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CASE NO.:

Appeal (civil) 7523 of 2001

PETITIONER:

PAVANENDRA NARAYAN VERMA

Vs.

RESPONDENT:

SANJAY GANDHI P.G.I. OF MEDICAL SCI. & ANR.

DATE OF JUDGMENT: 05/11/2001

BENCH:

G.B. Pattanaik & Ruma Pal

JUDGMENT:

RUMA PAL, J.

Leave granted.

The appellant has challenged the decision of the High Court

of Allahabad dismissing his writ petition and upholding an order

passed by the respondent No. 1 terminating the appellants

services.

The appellant was temporarily appointed on 10th April 1996

to the post of Joint Director (Materials Management) of

respondent No. 1. Clauses 3 and 4 of the letter of appointment

provided:

3. This appointment is temporary and can

be terminated on one months notice from

either side or in lieu of this notice on

payment of a sum equivalent to one months

salary.

4. You will be on probation for a period

of one year from the date of appointment

and the probation period may at the

discretion of the competent authority be

curtailed or extended by such period as

deemed necessary.

The period of probation was extended on 23rd June 1997 for a

period of six months w.e.f. 30th April 1997. This was subsequently

further extended for a period of three months w.e.f. 30th October

1997. On 6th February 1998, the impugned order of termination

was issued. The language used in the order reads:

.During the period of our work (sic)

and conduct was found satisfactory and

therefore, your probation was extended for a

period months (sic) w.e.f. the forenoon of

30.4.1997 vide office order

PG/DIR/DC/479/97 dated 23.6.1997. Again

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vide office order No. 811 PG/DIR/DC dated

27th October 1997 your probation period

was further extended for three months w.e.f.

the forenoon of 30th October 1997. Even

during thus (sic) extended period of

probation your work and conduct has not

been found to be satisfactory.

Therefore, under terms & conditions No. 3

and 4 of the above referred appointment

letter, dated services are hereby terminated

with immediate effect and for the period a

cheque No. VR/00/5856 dated 5.2.1998 for

Rs.11.070 (Rupees eleven thousand seventy

only) in lieu of on (sic) months notice is

enclosed.

According to the appellant, the order was punitive and cast a

stigma on the appellant and could not be sustained without a full

scale departmental inquiry. It has been argued that the termination

order was founded upon allegations of misconduct against the

appellant. A summary inquiry had been held by the respondents in

which a charge-sheet had been issued to the appellant. The inquiry

officer had submitted a report to the respondents, a copy of which

was not made available to the appellant, but immediately after the

completion of the inquiry the impugned order of termination had

been passed. In support of the submission that the order was

punitive, our attention was drawn by the appellant to statements

made in the counter affidavit filed by the respondent before the

High Court where the respondents have alleged that the appellants

integrity and honesty were doubtful.

The respondents have submitted that the inquiry was held

merely to assess the appellants fitness for being continued on

probation. The respondents claimed to have received various

complaints regarding the discharge of the appellants duties and in

order to give the appellant an opportunity of placing the true facts

before the respondent the summary inquiry was held so that the

suitability of the appellant for being confirmed in the post of Joint

Director (Material Management) could be fairly assessed. It was

also submitted that the order was not stigmatic nor punitive and

that no statement in the counter affidavit would change that

position.

The High Court has accepted the submissions of the

respondents and accordingly dismissed the writ petition.

Since the decision in Parshottam Lal Dhingra V. Union of

India , Courts have had to perform a balancing act between

denying a probationer any right to continue in service while at the

same time granting him the right to challenge the termination of

his service when the termination is by way of punishment. The

law has developed along apparently illogical lines in determining

when the termination of a temporary appointee or probationers

services amounts to punishment.

In 1974, Krishna Iyer, J. had said, The need, in this branch

of jurisprudence, is not so much to reach perfect justice but to lay

down a plain test which the administration and civil servant can

understand without subtlety and apply without difficulty.

