Gujarat High Court
Swati Amritsagar Tripathi vs State Of Gujarat on 2 December, 2024
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/3903/2021 ORDER DATED: 02/12/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3903 of 2021
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 3903 of 2021
==========================================================
SWATI AMRITSAGAR TRIPATHI
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
SUDHANSHU A JHA(8345) for the Petitioner(s) No. 1
MS. NIRALI SARDA, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1
JWALIT B SONEJI(7895) for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 02/12/2024
ORAL ORDER
1. Heard learned advocate Mr. Sudhanshu Jha for the petitioner, learned AGP Ms. Nirali Sarda for the respondent no. 1 - State and learned advocate Mr. Jwalit B. Soneji for the respondent no. 2 - Children's University.
2. By way of this petition, the petitioner has prayed for quashing and setting aside the order dated 09.02.2021 passed by the respondent no. 2 - University whereby the petitioner was relieved from the services of university with immediate effect. Page 1 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024
NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined According to the petitioner, though the petitioner is a probationer, the aforesaid termination order is stigmatic one and therefore, this Court is required to interfere with the aforesaid order of termination.
3. The brief facts giving rise to the present petition as stated by learned advocate Mr. Jha are as under:-
3.1. It is the case of the petitioner that the respondent no. 2 -
University had issued an advertisement dated 13.11.2019 whereby different candidates were called in the recruitment including the petitioner. The advertisement was given being advertisement no. 1 of 2019 for various subjects for the post of Professor, Associate Professor and Assistant Professor. The candidate was required to apply online for the aforesaid post, pursuant to which the petitioner also applied for the post of Asst. Professor in the subject of performing Arts and after due process of recruitment, she was appointed as Assistant Professor vide order dated 08.02.2020. As per the appointment order dated 08.02.2020, the petitioner was Page 2 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024 NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined appointed as Asst. Professor (performing Arts), on probation for a period of one year from the date of joining the duty and if found unsatisfactory performance, the probation period may be extended for another one year in the Academic Level-10 and her appointment would be governed by the Rules and Regulations of the Children's University / U.G.C./ State Government alongwith the advertisement, general instructions also was published and for the purpose of determining the issue, it is an undisputed fact that instructions no. 37 and 38 are relevant which are reproduced as under:-
37. Every person appointed permanently to a post in the University by direct recruitment, shall be on probation in such post for a period of two years in the first instance, provided that the appointing authority may, in any individual case, extend the period of probation to such extent as it may deem necessary, the reasons thereof to be recorded in writing.
38. Whether a person has not completed his period of probation satisfactorily, the appointing authority may terminate his services under the University without any notice and assigning any reason thereof.
3.2. So pursuant to the petitioner's appointment vide appointment order dated 08.02.2020, the petitioner started Page 3 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024 NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined performing her duty and thereafter, upon completion of one year service, the petitioner was served with the impugned order dated 09.02.2021 whereby the petitioner was relieved from services of the university with immediate effect. The order indicates that the order was issued as per the Executive Council Resolution No. 3.
3.3. Though the order does not state any reason behind terminating the services of the petitioner, learned advocate Mr. Jha appearing for the petitioner submitted that the order of termination is stigmatic for the reason that the petitioner's confidential reports are good and there is nothing adverse found against the present petitioner, even the head of the department also recommended the case of the petitioner for regularizing the petitioner's job, the fact remains that the petitioner's service was terminated vide order dated 09.02.2021 and that is the order which is subject matter of challenge.
4. This Court had issued notice in this petition vide order dated Page 4 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024 NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined 25.02.2021 and thereafter, the matter was adjourned from time to time. In the meantime, respondent no. 2 filed affidavit-in-
reply and additional affidavit, rejoinder also was filed by the petitioner and that is how the pleadings are completed, the matter was taken up for finally with the consent of all the parties.
