No Acts & Articles mentioned in this case
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PETITIONER:
DIPTI PRAKASH BANERJEE
Vs.
RESPONDENT:
SATVENDRA NATH BOSE NATIONAL CENTRE FOR BASIC SC., CALCUTTA
DATE OF JUDGMENT: 10/02/1999
BENCH:
M. JAGANNADHA RAO, & D.P. MOHAPATRA
JUDGMENT:
M.JAGANNADHA RAO,J.
Leave granted.
This Civil Appeal has been filed by the
appellant questioning the correctness of the
judgment of the Calcutta High Court in M.A.T.
No.1690 of 1997 dated 23.4.1998. By that judgment,
the Division Bench affirmed the judgment of the
learned Single Judge dated 15.5.1997 in W.P.
No.8484(W) of 1997 dismissing the writ petition
filed by the appellant, a probationer and refusing
to quash the order dated 30.4.1997, terminating his
probation.
The facts of the case in brief are as
follows:
The appellant was appointed on 11.1.1995 as
Office Superintendent in the respondent
organisation, namely, Sri Satyendra Nath Bose
National Centre for Basic Sciences, Calcutta. The
order of appointment dated 11.1.1995 stated that
the appellant would be on probation for one year
and that he might be confirmed after one year
provided the administration was satisfied with the
quality of the appellant's service. His pay scale
was to be in the scale of Rs.1400-1600-2300- 2600
with allowances. The appellant joined on 2.5.1995.
As we are concerned with the question of validity
of the appellant's termination of probation, it is
necessary to refer to the events that took place
during the period of probation.
On 11.12.1995, the Director of the respondent
organisation informed the appellant that the
appellant's work was not satisfactory on several
counts. The points mentioned in this letter are as
follows:-
"(i) Your handling of the movement to the new
campus was good till the good impression was
spoiled by your refusal to handle the furniture in
the Director's room and your statements about other
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administrative staff members, which were not
corroborated by academic members present. Later
movement to the JD Block by Prof. A.Mookerjee and
the Director's office found you non-cooperative.
(ii) You have been preparing false bills; the
fact that they were passed by your immediate
superior does not mitigate your guilt.
(iii) Your handling of quotations about
cleaning agencies, xerox machines, purchases of
stationery etc. were faulty and several times you
were told to redo the whole job. Unfortunately
your performance has not improved even after
repeated advice.
(iv) You have misbehaved with women academic
staff members; one of them has even submitted a
written complaint.
(v) You are rather frequently absent from
office premises and the faculty members complained
about your absence. Your handling of the room
allocations in the guest house, confirmatory reply
to people asking for accomodation, and general
supervision have been unsatisfactory, In general
your attitude to office work leaves much to be
desired.
It is expected that you would rectify the
faults noted above and improve your performance in
the coming months, so that your confirmation could
be favourably considered."
On 30.4.1996, the appellant was informed that
he was on probation and his confirmation would be
considered soon. On 15.4.1996, the Director wrote
another letter stating as follows:
"1. It appears that your attitude concerning
the guests for the guest house has not shown any
improvement. When Dr.R.Bhat fell sick with chicken
pox and was in quarantine for three weeks, you were
nowhere to be seen, and the A.O. was also not seen
to take any interest. similarly when a Canadian
professor (Professor Dragland) fell sick, you were
not to be found.
Most of the time, you left the work to be done
by others, who had to do extra work for your
inefficiency.
2. You have not done a proper job of
releasing the houses at DB 17 and CD 85. It is
known that the date 31.1.1996 is not the actual
date of release of DB 17 and the landlord showed us
proof that this was so.
3. You have not explained how the revenue
stock verification was done by you and the A.O.
Please refer to SNB/DIR/ADM/95- 96/84 dated
20.2.1996 about stock verification (especially
numbering and locating new furniture). Has any
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progress been made? No activity on this important
job has been noticed by me.
Please report to me on point 3 by April 16,
1996.
Your performance leaves a lot to be desired
and you must show evidence of good work to the
academic staff members to merit confirmation."
The appellant submitted an elaborate reply of
five pages denying all the allegations and giving
his version of the incidents mentioned against him,
and also sought for a copy of the Written Complaint
given by the woman `academic' staff member. He
pointed out that though as per the order of the
Director, he was to report to the Administrative
Officer, the Director was perhaps sending the above
letters without consulting the said Administrative
Officer.
