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Madhya Pradesh High Court · body

2017 DIGILAW 79 (MP)

Narayan Chand Oswal v. State of Madhya Pradesh

2017-01-13

SUJOY PAUL

body2017
ORDER : Sujoy Paul, J. This petition filed under Article 226 of the Constitution takes exception to the order dated 1.12.2011 (Annexure P/1) whereby services of the petitioners were terminated by holding that their services were not satisfactory on the basis of Performance Evaluation Report. 2. Shri Awasthy, learned counsel for the petitioners, criticized the said order by contending that the order is stigmatic and punitive in nature. He submits that the matter is squarely covered by the order passed by Indore Bench in W.P. No. 1510/2005(s) (Jitendra v. State of M.P.) decided on 9.07.2008. By taking this court to various paragraphs of the said order, it is submitted that such punitive order may be set aside. 3. Prayer is opposed by Shri Santosh Yadav, PL for the respondents/state by contending that the order is simpliciter in nature. The petitioners being contractual employees, have no right to continue in employment. The termination order is in consonance with the contract of employment. He submits that the judgment of Jitendra (supra) has no application in the present case. 4. No other point is pressed by learned counsel for the parties. 5. I have heard the counsel for the parties at length and perused the record. 6. The impugned order clearly shows that the singular reason for terminating the services of the petitioners is that as per their work evaluation, the work was not found to be satisfactory. Hence, termination order was passed. In the case of Jitendra (supra), the termination order on the face of it, appears to be innocuous (See : para-8). However, the Court examined the stand of the respondents mentioned in the return and found that the reason for termination is based on the report of a Committee which found illegalities and irregularities in purchases. Thus, this court lifted the veil and gathered the real nature and reason for termination. Shri Awasthy, learned counsel for the petitioners is unable to show any such similar reason given in the return. Thus, in my view, the judgment of Jitendra (supra), cannot be applied here. This is settled in law that if an order of termination refers to unsatisfactory service of employee, it cannot be said to be stigmatic. The Apex Court has taken stock of various judgments on this point and in Rajesh Kohli v. High Court of Jammu and Kashmir (2010) 12 SCC 783 , opined as under :- 23. This is settled in law that if an order of termination refers to unsatisfactory service of employee, it cannot be said to be stigmatic. The Apex Court has taken stock of various judgments on this point and in Rajesh Kohli v. High Court of Jammu and Kashmir (2010) 12 SCC 783 , opined as under :- 23. This position is no longer res integra and it is well settled that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences this Court has explained at length the tests that would apply to determine if an order terminating the services of a probationer is stigmatic. On the facts of that case it was held that the opinion expressed in the termination order that the probationer "work and conduct has not been found satisfactory" was not ex facie stigmatic and in such circumstances the question of having to comply with the principles of natural justice does not arise. 24. In Verma case 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 para 21 of the aforesaid decision it was stated by this Court thus: (SCC p. 528) "21. 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." In para 29 of the judgment, it further held thus: (SCC pp. 529-30) "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? 529-30) "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" 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" 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." (emphasis supplied) 25. In Krishnadevaraya Education Trust v. L.A. Balakrishna the services of respondent Assistant Professor were terminated on the ground that his on the job proficiency was not up to the mark. This Court held that merely a 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 a stigmatic one. This Court held in paras 5 & 6 thus: (SCC pp. 320-21) "5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as are as on there of If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, naturally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated be cause his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. If the order on the face of it states that his services are being terminated be cause his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say that such a contention will succeed. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated. 6. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services." (emphasis supplied) 26. In Chaitanya Prakash v. H. Omkarappa the services of the respondent were terminated by the appellant company. During the period of probation, his service were not found to be satisfactory and he was also given letters for improvement of his services and his period of service was also extended and ultimately the company terminated him. This Court after referring to a series of cases held that the impugned order of termination of the respondent is not stigmatic. 27. In State of Punjab v. Bhagwan Singh this Court at paras 4 & 5 held as follows : (SCC p. 637) "4. In our view, when a probationer is discharged during the period of probation and if for the purpose of discharge, a particular assessment of his work is to be made, and the authorities referred to such an assessment of his work, while passing the order of discharge, that cannot be held to amount to stigma. 5. The other sentence in the impugned order is, that the performance of the officer on the whole was "not satisfactory". Even that does not amount to any stigma." 28. In the present case, the order of termination is a fallout of his unsatisfactory service adjudged on the basis of his overall performance and the manner in which he conducted himself. The other sentence in the impugned order is, that the performance of the officer on the whole was "not satisfactory". Even that does not amount to any stigma." 28. In the present case, the order of termination is a fallout of his unsatisfactory service adjudged on the basis of his overall performance and the manner in which he conducted himself. Such satisfaction even if recorded that his service is unsatisfactory would not make the order stigmatic or punitive as sought to be submitted by the petitioner. On the basis of the aforesaid resolution, the matter was referred to the State Government for issuing necessary orders." This view is followed by the Supreme Court in the case of Rajesh Kumar Shrivastava v. State of Jharkhand and others- (2011) 4 SCC 447 . 7. Thus, I am unable to hold that the termination order is stigmatic in nature. Petitioners being contractual employees, have not right to continue indefinitely. No mandamus, for this purpose, can be issued. Petition fails and is hereby dismissed.