Jammu & Kashmir High Court
Dr.R.D.Vishwakarma vs Union Of India And Ors. on 14 March, 2013
Author: Dhiraj Singh Thakur
Bench: Dhiraj Singh Thakur
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP no. 1008/2003, CMA no. 1549/2004
c/w
SWP no. 2034/2003, CMA no. 2230/2003
Date of order: 14.03.2013
Dr. R. D. Vishwakarma v U.O.I. & ors.
Coram:
Hon'ble Mr. Justice M. M. Kumar, Chief Justice
Hon'ble Mr. Justice Dhiraj Singh Thakur, Judge
Appearing counsel:
For the petitioner(s) : Mr. M. K. Raina, Advocate
For the respondent(s) : Mrs. Neeru Goswami, Sr. Panel Counsel
i) Whether to be reported
Press, Journal/Media Yes
ii) Whether to be reported in
Digest/Journal Yes
______________________________________________________________
M. M. Kumar, CJ
1. These two writ petitions* filed under Article 226
of the Constitution of India read with Section 103 of
the Constitution of Jammu and Kashmir calls in
question the order of the Central Administrative
Tribunal, Chandigarh Bench in TA-54/JK of 2002
dated 20.05.2003 (for brevity the Tribunal). One of the
petitions namely SWP no. 1008/2003 has been filed
by the original applicant-writ petitioner and the other
one has been preferred by the Union of India and its
officers being SWP no. 2034/2003. The Tribunal in its
impugned order has upheld the order dated 5th/6th
April, 1999 discharging the original applicant-Dr. R.
D. Vishwakarma from service on the ground that his
2
work and conduct was not satisfactory and reverted
him to his original post of Principal, Kendriya
Vidyalaya Sangathan. The pivotal question of law is
'whether the order of discharge is in fact an order of
dismissal casting stigma and warranting an enquiry'.
The Union of India has petitioned against the award of
salary which relief necessarily emanates from the
interim order of this High Court before transfer of the
petition to the Tribunal.
2. In order to put the controversy in its proper
perspective few facts may first be noticed. On
10.11.1995, respondent no. 3-Kendriya Vidyalaya
Sangathan (KVS) issued an advertisement inviting
application for filling up one post of Assistant
Commissioner from the Scheduled Tribe quota. The
original applicant-Dr. Vishvakarma was working on
the post of Principal with respondent no. 3-KVS. He
was eligible for the direct quota post of Assistant
Commissioner and applied. He was selected and
appointed vide appointment letter dated 20.03.1996
(Annexure-B). According to the terms and conditions
of appointment, the original applicant-writ petitioner
was to remain on probation for a period of two years
3
which was extendable upto three years. He was to be
confirmed upon successful completion of period on his
own turn according to the availability of a permanent
vacancy. The original applicant-writ petitioner joined
on the post of Assistant Commissioner in KVS on
08.04.1996. As repeated reference has been made on
behalf of the petitioner to documents extending the
period of probation with advise, it would be apposite
to make express reference to the letter dated
17.02.1998 (Annexure-F) which is set out below in
extenso:-
"KENDRIYA VIDYALAYA SANGATHAN 18,
INSTITUTIONAL AREA
SHAHID JEET SINGH MARG
NEW DELHI-110016
F. No. 3-1/96-KVS(Estt.I) Dated: 17/2/98
MEMORANDUM
Dr. R D Vishwakarma was appointed to
the post of Assistant Commissioner initially
on probation for two years vide this office
memorandum No. F.1-33/93-KVS(E.I) dated
20.03.96.
The work and conduct of Dr.
Vishwakarma during first year of probation
has been assessed by the competent authority
who has found that he has not been able to
cope up with the assignment. Dr.
Vishwakarma is hereby required to improve
upon his performance during the remaining
period. (emphasis added)
(D. K. Srivastava)
Jt. Commissioner (Admn.)"
