Full Judgment Text
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CASE NO.:
Appeal (civil) 4812 of 2007
PETITIONER:
Jaswantsingh Pratapsingh Jadeja
RESPONDENT:
Rajkot Municipal Corporation & Anr
DATE OF JUDGMENT: 11/10/2007
BENCH:
S.B. Sinha & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) 1981 of 2006)
S.B. Sinha, J.
1. Leave granted.
2. Appellant was a major in the Army. He joined the Respondent
Municipal Corporation (the Corporation) as a Vigilance Officer on or about
21.12.1999. He was put on probation for a period of six months. The power
to appoint on a temporary basis is conferred on the Municipal Commissioner
under the 2nd proviso appended to Section 53(3) of the Bombay Provincial
Municipal Corporation Act, 1949 (BPMC Act). The period of probation
provided for therein is six months. It reads as under:
\023Save as otherwise provided in this Act, the power
of appointing municipal officers and servants
whether permanent or temporary vests in the
Commissioner;
Provided that such power in respect of permanent
appointments shall be subject to the statement for
the time being in force prepared and sanctioned
under Section 51:
Provided further that no temporary appointment
shall be made by the Commissioner for any period
exceeding six months and no such appointment
carrying a monthly salary exceeding such amount
as may be fixed in this behalf, by a general or
special order, from time to time by the State
Government in the case of each Corporation shall
be renewed by the Commissioner on the expiry of
the said period of six months without the previous
sanction of the Standing Committee.\024
3. Although there does not exist any statutory provision in this behalf,
the probation period was extended from time to time. At the first instance, it
was extended by an order dated 4.7.2000 upto 31.12.2000 and yet again upto
31.12.2001 by an order dated 07.01.2001. The period of probation was yet
again extended till 31.12.2002 by an order dated 31.02.2002. No further
order of extension of probation was passed. Appellant continued to function
as a Vigilance Officer. He, however, allegedly informed his superior officer
that he had been suffering from some illness. He applied for leave. He
proceeded on leave on and from 3.2.2003. The period of leave, however,
expired. He did not join as allegedly he continued to suffer from the
ailments. He telephonically informed his officer for extension of leave. He
was, however, served with a show cause notice on or about 22.03.2003
asking him to show cause as to why his services should not be terminated for
alleged misconduct of remaining absent from duty without prior leave. The
show cause notice reads as under :
\023You were assigned various duties of importance
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requiring expeditious attention. It is the prenary
responsibility of a vigilance officer to keep vigil
and investigate and report however in your case
you have gone on long leave and your absence has
created stagnation and when such stagnation
cannot be tolerated in public utility services when
work has to be completed in a particular time
frame.
You had been on leave from 3.2.2003 to 6.2.2003
for a period of 4 days and you ought to have
reported on 7.2.2003, however till date you have
not reported for duty. You have not given any oral
or written intimation till date you are absent from
7.2.2003 till today. Such long absence in such an
important assignment cannot be confessed.
There is also breach of condition No.4/6 of the
appointment order dated 22.12.1999. Also there
has been negligence, carelessness in discharge of
your duties and on evaluation it is found that you
have shown absolute disregards towards your
duties.
Therefore, why should you not be discharged from
service in accordance with Section 56(2) of BPMC
Act, 1949 after office hours on 31.3.2003. This
final notice is given to you as and the reply within
7 days from require thereof. If it is not so that it
will be presumed that you do not want to submit
any reply.\024
4. Cause was shown by him. The same having been found to be
unsatisfactory was rejected. No departmental enquiry was conducted. A
finding of fact was arrived at to the effect that the enquiry proceedings
which were pending against him were not brought to its logical end. His
period of probation was extended upto 30.4.2003 without assigning any
reason. There was no such power in the appointing authority. His services,
however, were discharged stating :
\023Major J.P. Jadeja was appointed as Vigilance
Officer (General) in the Vigilance Department of
the Rajkot Municipal Corporation. Thereafter Shri
Jadeja was on leave from 3.2.2003 to 6.2.2003 and
was to have reported for duty on 7.2.2003.
However, as he remained absent till 22.3.2003
without any intimation a final notice referred to at
Serial No.2 above was issued to which a fax report
for additional leave was received as referred.
A reply was received to the final notice as above.
The reply after consideration requires to be
rejected. As a Vigilance Officer, it is expected of
him to complete inquiries within a fixed time
frame and as a result of long absence from such
important duties could result in stagnation which
cannot be tolerated and is in breach of condition
4/6 of the appointment order.
Looking to the assessment of work as referred to
hereinabove, the period of probation is extended
from 1.1.2003 to 30.4.2003. Thereafter the period
is not extended and it is directed that services be
thereafter discharged after payment of one month\022s
notice pay.\024
5. He filed a writ petition which was dismissed by a learned Single
Judge of the Gujarat High Court by an order dated 9.12.2004. He preferred
an intra-court appeal thereagainst. The said appeal has also been dismissed
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by reason of the impugned order.