The report dated 25.4.1996 of the
Administrative Officer to the Director gives a
contrary version. It states that the appellant was
found to be an "excellent working hand,
conscientious and willing" to take responsibility,
that he had always been discharging his assigned
works even despite constraints, that he was regular
and punctual, and was conducting himself very well
in the discharge of his duties even when there was
no helping hand and that "his service during the
period of probation has been extremely
satisfactory".
But the Director issued a further letter dated
30.4.1996 stating that the appellant's performance
during the period of probation had been reviewed
and stating that "regrettably your performance has
been far from satisfactory", that by letters dated
11.12.1995 and 15.4.1996 his attention had been
drawn to various areas of unsatisfactory
performance, but no improvement was discernible.
It was stated that in order to afford the appellant
an opportunity to improve performance and in order
to enable the organisation to consider the
appellant's case favourably for confirmation, his
probationary period was being extended by six
months from 2.5.1996. The letter stated that it
was hoped that the appellant would improve his
performance generally and also in the areas pointed
out to him.
On 17.10.1996, the Director wrote to the
appellant that the appellant's performance in the
previous six months was again assessed and that
there were `serious deficiencies' as follows:
"(i) Your attendance to office work has been
irregular and perfunctory. It was found that you
had often left the office earlier than the time you
signed in the attendance register.
(ii) You could not complete the job of stock
taking of the fixed stock, marking of furniture,
etc. for the whole financial year 1995-96. You
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were told again (letter SNB/DIR/ADM/96-97/52 dated
11.9.1996) but you tried to avoid work by writing
irrelevant notes. There has been no evidence that
the work was started for the FY 1996-97.
(iii) Your complaint of 28.5.1996 against Sri
P.Chakraborty, Helper, was duly investigated. Your
behaviour before the inquiry committee was
reprehensible. It was confirmed by the committee
that you were involved in the scuffle and did other
misdeeds like obtaining false signature, so that
you were characterized as a person of `dubious
character'.
You are guilty of inefficient performance of
duty, irregular attendance without permission, rude
and disorderly behaviour, and wilful
insubordination.
Unless your performance improves considerably
it would be difficult to recommend your
confirmation. It is expected that you would pay
attention to the faults pointed out to you."
The above letter, it will be seen, refers to
an inquiry. The Counter affidavit filed by the
respondent explains that the said report was given
by a High Level Enquiry Committee on 15.7.1996.
The Committee was to deal with the complaint by the
appellnat against one Sri P.Chakraborty, a
partially handicapped person. We get some details
of the Enquiry report from the counter affidavit
as follows:
"(a) In pursuance of a complaint made by
the petitioner against Shri P.Chakraborty
a specific enquiry was made on the
following questions by a High Level
Enquiry Committee consisting of three
high officials, namely (1) Professor
(Smt.) Monisha Bose, (2) Dr.N.Nayak and
(3) Dr. D.Gangopadhyay, headed by Prof.
(Smt.) Monisha Bose -
(i) Why Sri P.Chakraborty went downstairs,
whether he used unacceptable language and whether
he was involved in physical assault, and
(ii) Whether Sri D.P.Banerjee used provocative
language and whether he was involved in physical
assault?
The petitioner was not very cooperative in the
enquiry. The said enquiry committee inter alia
made the following recommendation:
Sri D.P.Banerjee was involved in the scuffle
and also used Mr. Pradip Bose to obtain the false
signatures. As such, he should surely be punished.
We recommend that a person of such dubious
character should not be confirmed."
On 30.10.1996, we have a report of a different
kind from the Administrative Officer. That report
is totally in favour of the appellant. It states
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that, with reference to the letter dated
17.10.1996, the Administrative Officer had to state
that his earlier note dated 25.4.1996 regarding the
appellant's performance was obviously not taken
into account by the Director, that reports were
being called on `selective basis' rather than by
standard format applicable to all employees. He
stated that the appellant's performance was
"exemplary, well mannered and disciplined, he had
been discharging his duties conscientiously and
diligently". He referred to some of the specific
items of complaint and stated that there was no
truth in them.
Then comes the second order of extension of
probation dated 31.10.1996 from the Director
extending the probation by another six months, from
2.11.1996. Appellant was asked to submit an
account of his monthly work to Dr.Samir K. Pal,
who would judge his performance. The appellant was
asked to improve his performance.
