Gujarat High Court
Manish Prakashmal Dak vs Vice Chancellor & on 1 October, 2014
Author: Jayant Patel
Bench: Jayant Patel, C.L. Soni
C/LPA/1462/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1462 of 2013
In
SPECIAL CIVIL APPLICATION NO. 7608 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL Sd/-
and
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment No
?
4 Whether this case involves a substantial question of law as to the No
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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MANISH PRAKASHMAL DAK
Versus
VICE CHANCELLOR & 1
================================================================
Appearance:
MR BHUSHAN B OZA, ADVOCATE for the Appellant
MR MITUL K SHELAT, ADVOCATE for the Respondents
================================================================
CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE C.L. SONI
Date : 01/10/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE C.L. SONI) Page 1 of 10 C/LPA/1462/2013 CAV JUDGMENT
1. This appeal under Clause 15 of the Letters Patent is at the instance of the original petitioner who preferred the petition under Article 226 of the Constitution of India seeking to quash the order dated 1.4.2013 whereby his services were terminated. Learned Single Judge has observed that since during probation period, the respondent found that the performance of the appellant was not satisfactory, it passed impugned order of not extending the service beyond probation period. It is further observed by the learned Judge that the services of the petitioner have not been terminated on account of any misconduct or any guilt proved against him but since it was found that there was no improvement in the performance of the petitioner, the University took decision to relieve him from service by impugned order which was not stigmatic.
2. We have heard learned advocates for the parties.
3. Learned advocate Mr. Bhushan Oza appearing for the appellant submitted that the appellant was in fact discharging his duty very satisfactorily, however since he was allotted two other subjects for teaching, which was of a technical nature for which the appellant was not appointed, and since the petitioner requested to change such subjects, the same was taken as unsatisfactory performance of the appellant, which was not permissible. Mr. Oza submitted that the appellant was issued show cause notice alleging lack of eligibility and capability to perform his duty and asking to explain as to why the appellant should not be removed from service. The appellant rendered explanation to such show cause notice and thereafter, punitive action was taken against the appellant by the impugned order. Mr. Oza submitted that though the order is termed as simple termination order but the same was stigmatic order which could not have been passed against the appellant without following regular Page 2 of 10 C/LPA/1462/2013 CAV JUDGMENT departmental inquiry. Mr. Oza submitted that the appellant was found duly qualified in the regular selection process and was then appointed to discharge his duties in the subject for which his selection was made and under these circumstances, it was not open to the respondents to terminate the services of the appellant on the basis that the appellant was not eligible and capable to discharge his duty. Mr. Oza submitted that the learned Single Judge has committed an error in holding that the order of termination passed against the appellant was not stigmatic but was simple termination order as the appellant could not improve his performance during the probation period. Mr. Oza thus urged to allow the appeal.
4. Learned advocate Mr. Mitul Shelat appearing for the respondents submitted that the appellant was on probation and therefore, he was under obligation to discharge his duties satisfactorily. Mr. Shelat submitted that during the probation period, it was found that the performance of the appellant was not satisfactory. Mr. Shelat submitted that even after the appellant was given chance to improve his performance, it was found that he did not improve his performance and thus rendered himself unsuitable to be continued in service. Mr. Shelat submitted that simply because the explanation of the appellant was called for as regards his unsatisfactory performance during his probation period, it is no ground to suggest that the order impugned in the petition was a stigmatic one. Mr. Shelat submitted that in fact, the order impugned in the petition terminating the services of the appellant was on account of unsatisfactory performance of the duties by him and not in any way punitive one. Mr. Shelat submitted that after the explanation of the appellant was received, no further inquiry was found necessary and since the respondents found that there was no improvement in the performance of the appellant, it was decided not to continue the appellant in service. Mr. Shelat submitted that since the appellant Page 3 of 10 C/LPA/1462/2013 CAV JUDGMENT was on probation, such action of relieving him simplicitor was always permissible before he could be confirmed in service. Mr. Shelat thus urged not to interfered with the impugned order of the learned Single Judge.
