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2015 DIGILAW 669 (GAU)

Upasana Das v. Union of India

2015-06-02

MANOJIT BHUYAN

body2015
JUDGMENT 1. Heard Mr. M.K. Choudhury, learned senior counsel representing the petitioner, assisted by Mr. N. Barua, Advocate. Also heard Mr. N.C. Das, learned senior counsel representing Tezpur University, assisted by Ms. M. Das. 2. Matter pertains to release of the petitioner from service upon completion of the period of probation. Whether the order of release dated 21.03.2014 was in the domain of a termination simpliciter or on the basis of misconduct, is the issue which gains significance in this case. Touching upon the facts of the case, the petitioner, namely, Ms. Upasana Das had responded to the Advertisement No. 01/2012 issued by the Tezpur University as against the post of Public Relations and Information Officer (Administration), amongst others. Pursuant to selection, the petitioner was appointed to the said post by Office Order dated 20.03.2012 issued under the hand of the Registrar I/C of the Tezpur University. Although appointment was required to be made on regular basis, the petitioner was appointed on adhoc basis initially for a period of 2 years from the date of joining against the permanent post advertised. It was made clear that the period of 2 years would be considered as probation period. The said Office Order also made it clear that the performance of the petitioner would be assessed after one and a half years and thereafter the decision of the competent authority with regard to confirmation will be conveyed and if the performance is found satisfactory the petitioner would be entitled to the due benefits with retrospective effect. 3. In terms of the condition laid down in the Office Order dated 20.03.2012 with regard to assessment of the performance of the petitioner, such assessment was made on 21.06.2013 and according to the note of the Reporting Officer it was opined that her probation should perhaps be extended for a further period of atleast 6 months and then reviewed again. The said opinion of the Reporting Officer was also considered by the Reviewing Officer on 24.07.2013 with the note that further improvement is required. A second assessment of the performance of the petitioner was also carried-out on 20.09.2013 and according to the note put up by the Reporting Officer it was opined that the petitioner’s probation should be extended as either she is not capable of discharging her duties or not interested in discharging her duties/responsibilities as reflected in her performance. A second assessment of the performance of the petitioner was also carried-out on 20.09.2013 and according to the note put up by the Reporting Officer it was opined that the petitioner’s probation should be extended as either she is not capable of discharging her duties or not interested in discharging her duties/responsibilities as reflected in her performance. This report of the Reporting Officer dated 20.09.2013 was also considered by the Reviewing Officer on 01.10.2013 and the observation made thereof is that the petitioner had failed to complete some of the assessment given to her, which is an adverse signal to her competency. The same Reviewing Officer therefore opined that the petitioner cannot be recommended for confirmation. 4. The said assessment reports for the period from 23.03.2012 to 22.09.2013 was made available to the petitioner. 5. On 13.12.2013 the engagement of the petitioner with the University was terminated and she was directed to handover charge to the Deputy Registrar (GA) of the University. In the said Order dated 13.12.2013 reference was made to her involvement in posting comments in the social networking site ‘Facebook’ against a particular Officer of the University. Reference was also made that such involvement of the petitioner was unbecoming of a responsible officer and is also detrimental to the interest of the University. By the said letter dated 13.12.2013 it was also made known that in terms of the appointment letter dated 20.03.2012 her performance in service had also been assessed and found to be unsatisfactory. On such references, the Order dated 13.12.2013 was passed, which was the subject matter in WP(C) 7526/2013. This Court while issuing notices in the said WP(C) 7526/2013 had also stayed the operation of the Order dated 13.12.2013 until the next date fixed. On account of the subsequent development that had taken place by way of withdrawal of the Order dated 13.12.2013 by the respondent authority and the same having been brought to the notice of this Court, the WP(C) 7526/2013 was closed on grounds that no issue remained for adjudication. The said writ petition was closed by Order dated 20.03.2014. On 21.03.2014, i.e. on the very next day, the order assailed in the present proceeding was passed releasing the petitioner from her service at the Tezpur University. The said writ petition was closed by Order dated 20.03.2014. On 21.03.2014, i.e. on the very next day, the order assailed in the present proceeding was passed releasing the petitioner from her service at the Tezpur University. The order of release dated 21.03.2014 whereby the petitioner was released from service is extracted hereunder: “No. F.02-603/I(E)/5464 Date:- 21.3.2014 OFFICE ORDER On completion of term of ad-hoc appointment for a period of 02 (two) years as contained in the Office Order No. F.13-6/2/1/2000(E)/675-A dated 20.03.2012, Ms. Upasana Das, Public Relations and Information Officer, Tezpur University, is hereby released from the service of Tezpur University w.e.f. 22.03.2014 (afternoon). Ms. Das shall hand over the charges of her office to Mr. Hridoy Saikia, Deputy Registrar (GA), Tezpur University on the afternoon of 21.03.2014 in view of 22.03.2014 being holiday. Issued with due approval. Registrar Copy to:- 1) The Pro Vice-Chancellor, Tezpur University. 