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2009 DIGILAW 641 (CAL)

Abhijit Bhattacharjee v. STATE OF WEST BENGAL

2009-08-21

KISHORE KUMAR PRASAD, PRANAB KUMAR CHATTOPADHYAY

body2009
Judgment :- (1) PRANAB KUMAR CHATTOPADHYAY, J. This appeal has been preferred at the instance of the writ petitioner challenging the order dated 11th March, 2008 passed by a learned Single Judge of this court in W.P. No. 19303 (W) of 2005 whereby and where under the said learned Judge finally disposed of the writ petition without granting any relief to the appellant herein. (2) The appellant herein was appointed as Junior Assistant-cum-Typist pursuant to the letter of appointment dated 29th April, 2002 issued by the Registrar, Jadavpur University. From the aforesaid offer of appointment it transpires that initially the appointment of the appellant was on probation for a period of one year and the services of the said appellant was also to be governed by the Service Rules of the Jadavpur University. The aforesaid probationary period of the appellant was, however, extended for a period of six months w.e.f. 30th April, 2003 and subsequently, the Registrar of the Jadavpur University by the written communication dated 28th October, 2003 discharged the appellant from the services of the University in terms of Section 28(3) of the Jadavpur University Act, 1981. The aforesaid written communication of the Registrar dated 28th October, 2003 is set out hereunder: Challenging the aforesaid decision of the University, appellant herein filed the writ petition which was finally disposed of by the impugned order dated 11th March, 2008 passed by the learned Single Judge. It has been submitted on behalf of the appellant that the order of termination issued to the appellant was in fact not an innocuous order of termination simpliciter in accordance with the terms of appointment. Mr. Kamalesh Bhattacharyya, learned Counsel representing the appellant submitted that the learned Single Judge should have examined the service records of the appellant in order to find out the real basis of the order of termination issued to the appellant herein. Mr. Bhattacharyya further submitted that in the present case, learned Single Judge did not appreciate that the form of the order of termination was merely a camouflage and the real basis of the said order of termination would have come to light if the said learned Judge had lifted the veil. (3) Ms. Chameli Majumdar, learned counsel representing the respondent-Jadavpur University authorities, however, submitted that the appellant herein did not acquire any right to the post during the period of probation. Ms. (3) Ms. Chameli Majumdar, learned counsel representing the respondent-Jadavpur University authorities, however, submitted that the appellant herein did not acquire any right to the post during the period of probation. Ms. Majumder further submitted that the appellant having no vested right over the post cannot maintain the writ petition and accordingly, the learned Single Judge was justified in dismissing the same. The learned Counsel of the respondent-Jadavpur University authorities referred to and relied on a Division Bench judgment of this court in the case of Prasanta Banerjee vs. Oriental Insurance Company Limited and Ors. reported in 2005 (3) C.H.N. 168 wherein this court observed: 6. It is well-settled by a plethora of precedents that when an employee is put on a period of probation by the employer, the employee does not acquire any right to the post. Rather the employee is put on a trial. The period of probation gives the employer a locus poenitentiae which means a right to withdraw from an incompleted transaction (Blacks Law Dictionary page 848, 5th Edition). This has been recognised by the Apex Court in Ajit Singh vs. State of Punjab, reported in AIR 1983 SC 494 (see page 498, Para 7 of the report). (4) It has also been submitted by the learned Counsel of the respondent- Jadavpur University authorities that the appellant was given extended period of probation and inspite thereof no further material was available to assess his performance as satisfactory. It has been specifically argued on behalf of the respondents that in the instant case, the order of termination of the appellant is a simple non-stigmatic order and the same was passed in terms of the relevant provisions of the Jadavpur University Act and statutes. The learned Counsel of the respondent-Jadavpur University authorities further submitted that the order of termination issued to the appellant was neither punitive nor stigmatic and, therefore, there was no necessity of holding any enquiry upon observing the principles of natural justice. The learned Counsel of the respondent-Jadavpur University authorities referred to and relied on the following decisions of the Supreme Court in support of her aforesaid contentions: 1) (2007) 1 SCC 491 [Muir Mills Unit of NTC (U.P) Ltd. vs. Swayam Prakash Srivastava and Anr.] (Paragraphs 44, 45 and 46) 2) (1999) 2 SCC 21 [Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and another] (Paragraph 33) (5) Ms. Majumder, learned counsel of the University authorities also referred to and relied on the decision of the Supreme Court in the case of Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences and another reported in (2002) 1 SCC 520 and submitted that all the three tests indicated by the Honble Supreme Court in the aforesaid decision, if applied to in the present case, the order of termination neither being stigmatic nor being punitive, clearly remains a valid one. The learned counsel of the respondent-University authorities submitted that the gesture of the appointing authority for not holding any full fledged enquiry and invoking disciplinary action against the appellant herein should be appreciated since the non-stigmatic simple order of discharge has saved the appellant from being disabled for any future appointment. The learned Counsel of the University authorities further submitted that the impugned order of discharge being a simple, non-stigmatic and non-punitive one does not invite any interference by this Honble court and furthermore, the unexplained belated challenge of the appellant does not merit any premium. The learned Counsel of the University authorities