Research › Search › Judgment

Calcutta High Court · body

2019 DIGILAW 907 (CAL)

Arup Kumar Bhaumik v. State of West Bengal

2019-11-01

ABHIJIT GANGOPADHYAY, SAMBUDDHA CHAKRABARTI

body2019
JUDGMENT : ABHIJIT GANGOPADHYAY, J. 1. This appeal has been filed against the judgment and order dated 1st February, 2019 passed in a writ application being W.P. No. 3691 (W) of 2017. The grievance of the appellant is that the writ court has committed error, inter alia, in not passing an order of reinstatement of the appellant even after holding that the termination order dated 2nd February, 2017 was a stigma. The appellant has submitted that the said order is ex facie stigmatic and contain grave allegations against the appellant, thereby affecting his status in the society at large and future employment prospects. The charges and imputations contain in the said letter, forming the foundation of the order, are grave and serious in nature and accordingly, such an order could not have been lawfully passed without issuing a show cause and holding a full-fledged enquiry against the appellant (notwithstanding the fact that he was on probation) – which was not done by the Respondent authority. It has further been submitted by the appellant that no correspondence had ever been addressed by the management of the Respondent College to the appellant even remotely mentioning such grave charges. It is further submitted that mere direction of deletion of the stigmatic portion of the termination letter as passed by the writ Court is incorrect. It is the further submission of the appellant that the impugned termination order is to be set aside in its entirety and a direction of reinstatement in service of the appellant with arrear salary should be passed. 2. The appellant filed the writ application challenging the termination of his service by termination letter dated 2nd February, 2017 issued to him by his employer RCC Institute of Information Technology (RCC, in short, hereafter) during his extended probation period. The appellant joined RCC as the Principal on 26th August, 2015. On exchange of affidavits by and amongst the parties including the added respondent (who was appointed as Principal of the said College after termination of the petitioner) the Hon’ble Court was pleased to pass the impugned judgment and order, effective portion of which is as follows: “Petitioner is entitled to declaration that the second sentence being, “you have failed to behave upon the expected standard of conduct which has given rise to a situation involving a loss of confidence on you” is stigmatic. There will be a direction for deleting said sentence in impugned letter as deemed to have been deleted”. 3. In the appointment letter issued to the appellant it was mentioned that he would be in probation for a minimum period of one year from the date of his joining and will be absorbed on regular basis on satisfactory completion of the probationary period. 4. The Chairman of the Board of Governor of RCC (Chairman, in short, hereafter) by a letter dated 24th August, 2016 extended the probationary period of the appellant by six months. In the said letter of extension of the probationary period absolutely nothing was mentioned as to dissatisfaction of RCC regarding the deficiency in performance of the petitioner for the last one year of his job as Principal of RCC. 5. On behalf of the appellant a letter dated 24th January, 2017 was issued by his lawyer to RCC pointing out clause No. 7 of chapter III of condition of service of Service Rules of RCC specifying that the probationary period was extendable by a maximum period of one year in case of unsatisfactory performance which was totally absent in the said letter of extension of probation. In the said letter on behalf of the appellant some specific objections were also raised in respect of a meeting of the Board of Management of RCC (BOM, in short) dated 18th January, 2017 wherein the appellant was not allowed to participate in the meeting for the full time of the meeting despite the appellant was the de jure member Secretary of the BOM. The Chairman by his letter dated 31st January, 2017 gave a reply to the said letter on behalf of the appellant wherein there is neither any mentioning of the said service rule of RCC nor any specific denial to the allegation of maintaining silence as to performance of the appellant in the first year of his probation nor any specific denial was there as to the allegation of irregularity of the said meeting. 6. 6. The tenor of the above reply of the Chairman shows that he reacted sharply in respect of the question raised about conducting the meeting by saying that if the appellant had not been aware of the procedure of the meeting he could have discussed and asked the appropriate authority and he could/should not have asked in that way the internal affairs of running of the institute. I have noted the unusualness in such sharp reaction of the Chairman. 7. After two days of the above reply the Chairman issued a letter dated 2nd February, 2017 terminating the service of the appellant. 8. It is necessary to note some comments made in the said letter of termination of service: (i) “Unfortunately, you have failed to satisfy the authority even during the extended period of your probation inspite of (sic.) advices/direction given to you from time to time”. (ii) “Your role as a custodian of confidential information related to the affairs of the management is questionable”. (iii) “You have failed to behave upon the expected standard of conduct which has given rise to a situation involving a loss of confidence on you”. (iv) “It appears from your actions that you are in no mood to co-operate with the decision making process of the BOM”. The above comments together are hereinafter referred to as the “four comments”. 