3. After apprising the original applicant-writ
petitioner that he needed to improve his performance
4
during the remaining period of his probation, the
respondent-Kendriya Vidyalaya Sangathan extended
the period of probation upto 07.10.1998 vide letter
dated 07.04.1998 and the same is set out below in
extenso:-
"KENDRIYA VIDYALAYA SANGATHAN 18,
INSTITUTIONAL AREA
SHAHID JEET SINGH MARG
NEW DELHI-110016
F. No. 3-1/96-KVS(Estt.I) Dated: 07/04/98
MEMORANDUM
Dr. R D Vishwakarma was appointed to
the post of Assistant Commissioner w.e.f.
8.4.1996 on probation of 02 years. After
reviewing the work and performance of Dr. R.
D.Vishwakarma during the period of probation,
the competent authority has decided to extend
the period of probation in respect of Dr. R. D.
Vishwarkama upto 7.10.1998 which,
accordingly, stands extended upto 7.10.1998.
(D. K. Srivastava)
Jt. Commissioner (Admn.)
for Vice-Chairman, KVS."
4. Another letter was sent to the original applicant-
writ petitioner bringing to his notice that his work and
conduct was not satisfactory and he remained unable
to show any marked improvement. He was advised to
improve his performance. The aforesaid letter dated
06.10.1998 is also set out below in extenso:-
"KENDRIYA VIDYALAYA SANGATHAN
18, INSTITUTIONAL AREA
SHAHID JEET SINGH MARG
NEW DELHI-110016
F. No. 3-1/96-KVS(Estt.I) Dated: 06.10.1998
MEMORANDUM
5
Dr. R D Vishwakarma was appointed
to the post of Assistant Commissioner on
probation initially for two years which was
liable to be extended, vide this office
memorandum of even number dated 20th
March 1996. The probation was
subsequently extended till 07.10.1998. It
has now been decided to extend the period
of probation further till 07.04.1999.
The work and conduct of Dr.
Vishwkarma has been assessed by the
competent authority who has found that his
work and conduct were not satisfactory and
that he has not been able to show any
marked level of improvement in his work
and conduct. Dr. Vishwakarma is hereby
required to improve upon his performance
during the remaining period of probation i.e
upto 07.04.1999." (Emphasis added)
5. A perusal of the aforesaid letter shows that his
probation period was to come to an end on
07.04.1999 and keeping in view his work and conduct
during probation respondent no. 3-KVS passed an
order dated 05.04.1999 discharging him from service.
The order dated 5th/6th April, 1999 makes an
interesting reading and the same reads as under:-
"KENDRIYA VIDYALAYA SANGATHAN
No. F. 133/93-KVS(Estt.I) Dated: 5th April, 99
OFFICE ORDER
1. Dr. R D Vishwakarma vide this office
letter no. F.1-33/93-KVS(Estt.I) dated 20th
March 1996 was as Assistant Commissioner
in KVS Jammu Region on probation for two
years which was liable to be extended upto
three years. His probation period was
accordingly extended upto 7th April, 1999,
vide this office letter no. F. 3-1/96-KVS(Estt.I)
dated 6.10.98.
2. In pursuance of para 3(ii) of the
aforesaid offer of appointment, the competent
6
authority terminates the services of Dr.
Vishwakarma as Assistant Commissioner,
KVS with effect from 7.4.1999(AN). The
competent authority further directs that he
will be entitled to a sum equivalent to the
amount of his pay plus allowances for a
period of one month which he was drawing
immediately before termination of his services
as Assistant Commissioner, KVS in lieu of
notice period.
3. On termination of his services in the
post of Assistant Commissioner, Dr.
Vishwakarma may be placed as Principal,
KVS, the post he was holding prior to his
appointment as Assistant Commissioner."