5. At the outset, an objection in respect of maintainability of the petition on the ground of availability of alternative remedy was taken by learned advocate Mr. Soneji. However, learned advocate Mr. Sudhanshu Jha appearing for the petitioner insisted for taking up the matter despite the availability of the alternative remedy and insisted for deciding the matter on merits simply for the reasons that the matter is pending before this Court since 2021 and therefore, according to learned advocate Mr. Jha, the availability of alternative remedy which is not a bar in entertaining the present petition, the petition may be heard on merits irrespective of whether the alternative remedy is available to the petitioner or not and therefore, the matter was taken up and was heard finally with the consent of Page 5 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024 NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined parties.
6. Learned advocate Mr. Jha appearing for the petitioner made following submissions:-
6.1. that the petitioner is having a bright academic carrier and her performance all throughout was excellent. She was called for Bihar Public Service Commission for interview also which she did not appear as she was selected in the present job.
6.2. In sum and substance, learned advocate Mr. Jha tried to project the petitioner as a person with a brilliant academic career, having knowledge of Gujarati and outstanding performance during her service tenure.
6.3. According to learned advocate Mr. Jha, the present petitioner is all India topper in Senior Research Fellowship which is conducted by U.G.C. and therefore, looking to the brilliant academic carrier of the petitioner, the petitioner's services ought not to have been put to an end by way of Page 6 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024 NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined order dated 19.02.2021 which does not assign any reasons for relieving the petitioner's services and therefore, according to learned advocate Mr. Jha, when the petitioner's performance was satisfactory and her case was recommended by the head of the department for permanency, the authority ought not to have terminated the petitioner's services without assigning any reasons. Though learned advocate Mr. Sudhanshu Jha made lengthy submissions, this was the sum and substance of the submission made by learned advocate Mr. Jha and the aforesaid submissions were not backed by any decisions as this Court repeatedly asked Mr. Jha that whether he is relying upon the decision or not, learned advocate Mr. Jha could not point out a single decision in support of the submission of the petitioner. All that was submitted by learned advocate Mr. Jha was that the termination of the petitioner's job can be said to be stigmatic as the respondents have not assigned any reason while terminating the petitioner's services and the petitioner was singled out Page 7 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024 NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined being a non Gujarati and that was the real reason behind terminating the services of the petitioner.
6.4. Except for the above submissions, no other submissions were made by learned advocate Mr. Jha appearing for the petitioner.
7. Learned advocate Mr. Soneji appearing for the respondent no.
2 - University submitted that the petitioner being a probationer, she has no absolute right to be continued in the job, the order whereby the petitioner's services were put to an end cannot be termed as a stigmatic order simply for the reason that the order does not give any reason behind the petitioner's termination and therefore, it does not cast any stigma. According to learned advocate Mr. Soneji, it is only, in case if by assigning some reasons without following due procedure like holding departmental inquiry etc., if a person is terminated then only the order would become stigmatic but in the instant case, as the petitioner's services was not found to be satisfactorily, on the basis of Resolution No. 3 passed by Page 8 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024 NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined the Executive Council, it was decided unanimously to relieve the petitioner from the services and that is how the order dated 09.02.2021 was passed.
7.1. Learned advocate Mr. Soneji relied upon the following decisions in support of the submission that a probationer's services can be terminated any time and its a purely prerogative of the appointing authority to terminate the services of the probationer and the probationer has no right to the post.
(1)in case of State of Punjab and others V/s. Sukhwinder Singh reported in 2005 5 SCC 569 (2)the decision of the Hon'ble Supreme Court in case of T.C.M. Pillai V/s. Indian Institute of Technology, Guindy, Madras reported in 1971 2 SCC 251 (3)the decision of Hon'ble Supreme Court in case of State of Punjab and Others V/s. Jaswant Singh passed in Civil Appeal No. 11871 and 11634 of 2014 decided on 05.09.2023 and (4) decision of this court in case of Jayeshkumar Page 9 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024 NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined Pitamberbhai Patel V/s. Director General in Special Civil Application No. 12359 of 2015 decided on
08.07.2019 7.2. By relying upon the above decisions and by canvassing the aforesaid propositions of law, learned advocate Mr. Soneji tried to justify the action of the respondent in relieving the petitioner by stating that the aforesaid action cannot be termed as stigmatic action and therefore, this Court may not interference with the order of relieving the petitioner. He prayed for dismissal of this petition.