9. After recording, inter alia, the “four Comments” as aforesaid it has been written in the said letter of termination that “In view of the above, the management of the Institute has no other option but to terminate your service as Principal of the Institute with effect from 2nd February, 2017 as per relevant clause of service rules”. (Emphasis mine). Considering the expression “in view of the above” used in the intimation part of the termination letter it is evident that all of the above “four comments”, if not more, were taken into account as grounds of termination of service. But the employer came to such conclusions expressed in the “four comments” for termination of the service of the appellant without making the appellant aware about the reasons for making the “four comments” that weighed against him. But the employer came to such conclusions expressed in the “four comments” for termination of the service of the appellant without making the appellant aware about the reasons for making the “four comments” that weighed against him. There should have been some process and some deliberations in reaching to the above conclusions by the employer against the appellant but the appellant was not made a part of such process and deliberations and RCC has not disclosed any papers/documents as to such process and deliberations, if any, at all. 10. Against this letter of Chairman terminating service the appellant herein filed the writ application being W.P. No. 3691 (W) of 2017 (which gives rise to the present appeal) with the following prayers. (a) Writ of and/ or in the nature of Mandamus directing the Respondents to recall/rescind and cancel the letter no. CHM/RCCIIT/2017/220 dated 02.02.2017, for termination passed against the petitioner being annexed to this writ petition. (b) Writ of and/or nature of Mandamus directing the respondent to allow the petitioner to resume his function and duties as Principal of RCCIIT. (c) Writ of and/or in the nature of Certiorari directing the Respondents to certify and transmit the records of this case before this Hon’ble Court so that the impugned letter no. CHM/RCCIIT/2017/220 dated 02.02.2017, issued against the petitioner, may be quashed and conscionable justice done to the parties; (d) That after issuance of the said notice for termination, the Respondent Authority published a notice in a daily news paper the “Sunday Times” on 06.02.2017 inviting application from the eligible candidates for filling up the said post of Principal of RCCIIT. Such process of recruitment should be stopped by this Hon’ble Court. Photo copy of the said paper publication is annexed hereto and marked with the letter “P-11”. (e) A writ of prohibition restraining the respondent from filling up the post of principal of RCCIIT till the disposal of this writ application. (f)Rule NISI in terms of prayers (a), (b), (c),(d) and (e) above; (g) Interim order in terms of prayer (b) and (d) above: (h) Such further writ or writs, order or orders and/or direction or directions as may be deemed fit and /or proper, in the facts and circumstances of the case. 11. The letter of termination shows that it was not a termination simpliciter. 11. The letter of termination shows that it was not a termination simpliciter. I have already noted the “four comments” made against the appellant in the letter of termination. 12. Nothing has been stated by RCC in its affidavit in the writ Court as to how RCC formed such adverse opinion against the appellant and as to why the appellant was not made aware about any of such allegations in any letter and in the letter extending the probationary period. It has also not been disclosed in the affidavit of RCC in the writ Court whether the situations which gave rise to such “four comments” in the termination letter all arose during this extended 6 (six) month probation period. In such a situation lifting its veil to know the background for such termination is permissible. But in this case RCC has itself lifted its veil by disclosing two letters ; one by some students of RCC and the other by the RCC’s staff association. RCC has alleged that both the students and the staff were against the Principal and made complaint against him. Those two letters have been disclosed as annexures R-4 and R-5 of the affidavit-in-opposition of RCC. On a reading of the said two letters it is found that the letter of the students might be of May 2016, (though the letter itself is undated) which demanded the appellant’s removal from the post of Principal of RCC as the Principal did not allow the students to submit examination Form for low attendance and he did not hear the students’ demand in this respect. I have noted that the appellant joined RCC in August 2015, and his probation period was extended in August 2016 wherein there is absolutely no reference to any shortcoming of the appellant as Principal. The letter of RCC’s staff association dated 18th January, 2017 disclosed absolutely no allegation against the appellant but RCC has shown that this letter of staff association dated 18th January, 2017 was against the Principal. Here the appellant’s Advocate’s letter dated 24th January, 2017 (referred above), alleging that in the meeting of BOM of RCC on 18th January, 2017 the Principal, though being the Secretary of the Committee was not allowed to participate fully, becomes relevant. Here the appellant’s Advocate’s letter dated 24th January, 2017 (referred above), alleging that in the meeting of BOM of RCC on 18th January, 2017 the Principal, though being the Secretary of the Committee was not allowed to participate fully, becomes relevant. It has already been noted that in the reply of the Chairman to the said letter on behalf of the appellant sharp reactions were found but there was no specific denial of such a serious allegation that in a meeting of BOM the Secretary of BOM being the Principal was not allowed to participate for the full time of the meeting. 