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2005 DIGILAW 742 (RAJ)

Rajendra Kumar Pokharna v. University of Ajmer

2005-03-03

AJAY RASTOGI

body2005
JUDGMENT 1. - The petitioner was appointed on probation in the cadre of Class IV initially for a period of two years, which was later on extended, but on account of unsatisfactory services, his services were dispensed with vide order dated 1.10.1991 (Ex.12) with one month's advance salary in lieu of notice. Its validity has been challenged by him in present writ petition. During pendency of writ petition, Rajendra Pokharna (petitioner) expired and an application was filed by his legal representative, which was allowed by this ':3ourt vide order dated 5.2.04 and his wife Smt. Beena Pokharna was brought on record to pursue the writ petition. 2. Factual matrix of present petition is that the petitioner on his application dated 10.8.87 (Ex.1) was appointed in the cadre of Class IV vide order dated 18.8.87 (Ex.2), on urgent temporary basis, and was placed on probation for two years vide order dated 12.11.90 (Ex.7) with retrospective effect from 24.8.1988 and his probation period was further extended vide order dated 19.11.90 for six months and thereafter for the further period of three months w.e.f. 24.2.90 vide order dated 12.3.91 and for further period of three months w.e.f. 24.5.91 vide order dated 2.8.91 (Ex.11) but because of unsatisfactory services, when the petitioner failed to make use of opportunity by extending period of probation, his services were terminated vide order dated 1.10.91 (Ex.12) holding that he failed to show any improvement during period of his probation, pursuant to the decision taken by the Board of Management in its meeting held on 1.10.91 that his services be dispensed with forthwith along with advance salary in lieu of notice. Hence this petition. 3. Shri Sunil Samdaria, counsel for the petitioner has challenged validity of termination order dated 1.10.91 (Ex.12) on twofold grounds. First & foremost submission is that the impugned termination order (Ex.12) is stigmatic & punitive in character as it imputes allegation against his conduct, behaviour and work. which could have been examined only in a regular disciplinary enquiry, absence of which the order of termination being simplicitor in nature, is bad and invalid. In support of his submission Shri Samdaria relied upon decision of Apex Court in Deepti R Banerjee v. S.N. Bose National Centre for Basic Science 1999(3) SCC 60 . 4. which could have been examined only in a regular disciplinary enquiry, absence of which the order of termination being simplicitor in nature, is bad and invalid. In support of his submission Shri Samdaria relied upon decision of Apex Court in Deepti R Banerjee v. S.N. Bose National Centre for Basic Science 1999(3) SCC 60 . 4. Second ground to assail impugned termination order is that the petitioner stood automatically confirmed in view of R.33(iv) of Rajasthan University Employees (Non-teaching) Recruitment Rules, 1974 ("Rules, 1974") (as adopted by respondent University) and being automatically confirmed, he has a right to hold the post and thereby his services could not be terminated without affording him a reasonable opportunity of hearing, and such termination of a deemed confirmed employee by the respondent is violative of Rules, 1964. In this regard Shri Samdaria relied upon decisions of Apex Court in Karnataka S.R.T. Corp. v. S. Manjunath 2000(5) SCC 250 and Uptron India Ltd. v. Shammi Bhan 1983(3) JT (SC) 47 . It may be pointed out that R. 33(iv) of 1974 Rules has been deleted vide resolution No. 16 dated 31.3.86. After it has been pointed out to the Counsel on 28.2.05 he has not pressed his submission with regard to automatic confirmation in view of R.33(iv) of the Rules. 5. Per contra, Shri Shobhit Vyas appearing on behalf of Shri A.K. Sharma, counsel for respondent University submitted that initial appointment of petitioner was on probation for two years; and since his work was not up to the mark, period of his probation was extended prom time to time so as to give him chance for improvement, vide order dated 19.11.90 (Ex.9, 10 & 11), but when he failed to improve despite opportunity his services were rightly terminated vide order dated 1.10.92 (Ex.12). 6. Shri Vyas also submitted that impugned order is a termination simplicitor and it does not impute allegation which makes it stigmatic or punitive in nature; and only because of his unsatisfactory services and when he failed to improve himself during period of his probation, the authority took decision to terminate his services. 7. I have heard counsel for the parties and perused the material on record. 7. I have heard counsel for the parties and perused the material on record. As to in what circumstances, an order of termination of a probationer can be said to be punitive or stigmatic, depends upon facts of each case and it has to be examined as to whether certain allegations which are cause of termination, are either the motive or foundation in examining the impugned decision. 8. To appreciate the controversy, I may advert to a few cases cited at the Bar. In D.P. Banerjee v. S.N. Bose National Centre For Basic Sciences (supra), the authority pointed out serious complaints against the petitioner and even during first one year of probation in extension letter dated 11.12.95 it was maintained that the petitioner prepared false bills and that he misbehaved with women academic staff members and thereafter there were two orders of extension of probation each for six months and in the termination order dated 30.4.97 it was stated in para 8 that it was being passed because of the conduct, performance, ability and capacity of the petitioner during the whole period. It was a case where an Enquiry Committee was appointed to probe into allegations in the complaints against the petitioner and the Enquiry Committee gave a report finding the petitioner's behaviour reprehensible and it confirmed that he was involved in a scuffle and did misdeeds like obtaining false signatures and lie was guilty of inefficient performance of duty, irregular attendance without permission, rude and disorderly behaviour and wilful insubordination. All such like allegations levelled against the petitioner were referred to by the authority while finally passing the order of termination. On examining over all material on record, the Apex Court recorded a finding that action of respondents in passing termination order was stigmatic but, it is not the case here. 9. In present termination order or extension order issued from time to time, nothing has been observed/mentioned with regard to his conduct, behaviour etc. The termination order only shows that the authority found unsatisfactory service despite opportunities afforded to him to improve and so found his services unsatisfactory and not up to the mark, which in my opinion, cannot be said to be stigmatic/punitive at all. 10. The termination order only shows that the authority found unsatisfactory service despite opportunities afforded to him to improve and so found his services unsatisfactory and not up to the mark, which in my opinion, cannot be said to be stigmatic/punitive at all. 10. From a perusal of termination order (Ex.12), it only refers to the unsatisfactory service and who failed to show improvement despite being warned, will in no manner constitute the termination to be stigmatic or punitive, on the contrary, sufficient opportunity was afforded to the petitioner by extending his services vide orders (Ann.9, 10 & 11) and if one fails to discharge his duties satisfactorily, a probationer has got no right to still hold the post. I am of the opinion that the termination order (Ex.12) is neither, stigmatic nor punitive in character and I find no force in the submissions made by counsel for the petitioner.Consequently, the writ petition fails and is hereby dismissed along with stay petition No. 531/91. No order as to costs.Writ Petition dismissed. *******