8. I have heard the learned advocates for the parties and perused the record. On perusal of record, I found that the order of termination dated 09.02.2021 does not assign any specific reason for terminating the services of the petitioner. The short order which reads as under:-
With reference to the advertisement dated 14/11/2019, you were appointed as Assistant Professor (Performing Arts) on probation period of one-year wide appointment letter No.: CU/ Rec./Order/2020/Hi-2664 dated: 08/02/2020, with effect from dt: 10/02/2020.
As per the terms of advertisement dated 14/11/2019, your Page 10 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024 NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined appointment and Rules and Regulations of university, you are hereby relieved from the services of university with immediate effect.
You are requested to handover your charge to Dr. Ninalba Jadeja and also requested to handover all the belongings of University to Dr. Minalba Jadeja. Your legal dues will be credited in your bank account.
This order is issued as per the Executive Council Resolution No. 3.
9. Now what is required to be seen is whether the respondents are justified in passing the above order or not. The petitioner has placed on record the general instructions, essential information and clarifications issued alongwith the advertisement for recruitment to the post of Asst. Professor. What is relevant for the purpose of deciding this petition is instructions no. 37 and 38 which are reproduced as under:-
37. Every person appointed permanently to a post in the University by direct recruitment, shall be on probation in such post for a period of two years in the first instance, provided that the appointing authority may, in any individual case, extend the period of probation to such extent as it may deem necessary, the reasons thereof to be recorded in writing.
38. Whether a person has not completed his period of probation satisfactorily, the appointing authority may terminate his services under the University without any notice and assigning any reason thereof.Page 11 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024
NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined
10. The instruction no. 37 provides that every person appointed permanently to a post in the University by direct recruitment, shall be on probation in such post for a period of two years in the first instance and in given case, the period of probation can be extended also by recording the reasons in writing. The instruction no. 38 empowers the university to terminate the services of a person who has not completed the period of probation satisfactorily without any notice or assigning the reason thereof. Meaning thereby, instruction no. 38 empowers the university to terminate a person's services without assigning any reasons or even notice, in case, if services are found to be unsatisfactorily. Therefore, in light of above two instructions, the petitioner's termination order is required to be considered.
11. During the course of hearing, learned advocate Mr. Soneji places on record the relevant portion of the minutes of Executive Council of a meeting which was held on 07.02.2021 whereby by way of Resolution no. 3, the Executive Council Page 12 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024 NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined has considered the services of various Professors, Asst. Professors and Associate Professors and as can be seen from the abstract of the Resolution no. 3, in all 12 persons who were on probation in a cadre of Professor, Asst. Professor and Associate Professor, their services were regularized upon completion of probation, one year probation period in respect of 5 persons was extended for further period of one year and it is only the present petitioner whose services was resolved to be put to an end unanimously by the Executive Council. Even the aforesaid minutes of the resolution also does not speak anything about any reason which would cast any stigma upon the present petitioner.
12. Now in this background, I have to consider the relevant decisions which are relied upon by learned advocate Mr. Soneji appearing for the respondent no. 2 - University. He relied upon the decisions of the Hon'ble Supreme Court in case of State of Punjab and others V/s. Sukhwinder Singh reported in 2005 5 SCC 569 and in the aforesaid decision, the Hon'ble Supreme Court in paragraphs no. 16 to 20 has Page 13 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024 NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined observed as under:-
16. Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences is a recent decision of this Court where, after referring to large number of earlier decisions, the law on the point has been very clearly elucidated in the following manner :-
"One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing the termination has been upheld.
* * * 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 ineptitude, 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..... In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job."
17. State of Punjab and others vs. Balbir Singh is a direct case on Rule 12.21 of the Rules. Here also after considering large number of earlier decisions the Court laid down the following principle: -
"The order of discharge simpliciter, prima facie, is not punitive, it being in terms of Punjab Police Rule 12.21 but the question still is whether the incident which led to the passing of that order was motive or inducing factor or was the foundation of order of discharge.
