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Rajasthan High Court · body

2000 DIGILAW 524 (RAJ)

Chalak Singh Ujjawal v. The Air Force School

2000-04-27

B.S.CHAUHAN

body2000
Judgment B. S. Chauhan, J-The instant writ petition has been filed for quashing of the order of termination of the petitioner dated 17.5.1999 (Ann. 5). (2). The facts and circumstances giving rise to this case are that in pursuance of an advertisement, selection on the post of Librarian was held and petitioner was issued appointment letter dated 28.98 (Annx.2) on a temporary post with certain conditions incorporated therein. As the services of the petitioner had not been found satisfactory during the probation period, the impugned order dated 17.5.99 (Ann. 5) was passed terminating the services of the petitioner. Hence this petition. (3). As per the terms of appointment, it was a temporary post and appointment, though temporary, was likely to continue on satisfactory performance of the petitioner. The contention raised by Mr. Anand Purohit that petitioner stood appointed by following the selection process, therefore, his appointment has to be treated as having been made sub stantively, is devoid of any merit for the reason that it is settled legal proposition that even if the post is filled-up temporarily or on ad-hoc basis, the appointment must be in consonance with the mandate of Article 16 of the Constitution and if appointment is made without following the fair selection process, it will be in flagrant violation of the provisions of Article 16 of the Constitution. (Vide Prabhat Kumar Sharma v. State of U.P., (1996) 10 SCC 62 ); J.A.S. Inter College, Khurja v. State of U.P. & ors., (1996) 10 SCC 71 and Raj Kishore Vishwakarma v. Union of India & ors., (1997) 11 SCC 619 . (4). In State of Haryana v. Piara Singh, ( AIR 1992 SC 2130 ), the Hon’ble Apex Court has held as under:- “……Even where an ad-hoc or temporary employment is necessitated on account of exigencies of administration, it should ordinarily be drawn from the employment exchange unless it can brook delay, in which case the pressing cause must be stated on the file. If no candidate is available, or is not sponsored by the employment exchange, some appropriate method consistent with the requirement of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto, should be considered fairly…...” (Emphasis added). (5). If no candidate is available, or is not sponsored by the employment exchange, some appropriate method consistent with the requirement of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto, should be considered fairly…...” (Emphasis added). (5). A Full Bench of Allahabad High Court, in Kumari Radha Rizada v. Committee of Management, Smt. Vidyawati Darbari Girls College, ( 1994 (3) UPLBEC 1551 ), held that if appointments are made without advertising the vacancies in the local news papers having wide circulation and without holding a fair selection even for filling-up the short-term vacancies, the appointment would amount to be the back-door entries which cannot be protected on any ground whatsoever. Similar view has been taken by this Court in Thomas Chandy v. Rajasthan Financial Corporation & Anr., (1998 (2) RLW 1356). Thus, in view of the above, petitioner cannot be held to be holding a permanent post. (6). In Parshottam Lal Dhingra v. Union of India & ors., ( AIR 1958 SC 36 ), a Constitution Bench of the Supreme Court held that appointment even to a permanent post on probation means that the employee was taken on trial and such an appointment comes to an end even during or at the end of the probation if the person so appointed is found to be unsuited and his services are terminated. (7). A Seven Judges Bench of the Hon’ble Apex Court, in Samsher Singh v. State of Punjab, ( AIR 1974 SC 2192 ), has held that an appointment on probation or on an officiating basis, is of a transitory character with an understanding/implied condition that such an appointment is terminable at any time. The appointment on temporary basis or on probation cannot be equated with holding the permanent post, for the reason that when a person is appointed on probation, he does not have a right to hold the post and if it is found that he was not suitable for the post, his probation can be terminated at any time. (Vide State of Maharashtra v. Veerappa R. Saboji & Anr., ( AIR 1980 SC 42 ) and Union of India & ors. v. P. 5. Bhat, ( AIR 1981 SC 957 ). (8). (Vide State of Maharashtra v. Veerappa R. Saboji & Anr., ( AIR 1980 SC 42 ) and Union of India & ors. v. P. 5. Bhat, ( AIR 1981 SC 957 ). (8). The period of probation is a period of test, during which the work and conduct of an employee is under scrutiny. If on an assessment of his work and conduct during this period it is found that the employee is not suitable for the post, it would be open to the employer to terminate his services, as the same cannot be equated with that of a permanent employee, who, on account of his status, is entitled to be retained in service which cannot be terminated abruptly without any plausible cause and without following the law provided for termination. It is only a permanent employee, who substantively holds a permanent post, has a right to continue on the post till he reaches the age of superannuation or is removed from service by following the due process of law. (Vide Moti Ram Deka v. General Manager, N.E.F. Railways, ( AIR 1964 SC 600 ) and Life Insurance Corporation of India & Anr. v. Shri Raghavendra Seshagirirao Kulkarni, (1997) 8 SCC 461 ). (9). This issue has been considered by