On 29.3.1997, the Director wrote to the
appellant that on the basis of Dr. S.K.Pal's
reports, the appellant's performance in regard to
stock-taking or handling quotations was not good
and that the appellant must change his attitude to
work, avoid neglect of work allotted, avoid
carelessness or inefficiency & change his behaviour
which often bordered on insubordination.
It was in this background that on 30.4.1997,
the impugned order of termination was passed. As
the case turns also upon the question whether this
order is vitiated by `stigma', it is necessary to
extract the body of this letter. It reads:
"4. Since the performance during the initial
period of probation was not satisfactory, by letter
no.SNB/PER 4 1201/DO-5 dated 30 April 1996 your
period of probation was extended by six months from
2 May 1996.
5. By letter dated 17 October 1996 your
attention was drawn to unsatisfactory performance
and the areas of unsatisfactory performance were
brought to your notice. You were advised to
improve your performance considerably.
6. Since during the extended period also your
performance was not satisfactory, the Management
was constrained to further extend your period of
probation and accordingly by letter no.SNB/PER 4
1201/DO-100 dated 31 October 1996 your period of
probation was extended further six months.
7. During the period of further extension of
probation you could not improve your performance.
8. We have closely watched and examined your
conduct, performance, ability and capacity during
the whole period of probation but your performance
is found to be unsatisfactory and you are
considered unsuitable for the post against which
you have been appointed. The period of probation
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was extended with the expectation that you would
improve your performance but there was no
improvement in your performance.
9. Under the circumstances, the Management is
unable to confirm your service in the Centre and as
such the Management is unable to continue your
service on the expiry of the stipulated period or
probation on the Ist May 1997 and your service
shall stand terminated after the close of working
hours of 1 May 1997. In case you want to appeal
against the decision, you may appeal to the
Governing Body of the Centre.
10. You will be paid one month's pay although
the contract of employment does not stipulate any
such payment."
It is this order of the respondent that was
unsuccessfully challenged before the single Judge
and the Division Bench of the High Court.
In this appeal, it is contended by Sri Jaideep
Gupta, learned counsel for the appellant that the
order terminating the appellant's probation is
liable to be set aside on two grounds. Firstly,
that the findings in the letter of the Director
dated 11.12.95 shows that certain findings arrived
at behind the back of the appellant were the
foundation of the impugned order; secondly on the
ground that it refers to certain communications by
the Director to the appellant which contain
material amounting to `stigma' and also because
these documents and the record of the case clearly
establish that it is a case where certain findings
arrived at in a non-departmental inquiry were the
`foundation' for the termination and it is not a
case where certain allegations against the
appellant could be treated as the `motive' behind
the order. He contended that the Administrative
Officer's reports in his favour were not considered
by the Director. The communications to the
appellant contained not only certain allegations
but clear adverse findings by the Director as well
as by a Committee and they were the foundation.
The differences between the Director and the
Administrative Officer, led to the appellant being
made the scape-goat.
On the other hand, learned senior counsel for
the respondent Sri P.P.Rao contended that this was
a case where the appellant's performance during
probation was not satisfactory, the organisation so
informed the appellant during the first one year
period on 11.12.1995 and 15.4.1996 and he was asked
to improve. Thereafter on 30.4.1996, his probation
was extended giving him an opportunity to improve.
During this six month period, again the Director
wrote on 17.10.1996 pointing out his deficiencies
and asking him to improve by giving a further
extension of probation on 31.10.1996 by another six
months. A note was sent on 29.3.1997 to him
regarding his deficiencies and finally the
termination order was passed on 30.4.1997.
Therefore the employer acted fairly and there was
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no question of any stigma in the order nor was it a
case where certain findings were arrived at which
could be the foundation of the order. If on
account of unsatisfactory performance a probation
could not be terminated then it would lead to
serious problems for any employer.
On the basis of the above contentions, the
following points arise for consideration:
(1) In what circumstances, the termination of
a probationer's services can be said to be founded
on misconduct and in what circumstances could it be
said that the allegations were only the motive?
(2) When can an order of termination of a
probationer be said to contain an express stigma?
(3) Can the stigma be gathered by referring
back to proceedings referred to in the order of
termination?
(4) To what relief?
