Central Administrative Tribunal - Allahabad
Roop Narayan Meena vs M/O Finance on 18 November, 2021
OA No. 330/01030/2017
Reserved on 05.10.2021
Pronounced on 18.11.2021
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Original Application No. 330/01030/2017
Hon'ble Mr. Tarun Shridhar, Member (Administrative)
Hon'ble Ms.Pratima K Gupta, Member (Judicial)
Roop Narayan Meena, S/o Sh. Ratan Lal Meena, Aged about 25 years, R/o
III/25 Income Tax Colony, Income Tax Office Meerut Road, Qidwainagar,
Muzaffarnagar-251002.
.... Applicant
By Advocate : Shri A.K.Behera Senior Advocate
With Sunil
VERSUS
Principal Commissioner of Income Tax, Meerut Road Qidwai Nagar,
Muzaffarnagar- (U.P.).
. . .Respondent
By Advocate : Shri Raghvendra Pratap Singh
ORDER
By Hon'ble Mr. Tarun Shridhar, Member (Administrative):
The applicant has preferred this OA against the order dated 10.07.2017 terminating the services of the applicant with a non-speaking order. He further challenges the clause in the offer of appointment dated 29.09.2015 which describes the appointment of the applicant as 'temporary' and empowers the respondents to terminate the services of the applicant at any time without any information and without assigning any reason.
2. The applicant has filed this OA seeking following reliefs:-
"(i) Call for the records of the case.
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(ii) Quash and set aside the impugned termination order dated 10.07.2017 which was served on the applicant on 11.07.2017 at Annexure A-1 to Compilation No.1.
(iii) Quash and set aside that clause of the offer of appointment dated 29.09.2015 at Annexure No. A-2 to Compilation No.1 which describes the appointment of the applicant as "temporary" and gives unfettered power to the respondents to terminate the services of the applicant at any time without any information and without assigning any reason as unconscionable and void ab initio.
(iv) Direct the Respondent to give all the consequential benefits as if the impugned order had never been passed.
(v) Direct the Respondent to pay the cost of litigation to the applicant.
(vi) Pass any other order or direction which this Hon'ble Tribunal thinks fit and proper in the light of the facts and circumstances of the present case."
3. The facts of the case according to the applicant are as under:
The applicant who belongs to ST category is stated to have been selected in pursuance of an advertisement dated 19.01.2013 by the Staff Selection Commission (Combined Graduate Level Examination, 2013). The applicant participated in the Tier-I, Tier-II and followed by the written examination. He was declared qualified i.e. vide final result dated 12.03.2015. On the basis of his result he was allocated U.P west zone vide order dated 24.08.2015. The applicant was issued an offer of appointment on 29.09.2015 by the Principal Commissioner of Income Tax, mentioning a clause that the appointment of the applicant was temporary and his services would be terminated by the respondents at any time without any information and without assigning any reason. Pursuant to the offer of appointment, the applicant was subjected to medical examination on 19.10.2015 and having been found fit, the applicant joined as Inspector Income Tax at Noida on 19.10.2015.The applicant was posted to the ITO, Ward 2(5), Noida. The applicant was sent for training from 04.01.2016 to 31.03.2016 which he is stated to have completed successfully. The applicant further participated in the departmental confirmation examination on 21/11/2016 and proceeded for a training on 18.07.2017 to 21.07.2017 which too he is stated to have completed successfully. He claims that all of a sudden he was in receipt of a Page 2 of 15 OA No. 330/01030/2017 show cause notice on 23.02.2017 (Annexure A13) which is not only vague but also does not disclose any misconduct. The applicant replied to the show cause notice on the same date after which the applicant was transferred to Muzaffarnagar. The applicant was relieved from Noida on15.05.2017 and joined at Muzaffarnagar on 25.05.2017. The services of the applicant were terminated by impugned order dated 10.07.2017, hence this OA.
