Allahabad High Court
Miss Manju Shikdar Daughter Of Sri ... vs General Manager (Planning And ... on 21 November, 2007
Bench: S. Rafat Alam, Sudhir Agarwal
JUDGMENT
S. Rafat Alam and Sudhir Agarwal, JJ.
1. The order dated 20.01.1999, dismissing the writ petition in default, having been recalled vide order of date passed on the recall application, the writ petition is restored to its original number.
2. Since the matter is pending since 1996, with the consent of learned Counsel for the parties, we have heard the matter on merits.
3. The petitioner, who was working as probationer in the State Bank of Indore (hereinafter referred to as the "Bank"), has been terminated by the General Manager of the Bank vide order dated 16.08.1995 on the ground that after adjudging her work and performance she has not been found fit for confirmation and, therefore, has been terminated during the period of probation.
4. Learned Counsel for the petitioner contended that though the petitioner was probationer, yet the impugned order cast stigma upon the petitioner and. therefore, could not have been passed without giving any opportunity. He further contended that the petitioner has made a complaint against the Branch Manager, respondent No. 4 and it is on account of the mala fide action of the respondent No. 4, the impugned order has been passed and, therefore, it is a colourable exercise on the part of the respondents.
5. Having heard learned Counsel for the petitioner and perusing the record, we do not find any force in the submission. Admittedly, the petitioner was appointed by the General Manager of the Bank and the orders for extension of his probation and termination have also been passed by the General Manager. The work and performance of the petitioner has been assessed at the level of the General Manager. The alleged complaint made by the petitioner against the Branch Manager would not ipso facto taint the order passed by the General Manager with bias or mala fide inasmuch as, there is no such allegation against the General Manager. He being a much higher officer than Branch Manager, it cannot be conceived that a Branch Manager could have influenced such a superior officer for getting an order passed which, otherwise the superior officer was not inclined unless proved by cogent material. Therefore, the allegation of colourable exercise of power is unacceptable and even otherwise is not substantiated from anything on record. On the contrary the impugned order of termination makes it clear that the General Manager has assessed the work and performance of the petitioner and after finding her unfit for confirmation has terminated since she was only a probationer.
6. It is well settled that a probationer has no right to hold the post and if the work and performance of the probationer is not found satisfactory during the period of probation or extended probation he/she can be terminated.
7. Coming to the next submission that mention of the fact that her work and performance has not been found satisfactory and she is not fit for confirmation, therefore, she is being terminated, whether can make the order of termination stigmatic and by way of punishment instead of termination simplicitor, we find that the mention of a fact about assessment of work and performance of an employee would not make the order of termination ipso facto punitive or stigmatic warranting any interference from this Court.
8. On this aspect of the matter we find that the issue is no more res integra having already been considered by the Apex Court time and again and it would be useful to refer some of such authorities which are binding upon this Court also.
9. In Dipti Prakash Banerjee v. Satyendra Nath Bose the order of termination mentions the word 'unsatisfactory work and conduct". After review of earlier entire case-law on the subject, the Apex Court did not find the aforesaid order to be stigmatic and held as under:
At the outset, we may state that in several cases and in particular in State of Orrisa v. Ram Narain Dass it has been held that the use of the word 'unsatisfactory work and conduct' in the termination order will not amount to a stigma.
10. Similarly, in Pavanendra Narayan Verma v. Sanjay Gandhi Post Graduate Institute of Medical Sciences and Anr. it was mentioned that 'the work and conduct was not found satisfactory'. Following Dipti Prakash Banerjee (Supra), the Apex Court in Pavanendra Narayan Verma (Supra) held as under:
Returning now to the facts of the case before us. The language used in the order of termination is that the appellant's "work and conduct has not been found to be satisfactory". These words are almost exactly those, which have been quoted in Dipti Prakash Banerjee's case as clearly falling within the class of non stigmatic orders of termination. It is, therefore, safe to conclude that the impugned order is not ex facie stigmatic.
11. In Dhananjay v. Chief Executive Officer, Zila Parishad, Jaina 2003 (96) FLR 1002 (S.C.) mention of the word 'suspension' in the order of termination was not held to be stigmatic or punitive. In State of U.P. and Ors. v. Ram Bachan Tripathi 2005(106)FLR 1214 the Hon'ble Apex Court considering as to when an order of termination simplicitor can be said to be stigmatic held as under.-
We shall first examine the plea relating to the stigma. Usually a stigma is understood to be something that is detraction from the character or reputation of a person. It is blemish, imputation, a mark or label indicating a deviation from a norm.