Point 1:
As to in what circumstances an order of
termination of a probationer can be said to be
punitive or not depends upon whether certain
allegations which are the cause of the termination
are the motive or foundation. In this area, as
pointed out by Shah,J. (as he then was) in Madan
Gopal vs. State of Punjab [AIR 1963 S.C. 531]
there is no difference between cases where services
of a temporary employee are terminated and where a
probationer is discharged. This very question was
gone into recently in R.S.Gupta vs. U.P.State Agro
Industries Corporation Ltd. & Anr. [J.T. 1998
(8) S.C. 585] and reference was made to the
development of the law from time to time starting
from Purshottam Lal Dhingra vs. Union of India
[1958 SCR 828], to the concept of `purpose of
inquiry' introduced by Shah,J. (as he then was) in
State of Orissa vs. Ram Narayan Das [1961 (1) SCR
606] and to the seven Bench decision in Samsher
Singh vs. State of Punjab [1974 (2) SCC 831] and
to post Samsher Singh case-law. This Court had
occasion to make a detailed examination of what is
the `motive' and what is the `foundation' on which
innocuous order is based.
This Court in that connection referred to the
principles laid down by Krishna Iyer,J. in Gujarat
Steel Tube vs. Gujarat Steel Tubes Mazdoor Sangh
[1980 (2) SCC 593]. As to `foundation', it was
said by Krishna Iyer,J. as follows:
".....a termination effected because the
master is satisfied of the misconduct and of the
desirability of terminating the service of the
delinquent servant, it is a dismissal, even if he
had the right in law to terminate with an innocent
order under the standing order or otherwise.
Whether, in such a case, the grounds are recorded
in different proceedings from the formal order,
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does not detract from its nature. Nor the fact
that, after being satisfied of the guilt, the
master abandons the inquiry and proceeds to
terminate. Given an alleged misconduct and a live
nexus between it and the termination of service,
the conclusion is dismissal, even if full benefits
as on simple termination, are given and non-
injurious terminolgy is used."
and as to motive:
"On the contrary, even if there is suspicioun
of misconduct, the master may say that he does not
wish to bother about it and may not go into his
guilt but may feel like not keeping a man he is not
happy with. He may not like to investigate nor
take the risk of continuing a dubious servant.
Then it is not dismissal but termination
simpliciter, if no injurious record of reasons or
pecuniary cut-back on his full terminal benefits is
found. For, in fact, misconduct is not then the
moving factor in the discharge."
As to motive one other example is the case of
State of Punjab vs. Sukh Raj Bahadur [1968(3) SCR
234] where a charge memo for a regular inquiry was
served, reply given and at that stage itself the
proceedings were dropped and a simple termination
order was issued. It was held, the order of simple
termination was not founded on any findings as to
misconduct. In that case, this Court referred to
A.S.Benjamin vs. Union of India (Civil Appeal
No.1341 of 1966 dt. 13.12.1966) (SC) where a
charge memo was issued, explanation was received,
an inquiry officer was also appointed but before
the inquiry could be completed, the proceedings
were dropped and a simple order of termination was
passed, the reason for dropping the proceedings was
that "departmental proceedings will take a much
longer time and we are not sure whether after going
through all the foundation, we will be able to deal
with the accused in the way he deserves'. The
termination was upheld.
If findings were arrived at in inquiry 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
inquiry was not held, no finding were arrived at
and the employer was not inclined to conduct an
inquiry 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 inquire
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.
In the light of the above principles, laid
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down in R.S.Gupta's case we do not think anything
more is to be added. Point 1 is decided
accordingly.
Points 2:
In the present case before us, the order of
termination dated 30.4.97 is not a simple order of
termination but is a lengthy order which we have
extracted above. It not only says that performance
during probation is not satisfactory but also
refers to a letter dated 30.4.1996 by which the
period of probation was extended by six months from
2.5.1996, and to letters dated 17.10.96 and
31.10.96. It concludes by saying that the
appellant's `conduct, performance, ability and
capacity during the whole period of probation was
not satisfactory and that he was considered
`unsuitable' for the post for which he was
appointed.
The contention for the appellant is that if
the appellant is to seek employment elsewhere, any
new employer will ask the appellant to provide the
copies of the letters dated 30.4.96, 17.10.96 and
31.10.96 referred to in the impugned order and that
if the said letters contain findings which were
arrived at without a full fledged departmental
inquiry, those findings will amount to stigma and
will come in the way of his career.
In the matter of `stigma', this Court has held
that the effect which an order of termination may
have on a person's future prospects of employment
is a matter of relevant consideration. In the
seven Judge case in Samsher Singh vs. State of
Punjab [1974 (2) SCC 831], Ray,CJ observed that if
a simple order of termination was passed, that
would enable the officer to "make good in other
walks of life without a stigma. "It was also
stated in Bishan Lal Gupta vs. State of Haryana
[1978 (1) SCC 202] that if the order contained a
stigma, the termination would be bad for "the
individual concerned must suffer a substantial loss
of reputation which may affect his future
prospects".