4. The respondents filed the counter reply in which they have stated that in the offer of appointment dated 29.09.2015 issued by the Principal Commissioner of Income Tax, Noida it was clearly mentioned that the appointment of the applicant is purely temporary and could be terminated at any time without assigning any reason and without any information. He accepted the offer of appointment therefore he was bound by the conditions in the offer of appointment. In the counter affidavit, it is also stated that a survey operation was conducted at M/s Rama Krishna Jewellers Pvt. Ltd. Lajpat Nagar, New Delhi on 22.02.2017 and the applicant as an authorised person was observed indulging in professional misconduct. Such unprofessional behaviour and misconduct in discharge of official duty attracts under Rule 3(1) of CCS Conduct Rules, 1964 and was unbecoming of a Govt Servant. The applicant was accordingly served with Show Cause Notice dated 23.02.2017 and his services were terminated invoking the clause in the offer of appointment. They have placed reliance of the DOPT OM dated 21.07.2014 wherein the DOPT has issued complete instructions on Probation/Confirmation. According to these instructions the period of probation for Direct Recruitment to the posts carrying a grade pay below Rs 7600/- was 2 years vide DOPT OM dated 21.07.2014 for the central govt posts. Further the OM lays that the Appointing Authority may declare successful completion of probation or extend the period of probation or Page 3 of 15 OA No. 330/01030/2017 terminate the services of the temporary employee on probation on evaluating the performance. It is further stated that the action has been taken as per Rule 5(1) to the CCS (Termination of Services) Rules 1965.
5. The applicant has filed rejoinder affidavit wherein it is stated that the entire survey proceedings at M/s Rama Krishna Jewellers Pvt. Ltd. was conducted under CCTV surveillance and the applicant was put on duty where the Jewellery was kept. Further, it is also stated that in the show cause notice there is no mention of any incident of theft of gold coins during the survey operation.
6. Heard Shri Abhay. K. Behera, learned senior counsel with Shri Sunil for the applicant and Shri M.K. Upadhyay holding brief of Shri Raghvendra Pratap Singh, learned counsel for the respondents and perused the record.
7. Learned counsel for the applicant has argued that the applicant was a regular Income Tax Inspector and was appointed after participating in the regular process of appointment. The appointment was for a regular vacancy through a regular selection process and the applicant has qualified each and every part of the selection process, He has added that none of the orders reflect that the status of the applicant was of a Temporary Employee and therefore the DOPT OM dated 21.07.2014 is not applicable. As the Applicant also qualified the departmental confirmation examination and has undergone the training therefore he could not to be stated to be on probation. He has also argued that the impugned termination order in exercise of the clause of the offer of appointment is bad and the termination order could be passed by the respondents only after regular departmental inquiry and therefore order of termination is not sustainable in the eyes of law. Page 4 of 15
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8. Learned counsel for the respondents primarily relied on the counter affidavit and stressed on the fact that since the applicant had not completed two years from his joining, no formal order was required for confirming his appointment. The Applicant was on probation and therefore his case was covered by the DOPT OM dated 21.07.2014.
9. Learned counsel for the applicant has relied upon the following judgments of Hon'ble Supreme Court :-
(1) Baleshwar Dass and Others Vs. State of U.P. and Ors. reported in (1980) 4 SCC 226.
(ii) State of U.P. and Another Vs. Dr. M.J. Siddiqui and Others reported in (1980) 3 SCC 174.
(iii) Central Inland Water Transport Corporation Limited and Another Vs. BrojoNathGanguly and Another reported in (1986) 3 SCC 156.
In the case of Baleshwar Dass and Others Vs. State of U.P. and Ors. reported in (1980) 4 SCC 226, ...xxx....xxx
31. What, in the context, is a substantive capacity vis-a- vis an appointment to a post ? In our view, the emphasis imparted by the adjective "substantive" is that a thing is substantive if it is "an essential part B' or constituent or relating to what is essential". We may describe a capacity as substantive if it has "independent existence" or is of "considerable amount or quantity". What is independent in a substantial measure may reasonably be described as substantive. Therefore, when a post is vacant, however designated in official is the capacity in which the person holds the post has to be ascertained by the State. Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contra distinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation.
32. Once we understand 'substantive capacity' in the above sense, we may be able to rationalise the situation. If the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if Page 5 of 15 OA No. 330/01030/2017 probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantive capacity." (2) State of U.P. and Another Vs. Dr. M.J. Siddiqui and Others reported in (1980) 3 SCC 174. The relevant part of the judgment is reproduced as under :
.....xxxx....xxx..
