Full Judgment Text
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CASE NO.:
Appeal (civil) 5551 of 2004
PETITIONER:
Abhujit Gupta
RESPONDENT:
S.N. B. National Centre, Basic Sciences & Ors
DATE OF JUDGMENT: 18/04/2006
BENCH:
B.N. Srikrishna & Lokeshwar Singh Panta
JUDGMENT:
J U D G M E N T
Srikrishna, J.
The core issue in this appeal is whether the discontinuation of
the probationer-appellant was for unsatisfactory services or for a
misconduct.
The respondent is an institution carrying on research in basic
sciences. It is common ground that the respondent is funded by the
Central Government and, therefore, it is "State" within the meaning of
Article 12 amenable to the writ jurisdiction under Article 226 of the
Constitution of India.
The appellant was selected for the post of administrative
officer and joined service under the first respondent on 10th February
1995. The letter of appointment issued to the petitioner on 7th October
1994 made it clear that the petitioner was being appointed on probation
for a period of one year.
On 20th November 1995 the appellant was served with a letter
informing him that his performance during the probationary period was
"far from satisfactory" and that it had been observed that he lacked
drive, imagination and initiative ’in the performance of his duties’. He
was informed that, despite being told time and again to improve
performance in the said areas, but with no effect. He was advised to
improve "in order to enable us to consider your case for confirmation
favourably". He was issued several such letters drawing his attention to
the fact that his services left much to be desired. His probationary
service came to be extended from time to time, the last such extension
being granted till 9th April 1998. Finally, by the letter dated 7.4.1998
the petitioner was informed that his service was "unsatisfactory in the
areas of drive, initiative, promptness and leadership" and that despite
advised verbally and through letter, what were deficiencies in his work
he had shown no improvement. His attendance, office work and
attention to the academic work and the affairs of the guest house were
also unsatisfactory. The first respondent, therefore, said "your
performance, ability and capability during the period of probation has
been examined and your service during the period of probation is
found to be unsatisfactory and hence you are considered unsuitable for
the post you have to. The governing body is of the view that your
performance was unsatisfactory and you are not suitable for
confirmation". For these reasons the appellant’s probationary period
was not extended on the expiration of his probation period on 9th April
1999 without further extension.
The appellant challenged the order of termination of his
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service on the ground that it was a stigmatic termination by way of
punishment for alleged misconducts. The learned single Judge of the
High Court allowed the writ petition and quashed the order of
termination and directed re-instatement of the appellant with full back-
wages. The Division Bench of the High Court, however, allowed the
letters patent appeal and held that the letter dated 7th April 1998 was not
stigmatic and that it was a legitimate exercise of assessment of
probationer’s service by the employer, and, therefore, there was no
scope for judicial interference therewith. In this view of the matter, the
Division Bench allowed the appeal, set aside the judgment of the
learned single Judge and dismissed the writ petition. Hence, this appeal.
The learned counsel for the appellant has reiterated the
contention that the letter of 7.4.1998 does not amount to termination
simpliciter but amounts to a stigmatic dismissal from service as serious
misconduct under the bye-laws have been alleged against the appellant
for which neither inquiry was held, nor any procedure contemplated
under the bye-laws was adopted. The learned counsel drew our
attention to the copy of the bye-laws of the respondent under which
bye-law no. 12.3 defines Acts of Misconduct or breach of discipline
punishable under the Rules. He particularly drew our attention to Bye-
law 12.3 (b) (d) and (h) which read as under:
"12.3 Acts of Misconduct :
Any act of misconduct or breach of discipline shall be
punishable to the extent provided under these regulations. A few such
acts of misconduct or breach of discipline as listed below are illustrative
in nature. The list is not exhaustive :
a) \005.
b) Neglect of allotted work and careless or inefficient
performance of duty ;
c) \005.
d) habitual unpunctuality and irregular attendance or absence
without permission;
e) \005.
f) \005.
g) \005.
h) conduct detrimental to the interest of the Centre;"
The learned counsel contended that the letter 7.4.1998
unmistakably alleges misconducts against the appellant, which would
fall within the parameters of these misconducts as defined under above
Bye-laws and, therefore, the prescribed procedure had to be followed.
Heavy reliance was placed on Dipti Prakash Banerjee vs.
Satyendra Nath Bose National Centre for Basic Sciences, Calcutta
and ors. (1999) 3 SCC 60,where this Court held that the termination of
service of the employee in similar circumstances amounted to
misconduct. We may mention here that it is common ground that while
the matter was pending before the learned single Judge, sometime in the
year 2005, the appellant attained the age of superannuation. The
learned counsel for the appellant contended that in the letter dated
7.4.1998 there is reference to certain earlier letters in which the
appellant had been called a person of "perverted mind" and "dishonest,
duffer having no capacity to learn". A reading of all the letters referred
to in the letter of 7.4.1998 would clearly make out a case of allegations
of misconduct against the appellant, in the submission of the learned
counsel.