There is, however, considerable difficulty in
finding out whether in a given case where the order
of termination is not a simple order of
termination, the words used in the order can be
said to contain a `stigma'. The other issue in the
case before us is whether - even if the words used
in the order of termination are innocuous, -the
court can go into the words used or language
employed in other orders or proceedings referred to
by the employer in the order of termination?
As to what amounts to stigma has been
considered in Kamal Kishore Lakshman vs. Pan
American World Airways [1987 (1) SCC 146. This
Court explained the meaning of `stigma' as
follows(p150):
"According to Webster's New World Dictionary,
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it (stigma) is something that detracts from the
character or reputation of a person, a mark, sign
etc., indicating that something is not considered
normal or standard. The Legal Thesuras by Burton
gives the meaning of the word to be blemish,
defect, disgrace, disrepute, imputation, mark of
disgrace or shame. The Webster's Third New
International Dictionary gives the meaning as a
mark or label indicating a deviation from a norm.
According to yet another dictionary `stigma' is a
matter for moral reproach."
Similar observations were made in Allahabad
Bank Officer's Association vs. Allahabad Bank
[1996 (4) SCC 504].
At the outset, we may state that in several
cases and in particular in State of Orissa vs. Ram
Narayan Das [AIR 1961 S.C. 177], it has been held
that use of the word `unsatisfactory work and
conduct', in the termination order, will not amount
to stigma.
We may advert to a few cases on the question
of stigma. We shall refer initially to cases where
a special Rule relating to termination of
probationer required a particular condition to be
satisfied and where the said condition was referred
to in the order of termination. In Hari Singh Mann
vs. State of Punjab [1975 (1) SCC 774), the
probationer was governed by Rule 8(b) of the Punjab
Service Rules, 1959 and the fact that the word
`unfit' as required by the Rules was used, was held
not to be a ground for quashing the order on the
ground of `stigma', for to hold that it amounted to
`stigma' would amount to robbing the authority of
the right under the rule. Similarly where a Rule
required a show cause notice issued and an inquiry
to be conducted before terminating probation, such
as Rule 55-B of the Central Civil Services (CCA)
Rules, there would be no question of characterising
the simple order of termination as one founded on
the allegations which were the subject of the
inquiry. That was because, in such a case, the
purpose of the inquiry was to find out if the
officer was to be continued in service and not to
find out if he was guilty [State of Orissa vs. Ram
Narayan Das (AIR 1961 SC 177) (Ravindra Chandra vs.
Union of India AIR 1963 S.C.1552)]. In State of
Gujarat vs. Akhilesh C.Bhargav [1987 (4) SCC 482],
the termination order merely referred to Rule
12(bb) of the Indian Police Service (Probationer -)
Rules 1959. It was contended that the reference to
the said Rule 12(bb) itself amounted to a stigma
but this was rejected following Ram Narayan Das
case.
We shall next advert to some more cases and
to particular words employed while passing orders
of termination of probationers. In State of Bihar
vs. Gopi Kishore Prasad [AIR 1980 S.C. 689], a show
cause notice was given seeking a reply to the
allegation regarding the officers' bad reputation
and in regard to certain perverse decisions given
by him in his Judicial functions during the period
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of probation. The termination order stated that
certain facts were brought to the notice of the
Government about his unsatisfactory work and
conduct and that grave doubts had arisen about his
integrity which indicated that he was a corrupt and
an unreliable officer. It was also said that
confidential inquiries revealed that he was a
corrupt officer and that annual confidential
reports of his superior officer referred to his bad
reputation and therefore his work during the period
of probation was not satisfactory. The
Constitution Bench of this Court held that it was a
clear case of stigma and the matter indeed required
a full fledged departmental inquiry under Rule 55
of the CCS (CCA) Rules. In Jagdish Mitter vs.
Union of India [AIR 1964 S.C. 499] the use of the
words "undesirable to be continued" in service was
held by the Constitution Bench to amount to stigma.
This case was followed in State of U.P. vs. Madan
Mohan Nagur [AIR 1967 C.C. 1260] where the order
said that the officer had `outlived his utility'
and such an order was held to amount to a stigma.
