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2017 DIGILAW 498 (CAL)

Satyadeo Prasad v. State of West Bengal

2017-05-19

SUBRATA TALUKDAR

body2017
JUDGMENT : This petition has been moved by two writ petitioners challenging an order of termination of their probationary service as Assistant Professors at the Respondent/Presidency University as communicated by its Registrar on 21st April, 2017. 2. Mr. Anurag Ojha, learned Counsel appearing for the petitioners, straightway draws the attention of this Court to the language of the impugned order dated 21st April, 2017 (supra) which, according to learned counsel, merely makes mention of the fact that the service of the petitioners was found to be not satisfactory. Therefore, the petitioners stood discharged from their probationary status notwithstanding the non-expiry of one year of such status respectively on 26th May, 2017 and 25th May, 2017. 3. Mr. Ojha seeks to explain the time lag between the issue of the order of termination dated 21st April, 2017 and the date of seeking leave of this Court to move the writ petition on an urgent basis, on the ground that the petitioners attempted to exhaust the remedies upto the stage of the First Officer of the Presidency University, being the Governor as its Chancellor. Since, by the communication dated 16th May, 2017 from the office of the Chancellor to the desk of the Principal Secretary, Higher Education Department, Government of West Bengal for appropriate consideration and, considering the fact that the probationary period would expire on 26th May, 2017 and 25th May, 2017 respectively, the matter was mentioned before this Court on an urgent basis on the 18th May, 2017 and leave granted to move the petition on 19th May, 2017, that is today. 4. Mr. Ojha, notwithstanding the legal position that termination of probationary service does not require to be interfered with by a Court unless found to be stigmatic, relies heavily on the pronouncement of Hon’ble Apex Court in AIR 1989 SC 1431 in the matter of Dr. Mrs. Sumati P. Shere vs. Union of India (UOI) and Ors. particularly at paragraphs 5, 6 and 8 thereof. The said paragraphs read as follows: 5. We must emphasize that in the relationship of master and servant there is a moral obligation to act fairly. An informal, if not formal, give-and-take, on the assessment of work of the employee should be there. The employee should be made aware of the defect in his work and deficiency in his performance. The said paragraphs read as follows: 5. We must emphasize that in the relationship of master and servant there is a moral obligation to act fairly. An informal, if not formal, give-and-take, on the assessment of work of the employee should be there. The employee should be made aware of the defect in his work and deficiency in his performance. Defects or deficiencies; indifference or indiscretion may be with the employee by inadvertence and not by incapacity to work. Timely communication of the assessment of work in such cases may put the employee on the right track. Without any such communication, in our opinion, it would be arbitrary to give a movement order to the employee on the ground of unsuitability. 6. The counsel for the respondents argued that the appellant being temporary servant no enquiry need be held for her removal if her services are not up to the mark. He placed reliance on the decisions of this Court in: (i) Champaklal Chimanlal Shah v. The Union of India MANU/SC/0274/1963 : 1964 (1) LLJ 752 SC and (ii) Oil & Natural Gas Commission v. Dr. M.D.S. Iskender Ali MANU/ SC0435/1980: 1980 (2) LLJ 155 SC. Both the cases pertain to the termination of a temporary government servant who was on probation. The termination was on the ground that his work had never been satisfactory and he was not found suitable for being retained in the service. This Court held that the termination of service in such cases on the ground of unsuitability for the post not attract Article 311(2) of the Constitution. 7. There cannot be any dispute about this proposition. We are not laying down the rule that there should be a regular enquiry in this case. All that we wish to state is that if she is to be discontinued it is proper and necessary that she should be told in advance that her work had performance are not up to the mark. 8. In the result, we allow the appeal, set aside the impugned order dated 12 January, 1985 terminating the service of the appellant. We, however, make it clear that the appellant will not claim the status of a regular employee unless her services are regularised in accordance with law. In the circumstances of case, we make no order as to costs. 9. Next, Mr. We, however, make it clear that the appellant will not claim the status of a regular employee unless her services are regularised in accordance with law. In the circumstances of case, we make no order as to costs. 9. Next, Mr. Ojha relies upon another decision of the Hon’ble Apex Court reported in (2012) 13 SCC 182 in the matter of Pradip Kumar vs. Union of India (UIO) and ors. which reiterates the legal position already discussed above in AIR 1989 SC 1431 (Supra) 10. On the strength of the above noted citations, Mr. Ojha argues that the petitioners are entitled to be communicated with any adverse remark related to their alleged under-performance to the post in issue prior to issuance of any order of termination. From the four corners of the impugned communication dated 21st April, 2017 respectively addressed to the petitioners, there is found no whisper of any adverse remark or alleged under-performance of the petitioners which disqualifies them to claim extension of probation. 11. Relying on the Service Rules of the Presidency University, learned Counsel for the petitioners points out that the probationary status is normally for a period of one year unless extended. The concept of extension of probationary period makes implicit the legal principle enshrined in AIR 1989 SC 1431 and (2012) 13 SCC 182 that, at the very least, the employer must grant an opportunity to the employee to make good its perceived defects failing which it shall be always open to the employer to discharge the services of the said employee. 12. The above noted legal principle is strongly highlighted by Mr. Ojha without purporting to touch upon the stigmatic connection to the termination of a probationer, which occupies another field of legal discussion. 