Calcutta High Court (Appellete Side)
Adinath Das vs Union Of India & Ors on 17 August, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Ashim Kumar Banerjee
-And-
The Hon'ble Justice Dr. Mrinal Kanti Chaudhuri
W.P.C.T. 210 of 2011
Adinath Das
-Versus-
Union of India & Ors.
For Petitioner : Mr. Chiradip Sinha
For Respondents/ : Mr. Kishore Dutta
SRFTI Ms. Sumita Shah Judgment on :- August 17, 2011
The petitioner was appointed as 'Dean' on condition that he would have to serve the Satyajit Roy Film & Television Institute two years as probation and if found satisfactory, he would be confirmed in the post. During probationary period, he was communicated adverse remark to the extent that his work was not satisfactory. The Governing Council extended the probationary period for six months allowing him to improve his conduct. Being not satisfied with his performance, the Chairman, Governing Council passed an order, terminating his service with effect from October 13, 2009. However, the order of termination appearing at pages 47-48 would show that the letter was dated October 13, 2009, whereas Shri Adinath Das was terminated "from today, the 12th October 2009". Being aggrieved, the petitioner preferred an appeal. The Appellate Authority considered his appeal and rejected the same as communicated by the Memo dated December 30, 2009 appearing at pages 57-59 of the petition. Being aggrieved, the petitioner approached the Tribunal, ventilating his grievance against the order of termination. Upon considering rival contentions, the Tribunal came to a finding that the term of the appointment was clear to the fact that the post was temporary one and not substantive. The Tribunal also observed that since the post was not substantive he was not entitled to claim substantive appointment as 'Dean'. The Tribunal rejected the petitioner's contention that he acquired substantive status as 'Dean' since he was holding a post as 'Director-in-Charge'. The Tribunal dismissed the application finding it meritless. Hence, this petition before us.
Mr. Chiradip Sinha, le;arned Counsel appearing for the petition contends as follows :-
i. Since the petitioner was working on probation and the probationary period was extended, he could not have been terminated without assigning any reasons, particularly when the Authority considered the adverse remark on his Annual Confidential Report, so communicated to him.
ii. The Authority should have granted opportunity to the petitioner to show cause and/or explain his conduct before passing the order of termination.
iii. The petitioner was on extraordinary leave for the period October 05 to September 17, 2009. Hence, the Authority could not have passed the order within the said period and communicated the same to the petitioner.
iv. During the period when adverse remark was made the petitioner was asked to hold addition charge for the post of Director hence, it would conclusively infer that the adverse remark stood waived.
v. The petitioner submitted representation against the adverse remark.
Without disposing of the same, the Authority could not have passed the order of termination.
vi. The adverse remark so communicated to the petitioner was illegal and/or irregular in absence of the seal of approval by the reviewing Authority, which was conspicuously lacking.
vii. Two contradictory adverse remarks for the identical period were communicated, which would show that the Authority was not definite on the issue.
viii. The Authority was so bias that the Disciplinary Authority acted as the Appellate Authority as would appear from the order of the Appellate Authority.
ix. The order of termination was vitiated by illegality and could not be given effect to.
Opposing the application Mr. Kishore Dutta, learned Counsel appearing for the Institute contends as follows :-
i. The order of termination was not based on adverse remark as would be appearing from the order itself.
ii. Since, the Authority made no confirmation, the petitioner was continuing on probation and the Authority was well within their right to terminate him without assigning any reason.
iii. Holding of additional charge was not promotional as erroneously contended by the petitioner hence, no extra weightage could be given on such happening.
iv. Clause 5 of the Office Memorandum dated May 19, 1983 would show that the confirmation was not automatic but to be followed by a formal order. In absence of any formal order, the petitioner was not entitled to claim that he stood confirmed on the expiry of probationary period.
While replying to the submissions made by Mr. Dutta, Mr. Sinha has contended that on a plain reading of the order of termination and the order of the Appellate Authority it would clearly appear that the adverse remarks were taken into account. Hence, the petitioner was entitled to defend himself in a regular proceeding to be had before issuing the order of termination. He further contendes, even if the holding of the post of Director could be said to be an additional charge, such post being the Supreme Authority of the Institute was entrusted to the petitioner obviously considering his unblemished service career. The Authority was bias in issuing the order of termination.
Mr. Sinha has also relied upon paragraph 4 of the Digest of Confidential Reports by Swamy's Compilation, wherein it appears that the annual report should be recorded within one month of the expiry of the report period. If there is any delay in submission of self-appraisal, the reporting Officer should give the report without self-appraisal.
We have considered the rival contentions. In our view, the post is purely a temporary one. As per Clause 5, the confirmation is not an automatic process. It must be followed by specific written order to be communicated to the employee. Admittedly, such order was not issued in case of the petitioner hence, he was continuing in probation. During the probationary period, the concerned employee can be terminated without any regular disciplinary proceeding being had. It is well settled principles of law that in case any stigma is attached with the order of termination, the concerned employee would deserve a regular departmental enquiry so that he could defend himself in the said proceeding. In the instant case, the order of termination did not attach any stigma. The Authority was not satisfied with the performance hence, they issued the order of termination, which does not deserve any interference by the Court of law.
It is true that some adverse remarks were communicated to him earlier. It is also true that the petitioner has also filed representations as against those adverse remarks. The Authority possibly did not consider it necessary to deal with those representations as according to them performance of the petitioner was not up to the mark. Hence, they terminated his service during the probationary period. The petitioner was holding a very high position in the Institute. The Governing Council of the Institute considered his appeal and ultimately rejected the same. They thought it fit to relieve the petitioner of his duty and accordingly terminated his service. The Tribunal, in our view, very rightly declined to interfere, so are we.
The application fails and is hereby dismissed without any order as to costs.
Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis.
( Banerjee, J.) ( Dr. Mrinal Kanti Chaudhuri, J.) akb