(emphasis added)
6. Before the Tribunal, the original applicant-writ
petitioner made two submissions. It was argued that
the order dated 5th/6th April, 1999 cast a stigma and,
therefore, respondent no. 3-KVS was required to
follow the principles of natural justice by holding a
regular departmental enquiry. The other argument
was that the original applicant-writ petitioner
deserved to draw pay and perks of the post of
Assistant Commissioner. The Tribunal rejected the
argument and proceeded to hold that the order of
discharge terminating the service of the original
applicant-writ petitioner was an order of termination
simplicitor. It was further held that in such a case
there was no legal obligation to hold a regular
departmental enquiry because there was no allegation
7
of misconduct and the order could not be called
stigmatic in nature. The allegations of malafide
levelled against the Vice Chairman, KVS were also
rejected. The view of the Tribunal after due inspection
of the record is discernible from the following para
which reads as under:-
"........In order to satisfy ourselves that
this was not a case of bias against the
applicant, his original file relating to his
probation period was called by us. We
have examined the file which though
confidential as relating to the applicant,
clearly shows that not only the then
Commissioner of KVS Shri H. M. Cairae
on 24th March, 1999 recorded his
displeasure about the performance of the
applicant, it has also been mentioned
that the work and performance of the
applicant was likewise found to be
wanting by two previous Commissioners
namely, Smt. Lizzie Jacob and Shri R. S.
Pandey. In order to controvert the
allegation of the applicant that his
immediate superior i.e. Joint
Commissioner was unfavourably
disposed towards him, the respondents
have pointed out by producing the file
that after a note by the then
Commissioner on March 24, 1999, the
decision to revert him was taken by the
Vice Chairman, KVS, who cannot be
taken to be biased against the applicant.
We have also inspected the file to satisfy
ourselves that the entire action was
taken in a systematic manner. We find
from the said file that on 12.11.97, Shri
D. K. Srivastav, who had reviewed the
work of the Assistant Commissioner,
wrote to him stating that the work of the
Asstt. Commissioner was found to be
unsatisfactory during his visit to Jammu
from 5th to 8th November, 1997 and he
further issued certain directions to the
applicant to improve his work. Another
report on probation period was recorded
8
on 5.12.97 in which it has been stated
that he has not been able to cope up
with the assignment. Performance needs
to be monitored. This was thereafter
conveyed by the Joint Commissioner to
the applicant on 17.7.98. Yet again on
31st March, 1998, the officer reporting
on his work clearly mentioned that the
work of the Asstt. Commissioner needed
substantial improvement and his
supervision and control overcritical
areas was also found wanting. It is
further stated in the said assessment
report that the defects needed in his
performance were brought to his notice
verbally as well as in writing, but were
continued to be noticed. We need not go
into further details of the various reports
against him because this matter is
sufficient to show that the respondent-
department (and not only the Joint
Commissioner) in its entirety, applied its
mind and came to the conclusion that
the probationary period performance of
the applicant was not
satisfactory..........."(emphasis added)
7. However, with regard to his entitlement to the
salary as Assistant Commissioner for the specified
period, his prayer was accepted because there was an
interim order issued by the High Court before the
matter was taken to Hon'ble the Supreme Court on
the ground that the High Court did not have
jurisdiction to entertain the petition which was
eventually transferred to the Tribunal. The argument
of the respondent-KVS did not find favour with the
Tribunal that the interim order being an order without
jurisdiction was not to be acted upon. The following
observations made by the Tribunal leading to the
9
award of wages in respect of the period the original
applicant-writ petitioner has worked on the post of
Assistant Commissioner would thus read as under:-
"...The question now remains as to
whether the applicant shall be entitled
to the salary as Assistant
Commissioner for the period from the
date of the order of the Supreme Court
changing the jurisdiction of the case
till the date of our order. The
argument put-forth by the
respondents is that since the High
Court did not have the jurisdiction to
hear the matter, could not have
passed the interim order and,
therefore, the order passed without
jurisdiction need not have been
carried out. We are in strong
disagreement with this contention of
the respondents. The Supreme Court
merely stated that the case should go
to the Tribunal, but it did not mean to
bar the original jurisdiction of the
Hon'ble High Court under Article 226
of the Constitution. For, even after our
order, the same can be challenged
before the High Court under Article
226. The jurisdiction of the High
Court is supreme. All that Apex court
meant was that the case should go in
the first instance to the Tribunal and
only then if the petitioner/applicant is
aggrieved by the order of the Tribunal,
he can approach the High Court. We
cannot agree with the contention that
the interim order passed by the High
Court was without any jurisdiction.