submitted that the order of termination took effect from 28th October, 2003 and the same was challenged by filing the writ petition on 26th September, 2005 and, therefore, according to the said learned Counsel of the respondents, the Writ Court should refuse to grant any relief to the appellant/writ petitioner on the aforesaid ground of delay alone. (6) We, however, do not consider that the writ petition was required to be dismissed on the ground of delay alone. As a matter of fact, the learned Single Judge did not dismiss the writ petition on the ground of delay. The respondents also did not raise the aforesaid objection before the learned Single Judge. Furthermore, due to delay in approaching this court the appellant herein did not enjoy any benefit. No third party right has also accrued on account of the aforesaid delay on the part of the appellant in approaching this court. For the aforementioned reasons, the claim of the appellant cannot be turned down on the sole ground of delay. From the records we find that the respondent-Registrar of the Jadavpur University as the Disciplinary Authority placed the appellant under suspension by the order dated October 3, 2002. For the aforementioned reasons, the claim of the appellant cannot be turned down on the sole ground of delay. From the records we find that the respondent-Registrar of the Jadavpur University as the Disciplinary Authority placed the appellant under suspension by the order dated October 3, 2002. The said office order is set out hereunder: While the appellant was under suspension another letter dated 25th/28th March, 2003 was issued to the appellant by the said Registrar of the Jadavpur University extending the probationary period for six months w.e.f. 30th April, 2003. The said letter of the Registrar dated 25th/28th March, 2003 is set out hereunder: From the aforesaid written communication of the Registrar dated 25th/28th March, 2003 it is clear that the probationary period of the appellant was extended due to the pendency of the criminal case and not for the purpose of improving the performance of the said appellant. (7) Scrutinising the records produced before this court we find that the competent authority of the Jadavpur University on assessing the performance of the appellant never found anything unsatisfactory either during the period of probation or even during the extended probationary period. On examination of the entire records produced before this court we also do not find any unsatisfactory remark regarding the performance of the appellant by any superior authority. Ms. Chameli Majumder, learned Counsel representing the respondent-University authorities fairly submitted that the university authorities are not expected to wait for an indefinite period for taking decision regarding confirmation of the employee concerned. Ms. Majumder further submitted that the university authorities cannot confirm the appellant during the pendency of the criminal case. According to Ms. Majumder, sufficient time was granted to the appellant in order to be exonerated from the pending criminal case. (8) From the records as well as from the aforesaid submissions of the learned Counsel of the University authorities we find that the appellant herein was discharged from the services of the University due to the pendency of the criminal case and not on account of any unsatisfactory performance during the period of probation. (8) From the records as well as from the aforesaid submissions of the learned Counsel of the University authorities we find that the appellant herein was discharged from the services of the University due to the pendency of the criminal case and not on account of any unsatisfactory performance during the period of probation. The order of termination is couched in very innocuous words and the same admittedly does not attach any stigma but the form of the order does not reflect the true nature of the order as we find on examination of the records and upon considering the submissions of the learned Counsel representing the respondent university authorities. (9) Therefore, going behind the words and forms in order to decide whether the discharge of the appellant from the services of the University was a discharge simpliciter or not we find that the real basis of the order has not been reflected in the order of termination issued to the appellant. In the present case, the Registrar being the Disciplinary Authority undisputedly placed the appellant under suspension by issuing a specific office order on October 3, 2002 and extended the probationary period for a period of six months due to the pendency of the criminal proceeding. However, subsequently the appellant was discharged from service by the order dated 28th October, 2003 which is couched in innocuous terms. Therefore, following the decision of the Supreme Court in the case of Jarnail Singh and others vs. State of Punjab and others reported in AIR 1986 SC 1626 it is incumbent on the court to lift the veil and see the real circumstances as well as the basis and foundation of the order complained of. In the aforesaid decision, Honble Supreme Court held: 32. The position is now well-settled on a conspectus of the decisions referred to hereinbefore that the mere form of the order is not sufficient to hold that the order of termination was innocuous and the order of termination of the services of a probationer or of an ad hoc appointee is a termination simpliciter in accordance with the terms of the appointment without attaching any stigma to the employee concerned. It is the substance of the order i.e. the attending circumstances as well as the basis of the order that have to be taken into consideration. It is the substance of the order i.e. the attending circumstances as well as the basis of the order that have to be taken into consideration. In other words, when an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched 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 other words, the Court, in such case, will lift the veil and will see whether the order was made on the ground of misconduct, inefficiency or not. In the instant case we have already referred to as well as quoted the relevant portions of the averments made on behalf of the State respondent in their several