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2021 DIGILAW 1691 (RAJ)

Poonam v. Sainik School Society

2021-09-13

SANGEET LODHA, VINIT KUMAR MATHUR

body2021
ORDER : 1. This intra-Court appeal is directed against the order dated 29.7.21 passed by the learned Single Judge of this Court, whereby the writ petition preferred by the appellant challenging legality of the order dated 11.8.19 issued by the Principal, Sainik School Chittorgarh, terminating her services while giving one month's salary in lieu of the notice, has been dismissed. 2. The appellant was appointed on the post of Lab Assistant (Biology) on regular basis in Sainik School, Chittorgarh. The services of the appellant were to be governed by the Sainik School Society Service Rules and Regulation ('the Rules and Regulations'). The term of the appointment relevant for the controversy involved in the instant appeal i.e. para 4 of the appointment order reads as under: "4. You will be on probation for a period of one year extendable to two years as per Sainik Schools Society's Rules and Regulations. On successful completion of probation period you may be considered for confirmation in the above post. During the period of probation your services may be terminated by the appointing authority without assigning any reason with one month's notice. Reciprocally you while on probation may leave after giving one month's notice of resignation or surrendering one month's salary. Your services may also be terminated without notice and without assigning any reason on disciplinary grounds. You will be governed by New Pensions Scheme for pensionary benefits." 3. It is noticed that after completion of one year of service, the probation period of the appellant was extended vide order dated 13.8.19 for a period of one more year i.e. upto 12.8.21. However, during the extended period of probation, vide order dated 8.7.21 issued by the Principal, Sainik School Chittorgarh, the services of the appellant were brought to an end in terms of para 4 of the appointment order quoted hereinabove. 4. The legality of the termination order dated 8.7.21 was questioned by the appellant by way of a writ petition before this Court. The contention of the appellant before the learned Single Judge was that expression "services are now no more required" used by the respondents while terminating the services of the appellant indicates that order is stigmatic and therefore, before terminating the service, the respondents were under an obligation to extend an opportunity of hearing to the appellant. 5. The contention of the appellant before the learned Single Judge was that expression "services are now no more required" used by the respondents while terminating the services of the appellant indicates that order is stigmatic and therefore, before terminating the service, the respondents were under an obligation to extend an opportunity of hearing to the appellant. 5. Learned Single Judge after examining the material on record arrived at the conclusion that the services of the appellant have been brought to an end during the probation period as her services were not found satisfactory. Learned Single Judge opined that the expression "services are now no more required" used is rather a sophisticated and courteous way of saying that the appellant's services were found unsatisfactory. Relying upon various documents placed on record by the respondents, the learned Single Judge observed that same are suggestive of the situation that the respondents were not at all satisfied with the services of the appellant. The Court concluded that the order dated 8.07.2021 is neither stigmatic nor arbitrary or otherwise contrary to statutory provisions. Accordingly, the writ petition has been dismissed. 6. Learned counsel appearing for the appellant contended that the termination of the services of the appellant by the order impugned in the writ petition was ex facie violative of Rule 7.08 of the Rules and Regulation inasmuch as in terms of the said Rule, the services of the appellant could not have been brought to an end without giving her one month's notice. According to the learned counsel, the offer of one month's salary in lieu of the notice issued by the respondents does not satisfy the requirement envisaged under Rule 7.08, which specifically mandates that the termination of the services should be preceded by one month's notice. In support of the contention, learned counsel relied upon a Bench decision of the High Court of Gauhati in R.K. Angousana Singh Vs. Sainik School Society and Ors., 2005 LawSuit (Gau) 476. 7. On the other hand, learned counsel appearing for the respondents contended that the issue which is being raised by the appellant before this Court was never raised before the learned Single Judge. Sainik School Society and Ors., 2005 LawSuit (Gau) 476. 7. On the other hand, learned counsel appearing for the respondents contended that the issue which is being raised by the appellant before this Court was never raised before the learned Single Judge. It is submitted that it was not even the case set out by the appellant before the learned Single Judge that the order of the termination has been passed in violation of Rule 7.08 of the Rules and Regulations rather, it was contended that the order is bad in law inasmuch as the same was passed without giving an opportunity of hearing to the appellant. Learned counsel submitted that in lieu of one month's notice, the appellant was paid salary for one month, which she has accepted and thus, nothing turns of the question that one month's notice was not given. Relying upon the documents placed on record alongwith the reply, learned counsel submitted that the services of the appellant during the period of probation was not satisfactory and therefore, her services have rightly been brought to an end. 8. Replying to the arguments advanced by the learned counsel for the respondents, learned counsel for the appellant submitted that even if the question with regard to non compliance of condition of Rule 7.08 was not raised before the learned Single Judge, the appellant is not precluded from raising the contention at this stage, inasmuch as, the factum of notice being not issued, is not in dispute and the question of law can be raised first time even at the appellate stage. However, on being asked about the respondents paying salary of one month in lieu of notice, learned counsel was not in position to controvert that the one month's salary in lieu of notice has not been accepted by the appellant. 9. We have considered the rival submissions and perused the material available on record. 10. A bare perusal of the writ petition filed by the appellant reveals that the entire edifice of the case was raised by the appellant on the ground that termination of her services during the probation period, without giving an opportunity of hearing is bad in law and therefore, the order of termination deserves to be set aside. 10. A bare perusal of the writ petition filed by the appellant reveals that the entire edifice of the case was raised by the appellant on the ground that termination of her services during the probation period, without giving an opportunity of hearing is bad in law and therefore, the order of termination deserves to be set aside. Precisely, the contention of the appellant was that if her services were not found satisfactory during the probation, then an opportunity of hearing was required to be given before passing the final order terminating the services. 11. A bare perusal of the order of termination reveals that the order of termination is simplicitor. Merely mentioning of the fact in the order that the appellant's services are no more required, in no manner leads to the conclusion that the order is stigmatic. 12. The appointment on probation suggest that the employment offered is subject to assessment of suitability of the employee for the job. If the services of the employee appointed on probation are not found satisfactory, the same can be terminated and the employer is not under an obligation to establish or prove the unsatisfactory performance of a probationer. 13. A bare perusal of the material available on record reflects that the appellant was advised to improve the performance many a times, but she failed to improve the performance. As a matter of fact, lapses in performance of duties was admitted by the appellant in response to the communications issued by the respondents. In this regard, documents placed on record by the respondents are self-explanatory. 14. Suffice it to say that the order terminating the services of the appellant cannot be said to be stigmatic and therefore, the principle of natural justice was not required to be followed while effecting the termination simplicitor. 15. It is true that the notice of one month in terms of Rule 7.08 of the Rules and Regulations was not issued to the appellant but she was offered salary in lieu of the notice, which was accepted by her. In this view of the matter, we are not inclined to take a technical view of the matter moreso when the condition of notice stands substantially complied with by the respondents by giving one month's salary in lieu of the notice. 16. In this view of the matter, we are not inclined to take a technical view of the matter moreso when the condition of notice stands substantially complied with by the respondents by giving one month's salary in lieu of the notice. 16. In view of the discussion above, we are not inclined to interfere with the order impugned passed by the learned Single Judge of this Court. 17. The special appeal is therefore, dismissed.