Jagdish Mitter was approved by the Seven Judge
Bench in Samsher Singh's case on this point. But in
Kunwar Arun Kumar vs. U.P. Hill Electronics
Corporation [1997 (2) SCC 191, the termination
order used the word `unsatisfactory' and the same
was upheld as it did not amount to stigma. In two
cases arising under industrial law, one in Chandu
Lal vs. Pan American World Airways [1985 (2) SCC
727] and Kamal Kishnore Lakshman vs. Pan American
Land Ways Inc. [1987 (1) SCC 146] where the
termination order used the word `loss of
confidence', the said orders were held to contain
stigma and therefore punitive. In Jagdish Prasad
vs. Sachiv Zila Gaon Committee [1986 (2) SCC 338],
the termination order stated that the officer had
concealed certain facts relating to his removal
from an earlier service on charge of corruption and
therefore not suitable for appointment. This was
held to amount to stigma. But in Union of India
vs. R.S.Dhabe [1969 (3) SCC 603] where the order
merely said `found unsuitable', it was held not to
amount to stigma. In Allahabad Bank Officers
Association vs. Allhabad Bank [1996 (4) SCC 504],
the order was one of compulsory retirement and said
that a Special Committee had unanimously
recommended for the officers' compulsory
retirement, that the Chairman and Managing Director
agreed with the Committee's views regarding `want
of application to Bank's work and lack of potential
and that the officer was also found to be not
`dependable'. This Court after referring to a
number of cases explained that the words `not
dependable' were used, in the context of the facts
of the case and not as an aspersion on his
reputation but in relation to his work and were to
be understood in that sense in the setting of the
words `want of application' and or `lack of
potential'. It was observed:
"Any person reading the letter on the order of
compulsory retirement would not be led to believe
that there was something wrong with Appellant 2 as
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regards his conduct or character. They would only
indicate that he had ceased to be useful to the
Bank in his capacity as a Manager".
Again in High Court of Judicature at Patna vs.
Pandey Madan Mohan Prasad Sinha & Others [1997 (10)
SCC 409] it was held that termination of
probationer on basis of uncommunicated adverse
remarks, was valid.
Thus, it depends on the facts and
circumstances of each case and the language or
words employed in the order of termination of the
probationer to Judge whether the words employed
amount to stigma or not. Point 2 is decided
accordingly.
Point 3:
The next question is whether the reference in
the impugned order to the three earlier letters
amounts to stigma if those three letters contained
anything in the nature of a stigma even though the
order of termination itself did not contain
anything offensive.
Learned counsel for the appellant relies upon
Indrapal Gupta vs. Managing Committee [1984 (3)
SCC 384] decided by a three Judge Bench of this
Court. In that case the order of termination of
probation, which is extracted in the judgment,
reads as follows:
"With reference to the above (viz.
termination of service as Principal), I have to
mention that in view of the resolution No.2 of the
Managing Committee dated April 27, 1969 (copy
enclosed) and subsequent approval by the D.I.O.S.,
Bulandshahr, you are hereby informed that your
service as Principal of this Institution is
terminated ....."
Now the copy of Resolution of the Managing
Committee appended to the order of termination
stated that the Report of the Manager was read at
the meeting and that the "facts contained in the
Report of the Manager being serious and not in the
interests of the institute, that therefore the
Committee unanimously resolved to terminate his
probation." The Report of the Manager was not
extracted in the enclosure to the termination order
but was extracted in the Counter filed in the case
and read as follows:
"It will be evident from the above, that the
Principal's stay will not be in the interest of the
Institution. It is also evident that the serious
view of the lapses is enough to justify dismissal
but no educational institution should take all this
botheration. As such my suggestion is that our
purpose will be served by termination of his
services. Why, then, we should enter into any
botheration. For the termination of his period of
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probation, too, the approval of the DIOS will be
necessary. Accordingly, any delay in the matter
may also be harmful to our interests.
Accordingly, I suggest that instead of taking
serious action, the period of probation of Sri
Inder Pal Gupta be terminated without waiting for
the period to end."
It was held by Venkataramiah, J. (as he then
was) (p.392) that the letter of termination
referred to the resolution of the Managing
Committee, that the said resolution was made part
of the order as an enclosure and that the
Resolution in its turn referred to the report of
the Manager. A copy of the Manager's report had
been filed alongwith the counter and the said
report was the `foundation'. Venkataramiah,J. (as
he then was) held that the Manager's report
contained words amounting to stigma. The learned
Judge said: "This is a clear case where the order
of termination issued is merely a camouflage for an
order imposing a penalty of termination of service
on the ground of misconduct", that these findings
in the Manager's report amounted to a `mark of
disgrace or infamy' and that the appellant there
was visited with evil consequences. The officer
was reinstated with all benefits of backwages and
continuity of service.