13. Now, on a reading of the letter of the staff association dated 18th January, 2017 it is found that there was no allegation against the Principal i.e. the appellant. The staff association alleged, inter alia, about extra allowance paid to the Principal; not giving reply to Right to information application etc. All such allegations were against the BOM. It was not that the Principal was paying himself the extra allowances, it was his employer’s decision. The Principal was not made responsible in the said letter for not giving reply to the RTI applications. Other allegations of the said letter are also not against the Principal. Therefore, using the letter of staff association dated 18th January, 2017 as grievances against the Principal and by not denying the relevant allegation made in the letter of the Advocate of the appellant, RCC has admitted that the BOM while allowed the representatives of the staff association in the meeting, did not allow the Secretary of the BOM being the Principal to participate especially when the staff association was allowed inside the meeting room, the Principal was kept outside. And now using the said letter against the appellant the employer RCC has acted against the Principal irresponsibly and illegally. While there was no complaint in the staff association’s letter, the letter of the students for removal of the Principal is at the same time hilarious and outrageous as the students wanted removal of the Principal as he strictly followed the discipline and rules regarding attendance of students in the class. 14. While there was no complaint in the staff association’s letter, the letter of the students for removal of the Principal is at the same time hilarious and outrageous as the students wanted removal of the Principal as he strictly followed the discipline and rules regarding attendance of students in the class. 14. Use of the above two letters in the affidavit of RCC in support of termination of the appellant from service and the “four comments” clearly show that the College authority removed the petitioner as punishment without framing any charges against him and without any known inquiry against the appellant. The whole action of RCC in terminating the appellant from his service is not transparent, it is murky. 15. An issue that arises in this appeal is whether the allegation against the appellant, a probationer, is motive or foundation for termination of service. In this respect paragraph 21 of a judgment of Supreme Court in Dipti Prakash Banerjee -versus- Satyendra Nath Bose National Centre for Basic Sciences reported in (1999) 3 SCC 60 is to be taken note of : 21. “If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as “founded” on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid”. (Emphasis mine). 16. Here, in this case the order of termination is based on certain findings which have been termed above as “four comments” since the termination part i.e. the penultimate paragraph of the termination letter refers to the “four comments” by stating “In view of the above...”. It has been said by RCC that there were complaints against the Principal. 16. Here, in this case the order of termination is based on certain findings which have been termed above as “four comments” since the termination part i.e. the penultimate paragraph of the termination letter refers to the “four comments” by stating “In view of the above...”. It has been said by RCC that there were complaints against the Principal. RCC has shown the two letters as complaints against him. No inquiry was held in respect of the complaints and it is evident that the Principal was not made aware of such complaints. Those findings being the “four comments” were arrived at without a regular departmental enquiry and thus the apparently simple order of termination has to be treated as founded on the allegations and the order of termination is wholly bad. 17. In the order of termination, which is a letter of 28 (twenty eight) lines, the words and expressions used contain “stigma” which is indicated below: (a) The first of the “four comments” mentions the failure of the appellant to satisfy the authority despite advices/direction given to him. Thus, the appellant has been shown as a “failure”. Surprising thing is, never at any time or stage in the tenure of the petitioner or in these proceedings it has been disclosed what advices/directions were given to the appellant which the appellant failed to carry out. Therefore, without any basis the appellant has been shown as a “failure”. This is clearly stigmatic. (b) The second of the “four comments” directly raises a doubt as to the integrity of the character of the appellant by alleging that he is a man of questionable character in respect of confidential information related to the affairs of the management. Such comment is also without any basis as absolutely nothing in this respect has been disclosed by the employer (RCC). Such comments are extremely dangerous and irresponsible without any proof ; such comments have the power not only to destroy the future service career