13. Appearing for the respondents/Presidency University, Mr. Partha Sarathi Sengupta, learned Senior Counsel with Mr. Soumya Majumder, learned counsel first makes the point that the writ petition is not maintainable since two petitioners claiming identity of treatment in service cannot approach this Court way by way of a consolidated action although enjoying separate services. Mr. Sengupta seeks to demonstrate before this Court that the relative performance in service qua the two petitioners is bound to be different and, such difference ought to have been reflected in separate writ petitions. Therefore, Mr. Sengupta takes the point that the present writ petition is bad for mis-joinder of parties. 14. Mr. Mr. Sengupta seeks to demonstrate before this Court that the relative performance in service qua the two petitioners is bound to be different and, such difference ought to have been reflected in separate writ petitions. Therefore, Mr. Sengupta takes the point that the present writ petition is bad for mis-joinder of parties. 14. Mr. Sengupta next highlights the settled legal position that the satisfactory or otherwise performance of an employee on probation and, the fact that the employee stood discharged within the first probationary period without an effort to extend him in service, indicate the positive expression of mind of the employer to the effect that the said employee/in this case the petitioners, are not eligible to continue on the ground of unsatisfactory service. 15. In support of his submissions Mr. Sengputa relies upon the authority of In Re: (2003) 4 SCC 104 (at paragraph 38) and statute No. 29(3) of The Presidency University Act, 2010. 16. Without seeking to touch on the merits of the satisfactory or otherwise performance of the petitioners, Mr. Sengupta relies upon a Department wise Evaluation Report purportedly submitted by students of the college which, it is claimed, is a non-open exercise. From the evaluation report Mr. Sengupta emphasises on the poor relative performance of the petitioners compared to other teachers in the Department of Hindi. 17. Having heard the parties and considering the materials placed, this Court answers the issues raised by the respective counsel as follows:- A. That admittedly the probationary period of the petitioners is yet to expire on 26th May and 25th May, 2017 respectively B. That admittedly the petitioners have approached this Court within the outer limit of the expiry of their probationary period C. That notwithstanding the communication impugned dated 21st April, 2017 that the petitioners are discharged from their probationary status forthwith, this Court cannot lose sight of the fact that the expression ‘forthwith’ must be deemed to be read in harmony with the completion of the outer time limit of the first probationary appointment. D. This Court is of the positive view that the Registrar of the University cannot introduce the expression ‘forthwith’ to cut short the first probationary period already fixed by the employers/University for one year notwithstanding the refusal on the part of the employers/University to extend such probationary period beyond its expiry period on the ground of unsatisfactory service. D. This Court is of the positive view that the Registrar of the University cannot introduce the expression ‘forthwith’ to cut short the first probationary period already fixed by the employers/University for one year notwithstanding the refusal on the part of the employers/University to extend such probationary period beyond its expiry period on the ground of unsatisfactory service. E. That this Court is of the further view that the petitioners admit to exhausted their normal channels of remedies up to the office of the Chancellor of the Presidency University and, therefore, notwithstanding multiplicity of the representations, approached this Court within the expiry of their first probationary period as referred to above on the 26th and 25th May, 2017 respectively. Accordingly, this Court does hold the view that the petitioners are entitled to claim a relief on priority basis. F. This Court while being ad idem with the submissions advanced without demur at the Bar that a probationary status ought not to be interfered with unless found to be stigmatic, cannot but also act in ignorance of the proposition of law laid down in AIR 1989 SC 1431 (supra) as applied to the facts of the present case that a termination, found not to be ultimately satisfactory, even on probation does not diminish the right of the petitioners to receive a communication on their perceived unsatisfactory service from the respondent/Presidency University. G. This Court again, in the facts of the present case, finds the observations of the Hon’ble Apex Court in AIR 1989 SC 1431 (supra) to be pari materia in as much as although there can be no requirement of a regular enquiry in case of an unsatisfactory performance of probationary service, it is a well known canon of service jurisprudence that adverse remarks or, under performance, even in a probationary service, must be communicated by the employer to employees, such as the petitioners, to make good such under performance subject to acceptance by the employer/University. H. That this Court while arriving at the above noted findings cannot be oblivious to the fact that the respondents/Presidency University was not dealing with the probationary status of Group-D employees but, that of Assistant Professors, who were found qualified to hold such posts in the first instance and therefore, by virtue of such responsible petitioners are entitled to receive the benefit of making good any lacuna which may be perceived on the part of the employer/Presidency University I. While considering the Department wise Evaluation Report handed over by learned Senior Counsel for the respondents/Presidency University today, this Court, while refraining from making any further comments on the issue till affidavits are exchanged between the parties, must however note that the only remarkable grades in the departmental evaluation is in favour of the respondent No. 4/Head of the Department of the Presidency University. 18. Such Departmental Evaluation, according to this Court, may be put to a regular scrutiny during the onward progress of this writ petition. 19. In the backdrop of the above discussion, this Court is persuaded to grant an interim order in terms of prayer (e) of the writ petition until further orders. 20. The grant of the interim order is made notwithstanding the right of the University to appraise the individual performance of the petitioners and, its freedom to take an appropriate decision on the basis of such appraisal subject to the law on the point as discussed above. 21. Affidavits are invited. 22. Let Affidavit-in-opposition be filed within a period of two week after the Summer Recess, 2017; reply within two weeks thereafter. 23. Liberty to mention strictly upon notice to the other sides after the period granted to exchange affidavits is complete. Later: 24. Prayer for stay of operation by Mr. Sengupta is considered and refused.