In Dr. Mrs. Sumati P. Shere vs. Union of India and others
(1989) 3 SCC 311 this Court pointed out that an employee on
probation should be subjected to assessment of work and should be
made aware of the defects in his work and deficiencies in his
performance. The Court observed , "Defects or deficiencies,
indifference or indiscretion may be with the employee by the
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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, it would be arbitrary to give a
movement order to the employee on the ground of unsuitability". It is
the duty of the employer to inform the employee about his deficiencies
from time to time so that the employee may improve himself.
In Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of
Medical Sciences and another (2002) 1 SCC 520 this Court considered
what should be the best to determine whether a letter of termination of
service was termination simpliciter or stigmatic termination. After
referring to a number of authorities including the judgment in
Parshotam Lal Dhingra vs. Union of India, AIR 1958 SC 36 and Dipti
Prakash Banerjee (supra) the Court observed (vide para 19):
"..Courts continue to struggle with semantically
indistinguishable concepts like motive" and
"foundation"; and terminations founded on a
probationer’s misconduct have been held to be
illegal while terminations motivated by the
probationer’s misconduct have been upheld. The
decisions are legion and it is an impossible task to
find a clear path through the jungle of precedents."
Having observed thus, the Court formulated the judicial test to
determine as to on which side of the fence the case lay, in the
following words (vide para 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 (c) 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."
It referred to Dipti Prakash Banerjee (supra) and pointed out
that in Dipti Prakash Banerjee (supra) the termination letter
expressly made reference to an earlier letter which had explicitly
referred to all the misconducts of the employee and a report of an
inquiry committee which had found that the employee was guilty
of misconduct and so the termination was held to be stigmatic and set
aside. Finally, this Court said that whenever a probationer
challenges his termination the court’s first task will be to apply the
test of stigma or the ’form’ test. If the order survives this examination
the "substance" of the termination will have to be found out. What
this Court further observed in para 29 is crucial and of great
relevance:
"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’s
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
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termination order which explicitly states what is
implicit in every order of termination of a
probationer’s 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 meter unsuitability for the
job."
In the case of the appellant before us, the record in uncertain
terms makes it clear that every time the appellants attention was drawn
to his deficiencies and he was repeatedly advised to improve his
behaviour, conduct and discharge of work. True, that in some of the
letters there was intemperate language used (the appellant was also
equally guilty of doing that). Notwithstanding the intemperate
language, we are unable to accept the contention of the appellant’s
counsel that the letter dated 7.4.1998 indicates that the appellant was
being charged with the misconduct and, therefore, being removed from
service. Read as a whole, the letter gives the impression that the
removal of the appellant from service was only because the
respondents, after giving a long rope to the appellant, had come to the
conclusion that the appellant’s service was unsatisfactory and there was
no hope of his improvement.
The real test to be applied in a situation where an employee is
removed by an innocuous order of termination is: Is he discharged as
unsuitable or is he punished for his misconduct? In Allahabad Bank
Officers’ Association and another vs. Allahabad Bank and others
(1996) 4 SCC 504, this Court was considering a challenge to a
compulsory retirement and formulated a practical test to answer the
question posed above. This Court (vide para 17) observed that if the
order of compulsory removal form the service casts 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. As
pointed out in this judgment, expressions like "want of application",
"lack of potential" and "found not dependable" when made in relation
to the work of the employee would not be sufficient to attract the charge
that they are stigmatic and intended to dismiss the employee from
service.
The learned counsel for the appellant, however, strongly
contends that the "stigma" cast on the employee may not be confined to
his personal character but may also affect his capacity to work. The test,
learned counsel for the appellant submitted, is that, if what is stated in
the order of termination is read by a future employer, it prejudices the
future employment of the employee. In the face of the law laid down in
the judgment just referred, we are unable to accept this as the correct
test.
In Ravindra Kumar Misra vs. U.P. State Handloom
Corporation Ltd. and another AIR 1987 SC 2408 this Court pointed
out that in a large corporation administration is bound to be impersonal
and in regard to public officers assessment of service has got to be in
writing for purposes of record, though it cannot be assumed that such an
assessment recorded and the order of termination made with reference
to that record would automatically take a punitive character.
The High Court has carefully considered all the circumstances
placed before it and arrived at the conclusion that the respondent’s work
was under observation during the probationary period and that he was
given repeated opportunities to improve his performance for which
purpose his probation was extended from time to time. The fact
that the authority did not find him fit for confirmation was also
brought to his notice several times and yet he was given opportunities
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of improving by extending his probationary service. The High Court
has correctly found that the letter dated 7.4.1998 was not punitive in
nature and stated, albeit in prolix fashion, that the service of the
appellant were unsatisfactory. The High Court points out, and we
agree, that detailed reference to all other correspondence was not
necessary, but it did not reflect any malice or bias. Finally, as this
Court pointed out in P.N. Verma’s case (supra) "a termination order
which explicitly states what is implicit in every order of termination of
a probationer’s appointment, does not ipso facto become stigmatic".
For the aforesaid reasons we are of the view that there is no
substance in this appeal. The impugned judgment of the High Court
requires no interference. The appeal is hereby dismissed without any
order as to costs.