of any person but also can make a person a wreck. Such comment on the part of the employer (RCC) is stigmatic of the highest degree, if any degree can be awarded to the stigmatic expressions. RCC has done an exceptionally irresponsible and reprehensible job here. (c) The third of the “four comments” have already been declared by the writ Court as stigmatic and I hold that this has been done rightly. RCC has done an exceptionally irresponsible and reprehensible job here. (c) The third of the “four comments” have already been declared by the writ Court as stigmatic and I hold that this has been done rightly. The employer (RCC) has also accepted it. I will come to this aspect later while discussing the employer’s (RCC) cross-objection. (d) The last of the “four comments” shows that the appellant has been marked as a non-co-operating person; again a remark without any basis and such characterization is sure to jeopardize the future career opportunity of the appellant. Which employer wants to employ a person of non-co-operating character? Such comment is also stigmatic. 18. After hearing the parties the writ Court held that the sentences of the termination letter issued to the appellant “You have failed to behave upon the expected standard of conduct which has given rise to a situation involving a loss of confidence on you” is stigmatic. From the cross objection by RCC being C.O.T. No. 42 of 2019 it is found that (from ground VI thereof), the RCC issued an office order dated 18th February, 2019 (i.e. just after 16 days from the date of the order of the writ Court) and in compliance of the order of the writ Court deleted the concerned portion of the order of termination. Said office order of RCC is set out below: OFFICE ORDER Memo No. ADM/RCCIIT/18-19/102 Date: February 18, 2019 In compliance of the solemn order dated 01.02.2019 passed by the Hon’ble High Court at Calcutta in W.P. No. 3691 (W) of 2017 (Dr. Arup Kumar Bhaumik -versus- the State of Wes Bengal & Ors.) the following sentence - “you have failed to behave upon the expected standard of conduct which has given rise to a situation involving a loss of confidence on you.” contained in the letter of termination bearing no. CHM/RCCIIT/2017/002 dated 02.02.2017 issued to Dr. Arup Kumar Bhaumik is hereby deleted. By Order Prof. Ajoy Kumar Ray Chairman Therefore, RCC has already accepted that a part of the termination letter was stigmatic and have complied with the Writ Court’s order. RCC filed the cross objection on 13th April, 2019 i.e. after nearly 55 days from the date of Compliance of the writ Court’s judgment and order. By Order Prof. Ajoy Kumar Ray Chairman Therefore, RCC has already accepted that a part of the termination letter was stigmatic and have complied with the Writ Court’s order. RCC filed the cross objection on 13th April, 2019 i.e. after nearly 55 days from the date of Compliance of the writ Court’s judgment and order. No reason has been disclosed by RCC as to why its cross objection in respect of adverse finding against him as to stigmatic part would be entertained after the writ Court’s order has been carried out and complied with by itself. When RCC accepted the writ Courts observation as to stigmatic comment and had acted on that, there is no reason as to why the cross objection would be entertained. Therefore, I reject the cross objection of RCC and the cross objection being C.O.T. 42 of 2019 is dismissed. 19. Another action of RCC is required to be noted which is appointment of a new Principal after removing the appellant from the post. 20. Initially the writ Court by its order dated 8th March, 2017 restrained the concerned respondents form giving any effect or further effect to the Memo dated 7th March, 2017 whereby the new Principal in the place of the appellant was appointed. Against this order an appeal was preferred by the newly appointed Principal with an application for leave to prefer appeal. The appeal was numbered as M.A.T. No. 482 of 2017. In connection with the said appeal another application being C.A.N. 3491 of 2017 was also filed by the said newly appointed Principal and from this application the following dates and events are found: (i) 05.02.2017 - Advertisement for new Principal. (ii) 02.03.2017 - Letter for interview. (iii) 07.03.2017 - Interview held. (iv) 07.03.2017 - Appointment given to the new Principal. (v) 07.03.2017 - The New Principal joined. (vi) 07.03.2017 - Charge handed over by the officiating Principal to the new Principal. (vii) 07.03.2017 - New Principal performed duties. From the above dates and events it is evident that RCC was in great haste in appointing a new Principal. The new Principal was a Professor of RCC itself before his appointment as Principal. 21. (vi) 07.03.2017 - Charge handed over by the officiating Principal to the new Principal. (vii) 07.03.2017 - New Principal performed duties. From the above dates and events it is evident that RCC was in great haste in appointing a new Principal. The new Principal was a Professor of RCC itself before his appointment as Principal. 21. In the appeal of the newly appointed Principal the impugned order of the writ Court dated 8th March, 2017 was set aside on 26th April, 2017 but it was made clear by the appeal Court that the new Principal would continue his service as temporary measure, which would abide by the result of the writ application. (Emphasis mine). 22. The newly appointed Principal was made a party respondent in the writ application on 5th February, 2018. 