In order to determine whether the misconduct is motive or foundation of order of termination, the test to be applied is to ask Page 14 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024 NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined the question as to what was the 'object of the enquiry'. If an enquiry or an assessment is done with the object of finding out any misconduct on the part of the employee and for that reason his services are terminated, then it would be punitive in nature. On the other hand, if such an enquiry or an assessment is aimed at determining the suitability of an employee for a particular job, such termination would be termination simpliciter and not punitive in nature. The other test to determine whether, in substance, the order of discharge is punitive in nature is to ascertain the 'nature of enquiry' i.e. whether the termination is preceded by a full-scale formal enquiry into allegations involving misconduct on the part of the respondent, which culminated in the finding of guilt, and the 'purpose of the enquiry' i.e. whether the purpose of the enquiry is to find out any misconduct on the part of the employee or it is aimed at finding out as to the respondent being unlikely to prove as an efficient police officer."
18. The learned counsel for the respondent has also placed reliance on Smt. Rajinder Kaur vs. Stat of Punjab which is a decision by a Bench of two learned Judges. In this case the appellant was appointed as a lady constable on 7.5.1979 and after completion of training she was posted in the police lines in March, 1980. The Superintendent of Police, Hoshiarpur, discharged the appellant by order dated 9-9-1980 under Rule 12.21 of the Rules. The order of discharge read as under: -
"Lady Constable Rajinder Kaur No. 732 is unlikely to prove an efficient police officer. She is, therefore, hereby discharged from the Police Force under Punjab Police Rules 12.21 with effect from today (9-9-1980).
Issue order in O.R. and all concerned to notice and necessary action." The main contention on behalf of the appellant was that an inquiry was made by the Deputy Superintendent of Police as to the character of the appellant into the allegation that she stayed at Mahalpur for one or two nights with one constable Jaswant Singh and evidence was recorded therein without giving the appellant any opportunity of hearing or to cross-examine the witnesses and the impugned order was made after completion of the investigation on the ground of her misconduct which cast a stigma on her service career. This contention was accepted and on the finding that though the order of discharge stated to be made in accordance with the provisions of Rule 12.21 Page 15 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024 NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined of the Rules, it was really made on the basis of the misconduct as found on inquiry into the allegation behind her back and further that though the order was couched in innocuous terms, the order was merely camouflage for an order of dismissal from service on the ground of misconduct, the impugned order of discharge was set aside. With respects we are unable to agree with the view taken in this case. As discussed earlier the consistent view of this Court is that even if some kind of preliminary inquiry or fact finding inquiry is held in which the employee is not afforded an opportunity of hearing, the order of discharge of a probationer cannot be treated as an order of punishment as the appointing authority has to necessarily ascertain all the relevant facts before taking a decision whether the probationer should be retained in service or not. The decision in Rajinder Kaur vs. State of Punjab is hereby over-ruled.
19. It must be borne in mind that no employee whether a probationer or temporary will be discharged or reverted, arbitrarily, without any rhyme or reason. Where a superior officer, in order to satisfy himself whether the employee concerned should be continued in service or not makes inquiries for this purpose, it would be wrong to hold that the inquiry which was held, was really intended for the purpose of imposing punishment. If in every case where some kind of fact finding inquiry is made, wherein the employee is either given an opportunity to explain or the inquiry is held behind his back, it is held that the order of discharge or termination from service is punitive in nature, even a bona fide attempt by the superior officer to decide whether the employee concerned should be retained in service or not would run the risk of being dubbed as an order of punishment. The decision to discharge a probationer during the period of probation or the order to terminate the service of a temporary employee is taken by the appointing authority or administrative heads of various departments, who are not judicially trained people. The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. As mentioned earlier a probationer is on test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision Page 16 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024 NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry "for the purpose of imposing punishment" and an order of discharge or termination of service as a result thereof "punitive in character", the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong.
