Jharkhand High Court
Gaurav Kumar Sinha vs State Of Jharkhand on 9 July, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 244 of 2023
Gaurav Kumar Sinha, Aged about 30 years, son of Late Anil Kumar
Prasad, R/o. Karma, P.S.- Tiliya, District: Koderma, Jharkhand.
... ... Appellant
Versus
1. State of Jharkhand
2. Deputy Commissioner, Koderma, P.O.+P.S.- Koderma, Dist:
Koderma, Jharkhand.
3. Deputy Development Commissioner, Cum Chief Executive officer,
District Council, Koderma, P.O.+P.S.- Koderma, Dist: Koderma,
Jharkhand.
4. Additional Collector, Koderma, P.O.+P.S.- Koderma, Dist:
Koderma, Jharkhand. ... ... ... Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant: Mr. Mahesh Tewari, Advocate
For the Respondents: Mr. Md. Asghar, A.C. to Sr.S.C. II
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Dated: 09.07.2024
Heard Mr. Mahesh Tewari, learned counsel appears for the appellant and Md. Asghar, A.C. to Sr. S.C. II.
2) The appellant was appointed on compassionate basis vide order dated 13.06.2015 on the basis of the decision taken by the District Committee on the post of Clerk under Collectorate Office, Koderma and he was terminated from service during his while continues his probation period, which is the subject matter challenged, before the learned Single Judge in W.P.(C) No. 1103 of 2018 who vide judgment dated 17.03.2023 held that there is no whisper about any criminal case against the petitioner nor it has been mentioned that because of it, he being taken into custody, and is being terminated. Thus, it cannot be said that the order is stigmatic. The only reason mentioned therein is that his services were not satisfactory. Thus, thereby it is held that the impugned order cannot be said to be a stigmatic which would call for a regular departmental proceeding or issuance of a show cause. Further,
-1 of 7- Rule 23 of the Jharkhand Government Servants (Classification, Control & Appeal) Rules, 2016 also provides for removal of an employee who is under probation on the ground of unsatisfactory performance. Therefore, compliance of natural justice is not required. Consequently, the writ petition filed by the appellant was dismissed which is the subject matter challenged in the present appeal.
3) The factual matrix in the case is that the petitioner was appointed as a Clerk on the compassionate ground on 13.06.2015 and he was arrested by ACB on 10.07.2017. Consequently, he was suspended in terms of Rule 96 of Jharkhand Service Code vide order dated 17.07.2017 as per Memo No. 438 and during his suspension period he was allowed to receive the subsistence allowance. On the allegation of demanding and accepting illegal gratification for construction work of drain the petitioner was arrested and Hazaribagh ACB PS Case No. 27 of 2017 under section 7 and 13(2) of the Prevention and Corruption Act was registered against him and vide order dated 20.09.2017 the petitioner was granted bail in B.A. No.6346 of 2017.
4) Mr. Mahesh Tewari, the learned counsel for the appellant submitted that being released on bail the appellant submitted his joining report on 14.10.2017 but the impugned order dated 18.10.2017 was passed indicating that his service was not satisfactory and it was decided to relieve him from his service. By the time he was relieved from the service, he was under probation period and against such relieving of the appellant from the service during the period of suspension was challenged before the learned Single Judge who confirmed the order of relieving of the petitioner from service and against the said order the present appeal has been filed.
5) Mr. Mahesh Tewari, learned counsel for the appellant vehemently contended that the order passed by the authority in relieving the petitioner is stigmatic one and he cannot be removed only on the ground that he was arrested and involved in a criminal case on the allegation of accepting bribe but it is contended that once the
-2 of 7- appellant is relieved from his service which is stigmatic one in view of the fact that his service is not satisfactory therefore the compliance of natural justice is necessary.
6) To substantiate his contention the reliance has been placed by the learned counsel for the appellant in the case of "Jagdish Mitter vs. Union of India" AIR 1964 SCC 449 and "Punjab University, Chandigarh vs. Vijay Singh Lamba and Others" (1976) 3 SCC 344.
7) Md. Asghar, the learned State counsel vehemently contended that there is nothing available on record to suggest that the appellant was arrested in a criminal case involving moral turpitude and he was relieved from the service because of unsatisfactory performance. It is further contended that during the probation period if the petitioner's service was not found satisfactory then only, he was relieved from the service and in that case complying the natural justice is not necessary. It is further contended that as per Jharkhand Government Servants (Classification, Control & Appeal) Rules, 2016 the petitioner's probation can be put to an end at any time without any notice if during the probation period his service is found unsatisfactory. Consequently, the claim made by the appellant cannot sustain and as such the judgment passed by the learned Single Judge is well justified and does not want interference by this Court at this stage.
8) This Court heard Mr. Mahesh Tewari, the learned counsel for the appellant and Md. Asghar, the learned State counsel. At the stage of admission this Letters Patent Appeal is disposed of with the consent of the parties.