6. Mr. Gaurav Agrawal, learned counsel appearing on behalf of the
appellant, would, in support of the appeal, raise the following contentions :
(i) The order of termination is stigmatic.
(ii) Being punitive in nature, the impugned order is founded upon a
misconduct for absence from duty without prior leave.
(iii) As a show cause notice was issued by taking recourse to the
provisions for initiation of the disciplinary proceedings in terms of
Section 56 of the BPMC Act, the impugned order cannot be sustained.
7. Mr. Sunil Gupta, learned senior counsel appearing on behalf of the
respondents, on the other hand, contended that :
(i) as the order discharging the petitioner from service did not result in a
finding of guilt on moral turpitude and only because the explanation
of the appellant had not been accepted and extension has not been
granted, the same by itself cannot be held to be punitive in nature;
(ii) The impugned order being not an order of termination of service, it is
sustainable;
(iii) It was a case where the employer had merely recorded its satisfaction
while passing the order of discharge which is not stigmatic in nature.
8. A disciplinary oriceedubg on allegations of serious misconduct on the
part of the appellant was initiated. His explanation in this behalf was
rejected.
9. The tests governing termination of probation is no longer res integra.
When a disciplinary enquiry is initiated on the premise that there are serious
allegations of misconduct on the part of the delinquent officer; his
explanation thereupon had been rejected pursuant whereto a full scale formal
enquiry has been initiated culminating in a finding of guilt, the order
terminating the service would be held to be stigmatic. There may also be
cases where the allegations involved moral turpitude on the part of the
delinquent officer. The language used in the order of termination of service
may ex facie be stigmatic. The language used therein may also show that
there was something over and above the assertion that the officer was found
unsuitable for the job. The aforementioned tests, however, are not
exhaustive.
10. We may apply the said tests in the instant case. In the instant case, the
language used in the impugned order is ex facie stigmatic. It referred to the
earlier orders containing allegations of misconduct on the part of the
appellant and the fact that he had been found guilty thereof. Appellant was
said to have been absented from duties. He had been found guilty of
negligence, carelessness and showing absolute disregard towards his duties.
A disciplinary proceeding was initiated therefor. His explanation to the
show cause notice was rejected. He was, therefore, found guilty of the
charges leveled against him. Only thereafter, he was discharged from
service by reason of the impugned order dated 29.4.2003.
11. Before, however, we embark upon the legal questions, we must notice
that the appellant had not been confirmed in his services from 1999 to 2003.
The power of Commissioner of Municipality to appoint a person on
temporary basis is governed by the statutory rules. It has not been shown
before the High Court or before us as to under what provisions of law the
period of probation was extended from time to time. Applicability of the
provisions of the Act is not in dispute. It may be true that such a contention
was not raised before the High Court, but if under the statute, the period of
probation could not have been extended, he will be deemed to have been
confirmed on expiry of the period of probation.
12. We may notice that the respondent had taken into consideration while
passing the impugned order the fact that the appellant did not have the
correct mindset to serve as a Vigilance Officer who, although took long
leave for serving the territorial army, did not join the said post.
13. Respondents themselves relied upon Rules 17.2 and 17.3 of the
Bombay Civil Services Rules which are said to be applicable in the case of
the appellant which read as under :
\02317.2 In the case of direct recruitment, the period
of probation for the posts of Class III should
be for one year and for the posts of Class I
or Class II the period of probation should be
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for two years. If the Appointing Officer
deems proper, the period may be extended
for one year in case of Class III employees
and for two years in case of Class I or Class
II employees during the period of probation.
17.3. If the performance of the employee is not up
to the expected level during the period of
probation, then such an officer/employee
shall be discharged upon the expiry of the
period of probation.\024
14. A bare perusal of the aforementioned provisions clearly shows that the
maximum period of probation provided for there is two years.
15. Such a jurisdictional fact had not been taken into consideration by the
appropriate authority. Presumably, keeping in view the aforementioned
provision, his probation period had not been extended after 31.2.2003. The
nature and character of the order, therefore, must be considered having
regard to the aforementioned statutory provision.
16. If the satisfaction of the employer rested on the unsatisfactory
performance on the part of the appellant, the matter might have been
different, but in that case, from the impugned order it is evident that it was
not the unsatisfactory nature and character of his performance only which
was taken into consideration but series of his acts as well, misconduct on his
part had also been taken into consideration therefor. It is one thing to say
that he was found unsuitable for a job but it is another thing to say that he
was said to have committed some misconduct.