2) The Finance Officer, Tezpur University, with a request to release the payment of her unutilized Earned Leave of 40 days and Half Pay leave of 14 days and also to arrange for settlement of a deposits on her GSLI and NPS accounts with an intimation to the undersigned. 3) The Internal Audit Officer, Tezpur University. 4) The Librarian, Tezpur University. 5) The Dy. Registrar (GA), Tezpur University. 6) The Executive Engineer, Tezpur University. 7) The Asstt. Registrar (Estate), Tezpur University. 8) The Secretary to the VC, Tezpur University, for kind information of the VC. 9) The Hindi Officer, Tezpur University, He is requested to place the matter in the next meeting of the BoM for ratification. 10) Person concerned. She is requested to return her TU Identity Card to the Asstt. Registrar (Esstt). Registrar” 6. Mr. M.K. Choudhury, learned senior counsel submits that although the Order dated 21.03.2014 appears to be innocuous, it is a camouflage for an order of dismissal for alleged misconduct. The foundation of the impugned action being on alleged misconduct, as such the impugned order cannot legally stand the scrutiny of law on grounds of violation of the principles of natural justice. To this end, Mr. Choudhury refers to Section 26 of the Tezpur University Act, 1993 to say that power to make statute is contemplated therein. The foundation of the impugned action being on alleged misconduct, as such the impugned order cannot legally stand the scrutiny of law on grounds of violation of the principles of natural justice. To this end, Mr. Choudhury refers to Section 26 of the Tezpur University Act, 1993 to say that power to make statute is contemplated therein. On Statute No. 47 framed in exercise of power under Section 26 of the Act, it is urged that for any act or conduct of an employee prejudicial to the interest or reputation of University attracting imposition of minor penalty or major penalty, the procedure for granting reasonable opportunity of being heard cannot be dispensed with. It is further urged that the impugned Office Order dated 21.03.2014 has to be read with the earlier termination Order dated 13.12.2013, which would mean that the decision to release her from service was only on account of her involvement in posting comments in Facebook and not for any other reason. In support, reference is made to paragraph 13 of the affidavit-in-opposition filed by Tezpur University wherein it is stated that the involvement of the petitioner, being a responsible officer, was not expected to involve herself as the same may adversely impact the enquiry that had been initiated to look into the issue with regard to sexual harassment where another Faculty Member of the same department was involved. In the said affidavit-in-opposition reference is also made to the fact that notwithstanding withdrawal of the earlier termination Order dated 13.12.2013, the same was not to be construed as exonerating the petitioner from the charges. Mr. Choudhury, learned senior counsel submits that since the aforesaid Facebook episode occurred prior to the observation made by the Reviewing Authority, as such the dominant intention playing in the mind of the Respondent Authority to dispense with her services was not on account of unsatisfactory performance but due to alleged misconduct. 7. Mr. Choudhury, learned senior counsel having laid the foundation that the release order had been passed on ground of alleged misconduct, as such, it is contended that the same has to pass the test of natural justice, which was not afforded in the case of the petitioner. Mr. 7. Mr. Choudhury, learned senior counsel having laid the foundation that the release order had been passed on ground of alleged misconduct, as such, it is contended that the same has to pass the test of natural justice, which was not afforded in the case of the petitioner. Mr. Choudhury relies upon the case of State Bank of India & Others v. Palak Modi & Another reported in (2013) 3 SCC 607 to say that although the competent authority cannot be castigated while taking a decision to terminate the service of a probationer on account of general unsuitability, however if the allegation of misconduct constitutes the foundation of the action taken, such termination can stand to be nullified on ground of violation of the principles of Natural Justice. Mr. Choudhury further submits that the Court is empowered to lift the veil and upon being satisfied may declare that in the garb of termination simpliciter, the employer had only punished the employee for an act of misconduct. On the same line Mr. Choudhury, learned senior counsel also relies upon the case of Anoop Jaiswal v. Government of India and Another reported in (1984) 2 SCC 369 to say that it is always open to the Court before which the order is challenged to go behind the form and to ascertain the true character of the order. If the order is in reality a camouflage or cloak for an order of punishment, the Court would not be debarred from giving appropriate relief. The sum and substance of Mr. Choudhury’s contention is that the Court is to see whether the real foundation of the impugned action is on grounds of general unsuitability or is an action taken on the basis of alleged misconduct which according to the senior counsel, even until this date has remained without exoneration and stigma perpetuates. 