"11. It is not disputed that in pursuance of this advertisement, the. appellants applied for direct recruitment to PMS I and they were ultimately appointed on a temporary basis sometime in June 1963 but before the merger of the two Services (PMS I & PMS II) which came into existence on November 2, 1964. One of the dominant questions to be determined in this case is whether the appellants were appointed purely on a temporary basis or in a substantive capacity though against temporary posts. In our opinion, the High Court seems to have laid undue stress on the fact that the appellants were appointed on a temporary basis while overlooking the surrounding circumstances and the terms of the advertisement and the Rules, A referred to above, under which the appellants were appointed. We have already indicated that Rule 17(23 was the only Rule under which are temporary or an officiating appointment could be made by the Governor without reference to the Public Service Commission. In the instant case, it is not disputed that the appellants were appointed after reference to and on the recommendations of the Public Service Com- mission. The appointment of the appellants, therefore.would, not fall under Rule 17(2). What then is the nature of the appointments of the appellants is the serious question to be decided. In our opinion, reading the advertisement and the manner and mode of the appointment of the appellants, it must be held that they were appointed in a substantive capacity to temporary posts which according to the advertisement were likely to continue. There does not appear to be any magical formula or special charm in the word 'substantive'. The mere use of the term 'appointment in a temporary vacancy' by itself would not conclude the matter or lead to the irresistible inference that the appointment was not made in a substantive capacity because even a substantive appointment could be made to a purely temporary vacancy. In order, therefore, to determine the nature of the appointment, we have to look to the heart and substance of the matter, the surrounding circumstances, the mode, the manner and the terms of appointment and other relevant factors. In the instant case, we cannot ignore the advertisement which forms the pivotal basis of the direct recruitment in pursuance of which the appellants were appointed. Another circumstances that supports our view is that the appellants were not appointed merely on an ad hoc basis but through the Public Service Commission and in a regular way. Finally, the appellants were appointed to PMS I which was doubtless a superior service carrying a higher scale than PMS II of which the petitioners were members. The question as to what is a 'substantive appointment' is no longer res integra but was clearly expounded in the case of ParshotomLalDhingra v. Union of India,(l) where this Court made the following observations:
"The appointment of a Government servant to a permanent post may be substantive or on probation or on an officiating basis. A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post Likewise an appointment to a temporary post in Government service may be substantive or on an officiating basis. Here also, in the absence of any special stipulation or any specific service rule, the servant so appointed ac quires no right to the post and his service can be Page 6 of 15 OA No. 330/01030/2017 terminated at any time except in one case, namely, when the appointment to a temporary post is for a definite period The substantive appointment to a temporary post, under the rules, used to give the servant so appointed certain benefits regarding pay and leave, but was otherwise on the same footing as appointment to a temporary post on probation or on an officiating basis."
14. In view of the circumstances discussed above, we are inclined to take the view that not much can be made of the fact that the order appointing the appellants 1-7 does not mention that they were appointed In a substantive capacity and that what is said is that they were appointed on a temporary basis. We shall consider this aspect more fully after we have completed the history of the Services and their ultimate merger as well as the events following thereafter. We might mention, however, that Dr. M. J. Siddiqui (respondent No. 1 in Civil Appeal No. 2870 of 1977) had filed a petition in the High Court regarding his seniority and other matters but before the petition could be heard the two Services were merged and the petition was ultimately dismissed on 2-8-1965 as infructuous."
(3) Central Inland Water Transport Corporation Limited and Another Vs. BrojoNathGanguly and Another reported in (1986) 3 SCC 156.
"9. We are concerned in these Appeals with the "Central Inland Water Transport Corporation Ltd. Service Discipline and Appeal Rules" of 1979 framed by the Corporation. These rules will hereinafter be referred to in short as "the said Rules". The said Rules apply to all employees in the service of the Corporation in all units in West Bengal, Bihar, Assam or in other State or Union Territory except those employees who are covered by the Standing Orders under the Industrial Employment (Standing Orders) Act, 1946, or those employees in respect of whom the Board of Directors has issued separate orders. Rule 9 of the said Rules deals with termination of employment for acts other than misdemeanour. The relevant provisions of the said Rule 9 relating to permanent employees are as follows :
"9. TERMINATION OF EMPLOYMENT FOR ACTS OTHER THAN MISDEMEANOUR. -
(i) The employment of a permanent employee shall be subject to termination on three months' notice on either side. The notice shall be in writing on either side. The Company may pay the equivalent of three months' basic pay and dearness allowance, if any, in lieu of notice or may deduct a like amount when the employee has failed to give due notice.
