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You are expected to maintain a cheerful and loving attitude towards all the children in school and fulfill whatever duties are assigned to you to the satisfaction of the authorities. Your service will be confirmed after the probation period only if your work is found to be fully satisfactory.

Please confirm your acceptance in writing."

The management has claimed that during probation period her work was not found satisfactory and she was given a number of opportunities to improve her performance. It has been claimed that the work and performance at the school involved handling small children, handicapped children who require utmost care and attention. The failure of the claimant to improve her performance was against the interest of the small children and she did not pay any heed to the repeated insistences of verbal cautioning. It is stated that the management was left with no other option but to bring an end to her probationary employment on account of her unsatisfactory performance vide letter dated 30.04.98 which was to take effect from 1.6.98. The letter dated 30.04.98 Ex. MW1/2 says that due to her performance being not satisfactory her probation was further extended by one year. Many complaints were received against her. Since she did not improve her work despite repeated cautioning her services were being terminated w.e.f 1.6.98. The main contention of AR for workman is that the letter is stigmatic in nature and is not a simpliciter termination and therefore, it does not fall under section 2(oo)(bb) of the Industrial Disputes Act. It has been claimed by the management that it never terminated services of the claimant and the alleged termination is a consequence of the non renewal of the contract of probationary employment between the management and the claimant and such contract being terminated under a stipulation in that behalf contained therein. It has been alleged on behalf of the workman that there was motive behind victimizing her while terminating her services as she refused to work at the residence of Smt. Sarita who harassed her to work at her residence after duty hours. False complaints were made against her work. The letter dated 16.12.97 Ex. WW1/3 has been relied upon by the workman stating that her probation was extended for another year on the allegations that she was hard of hearing and was not doing her work sincerely. They also referred to one previous letter dated 29.09.97 in which she was cautioned. It is also mentioned in the letter that the supervisor Smt. Indu Kaura would tell her about the right doctor from whom she should get herself checked so that her services could be confirmed. It has been stated by the workman that though she obtained requisite certificate from doctor stating that she had no hearing deficiency vide mark B, but the management continued to harass her and dismissed her w.e.f. 1.6.98. The management has placed on record letter dated 29.09.97 Ex. MW1/6 vide which the claimant was cautioned about her unsatisfactory performance. She was informed that she was not taking full interest in the work. It was stated that she was not doing the cleanliness properly; that she was assigned work of looking after children from 5.00 to 5.20 but she has to be called several times. Sometimes, she leaves children unattended while playing and does not take proper care of them. She has been cautioned that she was on probation and that if she did not improve her work her services could be terminated. In Smita Paul vs. Principal, St. Anthony's Ser. Sec. School and another 2006 LLR 147, it was held that "Termination of a probationer for unsatisfactory performance cannot be termed as stigmatic or based on misconduct." In another relevant case law, B.S. Chopra vs. The management of Karnataka Handloom Development Corporation Ltd and another 2006 LLR 204, the management terminated services of the workman stating that "As your overall performance and conduct were found to be unsatisfactory, probation was further extended. Inspite of sereral opportunities given to you, you have not improved your performance. Therefore, you are hereby terminated from the services of the corporation as per clause 3 of the appointment letter." The court held that "Even when a show cause notice is issued to a probationer during the probation period but the same is not followed with an enquiry, it will not nullify his termination after the expiry of probation period more so when the notice of termination categorically stated that he has failed to improve his performance."

07. Merely recording unsatisfactory performance of the probationer during the probation period by the management will not render the termination of the probationer as illegal. During the period of probation, the employers are entitled to assess the suitability of the candidates and if it is found that the candidate is not suitable to remain in service, they are entitled to record the findings of unsatisfactory performance of the work and duties during the period of probation. Under these circumstances, necessarily the appointing authority has to look into the performance of the work and duties during the period of probation and if they record a finding that during that probation period, the work and performance of the duties were unsatisfactory, they are entitled to terminate the service in terms of the letter of appointment without conducting any enquiry. That does not amount to any stigma. I am fortified in my opinion by Kunwar Arun Kumar vs. U.P. Hill Electronics Corporation Ltd and others, 1997 (2) SCC 191. Generally speaking, when a probationer's appointment is terminated it means that probationer is unfit for the job, whether by reason of misconduct or inaptitude, 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.