8. Mr. N.C. Das, learned senior counsel representing Tezpur University submits that as it would be apparent from the order of release dated 21.03.2014, the same was issued not on ground of misconduct but due to unsatisfactory performance of the petitioner. Mr. Das, learned senior counsel submits that the same is in keeping with the terms and conditions of the order of appointment dated 20.03.2013, in that, the performance of the petitioner was assessed on two occasions and eventually the Reviewing Authority had observed that the petitioner was not eligible to be confirmed. Mr. Das, learned senior counsel submits that the same is in keeping with the terms and conditions of the order of appointment dated 20.03.2013, in that, the performance of the petitioner was assessed on two occasions and eventually the Reviewing Authority had observed that the petitioner was not eligible to be confirmed. Mr. Das further submits that the earlier Order of termination dated 13.12.2013 having stood withdrawn, as such the observation made therein with regard to posting of comments in the social networking site ‘Facebook’ do not have any relevance. In other words, Mr. Das submits that the release order dated 21.03.2014 was passed ignoring the alleged acts of misconduct as against the petitioner which had been observed in the earlier termination Order dated 13.12.2013. Reference is made to the affidavit-in-opposition filed by the University to say that the petitioner who had been entrusted with all duties and responsibilities had totally failed to perform the duties. Also, in terms of Clause-3 of the Appointment Order the final decision was taken only after proper assessment of the performance on completion of one and half years of service. According to Mr. Das, the terms of appointment was distinct and clear and while taking the final decision for releasing the petitioner from service, the University had followed the laid down terms and conditions and after conducting periodic assessment with intimation to the petitioner. It is also submitted that the petitioner was afforded ample opportunities to correct herself and respond to the assessment report but the same was ignored. In all, the petitioner’s performance in the service was far below the bench mark of a Group-A Officer. On the issue relating to a temporary servant or probationer and the principles laid down by the Apex Court, Mr. Das places reliance in the case of State of U.P. v. Ram Chandra Trivedi reported in AIR 1976 SC 2547 to say that since the order of release does not cast any stigma on the petitioner nor does it visit her with evil consequence nor it is founded on misconduct, as such the petitioner cannot invite the Court to go into the motive behind the order. Reliance is also placed upon the decision in Life Insurance Corporation of India & Another v. Raghavendra Seshagiri Rao Kulkarni reported in AIR 1998 SC 327 to say that the requirement to hold a regular departmental enquiry before dispensing with the services of the probationary cannot be invoked in the case when service is terminated by an innocuous order which does not cast any stigma on the person concerned. It is urged that appointment to a permanent post on probation means that the service is taken on trial and such appointment comes to an end if during or at the end of the probation, the person so appointed is found to be unsuitable. Relying on the said judgment in Life Insurance Corporation of India (supra) Mr. Das, learned senior counsel submits that an appointment on probation or on officiating basis is of a transitory character with an implied condition that such an appointment is terminable at any time. Mr. Das submits that the case in hand is also of the nature where during the period of probation and on the basis of assessment made, the petitioner was not found suitable for confirmation of her service. In the case of State of Punjab and Others v. Sukhwinder Singh reported in (2005) 5SCC 569, to which reliance is placed, it is a case where it has been held that the power of the employer to put an employee on probation for watching his/her 9. What culls out from the various judgments cited is that an order dispensing with the service of a probationer, which is innocuous and does not cast any stigma, is not to be interfered with. An exception is brought in, in the case when such termination appears to be punitive in nature. To ascertain the position as to whether the order impugned is a termination simpliciter or punitive in nature found on misconduct, is the exercise to be carried out having regard to the facts of the case. In the affidavit filed by the Tezpur University, mention is made that the petitioner’s involvement in posting comments in Face Book was not acceptable and has caused an adverse impact upon the enquiry initiated against another faculty member of the same Department. It is also stated that the said act of the petitioner was unbecoming of an Officer of the University. It is also stated that the said act of the petitioner was unbecoming of an Officer of the University. Statement has also been made to justify the grounds on which the earlier termination Order dated 13.12.2013 had to be withdrawn, attributing the same to certain procedural lapses and not on any other account. While saying so, the stand of the Respondent University is that the withdrawal of the earlier termination Order dated 13.12.2013 do not mean