It will be seen from the above case that the
resolution of the committee was part of the
termination order being an enclosure to it. But
the offensive part was not really contained in the
order of termination nor in the Resolution which
was an enclosure to the order of termination but in
the Managers's report which was referred to in the
enclosure. The said report of the Manager was
placed before the Court along with the counter.
The allegations in the Manager's report were the
basis for the termination and the said report
contained words amounting to stigma. The
termination order was, as stated above, set aside.
The above decision is, in our view, clear
authority for the proposition that the material
which amounts to stigma need not be contained in
the order of termination of the probationer but
might be contained in any document referred to in
the termination order or in its Annexures.
Obviously such a document could be asked for or
called for by any future employer of the
probationer. In such a case, the order of
termination would stand vitiated on the ground that
no regular inquiry was conducted. We shall
presently consider whether, on the facts of the
case before us, the documents referred to in the
impugned order contain any stigma.
It was in this context argued for the
Respondent that the employer in the present case
had given ample opportunity to the employee by
giving him warnings, asking him to improve and even
extended his probation twice and this was not a
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case of unfairness and this Court should not
interfere. It is true that where the employee had
been given suitable warnings, requested to improve,
or where he was given a long rope by way of
extension of probation, this Court has said that
the termination orders cannot be held to be
punitive. Hindustan Paper Corporation vs. Purendu
Chakraborty [1996 (11) SCC 404] See in this
connection, Oil & Natural Gas Commission vs. Md.
S.Iskendu [1980 (3) SCC 428], Unit Trust of India
vs. T.Bijaya Kumar [1992 (5) Serv.L.R. 855 (SC)],
Principal, Institute of P.G.Medical Education &
Research, Pondichery vs. S.Andel & others [1995
Suppl. (4) SCC 609] and a labour case Oswal
Pressure Die Carting Industry vs. Presiding
Officer [1998 (3) SCC 225]. But in all these
cases, the orders were simple orders of termination
which did not contain any words amounting to
stigma. In case we come to the conclusion that
there is stigma in the impugned order, we cannot
ignore the effect it will have on the probationer's
future whatever be earlier opportunities granted by
the respondent organisation to the appellant to
improve.
On this point, therefore, we hold that the
words amounting to `stigma' need not be contained
in the order of termination but may also be
contained in an order or proceeding referred to in
the order of termination or in an annexure thereto
and would vitiate the order of termination. Point
3 is decided accordingly.
Point 4:
Under this point, two aspects of the case fall
for consideration, firstly whether the impugned
order is founded on any conclusions arrived at by
the employer as to his misconduct or whether the
termination was passed because the employer did not
want to continue an employee against whom there
were some complaints. The second aspect is whether
there is any stigma in the order of termination or
in the documents referred to in the termination
order.
Taking up the first aspect, we have noticed
that during the first one year of probation, a
letter dated 11.12.95 was served on the appellant.
That letter stated, among other things, that the
appellant `prepared false bills' and that he
"misbehaved with women academic staff members".
The appellant sent a reply denying the allegation
and he also sought for a copy of the complaint said
to have been given by the lady academic staff
member. It is true that subsequently, there were
two orders of extension of probation each for six
months. But in the impugned order dated 30.4.97,
it was stated in para 8 that the order of
termination was being passed because of the
`conduct', performance, ability and capacity of the
appellant during the "whole period". This would
clearly take in the facts stated in the letter
dated 11.12.95. It is obvious that findings of
preparation of false bills or of misbehaviour with
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women which ought to be arrived at only in a
regular departmental inquiry, were referred to in
this letter without any inquiry. It will be
noticed that the letter dated 11.12.95 does not
merely say that there are such complaints against
the appellant but it says conclusively that the
appellant had "prepared false" bills and
"misbehaved" with women academic staff members.
The above language in the letter dated
11.12.95 would clearly imply that this was not a
case of any preliminary findings. If these were
referred to as mere allegations, it would have been
a case of motive. But as these definitive
conclusions of misconduct are evident on the face
of this letter dated 11.12.95 and this letter falls
within the "whole period", the conclusion is
inescapable that these findings were part of the
foundation of the impugned order and it is not a
case of mere motive. On this ground, the order
requires to be set aside.
