WAINGANGA BAHUDDESHIYA VIKAS SANSTHA THR. PRESIDENT B.B. KARANJEKAR vs. KU. JAYA

Full Judgment Text

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6226 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 4314 OF 2018)

WAINGANGA BAHUUDDESHIYA VIKAS<br>SANSTHA THROUGH PRESIDENT B.B.<br>KARANJEKAR & ORS.	…..APPELLANT(S)
VERSUS
KU. JAYA & ORS.		.....RESPONDENT(S)

J U D G M E N T HEMANT GUPTA, J. 1) Leave granted. 2) Challenge in the present appeal is to an order passed by the Division Bench of the High Court of Judicature at Bombay, Nagpur Bench, whereby an order passed by the learned Single Bench on November 3, 2009 was set aside.

3)

on ad-hoc basis till such full time Lecturer is appointed, vide appointment letter dated February 24, 1999. There was also a condition in the appointment order that if her performance is found to be unsatisfactory, services can be terminated without giving any notice. The relevant clauses of the appointment order read as Page 1 of 8 under:

“1. With reference to your application, this is to inform
you that you are appointed as a purely temporary full
time lecturer in the subject Home Economics in Rajiv
Gandhi Mahavidyalaya, Sadak Arjuni, on ad hoc basis.

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5. In case your performance is found to be
unsatisfactory, your services shall be terminated at
any time during the temporary services without
any notice.”

4) The services of respondent No. 1 were terminated on February 20, 2001, inter alia, for the reason that her services in the academic year 1999-2000 and 2000-2001 were found to be unsatisfactory. Therefore, as per terms and conditions mentioned in the order of appointment, the services of respondent No. 1 were terminated and salary for one month was paid to her. The respondent No1, aggrieved against the termination order, filed 5) an appeal before the College Tribunal under Section 59 of the Maharashtra Universities Act, 1994. The said appeal was dismissed by the Presiding Officer of the College Tribunal. 6) Again, aggrieved against the said order passed by the Presiding Officer, Respondent No. 1 invoked the jurisdiction of the High Court of Judicature at Bombay, Nagpur Bench. The writ petition was dismissed by the learned Single Bench of the High Court. However, the intra-court appeal was allowed vide order impugned in the present appeal. Page 2 of 8 7) The Division Bench of the High Court found that the order of termination is not innocuous or harmless without casting stigma on respondent No. 1. The Management Committee took the decision of termination of services of respondent No. 1 prior to the completion of period of probation. Such finding was arrived at for the reason that the report of the Principal casts stigma which is the basis of the order of termination. 8) The Division Bench relied upon the service conditions of teachers which are governed by Statute 53 of the University which contemplates that a Teacher shall be appointed in a clear vacancy in the first instance on probation for two years from the date of appointment. Therefore, in the absence of confirmation or notice of termination, satisfactory completion of probation is presumed. 9) We find that the Division Bench has travelled much beyond the controversy involved in the writ petition. The appointment of respondent No. 1 is categorically on ad-hoc basis till such time full time Lecturer is appointed. The order of termination of services is simpliciter without any stigma noticing that the work is not satisfactory. The appointment of respondent No. 1 was not on probation but, it was purely ad-hoc appointment and the Management has kept right to terminate the services during ad-hoc period on account of unsatisfactory work. 10) Learned counsel for the appellants referred to the judgment in Page 3 of 8 Radhey Shyam Gupta v. U.P. State Agro Industries 1 Corporation Ltd. & Anr. wherein, it was held as under:

“33.
that the termination of the services of a
temporary servant or one on probation, on the
basis of adverse entries or on the basis of an
assessment that his work is not satisfactory will
not be punitive inasmuch as the above facts are
merely the			motive		and not the foundation. The
reason why they are the motive is that the
assessment is not done with the object of
finding out any misconduct on the part of the
officer, as stated by Shah, J. (as he then was)
in	Ram Narayan Das case						[AIR 1961 SC 177 :
(1961) 1 SCR 606 : (1961) 1 LLJ 552] . It is done
only with a view to decide whether he is to be
retained or continued in service. The position is
not different even if a preliminary enquiry is
held because the purpose of a preliminary
enquiry is to find out if there is prima facie
evidence or material to initiate a regular
departmental enquiry. It has been so decided
in	Champaklal case					[AIR 1964 SC 1854 : (1964)
1 LLJ 752] . The purpose of the preliminary
enquiry is not to fni d out misconduct on the
part of the officer and if a termination follows
without giving an opportunity, it will not be bad.
Even in a case where a regular departmental
enquiry is started, a charge-memo issued, reply
obtained, and an enquiry officer is appointed —
if at that point of time, the enquiry is dropped
and a simple notice of termination is passed,
the same will not be punitive because the
enquiry officer has not recorded evidence nor
given any fni dings on the charges. That is what
is held in		Sukh Raj Bahadur case						[AIR 1968 SC
1089 : (1968) 3 SCR 234 : (1970) 1 LLJ 373] and
in	Benjamin case			[(1967) 1 LLJ 718 (SC)] . In the
latter case, the departmental enquiry was
stopped because the employer was not sure of
establishing the guilt of the employee. In all