(ii) The services of a permanent employee can be terminated on the grounds of "Services no longer 1 required in the interest of the Company" without assigning any reason. A permanent employee whose services are terminated under this clause shall be paid 15 days' Page 7 of 15 OA No. 330/01030/2017 basic pay and dearness allowance for each completed year of continuous service in the Company as compensation. In addition he will be entitled to encashment of leave at his credit." B Under Rule 10, an employee is to retire on completion of the age of fifty-eight years though in exceptional cases and in the interest of the Corporation, an extension may be granted with the prior approval of the Chairman-cum-
Managing Director and the Board of Directors. Rule 11 provides as follows :
73. As the question before us is of the validity of clause (i) of Rule 9, we will refrain from expressing any opinion with respect to the validity of clause (ii) of Rule 9 or Rule 37 or 40 but will confine ourselves only to Rule 9(i)
97. Rule 9(i) confers upon the Corporation the power to terminate the service of a permanent employee by giving him three months' notice in writing or in lieu thereof to pay him the equivalent of three months' basic pay and dearness allowance. A similar regulation framed by the West Bengal State Electricity Board was described by this Court in West Bengal State Electricity Board and others v.
DeshBandhuGhosh and others (at page 118) as ". . . a naked 'hire and fire' rule, the time for banishing which altogether from employer- employee relationship is fast approaching. Its only parallel is to be found in the Henry VIII clause so familiar to administrative lawyers." As all lawyers may not be familiar with administrative law, we may as well explain that "the Henry VIII clause" is a provision occasionally found in legislation conferring delegated legislative power, giving the delegate the power to amend the delegating Act in order to bring that Act into full operation or otherwise by Order to remove any difficulty, and at times giving power to modify the provisions of other Acts also. The Committee on Ministers' Powers in its report submitted in 1932 (Cmd. 4060) pointed out that such a provision had been nicknamed "the Henry VIII clause" because "that King is regarded popularly as the impersonation of executive autocracy". m e Committee's Report (at page 61) criticised these clauses as a temptation to slipshod work in the preparation of bills and recommended that such provisions should be used only where they were justified before Parliament on compelling grounds. Legislation enacted by Parliament in the United Kingdom after 1932 does not show that this recommendation had any particular effect.
99. The power conferred by Rule 9(i) is not only arbitrary but is also discriminatory for it enables the Corporation to discriminate between employee and employee. It can pick up one employee and apply to him clause (i) of Rule 9. It can pick up another employee and apply to him clause (ii) of Rule 9. It can pick up yet another employee and apply to him sub-clause (iv) of clause (b) of Rule 36 read with Rule 38 and to yet another employee it can apply Rule 37. All this the Corporation can do when the same circumstances exist as would justify the Corporation in holding under Rule 38 a regular disciplinary inquiry into the alleged misconduct of the employee. Both the contesting Respondents had, in fact, been asked to submit their explanation to the charges made against them. Sengupta had been informed that a disciplinary inquiry was proposed to be held in his case. The charges made against both the Respondents were such that a disciplinary inquiry could easily Page 8 of 15 OA No. 330/01030/2017 have been held. It was, however, not held but instead resort was had to Rule 9(i).
105. As pointed out above, Rule 9(i) is both arbitrary and unreasonable and it also wholly ignores and sets aside the audialterampartem rule it, therefore, violates Article 14 of the Constitution.
10. The undisputed facts that emerge are that the applicant an Income Tax Officer, was appointed after competing in the selection process, he joined pursuant to the offer of appointment on 19/10/2015, and he qualified the prescribed Confirmation examination on 21/11/2016 and successfully completed training. No Formal order confirming his services was passed till he was issued the Show Cause Notice on 23/02/2017, which was confirmed by the impugned termination order dated 10/07/2017. Further since the Applicant had not completed 2 years from the date of his appointment, when the impugned order was passed the question of deemed confirmation did not arise.