5. Having heard learned advocates for the parties, it appears that after the appellant was appointed as Assistant Professor on probation for a period of one year by order dated 23.3.2012, the appellant found some difficulty in discharging his duties in relation to some technical subjects allotted to him and even requested for change of such subjects. However, since the respondents felt that the performance of the appellant was not satisfactory, a show cause notice dated 21.12.2012 seeking explanation on the unsatisfactory performance of the appellant was issued to him. The appellant gave reply to such show cause notice. Subsequently, the appellant was also asked to remain present before the Committee of four members. Ultimately, the appellant was served with the impugned order dated 1.4.2013 whereby decision was taken not to continue him in service beyond the period of probation by recording that he is not found suitable for the University service.
6. Learned advocate Mr. Oza for the appellant however submitted that that the order dated 1.4.2013 is a stigmatic order and therefore, before passing such order, regular departmental inquiry was required to be held against the appellant and since no such inquiry was held, the order dated 1.4.2013 could be said to be passed in breach of the principle of natural justice.
7. What could be said to be a stigmatic order and whether a probationer could be discontinued from service without inquiry on finding him unsuitable to continue in service is explained in different judgments of the Hon'ble Supreme Court.
Page 4 of 10 C/LPA/1462/2013 CAV JUDGMENT8. In the case of Mathew P. Thomas Vs. Kerala State Civil Supply Corpn. Ltd. and others reported in (2003)3 SCC 263, the Hon'ble Supreme Court has held and observed in para 10 and 11 as under:-
10. Paras 1 to 3 of the show-cause notice reflect about the unsatisfactory performance of the duty of the appellant. Paras 4 and 5 of the show-cause notice were not taken into consideration in passing the order of termination of services as is evident from the termination order although reference is made to the show-
cause notice. The last para of the show-cause notice also indicates that the action was proposed in terms of Clause 2 of the order of appointment namely, terminating the services during probationary period. The order of termination of services refers to relevant clause in the order of appointment and explanation given by the appellant to the show-cause notice. The last paragraph of the said order shows that his explanation was found unsatisfactory. The appellant had wrongfully recommended acceptance of bad stock not once but several times; as such it was held that his services have been unsatisfactory. Hence, the order of termination was passed. From this order of termination, it is clear that the respondents did not rely on paras 4 and 5 of the show-cause notice. The Division Bench in the impugned judgment, after perusal of the files observed that the appointing authority had abandoned those charges and concentrated only on the lapses committed by the appellant in wrongfully recommending acceptance of bad stock. We have no good reason to differ with this finding recorded by the Division Bench after perusal of the relevant files and records. Even otherwise, paras 4 and 5 of the show-cause notice stand withdrawn as per the direction given by the High Court. This being the position, no prejudice is caused to the appellant to complain that High Court has exceeded its power to judicial review when such a deletion of paras 4 and 5 from the show cause notice is to the benefit and advantage of the appellant. This also protects the appellant from any adverse affect when he seeks employment elsewhere and prospective employer may not have any ground to take adverse view of the alleged misconduct contained in paras 4 and 5 of the show-cause notice.
11. An order of termination simpliciter passed during the period of probation has been generating undying debate. The recent two decisions of this Court in Deepti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others, ((1999) 3 SCC 60) and Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and another, ((2002) 1 SCC 520), after survey of most of the earlier decisions touching the question observed as to when an order of termination can be treated as simpliciter and when it can be treated as punitive and when a stigma is said to be attached to an employee discharged during period of probation. The learned counsel on either side referred to and relied on these decisions either in support of their respective contentions or to distinguish them for the purpose of application of the principles stated therein to the facts of the present case. In the case of Deepti Prakash Banerjee (supra), after referring to various decisions indicated as to when a simple order of termination is to be treated as "founded" on the allegations of misconduct and when complaints could be only as motive for passing such a simple Page 5 of 10 C/LPA/1462/2013 CAV JUDGMENT order of termination. In para 21 of the said judgment a distinction is explained, thus:-
"21. 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 long line of decisions it appears to us whether an order of termination is simpliciter or punitive has ultimately to be 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 simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. If the form and language of the so called order of termination simpliciter 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 simpliciter or punitive. In cases where the services of a probationer are terminated by an order of termination simpliciter 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 simpliciter but the real face behind it is to get rid of services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter 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 or he is in reality removed from service on the foundation of his misconduct.
9. In the case of State of Punjab and others Vs. Sukhwinder Singh reported in (2005)5 SCC 569, the Hon'ble Supreme Court has held and observed in para 19 and 20 as under:-
"19. It must be borne in mind that no employee whether a probationer or temporary will be discharged or reverted, arbitrarily, without any Page 6 of 10 C/LPA/1462/2013 CAV JUDGMENT rhyme or reason. Where a superior officer, in order to satisfy himself whether the employee concerned should be continued in service or not make 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 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. v. 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 Page 7 of 10 C/LPA/1462/2013 CAV JUDGMENT of the order, which necessitated an inquiry as envisaged under Rule 16.24 (ix) of the Rules."
