justify dismissal but no educational institution should take all this
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NC: 2023:KHC:20827 WP No. 11366 of 2022 botheration. As such my suggestion is that our purpose will be served by termination of his services. Why, then, we should enter into any botheration. For this, i.e., for termination of his period of probation, too, the approval of the D.I.O.S. will be necessary. Accordingly, any delay in this matter may also be harmful to our interests.
Accordingly, I suggest that instead of taking any serious action, the period of probation of Shri Inder Pal Gupta be terminated without waiting for the period to end."
It was held by Venkataramiah, J. (as he then was) (p.
392) that the letter of termination referred to the resolution of the Managing Committee, that the said resolution was made part of the order as an enclosure and that the resolution in its turn referred to the report of the Manager. A copy of the Manager's report had been filed along with the counter and the said report was the "foundation". Venkataramiah, J. (as he then was) held that the Manager's report contained words amounting to a stigma. The learned Judge said: "This is a clear case where the order of termination issued is merely a camouflage for an order imposing a penalty of termination of service on the ground of misconduct ...", that these findings in the Manager's report amounted to a "mark of disgrace or infamy" and that the appellant there was visited with evil consequences. The officer was reinstated
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NC: 2023:KHC:20827 WP No. 11366 of 2022 with all the benefits of back wages and continuity of service.
34. It will be seen from the above case that the resolution of the Committee was part of the termination order being an enclosure to it. But the offensive part was not really contained in the order of termination nor in the resolution which was an enclosure to the order of termination but in the Manager's report which was referred to in the enclosure. The said report of the Manager was placed before the Court along with the counter. The allegations in the Manager's report were the basis for the termination and the said report contained words amounting to a stigma. The termination order was, as stated above, set aside.
35. The above decision is, in our view, a clear authority for the proposition that the material which amounts to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its annexures. Obviously, such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular enquiry was conducted. We shall presently consider whether, on the facts of the case before us, the documents referred to in the impugned order contain any stigma.
36. It was in this context argued for the respondent that the employer in the present case had
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NC: 2023:KHC:20827 WP No. 11366 of 2022 given ample opportunity to the employee by giving him warnings, asking him to improve and even extended his probation twice and this was not a case of unfairness and this Court should not interfere. It is true that where the employee had been given suitable warnings, requested to improve, or where he was given a long rope by way of extension of probation, this Court has said that the termination orders cannot be held to be punitive. [See in this connection Hindustan Paper Corpn. v. Purnendu Chakrobarty , Oil & Natural Gas Commission v. Dr Md. S. Iskender Ali , Unit Trust of India v. T. Bijaya Kumar, Principal, Institute of Postgraduate Medical Education & Research, Pondicherry v. S. Andel and a labour case Oswal Pressure Die Casting Industry v. Presiding Officer ] But in all these cases, the orders were simple orders of termination which did not contain any words amounting to stigma. In case we come to the conclusion that there is stigma in the impugned order, we cannot ignore the effect it will have on the probationer's future whatever be the earlier opportunities granted by the respondent- Organisation to the appellant to improve.
37. On this point, therefore, we hold that the words amounting to "stigma" need not be contained in the order of termination but may also be contained in an order or proceeding referred to in the order of termination or in an annexure thereto and would vitiate the order of termination. Point 3 is decided accordingly."
9. Following the declaration of law made by the Hon'ble Apex Court, as the order of termination of the
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NC: 2023:KHC:20827 WP No. 11366 of 2022 petitioner is simpliciter in nature, therefore, I am of the view that, decision taken by respondent No.2 is justified in passing the impugned order dated 15.02.2019 produced at Annexure-G. Accordingly, the writ petition is dismissed of as devoid of merits.
SD/-
JUDGE SB List No.: 2 Sl No.: 7