Research › Search › Judgment

J&K High Court · body

2016 DIGILAW 509 (JK)

Sandeep Kumar v. S. M. V. D. University

2016-10-05

ALOK ARADHE

body2016
JUDGMENT : Alok Aradhe, J. 1. In this petition, the petitioner has assailed the validity of the order dated 25-03-2011 passed by respondents by which services of the petitioner, who was working a Horticulture Assistant, have been discharged. In order to appropriate the petitioner's grievance, few facts need mention which are stated infra. The petitioner was appointed as Assistant in Horticultural Services on contractual basis on a consolidate remuneration, initially for a period of six months on 05-12-2005. Thereafter, the tenure of the petitioner was extended from time to time. By an order dated 05-05-2009, the petitioner was offered appointment as Horticulture Assistant in the establishment of respondents in the pay scale of Rs. 5500-175-9000 on contract basis for a period of one year, which was extendable to another year. However, the extended period of appointment was to be treated as period of probation. The order of appointment further provided that on satisfactory completion of period of probation, the appointment shall be for a period of five years inclusive of the period of probation. The order of appointment clearly stipulates that during the aforesaid period, the services of the petitioner may be terminated by the respondent by giving one month's notice and the petitioner was also given liberty to resign from the service of the University by giving one month's notice. 2. The petitioner accepted the offer of appointment and submitted his joining report on 06-05-2009. Thereafter, the respondent by an order dated 25-03-2011 on the basis of overall performance of the petitioner, found that performance of the petitioner is not satisfactory and, therefore, his services are no longer required by the University. Accordingly, services of the petitioner were discharged in terms of Clause (1) of the order of appointment of the petitioner dated 05-05-2009 by giving him one month's salary. In the aforesaid factual background, the petitioner has approached this Court. 3. Learned counsel for the petitioner submitted that the impugned order is not an order of termination but is an order of discharge and there is no provision either in the letter of appointment or in the Ordinances of the University empowering the same to discharge the services of the petitioner. It is further submitted that in the fact situation of the case, provisions of Statute 25(1) of Chapter 2 will apply and no Departmental Inquiry has been held before passing the order of termination. It is further submitted that in the fact situation of the case, provisions of Statute 25(1) of Chapter 2 will apply and no Departmental Inquiry has been held before passing the order of termination. It is argued that the impugned order is stigmatic in nature. It is also submitted that no notice with regard to non-satisfactory performance was ever issued to the petitioner and he was not given an opportunity to improve his performance. On the other hand, the respondents had granted him increments, which show that the services rendered by the petitioner were satisfactory. Lastly, it is submitted that since the services of the petitioner were terminated by a stigmatic order, an opportunity of hearing ought to have been afforded to him. In support of aforesaid submissions, learned counsel for the petitioner has referred to decision of Supreme Court in case of Anoop Jaiswal v. Government of India, (1984) 2 SCC 369 : 1984 AIR (SO 369. 4. On the other hand, learned senior counsel for the respondents, while inviting attention of this Court on the averments made in the writ petition, pointed out that the petitioner has not drawn any distinction with regard to the termination and discharge in the pleadings, therefore, the argument raised on behalf of the petitioner that he has been terminated from services is beyond the pleadings. In this connection, reference has been made to averments made in paragraph 16, Clauses (g) and (h). It is submitted that the word 'termination' is of wider amplitude and is covered within its ambit 'discharge' also. It is also submitted that mere mention in the order of discharge that the services of the petitioner have not been found satisfactory would not tantamount to any stigma. It is also submitted that even if inadvertently, the petitioner has been given some increments, the same would be of no consequence. It is also argued that the petitioner has been repeatedly advised to improve his performance, however, petitioner failed to do so. Learned senior counsel for the respondents has also produced record in pursuance of the order passed by a Bench of this Court on an earlier occasion. It is further stated that the case of the petitioner is squarely covered by Statute 25(3) of the Statutes of the University. Learned senior counsel for the respondents has also produced record in pursuance of the order passed by a Bench of this Court on an earlier occasion. It is further stated that the case of the petitioner is squarely covered by Statute 25(3) of the Statutes of the University. In support of the aforesaid submissions, learned senior counsel for the respondents has relied upon the case of Rajesh Kohli v. High Court of J & K & Anr., 2010 (5) JKJ 1 [SC]: JKJ Soft JKJ/27279. 5. I have considered the submissions made by learned counsel for the parties. Admittedly, the service conditions of the petitioner are governed under the Regulations and Ordinances framed under the J&K Shri Mata Vaishno Devi University Act, 1999. It is also not in dispute that on 05-12-2005 when the petitioner was appointed as Assistant on temporary contractual basis on a consolidated remuneration, initially for a period of six months and thereafter the tenure of the petitioner was extended from time to time. The petitioner thereafter was appointed as Horticulture Assistant by order dated 05-05-2009 in the pay scale of Rs. 5000-175-9000. Clause (1) which is relevant for the purpose of controversy involved in this writ petition reads as under: "1. The appointment shall be initially on contract basis for a period of one year, extendable to another year, which shall be treated as period of probation. On satisfactory completion of the period of probation, appointment shall be for a period of Five years inclusive of the period of probation. During this period, if deemed necessary your services may be terminated by the University by giving one months' notice. Further you may also resign from the services of the University by giving one month's notice. However, the University reserves the right to terminate your services forthwith on payment of one month's salary in lieu of the notice period, if required. Further continuation of your services will be governed by the rules of the University on the subject matter." 