We are not going into the merits or
facts of the interim order as that order
is binding on all concerned. We find
no logic in the action of the
respondent-department in stopping
the salary that they were already
giving to the applicant merely because
the Hon'ble Supreme Court held that
the case should be filed before the
Tribunal. Much has been made by the
respondents of the fact that the
applicant was not paid his salary
10
because he stopped attending the
office. First of all, the applicant
contended that he was not given a
room or a place to sit in and therefore
it is not correct to say that he did not
attend the office. More over, he had
been clearly directed by the Hon'ble
High Court not to deal with any file
relating to KVS and, therefore, even if
he went to office, what work would he
do? Therefore, it is incorrect to say
that the applicant could not be paid
salary because he did not attend the
office. In fact before the Supreme
Court orders, the interim order was
being executed in toto by the
respondents and it is only after the
order of the Supreme Court, directing
to go to the Tribunal first that the
respondents stopped paying him the
salary. A note to this effect is also
found in his personal file dated
25.9.2002. We are afraid that the
action of the respondent-department
in denying salary to the applicant over
the change of jurisdiction laws
unjustified and rather amounts to
contempt of the order of the High
Court." (emphasis added)
8. Mr. M.K.Raina, learned counsel for the original
applicant-writ petitioner has argued that the order
dated 5th/6th April, 1999 must be regarded as a
stigmatic order. The order firstly itself says that he
was reverted to the post of Principal, Kendriya
Vidyalaya Sangathan. According to the learned
counsel the previous letter also contained words
which reflect on the competence of the officer. For
example a reference has been made to letter dated
17.02.1998 which shows that the petitioner has not
11
been able to cope up with the assignment. Likewise
the words 'work and conduct not satisfactory' would
further reflect on his competence to discharge duties.
Mr. Raina has submitted that it would amount to
casting a stigma on the career of the original
applicant-writ petitioner, therefore, a regular
departmental enquiry was required to be held.
According to the learned counsel discharging an
officer during the period of probation cannot be a ruse
for his dismissal merely because in the departmental
enquiry the misconduct is required to be proved. In
support of his submission, Mr. Raina has placed
reliance on two judgments of Hon'ble the Supreme
Court in the case of D. P. Banerjee v. S. N. Bose
National Centre for Basic Sciences 1999 (3) SCC
60 and V. P. Ahuja v. State of Punjab & ors. 2000
(3) SCC 239 and argued that the order of discharge
passed on 5th/6th April, 1999 is ex-facie, stigmatic and
punitive. According to the learned counsel the order
should not be examined in isolation and the same
requires to be read in the light of three earlier letters
written on 17.02.1998 (supra, Annexure-F),
07.04.1998 (supra, Annexure-G) & 06.10.1998 (supra,
12
Annexure-H). The combined effect of reading those
letters, according to the learned counsel would be that
the original applicant-petitioner has failed to perform
his duty properly and, therefore, the principles of
natural justice were required to be followed. Placing
reliance on the judgment in V.P. Ahuja's case (supra)
learned counsel has argued that the use of expression
failure in 'performance of duties administratively and
technically' has been regarded as an order ex-facie,
stigmatic & punitive.
9. Mrs. Goswami, learned Senior standing counsel
for Union of India has stated that there cannot be any
other way of assessing the work and conduct of an
employee during the period of probation. According to
the learned counsel the order dated 07.04.1999 does
not even ex-facie express any opinion and, thus,
cannot be regarded as a stigmatic order. It simply
terminates his services from the post of Assistant
Commissioner after noticing that the period of his
probation was liable to be extended upto three years
which was done. Accordingly, his probation period
was to come to an end on 07.04.1999. Mrs. Goswami
has further submitted that there is nothing stigmatic
13
in the letters advising the original applicant-writ
petitioner to improve his work and conduct. This was
the only way with respondent-KVS to encourage the
original applicant-writ petitioner to successfully
complete his period of probation, but unfortunately he
remained unsuccessful.
