Punjab-Haryana High Court
Diljit Singh Son Of Santokh Singh vs State Of Punjab And Others on 9 March, 2011
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Civil Writ Petition No.17187 of 1991 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of Decision:-9. 3.2011
Diljit Singh son of Santokh Singh ...Petitioner
Versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.Ravi Kapoor, Advocate for the petitioner.
Mr.R.S.Rawat, Assistant Advocate General, Punjab for
respondents No.1 and 3.
Mr.Satya Pal Jain, Senior Advocate with
Mr.Dheeraj Jain, Advocate for respondent Nos.2 and 4.
Mehinder Singh Sullar, J.
The contour of the facts, which requires to be noticed for the limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the record, is that the Managing Committee of the respondent Mehar Chand Polytechnic College, Jalandhar (respondent No.2) (for brevity "respondent-College") used to receive 95 per cent grant-in-aid from the Punjab Government. The State Government is stated to have effective control over its affairs and it is also controlled by All India Council for Technical Education (for short "AICTE").Thus, it is an instrumentality of the State and is covered under Article 12 of the Constitution of India, as held by this Court in case C.L.Kochhar v. State of Punjab and others 1992 (2) S.L.R. 496.
2. The petitioner claimed that he was appointed as Senior Lecturer in Pharmacy by the respondent-College, by virtue of appointment letter dated 29.1.1990 (Annexure P1), but its principal unilaterally changed his terms and conditions of service, by way of letter dated 23.5.1990 (Annexure P2). In pursuance of letter dated 21.1.1991 (Annexure P3), increment of ` 100/- per Civil Writ Petition No.17187 of 1991 2 month was granted to the petitioner w.e.f. 1.1.1991 in the pay scale of ` 3000-4500 raising his pay from ` 3000 to ` 3100/- per month. The principal of the respondent-College was stated to have illegally terminated the services of the petitioner, without issuing any show cause notice or holding any inquiry, by means of impugned order dated 30.10.1991 (Annexure P4).
3. The petitioner did not feel satisfied and preferred the instant writ petition, challenging the impugned termination order (Annexure P4), invoking the provisions of Article 226 of the Constitution of India.
4. The case set up by the petitioner, in brief in so far as relevant, was that Managing Committee of respondent-College was the appointing and punishing authority of the petitioner, but his services were terminated by its Principal (respondent No.4), vide impugned order (Annexure P4) in an arbitrary manner, without issuing any show cause notice and affording opportunity of being heard to him. Petitioner claimed that although the impugned termination order caused aspersion on his conduct and is a stigmatic order, but still his services were terminated without following the due procedure of inquiry and in complete violation of the principles of natural justice. It was explained that his work and conduct had throughout been satisfactory and since no deficiency or discrepancy in his work and conduct was ever conveyed to him, so, the conclusion drawn by the respondent-College in this regard was stated to be arbitrary and without any basis.
5. Levelling a variety of allegations and narrating the sequence of events, in all, according to the petitioner that no show cause notice was issued, no opportunity of being heard was granted to him and as no inquiry was conducted, therefore, the impugned stigmatic/punitive termination order is not only illegal, arbitrary and without jurisdiction, but against the rules and principles of natural justice as well. On the basis of aforesaid allegations, petitioner sought the quashment of the impugned termination order (Annexure P4), in the manner indicated hereinabove.
Civil Writ Petition No.17187 of 1991 3
6. The respondents No.2 to 4 contested the claim of the petitioner and filed their joint written statement, inter-alia pleading certain preliminary objections of, maintainability of the writ petition, cause of action and locus standi of the petitioner on the ground that the respondent-College is not an instrumentality of the State and covered under Article 12 of the Constitution of India. On merits, the factual matrix of appointment of petitioner was admitted. It was submitted that two years' diploma in Pharmacy was started in the year 1987 under the Plan Scheme approved by the Government and the petitioner was appointed on temporary basis. As the work and conduct of the petitioner was not satisfactory, therefore, he was given chances to improve, but his work and conduct remained totally un- satisfactory. The increment was stated to have been granted to the petitioner as a matter of good-will gesture, after completion of one year's service and the period of his probation was extended for another one year. The services of the petitioner were stated to have been terminated by the Principal on the direction of Management of the respondent-College, by virtue of letter dated 16.8.1991 (Annexure R3).
7. The respondent-College claimed that petitioner was given proper opportunity before his services were terminated. He was asked to explain the position regarding his absence from the respondent-College, by means of letter dated 26.3.1990 (Annexure R4). He was again asked to explain as to why he did not submit the medical certificate for onward transmission to the Director, Technical Education, Punjab, Chandigarh (respondent No.3) and also why he did not inform earlier for making alternative arrangements, by way of letter dated 29.3.1990 (Annexure R5). In the same manner, letter dated 20.8.1991 (Annexure R6) was written to the petitioner, informing about his short comings and unsuitability.
