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Himachal Pradesh High Court · body

2012 DIGILAW 920 (HP)

Tarsem Lal v. Himachal Road Transport Corporation

2012-12-03

RAJIV SHARMA

body2012
Judgment Rajiv Sharma, J. The petitioner was appointed Driver in the respondent-Corporation on 01.01.1995. He was put on probation for a period of two years. A memorandum was served upon the petitioner on 02.02.1996, to which he filed reply vide Annexure P 2. The services of the petitioner were dispensed with on 27.05.1996/30.07.1996. He preferred an appeal against the same on 18.07.1997. Thereafter, he filed a representation on 20.05.2001. The last representation was made by the petitioner on 16.11.2010. He approached this Court by way of CWP No. 1018 of 2011. The Court vide judgment, dated 26.04.2011, disposed of the petition, directing the Managing Director of the respondent-Corporation to look into Annexure P-8 and take appropriate action within a period of two months. The Managing Director, Himachal Road Transport Corporation rejected the case of the petitioner on 14.09.2011. 2. Ms. Anjali Soni Verma, learned counsel for the petitioner has vehemently argued that it is not a case of simpliciter removal of the petitioner, but the order is punitive/penal, since services of her client have been removed on the basis of misconduct. She further argued that in case veil is lifted, then it will become evident that foundation for the removal of the petitioner was “misconduct”. She finally argued that a regular inquiry was required to be held against the petitioner before the issuance of office order, dated 27.05.1996/30.07.1996. 3. Mr. Adarsh Sharma, learned counsel for the respondents has vehemently argued that the petitioner was appointed on probation on 02.01.1995 and as per one of the conditions of appointment letter, he was put on probation for a period of two years and in case his work and conduct during the period of probation was not found satisfactory, his services were liable to be dispensed with without giving him any notice. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. The petitioner was appointed Driver on 02.01.1995. He was put on probation for a period of two years. During the course of probation period, the penalty of censure was imposed upon him on 16.12.1995. He has also consumed liquor on 03.09.1995, which led to registration of FIR No. 23, dated 03.09.1995. The probation period was for two years. It was open to the employer to supervise the work and functioning of the petitioner as Driver. Annexure P-3 is innocuous. He has also consumed liquor on 03.09.1995, which led to registration of FIR No. 23, dated 03.09.1995. The probation period was for two years. It was open to the employer to supervise the work and functioning of the petitioner as Driver. Annexure P-3 is innocuous. It cannot be said to be penal or punitive in nature. The conduct of the petitioner has not been found satisfactory during the probation period. In these circumstances, it was open to the employer to dispense with the services of the petitioner. 6. There is no merit in the contention of Ms. Anjali Soni Verma, learned counsel for the petitioner that a regular inquiry was required to be initiated against the petitioner, since the expression “misconduct” has been used by the Managing Director, Himachal Road Transport Corporation while rejecting the case of the case of the petitioner on 14.09.2011. Expression “misconduct” has been loosely mentioned by the Managing Director, Himachal Road Transport Corporation, Shimla in Annexure P-10. 7. What was intended by the employer, was that the services of the petitioner could be terminated during the probation period, since his working was not found satisfactory. The order, dated 27.05.1996/30.07.1996, Annexure P-3, has not caused any stigma to the petitioner. In the instant case, termination of the petitioner is not due to misconduct, but these are the instances, which have been taken into consideration by the employer to assess the suitability of the petitioner on probation. Petitioner has been appointed as Driver. He was supposed to be vigilant while driving the vehicle. On one occasion, he has consumed liquor on duty. The penalty of censure was also imposed upon the petitioner for availing leave w.e.f. 19.04.1995 to 25.04.1995 without prior permission of the competent authority. It is reiterated that it is a case of termination due to non-suitability of the petitioner. 8. Their Lordships of the Hon’ble Supreme Court in Pavanendra Narayan Verma versus Sanjay Gandhi PGI of Medical Sciences and another, (2002) 1 SCC 520 have held that generally speaking when a probationer’s appointment is terminated, it means that the probationer is unfit for the job, whether by reason or misconduct or ineptitude, whatever the language used in the termination order may be. Their Lordships have further held that employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. Their Lordships have held as under: “29. Before considering the facts of the case before us, one further seemingly intractable area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? Generally speaking, when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, 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. The decisions cited by the parties and noted by us earlier also do not hold so. 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. 