10. Having heard the learned counsel for the parties,
we are of the considered view that the order passed by
the Tribunal does not suffer from any legal infirmity
warranting interference of this Court. The original
applicant-writ petitioner was selected and appointed
on the post of Assistant Commissioner, KVS with
specific condition that he would be put on probation
for a period of two years which was extendable by
another year. The post of Assistant Commissioner is a
direct cadre post and respondents have framed Rules
which are known as Appointment, Promotion,
Seniority etc Rules, 1971. These Rules are statutory in
character and have been framed by virtue of power
vested in the Board of Governors of the Kandriyia
Vidyalaya Sangathan by Rule 22 of the Rules. Apart
from the advertisement Rule 10 and 11 deals with
probation and the confirmation of probationers. The
14
terms and conditions in the advertisement were
verbatim copy of Rule 10 & 11 which are set out
below:-
"10. Probation.
(1) Every direct recruit shall initially be
appointed on probation, the period of
probation being two years from the date of
appointment, which may be extended to
three years by the competent authority for
reasons to be recorded in writing.
(2) Every person other than a
probationer shall when first appointed to
any post, be on probation for a period of
two years from the date of such
appointment, which may be extended to
three years by the competent authority for
reasons to be recorded in writing."
11. Confirmation of Probationers
When an employee appointed to a
post on probation or on trail has completed
his/her probation/trial to the satisfaction
of the appointing authority, he/she shall be
eligible for substantive appointment or
continuance therein, as the case may be,
and such substantive appointment shall be
made in the order of seniority as indicated
in the relevant select panel."
11. A con-joint reading of the Rules would show that
a direct recruit may initially be appointed on probation
for a period of two years which may be extended to
three years for the reasons to be recorded in writing. It
is only on successful completion of probation period
that an employee becomes entitled to confirmation as is
borne out from Rule 11. However, if an employee
appointed in Kendriya Vidyalaya Sangathan remains
15
unable to successfully complete his probation period
then he is liable to be discharged at any point of time
with one month's notice or pay in lieu thereof. Rule 12
in so far it is relevant to the controversy at hand reads
as under:-
"Discharge or Reversion of Probationers
(i) An employee appointed to any post in
the Kendriya Vidyalaya Sangathan, specified
in the Schedule, who has no lien on any post
under the Central Government or any State
Government or the Kendriya Vidyalaya
Sangathan shall, while on probation, be liable
to be discharged from the post at any time
with one months' notice or pay in lieu thereof,
if;
(i) On the basis of his/her performance or
conduct during the probation he/she is
considered unfit for further retention in the
post concerned; or
(iii) On the receipt of any information
relating to his/her nationality, age, health or
antecedents, the appointing authority has
satisfied that he/she is ineligible or otherwise
unfit for being an employee of the Kendriya
Vidyalaya Sangathan."
12. The law with regard to probationer is fairly well
settled. The concept of attaching stigma must
emanate from the order of discharge itself and ex-facie
the order should contain stigmatic words to attract
the provisions of Article 311 of the Constitution.
Remarks like want of application to banks work or
lack of potential have been found to have been made
in relation to the work of an employee and in the
16
context of assessment on his work which would not
amount to allegations of misconduct casting any
stigma on such an employee. In that regard, reliance
may be placed on the judgments of Hon'ble the
Supreme Court in Shailaja Shivajirap Patil v.
President, Hon'ble Khasdar UGS Sanstha and
others (2002) 10 SCC 394, Commandant 11th
Battalion, A. P. Special Police (IR), Cuddapah,
Cuddapah District v. B. Shankar Naik (2003) 5
SCC 580 and Union of India & ors. v. A.P. Bajpai
& ors. (2003) 2 SCC 433. In a well known judgment
rendered by 7-Judge Bench of Hon'ble the Supreme
Court in Shamsher Singh & anr. v. State of
Punjab AIR 1974 SC 2192 detailed discussion is
available as to the motive and foundation on which an
innocuous order is passed. Law on this subject has
also again been discussed in Radhey Shayam Gupta
v. U. P. State Agro Industries Corporation Ltd and
anr. (1999) 2 SCC 21. In nutshell, the view taken by
Hon'ble the Supreme Court is that if ex-facie an order
of discharge is likely to affect adversely to the future
prospects of an employee then such an order
is regarded as penal in nature.