1 (1999) 2 SCC 21 Page 4 of 8

these cases, the allegations against the
employee merely raised a				cloud	on his conduct
and as pointed by Krishna Iyer, J. in						Gujarat
Steel Tubes case			[(1980) 2 SCC 593 : 1980 SCC
(L&S) 197] the employer was entitled to say
that he would not continue an employee
against whom allegations were made the truth
of which the employer was not interested to
ascertain. In fact, the employer by opting to
pass a simple order of termination as permitted
by the terms of appointment or as permitted by
the rules was conferring a benefit on the
employee by passing a simple order of
termination so that the employee would not
sufef r from any stigma which would attach to
the rest of his career if a dismissal or other
punitive order was passed. The above are all
examples where the allegations whose truth
has not been found, and were merely
the	motive	.”

11) In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of 2 Medical Sciences & Anr. wherein, the inquiry conducted to assess the fitness of an employee for continuing on probation was not found to be punitive, the Court held as under:

“2
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.

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2 (2002) 1 SCC 520 Page 5 of 8

31. Returning now to the facts of the case
before us. The language used in the order of
termination is that the appellant's “work and
conduct has not been found to be satisfactory”.
These words are almost exactly those which
have been quoted in		Dipti Prakash Banerjee
case	[(1999) 3 SCC 60 : 1999 SCC (L&S) 596] as
clearly falling within the class of non-stigmatic
orders of termination. It is, therefore safe to
conclude that the impugned order is not ex
facie stigmatic.

32. We are also not prepared to hold that the
enquiry held prior to the order of termination
turned this otherwise innocuous order into one
of punishment. An employer is entitled to
satisfy itself as to the competence of a
probationer to be confirmed in service and for
this purpose satisfy itself fairly as to the truth of
any allegation that may have been made about
the employee. A charge-sheet merely details
the allegations so that the employee may deal
with them effectively. The enquiry report in this
case found nothing more against the appellant
than an inability to meet the requirements for
the post. None of the three factors catalogued
above for holding that the termination was in
substance punitive exists here.”

3 In Rajesh Kohli v. High Court of Jammu and Kashmir & Anr. , 12) again this Court held that order of termination is a fallout of unsatisfactory service adjudged on the basis of overall performance. The Court held as under: “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 3 (2010) 12 SCC 783 Page 6 of 8

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.”

In the present case, respondent No.1 was appointed on ad-hoc 13) basis. Such temporary appointment pending filling up of a vacancy on regular basis does not confer any right at par with the candidate appointed on regular basis. The appointment of the respondent No.1 was not on probation as there is no such condition in the letter of appointment. The services of an employee can be dispensed with on account of unsatisfactory work. The decision to arrive at the unsatisfactory work is motive and not the foundation of termination of services. We have seen the opinion of the Principal, which does not contain any adverse comments but the comments are in relation to the work of the respondent No. 1, such comments cannot be made basis for setting aside the termination of an ad- hoc employee. Ms. Mahalaxmi, learned senior counsel for the respondents, has 14) referred to the orders of the High Court of Judicature at Bombay in 4 Wainganga Bahu-uddeshiya & Ors. v. Diwakar & Ors. and Wainganga Bahu-uddeshiya Vikas Sanstha & Ors. v. Anil & 5 Ors. to contend that the appellant has been taking punitive action against the members of the teaching faculty. However, we find that both the cases pertain to disciplinary action after conduct of

2012 SCC OnLine Bom 1414 : (2013) 2 Mah LJ 804 : (2012) 114 (5) Bom LR 3237
2011 SCC OnLine Bom 1233 : (2012) 3 Bom CR 788

Page 7 of 8 regular inquiry which has no relevance with the termination of an employee appointed on ad-hoc basis. 15) Consequently, we find that the order passed by the Division Bench of the High Court is clearly unsustainable in law. The same is set aside. The appeal is allowed. No costs. .............................................J. (L. NAGESWARA RAO) .............................................J. (HEMANT GUPTA) NEW DELHI; AUGUST 09, 2019. Page 8 of 8