23. Now the case laws referred by the parties are to be looked into. 24. The appellant has referred to paragraph 8 of Chandu Lal’s case reported in (1985) 2 SCC 727 . There it has been observed that “If the termination in the instant case is held to be grounded upon conduct attaching stigma to the appellant, disciplinary proceedings were necessary as a condition precedent to infliction of termination as a measure of punishment”. Admittedly there was no disciplinary proceeding in the present case though stigmatic comments have been made in the termination letter issued to the appellant. 25. Referring to the case of Mathew P. Thomas reported in (2003) 3 SCC 263 and relying on paragraph 11 thereof the petitioner has submitted that “the facade of the termination order may be simpliciter, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct”. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct”. Here, in this case no effort was made to find out suitability of the appellant as a Principal ; other factors weighed with the employer (RCC) to remove the appellant from service, which has been manifested in the “four comments”. This case of Mathew Thomas has also been relied upon by the respondent RCC but it is clearly distinguishable on facts as in that case termination order was issued after repeated warnings. This was never done in the preset case. 26. RCC has relied upon several judgments to show that termination of the appellant is by way of a termination simpliciter and there was no foundation for his removal from service and no stigmatic termination order was passed. 27. Relying upon the case of Pavanendra Narayan Verma reported in (2002) 1 Supreme Court Cases 520 it has been submitted by RCC that as the termination order was a simpliciter one it can never be declared as punitive even though it may be founded on serious allegation of misconduct or misdemeanour on the part of the employee. The respondent has, for a different observation, relied on the case of SBI -versus- Palak Modi reported in (2013) 3 Supreme Court Cases 607 but has failed to consider paragraph 45 of Palak Modi’s case wherein it has been declared that the principle laid down in Pavanendra Narayan Verma’s case is not only contrary to the Constitution Bench judgment but also a large number of other judgments and the findings of Pavanendra Narayan Verma’s case must be read as confined to the facts of that case. Pavanendra Narayan Verma’s case is factually different. There an inquiry prior to termination was held; in the present case no such prior enquiry was held. The respondent has also placed reliance on a case reported in (1975) 3 Supreme Court Cases 182 (Hari Singh Mann -versus- State of Punjab and others). This cited case has no applicability to the present case as in that case there was a record of unsatisfactory performance of the probationer, here it is wholly absent. The respondent has also placed reliance on a case reported in (1975) 3 Supreme Court Cases 182 (Hari Singh Mann -versus- State of Punjab and others). This cited case has no applicability to the present case as in that case there was a record of unsatisfactory performance of the probationer, here it is wholly absent. The next case relied upon by the respondent has been reported in (1969) 3 Supreme Court Cases 603 (Union of India and other -versus- R.S. Dhaba) in that case it was held that the order of reversion of an Income Tax Officer did not contain any words of stigma attributed to the conduct of the respondent. Here in the present case the situation is just the reverse. In the present case it is found that the removal order contains express words and expressions of stigma which has been attributed to the conduct of the respondent. The respondent has relied upon Palak Modi’s case (referred hereinabove) for the proposition that the probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of the probation on account of general unsuitability for the post held by him. The present case is not a case of general unsuitability as found in the termination letter. Here, in this case, the employer (RCC) has first made several comments in support of the termination and then proceeded with the termination part with the expression “in view of the above” which shows that the adverse comments, which have no basis at all, became the foundation for removal of the petitioner from service during his probationary period. Further the employer (RCC) has itself relied upon two letters, one of the students and the other by the staff association which have been discussed hereinabove. In the present case the action of the employer can very well be held as punitive in the facts and circumstances as appear from the materials on record. Thus Palak Modi’s case has no applicability in the present matter. (Emphasis mine). In the present case the action of the employer can very well be held as punitive in the facts and circumstances as appear from the materials on record. Thus Palak Modi’s case has no applicability in the present matter. (Emphasis mine). The respondent has also relied upon a case reported in (2006) 4 Supreme Court Cases 469 (Abhijit Gupta versus S.N.B. National Centre, Basic Sciences and others) wherein in paragraph 14 the observation of the Supreme Court in Allahabad Bank Officer’s case reported in (1996) 4 Supreme Court Cases 504 has been referred where the observation is that if the order of compulsory retirement from the service cast a stigma in the sense that it contains a statement casting aspersion on his conduct or his character then it can be treated as an order of punishment but not if it merely amounts to highlighting the unsuitability of the employee. In the present case the “four comments” show casting aspersion