Since Dhingra is the Magna Carta of the India civil servant,

although it has spawned diverse judicial trends, difficult to be

disciplined into one single, simple, practical formula applicable to

termination of probation of freshers and of the services of

temporary employees , we have thought it best to refer to the facts

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of Dhingras case to understand what exactly was meant when the

Court said:

It is true that the misconduct, negligence,

inefficiency or other disqualification may be

the motive or the inducing factor which

influences the Government to take action

under the terms of the contract of

employment or the specific service rule,

nevertheless, if a right exists, under the

contract or the rules, to terminate the service

the motive operating on the mind of the

Government is, as Chagla, C.J. has said in

Shrinivas Ganesh v. Union of India (N)

(supra), wholly irrelevant. In short, if the

termination of service is founded on the

right flowing from contract or the service

rules then prima facie, the termination is not

a punishment and carries with it no evil

consequences and so art. 311 is not

attracted. But even if the Government has,

by contract or under the rules, the right to

terminate the employment without going

through the procedure prescribed for

inflicting the punishment of dismissal or

removal or reduction in rank, the

Government may, nevertheless, choose to

punish the servant and if the termination of

service is sought to be founded on

misconduct, negligence, inefficiency or

other disqualification, then it is a

punishment and the requirements of Art. 311

must be complied with.

In that case the employee had been reverted back from an

officiating post. The records showed that adverse remarks had

been made against the employee in his confidential reports while

he was officiating. These remarks were placed before the General

Manager who said that he was disappointed to read them and

that he should be reverted as a subordinate till he makes good the

shortcomings noticed. The order of reversion was passed by

the General Manager soon after this. When the issue ultimately

came before this Court, this Court upheld the order of reversion,

saying:

He had no right to continue in that post and

under the general law the implied term of

such appointment was that it was terminable

at any time on reasonable notice by the

Government and, therefore, his reduction

did not operate as a forfeiture of any right

and could not be described as reduction in

rank by way of punishment. Nor did this

reduction under Note 1 to R.1702 amount to

his dismissal or removal. Further it is quite

clear from the orders passed by the General

Manager that it did not entail the forfeiture

of his chances of future promotion or affect

his seniority in his substantive post. In these

circumstances, there is no escape from the

conclusion that the petitioner was not

reduced in rank by way of punishment and,

therefore, the provisions of Art. 311(2) do

not come into play at all.

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(Emphasis supplied)

Therefore, although the General Manager had issued the

order of termination on the basis of the adverse reports, the order

was not considered as a punishment because it did not jeopardise

the appellants career prospects. It is also clear from the paragraph

quoted that punishment means the deprivation of a right which the

employee otherwise has. Thus, if he is already in service and is

reverted from an officiating post, although he does not have a

right to continue in the officiating post, he still has a right to be

considered for promotion. If he is on probation or on a temporary

appointment, he has a right to seek new employment if his

appointment or probation is terminated. Anything which

jeopardises these rights would be by way of punishment.

Another Constitution Bench of this Court in Benjamin

(A.G.) and Union of India explained the decision of Parshotam

Lal Dhingra (supra). It followed the two tests mentioned in

Dhingras case viz.

(1) Whether the temporary

Government servant had a right

to the post or the rank, or

(2) Whether he has been visited with

evil consequences.

If punishment were restricted to evil consequences, the

Courts task in deciding the nature of an order of termination

would have been easier. Courts would only have to scan the

termination order to see whether it ex-facie contains the stigma or

refers to a document which stigmatises the officer, in which case

the termination order would have to be set aside on the ground

that it is punitive. In these cases the evil consequence must be

assessed in relation to the blemish on the employees reputation so

as to render him unfit for service elsewhere and not in relation to

the post temporarily occupied by him. This perhaps is the

underlying rationale of several of the decisions on the issue.

In V.P. Ahuja V. State of Punjab and Others cited by the

appellant, the Court construed the language of the order and found

that it was ex-facie stigmatic.

In Krishnadevaraya Education Trust & Anr. v. L.A.