20. In the present case neither any formal departmental inquiry nor any preliminary fact finding inquiry had been held and a simple order of discharge had been passed. The High Court has built an edifice on the basis of a statement made in the written statement that the respondent was habitual absentee during his short period of service and has concluded therefrom that it was his absence from duty that weighed in the mind of Senior Superintendent of Police as absence from duty is a misconduct. The High Court has further gone on to hold that there is direct nexus between the order of discharge of the respondent from service and his absence from duty and, therefore, the order discharging him from service will be viewed as punitive in nature calling for a regular inquiry under Rule 16.24 of the Rules. We are of the opinion that the High Court has gone completely wrong in drawing the inference that the order of discharge dated 16.3.1990 was, in fact, based upon the misconduct and was, therefore, punitive in nature, which should have been preceded by a regular departmental inquiry. There cannot be any doubt that the respondent was on probation having been appointed about eight months back. As observed in Ajit Singh and others etc. vs. State of Punjab and another (supra) the period of probation gives time and opportunity to the employer to watch the work ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserves a right to dispense with his service without anything more during or at the end of the prescribed period, which is styled as period of probation. The mere holding of preliminary inquiry where explanation is called from an employee would not make an otherwise innocuous order of discharge or termination of service punitive in nature. Therefore, the High Court was clearly in error in holding that the respondent's absence from duty was the foundation of the order, which necessitated an inquiry as envisaged under Rule 16.24(ix) of the Rules.
13. The decisions referred to in paragraphs no. 16 to 18 in Page 17 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024 NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined the above judgment would indicate that a termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.
14. Similarly, in other decision relied upon by learned advocate Mr. Soneji, in case of State of Punjab and Others V/ s. Jaswant Singh reported in 2023 9 SCC 150, the Hon'ble Supreme Court relied upon the series of judgments including the judgment in case of Sukhwinder Singh (supra) and allowed the appeal preferred by the State of Punjab.
15. in case of T.C.M. Pillai V/s. Indian Institute of Technology, Guindy, Madras reported in 1971 (2) SCC 251, the Hon'ble Supreme Court has in paragraphs no. 7 and 8 has observed as under:-
7. It is well settled that a probationer or a temporary servant can be discharged if it is found that he is not suitable for the post which he is holding. This can be done without complying with the provisions of Article 311(2) unless the Page 18 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024 NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined services are terminated by way of punishment. Suitability does not depend merely on the excellence or proficiency in work. There are many factors which enter into consideration for confirming a person who is on probation. A particular attitude or tendency displayed by an employee can well influence the decision of the confirming authority while judging his suitability or fitness for confirmation.
8. In the present case the Board of Governors consisted of a number of distinguished and well known academicians and teachers. Although there is a mention in the resolution about the confidential reports by the Head of the Department and the Director but they have not been placed on the record.
Even assuming that those reports were favourable so far as the academic work of the appellant was concerned the Board was entitled to take into consideration the other matters which have already been mentioned for the purpose of deciding whether he should be confirmed or whether he should be given a notice of one month as per the terms of the letter of appointment. The Board decided to adopt the latter course. By no stretch of reasoning can it be said that the appellant had been punished and that his services had been dispensed with as a penal measure.
16. Even this Court has also, in case of Jayeshkumar Pitamberbhai Patel V/s. Director General in Special Civil Application No. 12359 of 2015 decided on 08.07.2019 by relying upon the decision in case of Sukhwinder (supra) in paragraphs no. 31 to 34 observed as under:-
31. Further, one of the judicially evolved tests, by the Apex Court, viz. (a) a full scale formal inquiry, (b) into allegations involved moral turpitude or misconduct, (c) which culminated in a finding of guilt, is not present in the decision making process. Thus, in absence of the above mentioned test present Page 19 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024 NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined in the decision making process, the order dated 11.6.2015 terminating the service of the petitioner cannot be construed to be stigmatic or punitive.