on the conduct as well as on the character of the appellant which is found from the termination letter itself. Therefore, Abhijit Gupta’s case does not lend any support to the appellant. Referring to Allahabad Bank Officer’s Association -versus- Allahabad Bank reported in (1996) 4 Supreme Court Cases 504 the respondent submits that if the statement in the order refers only to the assessment of his work and does not at the same time cast an aspersion on the conduct or character of the Government servant then it will not be proper to hold that the order in reality is an order of punishment. This aspect has been dealt with above while dealing Abhijit Gupta’s case and not repeated here. Though the respondent has relied upon Mathew P. Thomas’ case (which is also relied upon by the appellant and referred above) and Dipti Prakash Banerjee’s case (referred hereinabove) none of the cases, for the observations made in these two cases lend any support to the respondent ; discussion has been made above in respect of Mathew P. Thomas’ case and Dipti Prakash Banerjee’s case (paragraph 21) has been quoted above. Here, in this case, findings were arrived at without any departmental enquiry and stigmatic comments have been made. Now, the case of the added respondent being the respondent No. 10 is to be considered. 28. Here, in this case, findings were arrived at without any departmental enquiry and stigmatic comments have been made. Now, the case of the added respondent being the respondent No. 10 is to be considered. 28. The respondent No. 10 knows it very well from the order (dated 26th April, 2017) of the appeal being MAT 428 of 2007 that his continuation in service as the Principal is a temporary measure and his service will abide by the result of the writ application. This order of the appeal court has become final as the same has not been appealed against or has not been interfered with in any manner. Thus the added respondent being respondent No. 10 cannot lay any claim to the post of Principal if in the appeal, which is a continuation of the lis, the order of the writ Court is interfered with. The cross objection of the added respondent of the writ application cannot be entertained as there is no findings of the writ Court against him in its order. The cross objection being C.O.T. 44 of 2019 is, therefore, rejected and the same is dismissed. 29. On the basis of the discussion made hereinabove, I hold that not only a part of the termination order is stigmatic as has been decided by the writ court and accepted by RCC, but also other parts of the order are stigmatic as has been discussed hereinabove and the remarks which are really findings against the appellant without holding any proceeding as noted in the “four comments” are the foundation of the termination order. For this reason the termination order is set aside and the employer being RCC is directed to reinstate the appellant in his service as the Principal of the College but without back wages. However, this does not prevent the appellant to recover the back wages by taking recourse to law. It is declared that the stigmatic remarks made against the appellant in the letter of termination are all baseless, unreasonable and such conclusions were arrived at behind the back to the appellant without holding any departmental enquiry and all of such stigmatic remarks will be treated as non-existent from the date of the termination letter and shall never be used against or in respect of the appellant. When the appellant’s service was terminated i.e. on 2nd February, 2017 he had 23 days service left as a probationer. The appellant shall join as Principal and shall be allowed to complete the 23 days residual part as a probationer in that post. Subject to the service rules of RCC the appellant’s probationary period may be extended but not more than the period permissible under the applicable service rules. During such permissible extended period, assessment of the work of the appellant may be done with intimation to him by the employer RCC but such assessment cannot be done with the object of finding out any misconduct on the part of the appellant. It is to be done only with a view to decide whether he is to be retained or continued in service. The employer RCC can also hold a preliminary enquiry instead of assessment of performance if there is any such situation but the purpose of such preliminary enquiry should not be for finding out misconduct on the part of the appellant. In view of what has been discussed above and in view of the facts of the present case if the service of the appellant is to be terminated during his probationary period without a regular departmental enquiry the order of termination will be such that the order must not create any stigma for the rest of his career. 30. From the date of this judgment the respondent No. 10 shall not act as the Principal of RCC. Till the appellant joins the post of Principal of RCC the Respondent No. 10 or any other qualified person of RCC as may be decided by RCC will act as the Principal-in-charge of RCC. The appellant shall join RCC as Principal within a period of 30 (thirty) days from today. 31. C.O.T. 42 of 2019 and C.O.T. 44 of 2019 have been dismissed. 32. The appeal is allowed to the above extent. No costs. I agree. : Dr. Sambuddha Chakrabarti, J. Later: After the delivery of the judgement, Mr. Bose for the respondent No. 4 and 5 prays for stay of the order. In view of what have been discussed above, we decline to pass any order of stay of the order. The prayer for stay is heard, considered and rejected. I agree. : Dr. Sambuddha Chakrabarti, J.