17. Mr. Gupta has placed strong reliance on State of Punjab & Ors. v.
Sukhwinder Singh [(2005) 5 SCC 569] wherein a three Judge Bench of this
Court was considering a case where the appellant, who was a Constable,
before completion of his probation period of three years, absented from
duties without seeking permission. The order of discharge in that case read
as under :
\023Constable Sukhwinder Singh No.644/ASR of this
District is discharged from service w.e.f. 16.3.1990
under the Punjab Police Rules 12.21 as he is not
likely to become an efficient police officer.\024
18. The Rule which was operating in that case being Rule 12.21 of the
Punjab Police Rules reads as under :
\023A constable who is found unlikely to prove an
efficient police officer may be discharged by the
Superintendent at any time within three years of
enrolment. There shall be no appeal against an
order of discharge under this Rule.\024
In a situation of that nature, this Court held :
\023In the present case neither any formal
departmental inquiry nor any preliminary fact
finding inquiry had been held and a simple order
of discharge had been passed. The High Court has
built an edifice on the basis of a statement made in
the written statement that the respondent was
habitual absentee during his short period of service
and has concluded therefrom that it was his
absence from duty that weighed in the mind of
Senior Superintendent of Police as absence from
duty is a misconduct. The High Court has further
gone on to hold that there is direct nexus between
the order of discharge of the respondent from
service and his absence from duty and, therefore,
the order discharging him from service will be
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viewed as punitive in nature calling for a regular
inquiry under Rule 16.24 of the Rules. We are of
the opinion that the High Court has gone
completely wrong in drawing the inference that the
order of discharge dated 16.3.1990 was, in fact,
based upon the misconduct and was, therefore,
punitive in nature, which should have been
preceded by a regular departmental inquiry. There
cannot be any doubt that the respondent was on
probation having been appointed about eight
months back. As observed in Ajit Singh and Ors.
etc. v. State of Punjab and Anr. (supra) the period
of probation gives time and opportunity to the
employer to watch the work ability, efficiency,
sincerity and competence of the servant and if he is
found not suitable for the post, the master reserves
a right to dispense with his service without
anything more during or at the end of the
prescribed period, which is styled as period of
probation. The mere holding of preliminary
inquiry where explanation is called from an
employee would not make an otherwise innocuous
order of discharge or termination of service
punitive in nature. Therefore, the High Court was
clearly in error in holding that the respondent’s
absence from duty was the foundation of the order,
which necessitated an inquiry as envisaged under
Rule 16.24(ix) of the Rules.\024
19. Even in Abhijit Gupta v. S.N.B. National Centre, Basic Sciences &
Ors. [(2006 (4) SCC 469], the order of termination, on which decision also
reliance was placed by Mr. Gupta, reads as under :
\023Your 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.\024
20. Yet again, in State of Punjab & Ors. v. Bhagwan Singh [(2002) 9 SCC
636], whereupon also Mr. Gupta relied, the order of termination read as
under :
\023It has been reported to me by In-charge of PTC,
Ladha Kofthi, Sangrur, Inspector Joginder Singh,
RI Police Lines, Faridkot and Inspector Sadhu
Ram, PS City Kot Kapura that the act and conduct
of Const. Bhagwan Singh, No.1819/Fdkt. On the
whole is not satisfactory and he is unlikely to
become a good police officer. I am also satisfied
with their reports. I, Jasminder Singh, IPS,
SSP/Faridkot being competent authority do hereby
discharge Const. Bhagwan Singh, No.1819/Fdk.
From service w.e.f. today i.e. 4-9-1992 A.N. under
PPR 12.21 as he is found to be unlikely to prove a
good police officer.\024
21. This line of cases amongst others clearly goes to show that taking into
consideration the factor as to whether the employee had satisfactorily
performed his duties during the period of probation is a relevant factor and
the same can form foundation for passing an order of discharge.
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22. In Kunwar Arun Kumar v. U.P. Hill Electronics Corporation Ltd. &
Ors. [(1997) 2 SCC 191], the order of discharge was as under :
\023You will be on probation for a period of 12
months from the date of your joining, which period
may be extended from time to time at the
discretion of the Management. During the period
of probation, your services may be terminated
without assigning any reason therefor.
During the period of probation your work
performance was found unsatisfactory. Therefore,
your services are hereby terminated with effect
from 16 Jan. 91 as per Clause (2) of your
appointment letter referred to above.\024
23. In this case, however, the period of probation as provided for under
the statute had expired and his misconduct had been taken note of. Such
misconduct was not founded only upon absence from duty, but also upon
carelessness, negligence on the part of the appellant and lack of devotion
amongst others.
24. In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for
Basic Sciences, Calcutta & Ors. [(1999) 3 SCC 60], Jagannadha Rao, J (as
His Lordship then was) opined that material which amounts to sigma need
not be contained in termination order but may also be contained in an order
or proceeding referred to in termination order or in an annexure thereto. We
have noticed various orders passed by the respondent heretobefore. When a
report in a disciplinary proceeding form the foundation for the order, it
would be stigmatic in nature. It would have civil consequences.