32. It is well established that if all the three factors are present, the termination has to be held as punitive, irrespective of the form of the termination order. However, if any one of the three factors is missing, the termination cannot be interfered with. A bare perusal of the material available on record suggests that no full-fledged inquiry was conducted into the allegations of misconduct to find out the guilt against the petitioner. In absence of any inquiry it can be safely concluded that proved misconduct as a result of full scale inquiry was not the foundation, for passing the order dated 11.6.2015. It is not the case of the petitioner that some inquiry was held behind the back of the petitioner and that the charges of misconduct have been proved, without giving the petitioner an opportunity of hearing and that the order is passed on the basis of the established misconduct.
33. As mentioned herein above, in the present case, the Respondent No.1 has objectively assessed the performance of the petitioner on the basis of the service record and has taken a decision not to continue the petitioner. Pertinently, Condition No.11 confers liberty / discretion in favour of the Authority to the effect that if during the period of probation, the behaviour and conduct of the employee concerned towards the members of the staff, is not found satisfactory or if he / she indulges in such activities prejudicial to the academic life and atmosphere of the University, the services of the employee concerned are liable to be terminated either before or on the expiry of the period of probation. Taking recourse to the said condition, the Respondent No.1 has taken the decision.
34. Perused the notings in file. It is clear that the factor which weighed with the Respondent No.1 was unsuitability of the petitioner for the post and decision was taken not to continue him. In such an eventuality, it cannot be said that the proved misconduct was the reason for passing the order of termination. In view of the aforementioned discussion, the order under challenge cannot be construed to be stigmatic or Page 20 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024 NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined punitive in nature and thus, the contention that the order dated 16.5.2014 is in violation of principles of natural justice, pales into insignificance.
17. A cumulative reading of all the aforesaid decisions which has relied upon by learned advocate Mr. Soneji would indicate that the test to determine as to whether an order of termination is punitive or not, whether prior to the termination there was (a) a full-scale formal enquiry or not (b) whether the allegations involving moral turpitude or misconduct which (c) culminated in a finding in guilt or not and if all the aforesaid three factors were present in the termination, the order of termination can be said to be punitive but a simple order of termination cannot be said to be stigmatic. Further, as held by by the Hon'ble Supreme Court in case of Sukhwinder Singh (supra) that a probationer has no right to the post and the superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability of the job. A probationer is on Page 21 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024 NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined test and a temporary employee has no right to the post.
18. As regards the recommendation to make the petitioner's permanent by the head of the department made by learned advocate Mr. Jha, the direct answer is observation made by the Hon'ble Supreme Court in paragraph no. 7 of decision in case of T.C.M. Pillai V/s. Indian Institute of Technology, Guindy, Madras whereby the Hon'ble Supreme Court has taken a view that suitability does not depend merely on the excellence or proficiency in work. There are no factors which enter into consideration for confirming a person who is on probation. A particular attitude or tendency displayed by an employee can well influence the decision of the confirming authority while judging his suitability or fitness for confirmation and therefore, even if a petitioner's case is recommended by an individual say for example head of department, the same cannot be said to be the sole criteria or sole determining factor to confirm him/ her in the job.
19. In view of above decisions as well as considering the Page 22 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024 NEUTRAL CITATION C/SCA/3903/2021 ORDER DATED: 02/12/2024 undefined various judgments relied upon by the respective parties and as the above judgments coupled with the facts of the case indicates that the order passed by the respondent relieving the petitioner from the services cannot be said to be a punitive order as well as considering the fact that the petitioner was holding a probationer's post which would not create any right in favour of the petitioner, the present order of termination which is under challenged cannot be said to be arbitrary or illegal. Therefore, the same is not required to be interfered with. Accordingly, the present petition is required to be dismissed and the same is dismissed. Notice is discharged.
20. In view of dismissal of main matter, connected civil application would not survive and the same is also disposed of.
(NIRZAR S. DESAI,J) VARSHA DESAI Page 23 of 23 Uploaded by VARSHA DESAI(HC01393) on Sat Dec 07 2024 Downloaded on : Mon Dec 09 21:17:56 IST 2024