9) On the basis of the disputed facts which are involved in the present case the only question is to be considered is whether the judgment passed by the learned Single Judge is well justified and only that there is no requirement of natural justice in case of the appellant who was relieved from service due to unsatisfactory performance. Needless to say that the reliance has been placed in the judgment of "Jagdish Mitter" (supra) where the Apex Court has dealt the matter stating inter alia that the appellant was appointed on temporary Second
-3 of 7- Division Clerk in the General Post Office, Lahore for a period of six months on 9.10.1946. At the end of the initial period of six months, his appointment was continued from time to time until he was posted in the office of the Post Master General at Ambala on 12.08.1947. While he was working on that post, the impugned order was passed whereby his service was terminated. The appellant approached the Court as his service was terminated and he claimed that his termination of service was illegal on the ground of Rule 126 of the Posts and Telegraphs Manual Vol.II General Regulation had been contravened and no inquiry was conducted against him. Therefore, it is contended that there is non- compliance of natural justice and while adjudicating this fact the Apex Court in paragraph no. 22 held as under:
"22. No doubt the order purports to be one of discharge and as such, can be referred to the power of the authority to terminate the temporary appointment with one month's notice. But it seems to us that when the order refers to the fact that the appellant was found undesirable to be retained in government service, it expressly casts a stigma on the appellant and in that sense, must be held to be an order of dismissal and not a mere order of discharge. The learned Additional Solicitor-General attempted to argue that what the order really meant was that Government did not think it desirable or necessary to continue the appellant in its employment. He fairly conceded that the words used in the order were somewhat unfortunate, but he urged that the order should be liberally construed and should be held to have been passed by the authority by virtue of its power to terminate the services of the appellant on one month's notice. We are not prepared to accept this argument. It is obvious that to say that it is undesirable to continue a temporary servant is very much different from saying that it is unnecessary to continue him. In the first case, a stigma attaches to the servant, while in the second case, termination of service is due to the consideration that a temporary servant need not be continued, and in that sense, no stigma attaches to him. It seems that anyone who reads the order in a reasonable way, would naturally conclude that the appellant was found to be undesirable, and that must necessarily import an element of punishment which is
-4 of 7- the basis of the order and is its integral part. When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in such cases must be: does the order cast aspersion or attach stigma to the officer when it purports to discharge him? If the answer to this question is in the affirmative, then notwithstanding the form of the order, the termination of service must be held, in substance, to amount to dismissal. That being so, we are satisfied that the High Court was in error in coming to the conclusion that the appellant had not been dismissed, but had been merely discharged. It is conceded that if the impugned order is construed as one of dismissal, the appellant has been denied the protection guaranteed to temporary servants under Section 240(3) of the Government of India Act. 1935, or Article 311(2) of the Constitution, and so, the order cannot be sustained."
10) Thereafter, reliance has been placed on the judgment of "Punjab University, Chandigarh vs. Vijay Singh Lamba and Others"
(supra) where it has also been considered on the same way as stated in the "Jagdish Mitter" case (supra). But the principle laid down in the above mentioned judgment is not disputed as such there are settled principles of law as held by the Apex Court but so far as the factual matrix in the case in hand is concerned, it is admitted fact that the appellant was in probation when the District Establishment Committee took a decision on 20th September 2017 to end the probation period of the appellant and relieved him from service because of his unsatisfactory performance and as per Rule 23 of the Jharkhand Government Servants (Classification, Control & Appeal) Rules, 2016 a probationer can be relieved from service which is also referred to in paragraph no.5 of the impugned judgment of the learned Single Judge.
The order of relieving the petitioner from service as a probationer is not indicated anything about involvement of appellant in criminal case or
-5 of 7- his involvement in moral turpitude rather there is no whisper about the criminal case pending against him.
11) On the other hand, such actions have been taken for unsatisfactory performance which is permissible in law. The reliance has been placed by the learned Single Judge on the judgment of the Apex Court in the case of "State of Punjab and Ors. v. Bhagwan Singh" reported in (2002) 9 SCC 636 wherein the probationer was discharged during the period of probation as his services were not found satisfactory, the Apex Court has already observed in paragraph nos. 4 and 5 which are quoted hereinbelow:
"4. ... when a probationer is discharged during the period of probation and if for the purpose of discharge, a particular assessment of his work is to be made, and the authorities referred to such an assessment of his work, while passing the order of discharge, that cannot be held to amount to stigma.
5. The other sentence in the impugned order is, that the performance of the officer on the whole was "not satisfactory".
Even that does not amount to any stigma."
12) In the case of "Registrar, High Court of Gujarat and Anr. v. C.G Sharma" reported in (2005) 1 SCC 132 it was held that an employee, who has been on probation, can be terminated due to unsatisfactory work. In "State of M.P & Anr. v. Virendra Kumar Chourasia" reported in 1999 SCC (L&S) 1155, the Apex Court has held that the in the event of non-stigmatic termination of services of a probationer, the principle of audi alteram partem are not applicable. A reference has also been made to the judgment of this Court in L.P.A No.259 of 2019 titled "V. Srinivasula Reddy v. Jharkhand Urban Infrastructure Development Company Limited & Ors." in which the aforementioned judgments have been referred to and therefore this Court also held that no show-cause notice is necessary when services of a probationer has been terminated on a non-stigmatic ground.
13) Taking into consideration the aforesaid judgments, relied upon by the learned counsel for the appellant as well as by the learned State counsel, it is made clear that since the appellant has not been
-6 of 7- relieved from his duties because of his involvement in a criminal case nor it has been found from records to indicate that his relieving from duty is because of a criminal case it cannot be said that the order is stigmatic one but the order itself indicates that his services have been found not satisfactory therefore, the impugned order cannot be said to be a stigmatic one because the non-satisfactory performance is confirmed with the Rules 23 of the Jharkhand Government Servants (Classification, Control & Appeal) Rules, 2016 consequently, the steps taken for relieving the appellant from the job is well justified because he was a probationer and as such this Court is not inclined to interfere with the order passed by the learned Single Judge and therefore this Letters Patent Appeal is dismissed.
(Dr. B.R. Sarangi, C.J.) (Sujit Narayan Prasad, J.) N.A.F.R sudhir/MM
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