11. We shall now examine whether the impugned termination order dated is vitiated as not being within the scope of DOPT OM 28020/1/2010 dated 21.07.2014. This is to be examined in the light of the Para 19, 26 and 27 of the DOP&T OM, which read as under :-
"19. On the expiry of the period of probation, steps should be taken to obtain the assessment reports on the probationer to :-
i. Confirm the probationer/issue orders regarding satisfactory termination of probation, as the case may be, if the probation has been completed to the satisfaction of the competent authority ; or ii. Extend the period of probation or discharge the probationer or terminate the services of the probationer as the case may be, in accordance with the relevant rules and orders, if the probationer has not completed the period of probation satisfactorily.
26. The date from which confirmation should be given effect to is the date following the date of satisfactory completion of the prescribed period of probation or the extended period of probation, as the case may be. The decision to confirm the Page 9 of 15 OA No. 330/01030/2017 probationer or to extend the period of probation as the case may be should be communicated to the probationer normally within 6 to 8 weeks. Confirmation of the probationer after completion of the period of probation is not automatic but is to be followed by formal orders. As long as no specific orders of confirmation or satisfactory completion of probation are issued to a probationer, such a probationer shall be deemed to have continued on probation.
27. Where probation on promotion is prescribed, the appointing authority will on completion of the prescribed period of probation assess the work and conduct of the officer himself and in case the conclusion is that the officer is fit to hold the higher grade, he will pass an order declaring that the person concerned has successfully completed the probation. If the appointing authority considers that the work of the officer has not been satisfactory or needs to be watched for some more time he may revert him to the post/service/cadre from which he was promoted, or extend the period of probation as the case may be."
In terms of the OM, it is clear that it was incumbent upon the respondents to pass a specific confirmation order on satisfactory completion of the probation period else it is deemed to be continuation of the probation period. In light of the fact that two years period is prescribed in the OM for appointments under Direct Recruitment posts carrying Grade pay below 7600, in the present case undisputedly there is no order confirming the services of the Applicant and he is short of two years of service by a few months when the Impugned order was passed. Therefore it is concluded that the applicant was under probation when the impugned termination order was passed.
12. The primary object behind a confirmation examination followed by the Training as in the present case as held in the case of State Bank of India & ors.Vs Palak Modi & ors.(2013) 3 SCC 607 is :-
...xxx...xx...
"25. The primary object of the confirmation test held on 27.2.2011, which could also be termed as evaluation test within the meaning of paragraph 5(c) of the appointment letter was to decide whether the officer has made use of the opportunities made available to him by the Bank to prove his worth for the job for which he was recruited and whether he has acquired Page 10 of 15 OA No. 330/01030/2017 sufficient knowledge about the functional requirements of the Bank. The test also gave an opportunity to the Probationary Officer to demonstrate that he was meritorious enough to be placed in the higher grade."
Accordingly, in the present facts it is concluded that even after passing the confirmation test, period of probation not being complete and absence of a formal order of confirmation, the applicant was on probation and therefore the provisions in the offer of appointment were rightly invoked. All the three judgments referred by the learned Senior counsel for the applicant are on the issue that the applicant was a permanent employee against the regular vacancy and therefore, he could not have been terminated invoking the clause in the offer of appointment. However, since the facts are quite different the three judgments do not come to the rescue of the applicant.
13. Now adverting to the facts of the present case considering the applicant, was on probation and his services were terminated, whether such an order can be held to be stigmatic in view of the show cause notice issued to the applicant? Further whether the contention of the applicant that his removal is bad in law, as he was a regular employee, which has been held otherwise herein above, the applicant was on probation in view of the OM dated 21.7.2014.
The show cause notice, which is at page 94 of the OA, and is being reproduced herein below:-
F.No.DDIT(Inv.)-III/Noida/Misc./2016-17/1645 "To, Sh. Roop Narayan Meena, ITI (Investigation) Noida.