Balakrishna , the first letter of termination mentioned that the

Committee appointed to go into the question of general

performance of each staff had found that the employee, who had

been appointed on probation, was not upto the mark. This was

followed by a second order of termination which did not refer to

the employees performance at all. The Court held that it was

preferable that the order of termination did not mention that the

employees performance was not satisfactory as then the

employer runs the risk of the allegation being made that the order

itself casts a stigma. Nevertheless, the Court held that the

reasons stated in the first order did not mean that the termination

may be by way of punishment because 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.

Finally, this Court in H.F. Sangati V. Register General,

High Court of Karnataka and Others dealt with the question

whether an order terminating the appointment of a probationer

Munsif could be considered to be punitive. In that case during the

period of probation, several adverse remarks had been made in the

confidential records of the probationer. The Administrative

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Committee of the High Court considered these confidential

records and came to the conclusion that the appellant was not fit

to be confirmed in the post of a judicial officer. They

recommended to the High Court accordingly. The High Court

accepted the recommendation at a Full Court meeting and referred

the matter to the State Government. The State Government

accepted the recommendation and discharged the probationer

from service. The order of termination mentioned that the

employee was unsuitable to hold the post of Munsif. The Court

held that the order did not cast any stigma on the employee and

was not punitive.

But the law does not rest there. In Shamsher Singh v. State

of Punjab, the Courts were asked to look behind the form of the

order to find out whether the termination was in substance

punitive. So when a full scale inquiry is held against a probationer

or a temporary appointee and he is found guilty, an order

terminating his services for this reason has been seen as punitive

and bad. It is this search for the substance behind the form of

the order of punishment which has lead to some apparently

conflicting decisions.

Thus some Courts have upheld an order of termination of a

probationers services on the ground that the enquiry held prior to

the termination was preliminary and yet other courts have struck

down as illegal a similarly worded termination order because an

inquiry had been held. Courts continue to struggle with

semantically indistinguishable concepts like motive and

foundation; and terminations founded on a probationers

misconduct have been held to be illegal while terminations

motivated by the probationers misconduct have been upheld. The

decisions are legion and it is an impossible task to find a clear

path through the jungle of precedents.

As observed by Alagiriswamy, J. in S.P. Vasudeva V. State

of Haryana and Others 1976 (1) SCC 236, at p. 240:

After all no government servant, a

probationer or temporary, will be discharged

or reverted, arbitrarily, without any rhyme or

reason. If the reason is to be fathomed in all

cases of discharge or reversion, it will be

difficult to distinguish as to which action is

discharge or reversion simplicitor and which

is by way of punishment. The whole

position in law is rather confusing.

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.

The three factors are distinguishable in the following passage

in Shamsher Singh v. State of Punjab (supra) where it was said:

Before a probationer is confirmed the

authority concerned is under an obligation to

consider whether the work of the

probationer is satisfactory or whether he is

suitable for the post. In the absence of any

rules governing a probationer in this respect

the authority may come to the conclusion

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that on account of inadequacy for the job or

for any temperamental or other object not

involving moral turpitude the probationer is

unsuitable for the job and hence must be

discharged. No punishment is involved in

this. The authority may in some cases be of

the view that the conduct of the probationer

may result in dismissal or removal on an

inquiry. But in those cases the authority

may not hold an inquiry and may simply

discharge the probationer with a view to

giving him a chance to make good in other

walks of life without a stigma at the time of

termination of probation. If, on the other

hand, the probationer is faced with an

enquiry on charges of misconduct or

inefficiency or corruption, and if his services

are terminated without following the

provisions of Article 311(2) he can claim

protection.

(Emphasis supplied)

Thus in Benjamins case (supra), complaints had been

received against a temporary employee. A notice had been sent to

the employee to show cause why disciplinary action should not be

taken against him. The inquiry officer was appointed but before

the inquiry was completed, the services of the employee were

terminated with one months salary in lieu of notice. The

Constitution Bench upheld the order of termination and drew a

distinction between a preliminary inquiry and a departmental

inquiry. It was held that a preliminary inquiry held to satisfy the

Government whether there was no reason to dispense with the

services of the temporary employee should not be mistaken for a

departmental inquiry held to decide whether punitive action

should be taken.