Mere description of a background fact cannot be called as stigma. In the termination order it was merely stated that the show cause notices were issued and there was no response. This can by no stretch of imagination be treated as a stigma as observed by the Tribunal and the High Court.
12. In Rajasthan State Road Transport Corporation and Ors. v. Zakir Hussain the Hon'ble Apex Court following its earlier judgment in the case of State of Uttar Pradesh and Anr. v. Kaushal Kishore Shukla held:
In State of Uttar Pradesh and Anr. v. Kaushal Kishroe Shukla this Court has observed in Para 6 as under:
The High Court held that the termination of respondent's services on the basis of adverse entry in the character roll was not in good faith and the punishment imposed on him was disproportionate. It is unfortunate that the High Court has not recorded any reasons for this conclusion. The respondent had earned an adverse entry and complaints were made against him with regard to the unauthorized audit of the boys fund in an educational institution, in respect of which a preliminary inquiry was held and thereupon, the competent authority was satisfied that the respondent was not suitable for the service. The adverse entry as well as the preliminary inquiry report with regard to the complaint of unauthorized audit constituted adequate material to enable the competent authority to form the requisite opinion regarding the respondent's suitability for service. Under the service jurisprudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service. If on the perusal of the character roll entries or on the basis of preliminary inquiry on the allegations made against on employee, the competent authority is satisfied that the employee is not suitable for the whereupon the services of the temporary employee are terminated, no exception can be taken to such an order of termination.
(emphasis added)
13. Similar situation arises in the case of State of Punjab v. Balbir Singh 2002(1) SCC 743. The order of discharge mention the words "unlikely to prove an efficient police officer." Further before passing the aforesaid order of discharge it appears that Shri Balbir Singh, who was found to have consumed liquor and misbehaved with a lady constable was medically examined and thereafter discharge order was passed. The appeal, which was filed before the Deputy Inspector General of Police, was rejected and while rejecting the appeal, he referred to the aforesaid facts and stated that the discharge order was correct. Shri Balbir Singh challenged the order of discharge on the basis of the averments contained therein as well as in the order of the Deputy Inspector General of Police. The Hon'ble Apex Court upholding the aforesaid order of discharge held as under;-
In the present case, order of termination cannot be held to be punitive in nature. The misconduct on behalf of the respondent was not the inducing factor for the termination of the respondent. The preliminary enquiry was not done with the object of finding out any misconduct on the part of the respondent, it was done only with a view to determine the suitability of the respondent within the meaning of Punjab Police Rule 12.21. 'The termination was not founded on the misconduct but the misbehaviour with a lady constable and consumption of liquor in office were considered to determine the suitability of the respondent for the job, in the loight of the standards of discipline expected from police personnel.
14. In Mathew P. Thomas v. Kerala State Civil Supply Corporation Ltd. and Ors. after following Dipti Prakash Banerjee (Supra) and Pavanendra Narayan Verma (Supra), the Hon'ble Apex Court has observed as under:
From a long line of decisions it appears to us that whether on order of termination is simplicitor or punitive has ultimately to he decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simplicitor falling in one or the other category, based on misconduct as foundation for passing the order of termination simplicitor or on motive on the ground of iinsuitability to continue in service. If the form and language of the so called order of termination simplicitor of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simplicitor or punitive. In cases where the services of a probationer are terminated by an order of termination simplicitor and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simplicitor, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simplicitor to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service as he is in reality removed from service on the foundation of his misconduct.
15. In Registrar, High Court of Gujarat and Anr. v. C.G. Sharma the Hon'ble Apex Court has held as under:
We are also satisfied, after perusing the Confidential Reports and other relevant vigilance filed etc. that the respondent is not entitled to continue as a judicial Officer. The order of termination is termination simpiicitor and not punitive in nature and, therefore, no opportunity needs to be given to the respondent herein. Since the overall performance of there was found to be unsatisfactory by the High Court during the period of probation. It was decided by the High Court that the services of the respondent during the period of probation of the respondent be terminated because of his unsuitability for the post. In this view of the matter, order of termination simplicitor cannot be said to be violative of Articles 14, 16 and 311 of the Constitution of India. The law on the point is crystallized that the petitioner remains probationer unless he has been confirmed on the basis of the work evaluation. Under the relevant Rules under which the respondent was appointed as a Civil Judge, there is no provision for automatic or deemed confirmation and/or deemed appointment on the regular establishment or post, and in that view of the matter, the contentions of the respondent that the respondent services were deemed to have been continued on the expiry of the probation period, are misconceived.