Subject : Show cause notice under Rule 3(1) of CCS Conduct Rules 1964 for Professional Misconduct -reg;
Please refer to the above, Page 11 of 15 OA No. 330/01030/2017 During the course of survey operation at M/s Ramakrishna Jewellers Private Limited on 22.02.2017, you as Authorized person have been observed indulging in gross professional misconduct. Such unprofessional behaviour at discharge of official duty attract Rule 3 (1) of CCS Conduct Rules'1964 & Unbecoming of Government Servant. Therefore, you are hereby required to show cause why not suitable action shall be taken against you for such misconduct. Your reply shall reach this office latest on or before 11.30 AM, 27.02.2017."
Sd/-
The termination order dated 10.7.2017, at Page 14 of the OA, is reproduced herein below:-
Qkla iz-vk-vk-&eqt¶Qjuxj@207&18@2433 fnukad& 10-07-2017 vkns"k Jh :i ukjk;.k eh.kk] vk;dj fujh{kd ds fuq;fDr vkns"k fnukad 29-09-2015 ds izFke iSjk esa fuEu izdkj vafdr gS^& ^^;g fu;qfDr iw.kZ :i ls vLFkkbZ gS rFkk fcuk fdlh dkj.k crk, rFkk fcuk fdlh lwpuk ds dHkh Hkh lekIr dh tk ldrh gSA^^ vr% mYYksf[kr izko/kku dks /;ku esa j[krs gq, Jh :i ukjk;.k eh.kk] vk;dj fujh{kd dk;kZy; dj olwyh vf/kdkjh eqt¶Qjuxj dh lsok,a rRdky izHkko lss lEkkIr dh tkrh gSA ¼vatyh frokjh½ Ikz/kku vk;dj vk;qDr] Eqkt¶Qjuxj Ikzfrfyfi%& 1- Jh :i ukjk;.k ehuk] vk;dj fujh{kd dk;kZy; dj olwyh vf/kdkjh eqt¶Qjuxj lwpukFkZA ¼vatyh frokjh½ Ikz/kku vk;dj vk;qDr] Eqkt¶Qjuxj
14. Now in the termination order dated 10.7.2017, there is no mention of any misconduct and / or even of a show cause notice dated 23.2.2017. The termination order is simpliciter. The Hon'ble Supreme Court in 1967 (1) LLJ Page 12 of 15 OA No. 330/01030/2017 718 (SC) titled as "A.G. Benjamin Vs. Union of India" has held that where a charge - memo was 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.
15. The Hon'ble Supreme Court in 1999 (3) SCC 60 in Dipti Prakash Benerjee Vs. Satvendra Nath Bose, considered the issue relating to whether the termination on probation amounts to stigmatic or not. The relevant portion is reproduced herein below:-
"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?"
16. The Hon'ble Supreme Court answered the aforesaid points, which are as under:-
"Point I :
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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 the cause of the termination are the motive or foundation...."
"21. If findings were arrived at in inquiry 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 inquiry was not held, no finding were arrived at and the employer was not inclined to conduct an inquiry 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...."
"Point II
23. In the present case before us, the order of termination dated 30.4.97 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 17.10.96 and 31.10.96. 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."
"Point III :
32. The next question is whether the reference in the impugned order to the three earlier letters amounts to 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."
"Point IV :
38. Under this point, two aspects of the case fall for consideration, firstly whether the impugned order is founded on any conclusions arrived at by the employer as to his misconduct or whether the termination was passed because the employer did not want to continue an employee against whom there were some complaints.
The second aspect is whether there is any stigma in the order of termination or in the documents referred to in the termination order."
17. In view of the law laid down by Hon'ble Supreme Court in the above referred judgments, if we analyse the facts of the present case, the order of termination does not find any mention of the show cause notice and / or any misconduct. Thus, the termination order passed by the respondent can be stated to be simple non stigmatic order and it can be held that in the facts and circumstances, the employer did not want to continue with the applicant against whom there was a complaint. The termination effected by the master Page 14 of 15 OA No. 330/01030/2017 was after being satisfied of the desirability of the delinquent employee that his service was not desired. The termination order is an innocent order within the power vested in the offer of appointment and in the light of the fact that the applicant was on probation. Accordingly, the OA is dismissed. No order as to costs.
(Pratima K Gupta) (TarunShridhar)
Member(Judicial) Member(Administrative)
/Neelam/
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