8. The total sum and substance of the case of the respondent-College is that as the work and conduct of the petitioner was not satisfactory, therefore, he Civil Writ Petition No.17187 of 1991 4 was issued the letters (Annexures R4 to R6) to give him chances to improve, but in vain. The impugned termination order was stated to be neither stigmatic nor punitive. Thereafter, his services were rightly terminated, vide impugned order (Annexure P4), which was stated to be legal and valid. It will not be out of place to mention here that the contesting respondents have stoutly denied all other allegations contained in the writ petition and prayed for its dismissal.
9. Controverting the allegations contained in the written statement and reiterating his pleadings in the writ petition, the petitioner filed the replication. That is how, I am seized of the matter.
10. Assailing the impugned termination order, the learned counsel for the petitioner vehemently argued that the appointment/punishment authority of the petitioner was Managing Committee and the impugned termination order (Annexure P4) passed by its principal is illegal. The argument is that it is clear from the record and the letters (Annexures R4 to R6) that the impugned termination order is a stigmatic order. Since neither any show cause notice was issued nor any inquiry was conducted nor any opportunity of being heard was granted to the petitioner, so, the impugned termination order (Annexure P4) is arbitrary, illegal and void. In support of his contention, he has placed reliance on the judgments of Hon'ble Apex Court in cases Debesh Chandra Dass v. Union of India and others 1969 S.L.R. 485 (SC); V.P.Ahuja v. State of Punjab & Ors. 2000(2) S.L.R. 1 (SC) and this Court in case State of Punjab and another v. Darshan Singh 1968 S.L.R.734 (P&H).
11. On the contrary, hailing the impugned order and taking the benefit of his usual ability, the learned counsel for the contesting respondents urged that as the impugned termination order (Annexure P4) is neither stigmatic nor punitive and has been rightly passed by the Managing Committee and conveyed to its principal, by way of letter (Annexure R3), therefore, the petitioner is not entitled to claim any benefit of the indicated post as his services were terminated, while he Civil Writ Petition No.17187 of 1991 5 was on extended period of probation. In this regard, he has placed reliance on the judgments of Hon'ble Supreme Court in cases Pavanendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences and another AIR 2002 Supreme Court 23 and Chaitanya Prakash & Anr. Vs. H.Omkarappa 2010 (1) RSJ 568 and Division Bench of this Court in cases Jaipal Singh v. Punjab and Haryana High Court and another 2009(2) RSJ 772 and Arvinder Kumar v. Union of India and others 2008(3) RSJ 445.
12. Having heard the learned counsel for the parties, having gone through the record and legal position with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant writ petition in this context.
13. Ex facie, the initial argument of learned counsel that the impugned termination order (Annexure P4) issued by the Principal was illegal as the competent authority of the petitioner was the Managing Committee of the respondent-College, is not only devoid of merit but misplaced as well. The perusal of the record would reveal that the decision to terminate the services of the petitioner was actually taken by the Managing Committee and the Administrative Officer conveyed its decision to the Principal, by way of letter dated 16.8.1991 (Annexure R3), which formed the basis of impugned termination order (Annexure P4). In that eventuality, it cannot possibly be saith that the impugned termination order was not passed by the Managing Committee.
14. Such thus being the position on record, now the short and significant question, though important, that arises for determination in this case is, as to whether the impugned termination order is stigmatic and punitive (as urged on behalf of the petitioner) or simpliciter order passed during his extended period of probation (as claimed by the respondent-College) ?
15. Having regard to the rival contentions of the learned counsel for the parties, in relation to the law laid down by the Hon'ble Apex Court, to me, the Civil Writ Petition No.17187 of 1991 6 impugned termination order cannot possibly be termed as stigmatic or punitive order in this context.
16. Sequelly, the celebrated contention of learned counsel that the letters (Annexures R4 to R6) indicate that services of the petitioner were terminated due to vengeance, which caused aspersion on him and the impugned termination order is stigmatic, is again neither tenable nor the observations in Debesh Chandra Dass, V.P.Ahuja and Darshan Singh's cases (supra) are at all applicable to the facts of the present case.
17. As is clear, in Debesh Chandra Dass's case (supra), the question before the Court was as to whether the reversion to the post carrying lower salary, amounts to reduction in rank or not. After considering the Indian Administrative Service (Cadre) Rules, 1954 vis-a-vis Article 311, it was observed that "the reversion to a lower post does not per se amount to a stigma, but if the order of reduction in rank was a stigmatic order, then it must follow the procedure of Article 311 (2) of the Constitution of India."
18. Likewise, in V.P.Ahuja and Darshan Singh's cases (supra), it was held that "a probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice."
19. Possibly, no one can dispute with regard to the aforesaid observations, but the same would not come to the rescue of the petitioner in the instant controversy.
20. As is evident from the record, that petitioner was appointed as Senior Lecturer on a post, falling under Plan Scheme, on probation for a period of one year or till the scheme is converted into non-plan, whichever is later. As per clause 3 of the appointment letter (Annexure P1), it was specifically stipulated that during the probation period, services of the petitioner can be terminated by one month's Civil Writ Petition No.17187 of 1991 7 notice or salary in lieu of notice period without assigning any reason. Similarly, offer was given to the petitioner to leave the service giving one month notice or salary in lieu thereof without mentioning any reason. The letter (Annexure P2) reveals that the appointment of petitioner was purely on temporary basis, till the Plan Scheme continues as per order of the management. Although the work and conduct of the petitioner was not found satisfactory, but as a matter of good-will gesture, an increment of ` 100/- per month was granted to him and his probation period was further extended, by way of letter dated 21.1.1991 (Annexure P3).