10. In the case of Rajesh Kohli Vs. High Court of Jammu and Kashmir and Another reported in (2010)12 SCC 783, the Hon'ble Supreme Court has held and observed in para 23 as under:-
23. This position is no longer res integra and it is well-settled that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences, this Court has explained at length the tests that would apply to determine if an order terminating the services of a probationer is stigmatic. On the facts of that case it was held that the opinion expressed in the termination order that the probationer's "work and conduct has not been found satisfactory"
was not ex facie stigmatic and in such circumstances the question of having to comply with the principles of natural justice do not arise.
11. In the case of State Bank of India and others Vs. Palak Modi and Another reported in (2013)3 SCC 607, the Hon'ble Supreme Court has held and observed in para 25 and 36 as under:-
"25. The ratio of the above noted judgments is that a probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice.
36. There is a marked distinction between the concepts of satisfactory completion of probation and successful passing of the training/test held during or at the end of the period of probation, which are sine qua non for confirmation of a probationer and the Bank's right to punish a probationer for any defined misconduct, misbehaviour or misdemeanor. In a given case, the competent authority may, while deciding the issue of suitability of probationer to be confirmed, ignore the act(s) of misconduct and terminate his service without casting any aspersion or stigma which may adversely affect his future prospects but, if the misconduct/misdemeanor constitutes the basis of the final decision taken by the competent authority to dispense with the service of the probationer albeit by a non stigmatic order, the Court can lift the veil and declare that in the garb of termination simpliciter, the employer has punished the employee for an act of misconduct."Page 8 of 10 C/LPA/1462/2013 CAV JUDGMENT
12. In light of the above principles of law settled by the Hon'ble Supreme Court, if we consider the action of the respondents of passing the impugned order, what appears is that before the impugned order dated 1.4.2013 was passed, show cause notice dated 21.12.2012 was issued to appellant stating that on verification of the appraisal report for probation period, services of the respondent were not found satisfactory. It is stated that the appellant was not found suitable for the post for which he was appointed and if felt, that his services were not essential, then the University authority after immediate deliberation will take necessary decision whether to continue him on probation or to relieve him. It is lastly stated that due to lack of eligibility/ capability of the appellant to perform his duties during the probation period as Assistant Professor, notice is given as to why he should not be removed from service as per Rule 35 and 36 of the Gujarat Civil Services (General Conditions of Service) Rules, 2002.
13. From the contents of notice, it appears that since the respondents did not find the service of the appellant satisfactory during the probation period, he was called upon to explain for his unsatisfactory work. Though in such notice, the appellant was asked to explain why he should not be removed, however the same was on the ground that the services of the appellant were not found satisfactory. Therefore, such notice could not be said to be for taking any penal action against the appellant.
14. In any case, there was no other charge of misconduct leveled against the appellant nor even any departmental inquiry was held for any misconduct against the appellant. After the appellant submitted his reply, the respondents found that the appellant was not the person to be continued in University service. It is stated in the Page 9 of 10 C/LPA/1462/2013 CAV JUDGMENT impugned order dated 1.4.2013 that since the appellant was on probation, his suitability for University was determined. It is also stated that the appellant has deliberately defied the lawful instructions of the competent authority of the University. However such could be said to be incidental to decide the suitability of the appellant.
15. In such view of the matter, we find that the learned Single Judge has rightly arrived at conclusion that the impugned order dated 1.4.2013 could not be said to be stigmatic in nature.
16. We may record that during the course of hearing of the appeal, learned advocate Mr. Mitul Shelat appearing for the respondents stated in clear terms that the impugned order is not stigmatic but a simple order not to continue the services of the appellant beyond the period of probation.
17. In the facts of the case, we also find that the order dated 1.4.2013 is not stigmatic one but it is just of not continuing the services of the appellant beyond his probation period. Hence, we clarify and order accordingly.
18. The appeal is, therefore, disposed of with no order as to costs.
Sd/-
(JAYANT PATEL, J.) Sd/-
(C.L.SONI, J.) Omkar Page 10 of 10