the Apex Court from time to time and it has consistently been held that a probationer can be terminated from service for “failure to satisfactorily completing the period of probation”. The termination of services on the ground of unsatisfactory work cannot be termed as penal and does not require any enquiry. (Vide State of Punjab v. Baldeo Singh Khosla, ( 1996 (9) SCC 190 ). (10). In V. K. Krishnamani v. Lalit Kala Academy, ( AIR 1996 SC 2444 ), the Supreme Court observed as unde “The very object of the probation is to test the suitability and if the appointing authority finds that the candidate is not suitable, it certainly has the power to terminate the services of the employee. Under these circumstances it cannot but be held that the reasons mentioned constitute the motive and not foundation for termination of services.” (11). In State of Uttar Pradesh & Ors. Under these circumstances it cannot but be held that the reasons mentioned constitute the motive and not foundation for termination of services.” (11). In State of Uttar Pradesh & Ors. v. Kaushal Kishore Shukla, ( 1991 (1) SCC 691 ) the Apex Court has held that termination of services of temporary government servant, in terms of contract of service, by passing an order of termination simplicitor on assessment of suitability after considering his work and service record, must be held as valid and not punitive. A similar view has been taken by the Apex Court in Ram Chandra Tripathi v. U.P. Public Service Tribunal, ( 1994 (5) SCC 180 ). (12). In Governing Council of Kidwai Memorial Institution on Oncology v. Dr. Pandurang Godwalkar & Anr., ( AIR 1993 SC 392 ) the Hon’ble Supreme Court has observed as under:- “But whenever the service of an employee is terminated during the period of probation or while his appointment is on temporary basis, by an order of termination simplicitor after some preliminary enquiry, it cannot be held that as some enquiry had been made against him before issuance of order of termination, it really amounts to his removal from service on a charge, as such penal in nature The principle of tearing of the veil for finding out the real nature of order shall be applicable only in the case where the Court is satisfied that there is a direct nexus between the charges so levelled and the action taken. If the decision is taken to terminate the services of an employee during the period of probation after taking into consideration the over-all performance and some action or in action on the part of such an employee, then it cannot be said that it amounted to his removal from service as a punishment. It need not be said that the appointing authority, at the stage of confirmation or while examining the question as to whether the services of such employee be terminated during continuation of the period of probation, is entitled to look into any compliant made in respect of such employee while discharging his duties for purpose of making assessment of the performance of such employee.” (13). While deciding the aforesaid case the Apex Court had placed reliance on its earlier Judgment in Oil & Natural Gas Commission v. Dr. While deciding the aforesaid case the Apex Court had placed reliance on its earlier Judgment in Oil & Natural Gas Commission v. Dr. M. S. I. Ali, (AIR 1980 SC 1242) wherein it was held that if a person is appointed on probation for a particular period only in order to test whether his conduct is good and satisfactory so that he may be retained even if misconduct, negligence or inefficiency may be the motive, or the influencing factor which induced the employer to terminate the services of the employee, which such employer admittedly held under the terms of appointment, such termination can not be held to be punitive. (14). In K.K. Shukla (supra), the Apex Court considered the averment that discharge order had been passed after holding preliminary inquiry. The Hon’ble Supreme Court held that inquiry, which was held was of a preliminary nature and the object of holding such an enquiry was to ascertain the suitability of the employee for his continuation in service and there can be no element of punitive proceedings as no charge has been framed, no enquiry officer was appointed and no findings were recorded. Same view has been taken by the Supreme Court in Champaklal Chimanlal Shah v. Union of India & Ors., ( AIR 1964 SC 449 ) and in Jagdish Mitra vs. Union of India & Ors. (15). The issue was, also, considered in Anoop Jaiswal v. Government of India and another, ( AIR 1984 SC 636 ) and the Supreme Court came to the conclusion that as the discharge was based on a particular incident which reflected on inefficiency of probationer, the termination could not have been made without holding proper enquiry and the Court held that if the probationer is discharged on the ground of misconduct or inefficiency or for similar reason without a proper enquiry and without giving him a reasonable opportunity to show cause against his discharge, it may be violative of the mandate of law and in such a case it is open to the Court to examine whether the order, which apparently looks innocuous, has been passed for some other reason. (16). Similarly, in the case of Jurnail Singh v. State of Punjab, ( AIR 1986 SC 1626 ), the Supreme Court held that the mere form of order is not sufficient to hold that the order of termination was innocuous. (16). Similarly, in the case of Jurnail Singh v. State of Punjab, ( AIR 1986 SC 1626 ), the Supreme Court held that the mere form of order is not sufficient to hold that the order of termination was