21. The impugned termination order (Annexure P4) reads as under:-
"You were appointed as a Senior Lecturer in Pharmacy on probation for a period of one year with effect from 29th January, 1990 vide this office letter No.7859 dated 29th January, 1990. It was also a condition of the appointment that the probation period can be extended for another year. Your period of probation was extended upto 28th January, 1992 vide letter No.7112 dated 21st January, 1991.
Since you have not come upto the expected standard of efficiency and standard of conduct by the Management, therefore, I have been directed by the Managing Committee to inform you that you are hereby discharged from the service with immediate effect. The salary in lieu of one month's notice period amounting to Rs.5521/- is being paid to you through the enclosed Bank Draft No.QDA-441957 dated 31.10.1991. You stand relieved with immediate effect.
You are requested to hand over the library books and the charge of the pharmacy department and store if any, to the Head of the Pharmacy Deptt."
22. Meaning thereby, the services of the petitioner were terminated as his work and conduct was not found satisfactory by the management during the course of his extended probation period. He was paid the salary in lieu of one month's notice and the order was termination simpliciter and no stigma is attached to it. The mere fact that Annexures R4 to R6 are the informations given to the petitioner regarding his unsatisfactory performance, but such correspondence cannot lead to the conclusion that the order terminating his services during the probation period Civil Writ Petition No.17187 of 1991 8 was stigmatic. This matter is not res integra and is well settled.
23. An identical question came to be decided before Hon'ble Supreme Court in Pavanendra Narayan Verma's case (supra). Having considered the various aspects of the matter and previous judgments, including V.P.Ahuja's case (supra), it was held as under:-
"The language used in the order of termination is that the probationer appellant's "work and conduct has not been found to be satisfactory". These fall within the class of non-stigmatic orders of termination. It is, therefore safe to conclude that the impugned order is not ex facie stigmatic. It also cannot be held that the enquiry held prior to order of termination turned this otherwise innocuous order into one of punishment. The reason being an employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A charge-sheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. Therefore the termination was not in substance punitive."
24. The same very view was reiterated by the Hon'ble Apex Court in cases Progressive Education Society & Anr. v. Rajendra & Anr. 2008(2) RSJ 446 and the Division Bench of this Court in Arvinder Kumar's case (supra).
25. Not only that, again the Hon'ble Apex Court in Chaitanya Prakash's case (supra), relying on the ratio of law laid down in Pavanendra Narayan Verma's case (supra) and Allahabad Bank Officers Assn. v. Allahabad Bank, 1996(4) SCC 504, ruled (para 20) as under:-
"In our considered opinion, the ratio of the above-referred decisions are squarely applicable to the facts of the present case. The respondent was time and again informed during the probation period about his deficiencies and was given ample opportunities to improve them. Therefore, enough precautions were taken by the appellants to see that the respondent improved his performance and such an opportunity was provided to him. But such advices and opportunity were totally misplaced as the respondent considered the same as unnecessary encroachment and interference in his work and wrote back rudely in an intemperate language. Whether or not a person is suitable to be retained and confirmed in service could be Civil Writ Petition No.17187 of 1991 9 considered and assessed by the Managing Director, namely, appellant No.1, but he after making an appraisal submitted his report along with all other records of the respondent before the Board of Directors, who finally took the decision. The Board of Directors constituted of responsible persons and they while deciding the suitability of the respondent not only considered the Performance Assessment Report but also considered all other records, and thereafter they took a considered and conscious decision that the respondent was not suitable for confirmation and terminate his service. The said decision of the Board of Directors appears to be in parity with the ratio of the aforesaid decisions of this Court (supra). The reasons mentioned in the letter dated 29.11.1999 - terminating the services of the respondent cannot be said to be stigmatic. The appellant had time and again specifically brought to the notice of the respondent his short comings and no misconduct as such is alleged against the respondent by the appellant and therefore the present case is a case of termination simpliciter due to unsuitability of the respondent and not a case of punishment for misconduct."
As the ratio of law laid down in the aforesaid judgments 'mutatis mutandis' is applicable to the facts of the present case as such and is the complete answer to the problem in hand, therefore, the contrary arguments of learned counsel for the petitioner "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances.
26. In this manner, it is concluded that the impugned order (Annexure P4) is a simpliciter termination order passed during the extended period of probation of the petitioner, after giving him the salary in lieu of one month's notice period, in view of the terms and conditions of appointment letter (Annexure P1). Since neither the impugned termination order is stigmatic or punitive and would not entail any disqualification, so, no regular inquiry was required to be conducted before passing it, as urged on behalf of the petitioner in the obtaining circumstances of the case.
27. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
28. In the light of aforesaid reasons, as there is no merit, therefore, the instant writ petition is dismissed as such.
(Mehinder Singh Sullar) 9.3.2011 Judge AS Whether to be referred to reporter?Yes/No