that the petitioner was exonerated from the charges. The most vital statement made in the affidavit-in-opposition is in respect of the statement made in paragraph 20 of the affidavit-in-opposition which, on a bare reading, indicates that the issue with regard to involvement in the Facebook occurred sometime prior to 29.09.2013. The fact that the conduct of the petitioner being involved in the Facebook episode was playing in the mind of Respondent University and the same being made one of the grounds for issuing the earlier termination Order dated 13.12.2013 cannot be wished away. A bare perusal of the said termination Order dated 13.12.2013 itself makes it clear that the conduct of the petitioner was regarded as unbecoming of a responsible officer and that her actions are detrimental to the interest of the University. Although the Reviewing Authority, by note dated 01.10.2013, had indicated that the petitioner cannot be recommended for confirmation, however there is no material on record to show that such recommendation of the Reviewing Authority had been considered and accepted by the Board of Management. 10. The sequence of events would also go to show that the earlier Order of termination dated 13.12.2013, on challenge made before this Court in WP(C) No. 7526/2013, was kept in abeyance by order of this Court dated 20.12.2013 and during the pendency of the said writ petition the said order of termination dated 13.12.2013 was withdrawn. The writ petition was closed on 20.03.2014 on ground that no lis survived for consideration and the order impugned in the present proceeding was passed immediately on the next date i.e. on 21.03.2014. The writ petition was closed on 20.03.2014 on ground that no lis survived for consideration and the order impugned in the present proceeding was passed immediately on the next date i.e. on 21.03.2014. The sequence of facts and dates only indicates that the Facebook episode was all along playing in the mind of the respondent authority and by removing the adverse remarks by withdrawing the termination order dated 13.12.2003, replaced and repeated their intention to dispense with the services of the petitioner by the impugned order dated 21.03.2014 which, at first glance, appears to be an innocuous one. 11. A dispassionate and objective view would be that the Release Order dated 21.03.2014 was not passed on any fresh material, save and except, what was playing in the mind of the Respondent University at the time of issuing the earlier termination Order dated 13.12.2013. Although the Release Order dated 21.03.2014 do not make mention of misconduct on the part of the petitioner, however the same also do not go to indicate that the same had been passed for want of satisfactory performance on the part of the petitioner or on the basis of assessment made. The Office Order dated 21.03.2014, in fact, appears to be too innocuous to inspire the confidence of the Court that the same was in the nature of a termination simpliciter having regard to the facts of the case. In fact, the issue with regard to the Facebook episode and the conduct of the petitioner being regarded as unbecoming of a responsible officer and that her actions were detrimental to the interest of the Institution, had been the dominant factor in eventually dispensing with the services of the petitioner. By their own statement made in the affidavit-in-opposition, the stand of the respondent authority is that although the earlier Order of termination dated 13.12.2013 stands withdrawn, however, the same should not be construed as exonerating the petitioner from the charges. This itself vindicates the mind-set. 12. The decisions of the Apex Court relied upon by Mr. N.C. Das, learned senior counsel do not come to the aid of the respondent, inasmuch as, the affidavit filed the respondent authority in the present case portrays a different picture to show that alleged misconduct was the foundation for dispensing with the services of the petitioner. 12. The decisions of the Apex Court relied upon by Mr. N.C. Das, learned senior counsel do not come to the aid of the respondent, inasmuch as, the affidavit filed the respondent authority in the present case portrays a different picture to show that alleged misconduct was the foundation for dispensing with the services of the petitioner. As this Court has the power to lift the veil to ascertain whether the order assailed is by way of termination simpliciter or punitive in nature or whether the order assailed is a camouflage or a cloak in the garb of termination simpliciter, for all the reasons stated and discussed above, it is held that the foundation of the order dated 21.03.2014 was on the basis of the Facebook episode and on the accusation made against the petitioner that her conduct was unbecoming of a responsible officer and also that her action was detrimental to the interest of the institution. To reiterate, although a bare perusal of the Release Order dated 21.03.2014 appears to be an innocuous order so issued in terms of Clause 3 of the appointment order, however, from the discussions above it leaves no room for doubt that the same was based on misconduct alleged against the petitioner. No opportunity having been afforded to the petitioner prior to the issuance of the Office Order dated 21.03.2014 and for the reasons stated above, the Office Order dated 21.03.2014 cannot stand the scrutiny of law and is liable to be set aside, which is accordingly done. 13. As a result, this writ petition is allowed and the parties are left to bear their own costs.