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CASE NO.:

Appeal (civil) 628 of 2001

PETITIONER:

KRISHNADEVARAYA EDUCATION TRUST AND ANR.

RESPONDENT:

L.A. BALAKRISHNA

DATE OF JUDGMENT: 15/01/2001

BENCH:

B.N. KIRPAL & MRS. RUMA PAL

JUDGMENT:

JUDGMENT

2001 (1) SCR 387

The following Judgment of the Court was delivered : Special Leave granted.

The respondent was appointed to the post of Assistant Professor on 22nd

September, 1990 on probation. Within the probationary period, by order

dated 16th June, 1991, his services were teminated. In the order

terminating the services, it was mentioned as follows:

"As a matter of policy, as usual, a committee was constituted to go into

the general performance of each staff. The committee after having gone

through the records of each individual right from the date of his/ her

inception into the Institute is of the opinion that your on the job

proficiency is not upto the mark. Hence, the Institution feels that your

services are no longer required"

The aforesaid order was challenged before the Educational Tribunal on the

ground that the order terminating, the appointment cast a stigma and,

therefore, such an order could not be passed without holding a departmental

inquiry.

Before the Tribunal, the appellants herein conceded and the said order of

termination was set aside. Subsequently again, within the period of

probation, a fresh order of termination was passed which was as follows :

"Sri L.A. Balakrishna, Assistant Professor, Department of Mechanical

Engineering will be relieved of his duties with effect from 1.8.1991, he

may be paid his dues if any."

This order was again challenged and the Tribunal came to the conclusion

that the real reason for passing this order was that his services were

found to be unsuitable and, therefore, this was by was of punishment, The

order was set aside and the high Court upheld the decision of the Tribunal.

Hence, this appeal.

There can be no manner of doubt that the employer is entitled to engage the

services of a person on probation. During the period of probation, the

suitability of the recruit/appointee has to be seen. If his services are

not satisfactory which means that he is not suitable for the job than the

employer has a right to terminate the services as a reason thereof. If the

termination during probationary period is without any reason, perhaps such

an order Would be sought to be challenged on the ground of being arbitrary.

Therefore, normally services of an employee on probation would be

terminated, when he is found not to be suitable for the job for which he

was engaged, without assigning any reason. If the order on the face of it

states that his services are being terminated because his performance is

not satisfactory, the employer runs the risk of the allegation being made

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that the order itself casts a stigma. We do not say that such a contention

will succeed. Normally, therefore, it is preferred that the order itself

does not mention the reason why the services are being terminated.

If such an order is challenged, the employer will have to indicate the

grounds .on which the services of a probationer were terminated. Mere fact

that in response to the challenge, the employer states that the services

were. not satisfactory would not ipso facto mean that the services of the

probationer were being terminated by way of punishment. The probationer is

on test and if the services are found not to be satisfactory, the employer

has, in terms of the letter of appointment, the right to terminate the

services.

In the instant case, the second order which was passed terminating the

services of the respondent was innocuously worded. Even if we take into

consideration the first order which was passed which mentioned that a

Committee which had been constituted came to the conclusion that the job

proficiency of the respondent was not upto the mark, that would be a valid

reason for terminating the services of the respondent. That reason cannot

be cited and relied upon by contending that the termination was by way of

punishment.

We, accordingly, allow this appeal and set aside the decision of the

Tribunal as well-as that of the High Court No costs.