In State of Uttar Pradesh and Another V. Kaushal

Kishore Shukla , the employee had been appointed on a

temporary basis for a fixed tenure. During the period of his

service, adverse entries were made in his character roll.

Complaints were also received by the auditors of the employer. A

summary inquiry was held. It was found that the auditors

complaint was correct. The employee was transferred to another

post. He did not join and the employer terminated his services.

This Court, while upholding the order of termination, said that the

mere fact that prior to the issue of the termination an inquiry was

held against the employee did not make the order of termination

into one of punishment.

In Radhey Shyam Gupta v. U.P. State Agro Industries

Corporation Ltd. and Another a full scale inquiry was held

into the allegations of bribery against a temporary employee. The

Court set aside the termination because it found that the report

submitted was not a preliminary inquiry report but it was in fact a

final one which gave findings as to the guilt of the employee.

In Dipti Prakash Banerjee V. Satyendra Nath Bose

National Centre for Basic Sciences, Calcutta and Others the

termination order itself referred to three other letters. One of the

letters explicitly referred to misconduct on the part of the

employee and also referred to an Inquiry Committees report,

which report in its turn had found that the employee was guilty of

misconduct. The termination was held to be stigmatic and set

aside.

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The case of Chandra Prakash Shahi v. State of U.P. and

Others related to a constable who was on probation after

successfully completing his training. The constable completed his

period of probation without blemish. One year later, his services

were terminated by issuance of a notice in terms of Rule 3 of the

U.P. Temporary Government Servants (Termination of Service)

Rules, 1975. An inquiry was held into the allegations of

misconduct. The Court found as a fact that the inquiry was not

held to judge the suitability of the constable but with a view to

punish him. The order was held to be punitive and set aside.

Therefore, whenever a probationer challenges his termination

the courts 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.

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 probationers 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 termination order which explicitly

states what is implicit in every order of termination of a

probationers 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 mere unsuitability for the job.

As was noted in Dipti Prakash Banerjee v. Satyendra

Nath Bose National Centre for Basic Sciences (supra)

At the outset, we may state that in several

cases and in particular in State of Orissa v.

Ram Narayan Das, it has been held that

use of the word unsatisfactory work and

conduct in the termination order will not

amount to a stigma.

Returning now to the facts of the case before us. The

language used in the order of termination is that the appellants

work and conduct has not been found to be satisfactory. These

_______________

12 AIR 1961 SC 177

words are almost exactly those which have been quoted in Dipti

Prakash Banerjees case 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.

We are also not prepared to hold that the enquiry held prior

to 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 exist here.

It was finally argued by the appellant that the intention of

the respondents to punish him was clear from the following

statement in the affidavit filed on their behalf.

It is important to mention herein that even

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honesty and integrity of the petitioner was

also under cloud as he took undue favours

by misusing his position from the suppliers

and maligned the reputation of the

institute.

That an affidavit cannot be relied on to improve or

supplement an order has been held by a Constitution Bench in

Mohinder Singh Gill v. The Chief Election Commissioner,

New Delhi

.when a statutory functionary makes an

order based on certain grounds, its validity

must be judged by the reasons so mentioned

and cannot be supplemented by fresh

reasons in the shape of affidavit or

otherwise

Equally an order which is otherwise valid cannot be

invalidated by reason of any statement in any affidavit seeking to

justify the order. This is also what was held in State of Uttar

Pradesh v. Kaushal Kumar Shukla (supra):

The allegations made against the

respondent contained in the counter-affidavit

by way of a defence filed on behalf of the

appellants also do not change the nature and

character of the order of termination.

Having held against the appellant on all counts, we dismiss

the appeal but without any order as to costs.

.J.

(G.B.Pattanaik)

.J.

(Ruma Pal)

November 5, 2001.