6. From close scrutiny of the aforesaid Clause, it is evident that the appointment of the petitioner was initially on contract basis for a period of one year which was extendable to another year which shall be treated as period of probation. On successful completion of period of probation, the appointment was to be made for a period of five years inclusive period of probation. On successful completion of period of probation, the appointment was to be made for a period of five years inclusive period of probation. The University had the authority to terminate the services by giving one month's notice. The petitioner was also at liberty to resign from the service by giving one month's notice. 7. Statute 25 of the Statutes of the University deals with the removal of the employees other than a teachers. Statutes 25(1) and 25(3) are reproduced below for the facility of reference: "Statute (1) Notwithstanding anything contained in the terms of his contract of service or of his appointment, an employee of the University, other than a teach, may be removed by the Authority which is competent to appoint the employee if the employee is found guilty of misconduct or insubordinate or any activity against the sanctity of the University code & conduct." Statute (3) Notwithstanding anything contained in these Statutes, an Employee appointed on contract basis or on probation shall be removed by giving one month's notice in writing or paid one month's salary in lieu of notice." 8. From perusal of Statute 25(1), it is evident that services of an employee, who is found guilty of misconduct or insubordination or any activity against the sanctity of the University code and conduct, can be terminated by the Competent Authority, whereas Statute 25(3) says that notwithstanding anything contained in these Statutes, an employee appointed on contact basis or on probation shall be removed by giving one month's notice in writing or paid one month's salary in lieu of notice. 9. The appointment of the petitioner on the post of Horticulture Assistant was on contract basis which was extendable by another year which shall be treated as period of probation. After expiry of period of another one year, i.e., 04-05-2010, the petitioner continued in service. The performance of the petitioner was not found to be satisfactory and, therefore, by impugned order dated 25-03-2011, the services of the petitioner were discharged. 10. The Supreme Court in the case of Rajesh Kohli (Supra) and Munir Mills Unit of N.T.C. v. Swayam Prakash Shrivastava, (2007) 1 SCC 491 has held that mere mention in the order by the employer that the services of the employee are not found to be satisfactory would not tantamount to the order being stigmatic in nature. 10. The Supreme Court in the case of Rajesh Kohli (Supra) and Munir Mills Unit of N.T.C. v. Swayam Prakash Shrivastava, (2007) 1 SCC 491 has held that mere mention in the order by the employer that the services of the employee are not found to be satisfactory would not tantamount to the order being stigmatic in nature. Therefore, contention of the petitioner that the order is stigmatic in nature cannot be accepted. Similarly, the contention of the petitioner that since he was granted increments and, therefore, his performance was satisfactory also, does not deserve acceptance, as mere grant of yearly increments would not in any manner indicate that the employer is not competent to scrutinize the record of the employee and to take a decision as to whether or not the services of an employee should be confirmed or dispensed with {See Rajesh Kohli's case (supra)}. 11. In pursuance of an order passed by a Bench of this Court, the respondents have produced record which frescos a different picture. From the perusal of the record, it is evident that the respondents in order to satisfy themselves with regard to suitability of the petitioner had conducted an informal inquiry in which the statement of the petitioner was also recorded. Thereafter, the authority came to the conclusion that the petitioner is not suitable for continuing in employment and, accordingly, an order of discharge was passed. It has been held by the Supreme Court in the case of State of Punjab v. Sukhwinder Singh, (2005) 2 SCC 569 that the superior officer in order to satisfy himself whether an employee should be continued in service or not can make an inquiry and it would be wrong to held that inquiry which was held was for the purpose of imposing punishment. It has further been held that superior authorities of the department had to take work from an employee and they are best people to judge whether an employee should be continued in service and probationer is on test and a temporary employee has no right to the post. In view of the aforesaid enunciation of law by the Supreme Court, no fault can be found with the impugned order which otherwise is innocuous and not has been passed either on the ground of misconduct or the same is stigmatic in nature. The order, therefore, need not be preceded by a formal inquiry. In view of the aforesaid enunciation of law by the Supreme Court, no fault can be found with the impugned order which otherwise is innocuous and not has been passed either on the ground of misconduct or the same is stigmatic in nature. The order, therefore, need not be preceded by a formal inquiry. 12. The contention raised by the learned senior counsel for the petitioner that in absence of any provision of discharge under the Act and the Regulations as well as the Ordinances, the University has no authority to pass an order of discharge, is misconceived as it is trite law that an authority who passes the order has the authority to modify or rescind the same, in view of Section 21 of the General Clauses Act, 1977. Record produced by the respondents is returned to them. In view of the preceding analysis, I do not find any merit in this case, the same fails and the same is hereby dismissed.