We shall next take up the second aspect
relating to stigma. We shall assume that the words
used in the impugned order do not contain any
stigma. We shall then refer to the three other
letters to which the order makes a reference. In
the first letter dated 30.4.96, we do not find
anything objectionable. Coming to the next letter,
we however find that para (iii) refers to the
scuffle between the appellant and one P.Chakraborty
regarding which the appellant made a complaint on
28.5.96. An Inquiry Committee is said to have been
appointed and it gave a Report. The extract from
the report of the Committee dated 15.7.1996 is
found in the Counter of the respondents. The
Inquiry Committee found the appellant's "behaviour
reprehensible", and it confirmed that the appellant
was involved in a scuffle and did misdeeds like
obtaining false signatures", and said that the
appellant was "guilty of inefficient performance or
duty, irregular attendance without permission, rude
and disorderly behaviour and wilful
insubordination". Whatever may be said about the
other words, the words used in connection with the
finding of the Inquiry Committee about the scuffle
and about the appellant obtaining false signatures,
are, in our opinion, clearly in the nature of a
stigma. Further, the Inquiry Committee said he
must be `punished'. It did not say that
proceedings for disciplinary action were to be
initiated. Thus on the ground of `stigma' also the
impugned order is liable to be set aside.
It was argued that the appellant was given
notice of the above Inquiry by the Committee but he
was `not cooperative'. In our view findings
arrived at by such an informal Committee against
the appellant, which Committee was, in fact,
constituted on a complaint by the appellant against
Mr. Chakraborty, - cannot be used for terminating
the appellant's probation, without a proper
departmental inquiry. The said findings, in our
view, were the foundation for the impugned order
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among other facts. Such findings must, in law, be
arrived at only in a regular departmental inquiry.
As pointed out in Bishan Lal Gupta vs. State
of Haryana [1978 (1) SCC 202], an ordinary inquiry
by a show cause might be sufficient for the purpose
of deciding whether the probatiioner could be
continued. But where the findings regarding
misconduct are arrived at without conducting a
regular departmental inquiry, then the termination
order will be vitiated. The learned senior counsel
for the respondent relied upon Hindustan Paper
Corporatiion vs. Purnendu Chakraborty [1996 (11)
404] where it was held that for termination of
`lien', no detailed inquiry was necessary and that
if that be the position, termination of probation
stands on a lesser footing. But the case turned
upon a special Rule in that case which specifically
provided that for `termination of lien' a regular
inquiry was not necessary. That case cannot
therefore be of any assistance to the respondents.
We do not find anything objectionable in the
third letter dated 31.10.96 but the second letter,
as stated above, is clearly objectionable.
For the aforesaid reasons, the imugned order
is liable to be set aside.
Learned senior counsel for the respondent
submitted on the basis of State of Haryana vs.
Jagdish Chander [1995 (2) SCC 567] that merely
because an order of termination was set aside on
grounds of lack of opportunity, it was not
necessary to direct reinstatement and backwages.
Reliance in Jagdish Chandra's case was placed upon
Managing Director, ECIL vs. B.Karunakar [1993 (4)
SCC 727]. It is true that such an order not
granting reinstatement or back wages was passed in
Jagdish Chander's case following Karunakar's case.
But it has to be noticed that in Karunakar's case,
there was a regular departmental inquiry but the
inquiry report was not given to the officer. This
Court directed the report to be given and set aside
the proceedings from that stage and stated that no
order for reinstatement or backwages need be passed
at that stage. But in cases like the present where
no departmental inquiry whatsoever was held,
Karunakar's case, in our view, cannot be an
authority. As to backwages, on facts, the position
in the present case is that there is no material to
say that the appellant has been gainfully employed.
The appellant is, therefore, entitled to
reinstatement and backwages till the date of
reinstatement from the date of termination and to
continuity of service. Point 4 is decided
accordingly.
For the aforesaid reasons, the appeal is
allowed, the Judgments of the Division Bench &
learned Single Judge of the High Court are set
aside, the impugned order of termination is
quashed, and the appellant is hereby directed to be
reinstated with backwages till the date of
reinstatement and continuity of service. It will
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be open to the respondents to take such action as
they may deem fit in accordance with law against
the appellant. The appeal is allowed as stated
above. There will be no order as to costs.
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