affidavits alleging serious misconduct against the petitioners and also the adverse entries in the service records of these petitioners which were taken into consideration by the Departmental Selection Committee without giving them any opportunity of hearing and without following the procedure provided in Art. 311(2) of the Constitution of India while considering the fitness and suitability of the appellants for the purpose of regularising their services in accordance with the Government Circular made in October, 1980. Thus the impugned orders terminating the services of the appellants on the ground that the posts are no longer required are made by way of punishment. (10) From the facts narrated hereinbefore, we find that the Disciplinary Authority of the appellant did not discharge him from the service of the University on consideration of his work during the period of probation and as a matter of fact, the real reason behind the termination was the pendency of the criminal proceeding against the said appellant, as we have already held hereinbefore upon examination of the records and considering the submissions of the learned Counsel of the University. (11) When the Registrar being the Disciplinary Authority placed the appellant under suspension and extended the probationary period on the sole ground of pendency of the criminal proceeding then there could be no valid reason to issue the order of termination to the said appellant invoking the power in terms of Section 28(3) of the Jadavpur University Act, 1981. In the present case, the real basis of the order of termination has to be taken into consideration by this court. In the present case, the real basis of the order of termination has to be taken into consideration by this court. (12) There is no doubt that the order of termination issued to the appellant is couched in innocuous terms but going through the records produced before this Court we are satisfied that the appellant was not discharged from service of the University on consideration of his work during the period of probation. The decisions cited by Ms. Majumder, learned Counsel of the respondent-Jadavpur University authorities are not at all applicable and clearly distinguishable in the facts of the present case. (13) It is well settled that the form of the order is not conclusive and the Court is entitled to go behind the orders to decide whether the discharge is a discharge simpliciter or not. In the present case, we have already held on examination of the records that the real reason behind the order of termination of the appellant has not been mentioned in the impugned order of termination dated 28th October, 2003, which is couched in innocuous terms. Since we have already held that real reason for discharging the appellant from the services of the University was the pendency of the aforesaid criminal proceeding, we are unable to accept the order of termination issued by the Disciplinary Authority as a termination simpliciter in accordance with the terms of appointment as claimed by the respondent-University authorities. The Supreme Court considering the earlier decisions settled the principle in this regard in the case of Jarnail Singh and Others (Supra), which we have already referred to hereinbefore. In the aforesaid circumstances, before discharging the appellant from the services of the University, Disciplinary Authority should have initiated appropriate disciplinary proceedings as we are of the opinion that the impugned order of termination was issued to the appellant by way of punishment. For the aforementioned reasons, the order of termination issued to the appellant cannot be sustained in the eye of law as the same is punitive in nature and without observing the principles of natural justice and procedural justice such punitive order cannot be issued to an employee even during the period of probation. Therefore, the order of termination dated 28th October, 2003 issued by the Registrar, Jadavpur University to the appellant herein is liable to be quashed and the same is quashed accordingly. Therefore, the order of termination dated 28th October, 2003 issued by the Registrar, Jadavpur University to the appellant herein is liable to be quashed and the same is quashed accordingly. We have already held that the concerned authority of the respondent-University found the appellant unsuitable due to pendency of the criminal case although nobody should suffer prejudice due to mere pendency of the criminal case. Following the principle of presumption of innocence the appellant should have been presumed to be innocent as every person should be presumed to be innocent until the contrary is proved. In the case of Harendra Sarkar vs. State of Assam reported in (2008) 9 SCC 204 , Supreme Court observed: 51. Presumption of innocence is a human right. Such a legal principle cannot be thrown aside under any situation. (See Narendra Singh vs. State of M.P. and Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra). (14) In the present case, admittedly, the appellant was exonerated from the criminal case by the order dated 18th May, 2005 passed by the learned Judicial Magistrate, 3rd Court, Alipore in B.G.R. No. 3121 of 2002 and T.R. 550 of 2003 although the said appellant had to suffer serious prejudice during the pendency of the aforesaid criminal case. (15) The learned Single Judge, in our considered opinion, failed to appreciate the real issues involved in the writ petition filed by the appellant herein and erroneously rejected the said writ petition. (16) For the aforementioned reasons, the impugned order under appeal passed by the learned Single Judge cannot be sustained in the eye of law and the same is accordingly set aside. (17) The respondent-Jadavpur University authorities are directed to forthwith allow the appellant to resume his duties in the post of Junior Assistant-cum-Typist as the order of suspension issued earlier by the respondent-Disciplinary Authority had already merged with the final order of termination, which we have quashed. (18) In the facts of the present case, we are, however, not inclined to issue any direction regarding payment of back wages. With the aforesaid observations and directions, this appeal stands allowed. There will be no order as to costs.