25. V.P. Ahuja v. State of Punjab & Ors. [(2000) 3 SCC 239] is a case
where the order impugned in the writ petition was as under :
\023Shri V.P. Ahuja, s/o late Shri H.N. Ahuja was
appointed on probation for 2 years as Chief
Executive of the Coop. Spg. Mills Ltd., vide orders
Endst. No. Spinfed/CCA/7844-45 dated 29.9.1998
and posted at Bacospin. However, he failed in the
performance of his duties administratively and
technically. Therefore, as per clause I of the said
appointment order, the services of Shri V.P. Ahuja
are hereby terminated with immediate effect.\024
It was held to be stigmatic in nature stating :
\0237. A probationer, like a temporary servant, is
also entitled to certain protection and his services
cannot be terminated arbitrarily, nor can those
services be terminated in a punitive manner
without complying with the principles of natural
justice.
8. The affidavits filed by the parties before the
High Court as also in this Court indicate the
background in which order, terminating the
services of the appellant, came to be passed. Such
an order which, on the face of it, is stigmatic,
could not have been passed without holding a
regular inquiry and giving an opportunity of
hearing to the appellant.\024
26. Yet again, in Radhey Shyam Gupta v. U.P. State Agro Industries
Corporation Ltd. & Anr. [(1999) 2 SCC 21], a case on which counsel for
both the parties relied upon, this Court held :
\023The theory of ’object of the inquiry’ was further
emphasised by the Constitution Bench in Jagdish
Mitter v. Union of India, That was a case of a
temporary employee. The discharge from service
was by way of an order ’simpliciter’. But there, an
inquiry was held and the termination order was
based on it as it stated on its face that it was ’found
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undesirable’ to retain the employee and hence his
services were being terminated. The order was
held to be punitive on its face and was quashed.
Gajendragadkar, J. (as he then was) discussed the
earlier cases and held that in every case the
purpose of the inquiry was crucial. If the inquiry
was held ’only for the purpose of deciding whether
the temporary servant should be continued or not’,
it could not be treated as punitive and that the
motive operating in the mind of the authority was
not relevant. But "the form in which the order
terminating the service is expressed will not be
decisive." It was held
"what the Court will have to examine in
each case would be, having regard to the material
facts existing upto the time of discharge, is the
order of discharge in substance one of dismissal?"
Therefore, the ’form’ was not of importance but the
’substance’ was.\024
It was further held :
\023We shall now refer to a different type of cases
where a departmental inquiry was started, then
dropped and a simple order of termination was
passed. In State of Punjab v. Sukh Raj Bahadur,
the charge memo was served, reply given and at
that stage itself, the proceedings were dropped and
a termination order was passed. The High Court
felt that the object of departmental inquiry, being
to punish the employee, the order of termination
must he treated as punitive. This was not accepted
by a three Judge Bench consisting of Justice Shah
(as he then was) who had laid down in Madan
Gopal’s case the principle of ’object of the inquiry’.
This Court reversed the High Court judgment and
held that neither Madan Gopal’s case nor Jagdish
Mitter’s case applied. This was because in the case
before them the inquiry did not go beyond the
stage of the explanation. No findings were given
and no inquiry report was submitted as in the
above two cases. In that case (i.e. Sukh Raj
Bahadur) this Court felt that the decision in A.G.
Benjamin v. Union of India (Civil Appeal No.
1341 of 1966 dated 13-12-1966) (SC) Reported in
(1967) 1 Lab LJ 718 was more direct. In
Benjamin’s case, a charge memo was issued,
explanation was received and an Enquiry Officer
was also appointed but before the inquiry could he
completed, the proceedings were dropped stating
that : \021departmental proceedings will take a much
longer time and we are not sure whether after
going through all the formalities, we will be able to
deal with the accused in the way he deserves.\022
There also the order was held not to be punitive.
Following the above case, this Court in Sukh Raj
Bahadur’s case stated that the position before them
was similar to what happened in Benjamin’s case
and concluded as follows :
\021the departmental inquiry did not proceed beyond
the stage of submission of a charge-sheet followed
by the respondent’s explanation thereto. The
inquiry was not preceded with, there were no
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sittings of any inquiry officer, no evidence
recorded and no conclusion arrived at in the
inquiry\022.\024
27. From the discussions made hereinbefore, it is evident that termination
of services of the appellant purporting to discharge him simplicitor cannot be
accepted, being stigmatic in nature. The form of the order terminating the
services coupled with the background facts clearly leads to the conclusion
that the order impugned in the writ petition by the appellant was punitive.
28. For reasons aforementioned, the impugned order is set aside. The
appeal is allowed. There shall, however, be no orders as to costs.