30. As was noted in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences (supra). "At the outset, we may state that in several cases and in particular in State of Orissa v. Ram Narayan Das, [ AIR 1961 SC 177 ] it has been held that use of the word "unsatisfactory work and conduct" in the termination order will not amount to a stigma." 31. Returning now to the facts of the case before us. The language used in the order of termination is that the appellant's "work and conduct has not been found to be satisfactory." These words are almost exactly those which have been quoted in Dipti Prakash Banerjee's case as clearly falling within the class of non-stigmatic orders of termination. It is therefore, safe to conclude that the impugned order is not ex facie stigmatic.” 9. Their Lordships of the Hon’ble Supreme Court in Chaitanya Prakash and another versus H. Omkarappa, (2010) 2 SCC 623 have held that order terminating service during probation for unsatisfactory service cannot be said to be stigmatic. It is therefore, safe to conclude that the impugned order is not ex facie stigmatic.” 9. Their Lordships of the Hon’ble Supreme Court in Chaitanya Prakash and another versus H. Omkarappa, (2010) 2 SCC 623 have held that order terminating service during probation for unsatisfactory service cannot be said to be stigmatic. Their Lordships have further held that whether termination order is simpliciter or punitive has ultimately to be decided on facts and circumstances of each case. Their Lordships have held as under: “18. It is no longer res integra that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. In this connection, we make a reference to the decision of the decision of the Supreme Court in Abhijit Gupta v. S.N.B. National Centre, Basic Sciences (supra), wherein also a similar letter was issued to the concerned employee intimating him that his performance was unsatisfactory and, therefore, he is not suitable for confirmation. We have considered the ratio in light of the facts of the said case and we are of the considered opinion that the basic facts of the said case are almost similar to the one in hand. There also, letters were issued to the concerned employee to improve his performance in the areas of his duties and that despite such communications the service was found to be unsatisfactory. In the result, a letter was issued to him pointing out that his service was found to be unsatisfactory and that he was not suitable for confirmation, and, therefore, his probation period was not extended and his service was terminated, which was challenged on the ground that the same was stigmatic for alleged misconduct. The Supreme Court negatived the said contention and upheld the order of termination. 19. In Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd., (supra) also the concerned employee was kept on probation for a period of two years. During the course of his employment he was also informed that despite being told to improve his performance time and again there is no such improvement. His shortfalls were brought to his notice and consequently by order dated 16.01.1997 his services were terminated, wherein also a reference was made to his unsatisfactory service. During the course of his employment he was also informed that despite being told to improve his performance time and again there is no such improvement. His shortfalls were brought to his notice and consequently by order dated 16.01.1997 his services were terminated, wherein also a reference was made to his unsatisfactory service. In the said decision, the Supreme Court has held that on the basis of long line of decisions it appears that 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. 20. In Pavanendra Narayan verma v. Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520 ; this court had the occasion to determine as to whether the impugned order therein was a letter of termination of services simpliciter or stigmatic termination. After considering various earlier decisions of this court in paragraph 21 of the aforesaid decision it was stated by this Court thus :- "One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld." 21. In Abhijit Gupta (Supra.), this Court considered as to what will be the real test to be applied in a situation where an employee is removed by an innocuous order of termination i.e whether he is discharged as unsuitable or he is punished for his misconduct. In order to answer the said question, the Court relied and referred to the decision of this Court in Allahabad Bank Officers Assn. V. Allahabad Bank (1996) 4 SCC 504 ; where it is stated thus : "As pointed out in this judgment, expressions like "want of application”,” lack of potential" and "found not dependable" when made in relation to the work of the employee would not be sufficient to attract the charge that they are stigmatic and intended to dismiss the employee from service." 22. In our considered opinion, the ratio of the above-referred decisions are squarely applicable to the facts of the present case. The respondent was time and again informed during the probation period about his deficiencies and was given ample opportunities to improve them. Therefore, enough precautions were taken by the appellants to see that the respondent improved his performance and such an opportunity was provided to him. But such advices and opportunity were totally misplaced as the respondent considered the same as unnecessary encroachment and interference in his work and wrote back rudely in an intemperate language.” 10. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the writ petition and the same dismissed, so also the pending application(s), if any. No costs.