innocuous. When an allegation is made by the employee assailing the order of termination as one based on misconduct, though goes in innocuous terms, it is incumbent on the Court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of In such a case the Court may lift the veil and see whether the order was made on the ground of misconduct/inefficiency or not; but for that an allegation of serious magnitude must be alleged by the discharged employee and he must adduce sufficient evidence in support of it. (17). In Life Insurance Corporation of India (supra), it has been held that the requirement to hold a regular departmental enquiry before dispensing with the services of a probationer, cannot be invoked in the case of a probationer, especially when his services are terminated by an innocuous order which does not cast any stigma on him. (18). In Dr. Amrit lal Dharshibhai Jhankharia v. State of Gujarat & ors., (1998) 8 SCC 767 ), the Hon’ble Supreme Court held that a probationer has no right to hold the post if he does not complete the probation period satisfactorily. (19). In Ganganagar Zila Dugdh Utpadak Sahkari Sangh Ltd. & Anr. v. Priyanka Joshi, ( AIR 1999 SC 2363 ), the Hon’ble Supreme Court observed as under:- “In the order of appointment, it was clearly stipulated that the respondent’s services could be terminated during probationary period if his services were unsatisfactory. When such is performance of a person, if his services are terminated during the period of probation, obviously there has to be a reason for such termination. If the services are terminated during probationary period without any reason whatsoever, it is possible that such an order may be impugned on the ground that it has been passed arbitrarily. On the other hand, when there is a reason for terminating the services during probationary period and the order terminating the services is worded in an innocuous manner, we do not see any force in the contention that such an order has to be regarded as by way of punishment.” (20). On the other hand, when there is a reason for terminating the services during probationary period and the order terminating the services is worded in an innocuous manner, we do not see any force in the contention that such an order has to be regarded as by way of punishment.” (20). In State of U.P. & Anr. v. Ram Krishan & Anr., (1999) 7 SCC 350 ), it has been held by the Hon’ble Supreme Court that if the temporary appointment is subject to the condition that respondent’s services could be terminated without any prior intimation and his services are terminated without holding any inquiry or without giving any notice, the termination order cannot be interferred with for the reason that his position was similar to that of an employee on probation and termination of his service was a result of review of his performance which was not found to be satisfactory. Such a termination order cannot be held to be bad in law. (21). In Ashok Kumar Srivastava v. National Insurance Company Ltd. & Ors. ( (1998) 4 SCC 361 ) the Apex Court held that an employee is not entitled to continue to be in employment if his services had been terminated during the period of probation in view of the terms and conditions incorporated in the letter of appointment. (22). In State of Punjab v. Surinder Kumar Singh, ( AIR 1992 SC 1593 ), the Apex Court held that the services of a temporary employee are always governed by the terms and conditions incorporated in his appointment letter and there is no reason why such terms be not enforced. (23). In Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta & Ors., ( AIR 1999 SC 983 ), the Hon’ble Supreme Court considered the issue of termination of services of the probationer elaborately. The Court placed reliance on a large number of its earlier Judgment s, including State of Orissa v. RamNarain Das. (23). In Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta & Ors., ( AIR 1999 SC 983 ), the Hon’ble Supreme Court considered the issue of termination of services of the probationer elaborately. The Court placed reliance on a large number of its earlier Judgment s, including State of Orissa v. RamNarain Das. ( AIR 1961 SC 177 ); State of Punjab v. Sukhraj Bahadur, (AIR 1961 SC 1089); Madan Gopal v. State of Punjab, ( AIR 1963 SC 531 ); Gujarat Steel Tube v. Gujarat Steel Tube Mazdoor Sangh, ( AIR 1980 SC 1896 ) and Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. & Anr., (JT 1998 (8) SC585) and held that as to in what circumstances an order of termination of the probationer can be said to be punitive or not, depends upon whether certain allegations, which are the cause of termination, are the motive or foundation. The Court observed as under:- “The learned Judge pointed out that the employee being a probationer, ‘the inquiry against the respondent was for ascertaining whether he was fit to be confirmed.’ His Lordship pointed out that this inquiry was not of the same nature as an inquiry into charges of misconduct, negligence, inefficiency or other disqualification. On the facts of the case, the termination of a probationer was upheld inasmuch as the purpose of the inquiry was to find out if the employee could be confirmed. The purpose of the inquiry was not to find out if he was guilty of any misconduct, negligence, inefficiency or other disqualification… The underlined words are very important and demarcate the line of distinction. If the inquiry officer held no sitting, did not take evidence nor recorded any conclusions and if at that stage the inquiry was dropped and a simple order of termination was passed, the same would not be punitive.” (24). In the High Court of Judicature at Patna v. Pandey Madan Mohan Prasad Sinha & Ors., (1997) 10 SCC 409), the Hon’ble Apex Court held as under:-“The position of a probationer cannot be equated with that of an employee who had been substantively appointed on a post and has a right to hold that post. An order terminating the services of a probationer can be questioned by way of punishment without complying with the requirements of Article 311(2) of the Constitution. An order terminating the services of a probationer can be questioned by way of punishment without complying with the requirements of Article 311(2) of the Constitution. Since a probationer has no right to hold the post on which he has been appointed on probation, he cannot claim a right to be heard before an order terminating his services is passed. The obligation to communicate the adverse material to a person before taking action against him on the basis of the said material is a facet of the principles of natural justice. The principles of natural justice have no application in the case of termination of the services of a probationer during the period of probation since he has no right to hold the post. It is, therefore, not possible to hold that there is an obligation to communicate the adverse material to a probationer before a decision is taken on the basis of the said material that he is not fit for being retained in service. Such material can be relied upon to show that such a decision does not suffer from the vice of arbitrariness and is not capricious.” (25). Similar view has been taken in State of Madhya Pradesh v. Virendra Kumar Chourasiya, (1999) SCC (L&S) 1155). The Apex Court held that even non-payment of one month’s salary or notice would not vitiate the order of termination. (26). A Division Bench of this Court in Kanhaiya Lal v. State of Rajasthan & ors., (1998 WLR 25) placing reliance upon a large number of Judgment s of the Hon’ble Supreme Court and particularly in Allahabad Bank Officers Association & ors. v. Allahabad Bank & ors., ( AIR 1996 SC 2030 ); Chandu Lal v. Management of M/s Pan American World Airways, ( AIR 1985 SC 1128 ); Kamal Kishore Laxman v. Management of M/s. Pan American World Airways, ( AIR 1987 SC 229 ); Jagdish Prasad v. Sachiv, Zila Ganna Committee, Muzaffarnagar, ( AIR 1986 SC 1108 ); State of U.P. v. Madan MohanNagar, ( AIR 1967 SC 1260 ) and Jagdish Mitter vs. Union of India & Ors., held that if the order of termination reveals that appointment had been obtained by misrepresentation or he was found undesirable to be retained in service, such remarks cast a stigma and such an order cannot be held to be discharge simplicitor. Therefore, a case of discharge of a probationer has to be examined having an analytical view of the order impugned. (27). The instant case is being examined in the aforesaid back- drop. The terms and conditions incorporated in the appointment letter dated 28.98 read as under:- “(a) The appointment is temporary but likely to continue on satisfactory performance- Your claim for permanent appointment shall be considered as per the relevant rules in force. (b) You will be on probation for TWO years, which may be extended by the appointing authority depending on your performance. During the period of probation you will/may be required to undergo such training and to pass such tests as may be prescribed from time to time. (c) …………… (d) During the period of probation, your services may be terminated without assigning any reasons by giving one month’s notice or one month’s salary in lieu thereof” (28). The relevant part of the order of termination dated 17.5.99 (Amix.5) reads as under: “Your services are hereby terminated with effect from 17.6.99 by giving one month’s notice vide para 2 (d) of the letter (of appointment dated 28.98).” (29). The order of termination does not cast any stigma whatsoever and it is a termination simplicitor. Much reliance has been placed by Mr. Anand Purohit on the contents of the letter dated 15.99 (Annx. 4) which was a warning in the petitioner showing the negligence in his work. The said letter cannot be held to be a motive for terminating the services of the petitioner. At the most, it can be held to be a foundation for passing the order of discharge simplicitor. As the petitioner had no right to hold the post and his services could be terminated after giving notice in case his services were not found satisfactory. The letter dated 15.99 (Annx.4) shows that there was sufficient material to draw the inference that petitioner could not render services satisfactorily and the order of termination has not been passed arbitrarily or on whimsical grounds. In view of the law referred to above, even by stretch of imagination it cannot be held that the order of termination impugned is punitive in nature and, thus, no fault can be found with the order impugned. (30). The petition is devoid of any merit and accordingly dismissed. However, there shall be no order as to costs. In view of the law referred to above, even by stretch of imagination it cannot be held that the order of termination impugned is punitive in nature and, thus, no fault can be found with the order impugned. (30). The petition is devoid of any merit and accordingly dismissed. However, there shall be no order as to costs. It is further clarified that as the petitioner had been allowed to work under the interim order of this Court, the respondents shall not be entitled to recover any amount from him if paid during this period.