17
13. When we examine the order dated 5th/6th April,
1999 ex-facie there is nothing which may show the
original applicant-writ petitioner in bad light. All that
the order of discharge indicates is that during the
period of probation his services were being terminated
in the light of para 3 (ii) of the letter of appointment.
Even in the earlier letters dated 17.02.1998,
07.04.1998 & 06.10.1998 (supra, Annexures F, G &
H), there is nothing to conclude that the order suffers
from any stigma which may result into an opinion
that the order is punitive in character and an enquiry
was required to be held. Moreover, the original
applicant-writ petitioner was yet to acquire any right
to hold that post and in any case he was given back
his post of Principal, KVS on which he presumably
held a lien. Had there been any reflection of these
letters on his career then he would not have been
allowed to join as Principal. There was no affect of
letters dated 17.02.1998, 07.04.1998 & 06.10.1998
(F, G & H, supra) on his service career. In that regard
reliance may be placed on the judgments of Hon'ble
the Supreme Court in the cases of Ajit Singh v. State
of Punjab (1983) 2 SCC 217, State of U.P v.
18
Kaushal Kishore Shukla (1991) 1 SCC 691 and
State of Punjab v. Sukhwinder Singh (2005) 5 SCC
569.
14. The judgment of Hon'ble the Supreme Court on
which reliance has been placed, we does not support
the case of the original applicant-writ petitioner. For
example in the case of D. P. Banerji's case (supra) the
letters of termination levelled specific allegation of
preparing false bills, mis-behaviour with women
academic staff members who had sent a written
complaint, frequent absence from office premises and
in that regard complaint filed by faculty members
were some of the instances which have been indicated
in para 5 of the judgment. There are further
allegations of similar nature extracted from letters
addressed to the employees in para 6 of the judgment.
Therefore, the foundation of the order of termination
was traced to the allegation of misconduct by piercing
the veil. Likewise in the case of V. P. Ahuja's case
(supra) the words used in the discharge order were
that the employee failed in the performance of his
'duties administratively and technically'. In the case at
hand, no such words would find mention either in the
19
order of discharge dated 5th/6th April, 1999 nor in the
letters dated 17.02.1998, 07.04.1998 & 06.10.1998
(Annexures F, G & H,). Accordingly, we express our
inability to conclude that the judgments of Hon'ble the
Supreme Court in the case of V. P. Ahuja's case
(supra) & D. P. Banerjee's case (supra) would have any
application to the facts of the case at hand.
15. Learned counsel for the respondents-petitioner
in (SWP no. 2034/2003) has argued that no salary is
payable to the original applicant-writ petitioner-Dr. R.
D. Vishwakarma which is attached to the post of
Assistant Commissioner, KVS. The aforesaid
argument is liable to be rejected because the interim
order passed by the High Court was required to be
accepted. We are of the view that the Tribunal has
rightly held that the respondents department did not
act within the parameters of law in stopping the
salary of Dr. R. D. Vishwakarma which they were
already paying him, it has been rightly rejected the
argument that after Hon'ble the Supreme Court had
held that the Tribunal had the jurisdiction and the
matter be transferred to the Tribunal, the interim
order of the High Court order was without jurisdiction
20
because the interim order continued to be in
operation. Therefore, the action of the respondents-
department in denying salary of the original applicant-
writ petitioner on account of change of jurisdiction
was wholly unjustified and amounted to violation of
the order of the High Court.
16. We find no legal infirmity in the view taken by
the Tribunal with regard to the payment of salary to
the original applicant-writ petitioner.
17. As a sequel to the above discussion, both the
petitions are dismissed. Keeping in view the peculiar
facts of this case the parties are left to bear their own
costs.
(Dhiraj Singh Thakur) (M. M. Kumar)
Judge Chief Justice
Jammu,
14.03.2013
Parshant
*
S. Title No
1. Dr. R. D. Vishwakarma v. U.O.I & ors. SWP no.
1008/2003, CMA no. 1549/20041. Kendriya Vidyalaya Sangathan and ors. v. Dr. R. D. Vishwakarma SWP no. 2034/2003, CMA no.
2230/2003(Dhiraj Singh Thakur) (M. M. Kumar) Judge Chief Justice Jammu, 14.03.2013 Parshant