16. Thus as has been held by the Apex Court in Ram Bachan Tripathi (Supra) mere description of background fact cannot be treated to constitute stigma. The term 'stigma' has to be understood in its plain meaning as something that is detraction from the character or reputation of a person. It is blemish, imputation, a mark or label indicating a deviation from a norm. The assessment of work and performance and the recording of satisfaction of the authority concerned that he is not satisfied with the work and performance regarding fitness of the employee concerned would not make the order stigmatic since it is not a blemish on the character and reputation of the person concerned but it reflects on the capacity and efficiency of the incumbent with respect to the work for which he/she was employed.
17. In Allahabad Bank Officers Association and Anr. v. Allahabad Bank and Ors. the Apex Court while considering as to whether an order of compulsory retirement can be treated to be stigmatic and in what circumstances, held that if it contains an statement casting aspersion on the conduct of the employee, it would be stigmatie but if it merely highlights the unsuitability of the employee, it is an order simplicitor. The Court held that expression like "want of application", "lack of potential" and "found not dependable" when made in relation to the work of the employee would not be sufficient to attract the charge that they are stigmatie.
18. The aforesaid observation has been referred to and relied upon recently in Abhijit Gupta v. S.N.B. National Centre, Basic Sciences and Ors. observing:
The real test to be applied in a situation where an employee is removed by an innocuous order of termination is: Is he discharged as unsuitable or is he punished for his misconduct?....
19. Another argument was raised in Abhijit Gupta (Supra) that when the words referring to imsuitability etc. are mentioned in the order, if they are read by the future employer it may prejudice the future employment of the employee and in that view of the matter it should be treated to be stigmatie. However, the Apex Court rejected the above contention by relying on its earlier decision in Ravindra Kumar Misra v. U.P. State Handloom Corporation Ltd. and Anr. and it would be useful to reproduce para l2 and 13 dealing with the above contention as under:
12. -It referred to Dipti Prakash Banerjee (supra) and pointed out that in Dipti Prakash Banerjee (supra) the termination letter expressly made reference to an earlier letter which had explicitly referred to all the misconducts of the employee and a report of an inquiry committee which had found that the employee was guilty of misconduct and so the termination was held to be stigmatie and set aside. Finally, this Court said that whenever a probationer challenges his termination the court's first task will be to apply the test of stigma or the form' test. If the order survives this examination the 'substance' of the termination will have to be found out. What this Court further observed in para 29 is crucial and of great relevance:
Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or inaptitude, whatever the language used in the termination order may be. Although strictly speaking the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above meter unsuitability for the job.
13. In the case of the appellant before us, the record in uncertain terms makes it clear that every time the appellants attention was drawn to his deficiencies and he was repeatedly advised to improve his behaviour, conduct and discharge of work. True, that in some of the letters there was intemperate language used (the appellant was also equally guilty of doing that). Notwithstanding the intemperate language, we are unable to accept the contention of the appellant's counsel that the letter dated 7-4-1998 indicates that the appellant was being charged with the misconduct and, therefore, being removed from service. Read as a whole, the letter gives the impression that the removal of the appellant from service was only because the respondents, after giving a long rope to the appellant, had come to the conclusion that the appellant's service was unsatisfactory and there was no hope of his improvement.
20. The order of termination simplicitor, it is no doubt, can be passed by the employer in accordance with the terms of appointment or the relevant rules since a temporary employee or a probationer has no right to hold the post and is liable to be terminated in accordance with law. The order of termination simplicitor can be challenged on the ground of being violative of rule or if it is by way of punishment founded on misconduct. The distinction between foundation and motive has been explained in Dipti Prakash Banerjee (Supra), and in para 21 of the judgement below as under:
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. From a long line of decisions it appears to us that whether an order of termination is simplicitor or punitive has ultimately to he decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simplicitor or on motive on the ground of unsuitability to continue in service.
(emphasis added) When the factual scenario of the present case is considered in the background of legal principles set out above, the inevitable conclusion is that the High Court was not justified in interfering with the order of termination.
21. The petitioner in the present case was also similarly not only given opportunity to improve herself but even period of probation was extended yet she could not avail opportunity and the authorities found her unsuitable for the job and unfit for confirmation.
22. Considering the facts of the present case as well as after careful reading of the impugned order of termination and the law laid down in above discussed authorities, we are clearly of the view that the impugned order of termination is neither founded on alleged misconduct of the petitioner nor can be said to be stigmatic nor is vitiated on account of alleged biased or colourable exercise of power on the part of the appointing authority. The writ petition, therefore is devoid of merit and is accordingly dismissed.