Abhujit
Gupta Vs. S.N. B. National Centre, Basic Sciences & Ors [2006] Insc 212 (18 April 2006)
B.N.
Srikrishna & Lokeshwar Singh Panta Srikrishna, J.
The
core issue in this appeal is whether the discontinuation of the
probationer-appellant was for unsatisfactory services or for a misconduct.
The
respondent is an institution carrying on research in basic sciences. It is
common ground that the respondent is funded by the Central Government and,
therefore, it is "State" within the meaning of Article 12 amenable to
the writ jurisdiction under Article 226 of the Constitution of India.
The
appellant was selected for the post of administrative officer and joined
service under the first respondent on 10th February 1995. The letter of appointment issued
to the petitioner on 7th
October 1994 made it
clear that the petitioner was being appointed on probation for a period of one
year.
On
20th November 1995 the appellant was served with a letter informing him that
his performance during the probationary period was "far from
satisfactory" and that it had been observed that he lacked drive,
imagination and initiative 'in the performance of his duties'. He was informed
that, despite being told time and again to improve performance in the said
areas, but with no effect. He was advised to improve "in order to enable
us to consider your case for confirmation favourably". He was issued
several such letters drawing his attention to the fact that his services left
much to be desired. His probationary service came to be extended from time to
time, the last such extension being granted till 9th April 1998. Finally, by the letter dated 7.4.1998 the petitioner was
informed that his service was "unsatisfactory in the areas of drive,
initiative, promptness and leadership" and that despite advised verbally
and through letter, what were deficiencies in his work he had shown no
improvement. His attendance, office work and attention to the academic work and
the affairs of the guest house were also unsatisfactory. The first respondent,
therefore, said "your performance, ability and capability during the
period of probation has been examined and your service during the period of
probation is found to be unsatisfactory and hence you are considered unsuitable
for the post you have to. The governing body is of the view that your
performance was unsatisfactory and you are not suitable for confirmation".
For these reasons the appellant's probationary period was not extended on the
expiration of his probation period on 9th April 1999 without further extension.
The
appellant challenged the order of termination of his service on the ground that
it was a stigmatic termination by way of punishment for alleged misconducts.
The learned single Judge of the High Court allowed the writ petition and
quashed the order of termination and directed re-instatement of the appellant
with full back- wages. The Division Bench of the High Court, however, allowed
the letters patent appeal and held that the letter dated 7th April 1998 was not stigmatic and that it was a
legitimate exercise of assessment of probationer's service by the employer,
and, therefore, there was no scope for judicial interference therewith. In this
view of the matter, the Division Bench allowed the appeal, set aside the
judgment of the learned single Judge and dismissed the writ petition. Hence,
this appeal.
The
learned counsel for the appellant has reiterated the contention that the letter
of 7.4.1998 does not amount to termination simpliciter but amounts to a
stigmatic dismissal from service as serious misconduct under the bye-laws have
been alleged against the appellant for which neither inquiry was held, nor any
procedure contemplated under the bye-laws was adopted. The learned counsel drew
our attention to the copy of the bye-laws of the respondent under which bye-law
no. 12.3 defines Acts of Misconduct or breach of discipline punishable under
the Rules. He particularly drew our attention to Bye- law 12.3 (b) (d) and (h)
which read as under:
"12.3
Acts of Misconduct :
Any
act of misconduct or breach of discipline shall be punishable to the extent
provided under these regulations. A few such acts of misconduct or breach of
discipline as listed below are illustrative in nature. The list is not exhaustive
:
-
.
-
Neglect of
allotted work and careless or inefficient performance of duty ;
-
.
-
habitual
unpunctuality and irregular attendance or absence without permission;
-
.
-
.
-
.
-
conduct
detrimental to the interest of the Centre;" The learned counsel contended
that the letter 7.4.1998 unmistakably alleges misconducts against the
appellant, which would fall within the parameters of these misconducts as
defined under above Bye-laws and, therefore, the prescribed procedure had to be
followed.
Heavy
reliance was placed on Dipti Prakash Banerjee vs. Satyendra Nath Bose National
Centre for Basic Sciences, Calcutta and
ors. (1999) 3 SCC 60,where this Court held that the termination of service of
the employee in similar circumstances amounted to misconduct. We may mention
here that it is common ground that while the matter was pending before the
learned single Judge, sometime in the year 2005, the appellant attained the age
of superannuation. The learned counsel for the appellant contended that in the
letter dated 7.4.1998 there is reference to certain earlier letters in which
the appellant had been called a person of "perverted mind" and
"dishonest, duffer having no capacity to learn". A reading of all the
letters referred to in the letter of 7.4.1998 would clearly make out a case of
allegations of misconduct against the appellant, in the submission of the
learned counsel.
In Dr.
Mrs. Sumati P. Shere vs. Union of India and others (1989) 3 SCC 311 this Court
pointed out that an employee on probation should be subjected to assessment of
work and should be made aware of the defects in his work and deficiencies in
his performance. The Court observed , "Defects or deficiencies,
indifference or indiscretion may be with the employee by the inadvertence and
not by incapacity to work. Timely communication of the assessment of work in
such cases may put the employee on the right track. Without any such
communication, it would be arbitrary to give a movement order to the employee
on the ground of unsuitability". It is the duty of the employer to inform
the employee about his deficiencies from time to time so that the employee may
improve himself.
In Pavanendra
Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences and another (2002) 1
SCC 520 this Court considered what should be the best to determine whether a
letter of termination of service was termination simpliciter or stigmatic
termination. After referring to a number of authorities including the judgment
in Parshotam Lal Dhingra vs. Union of India, AIR 1958 SC 36 and Dipti Prakash Banerjee
(supra) the Court observed (vide para 19):
"..Courts
continue to struggle with semantically indistinguishable concepts like
motive" and "foundation"; and terminations founded on a
probationer's misconduct have been held to be illegal while terminations
motivated by the probationer's misconduct have been upheld. The decisions are
legion and it is an impossible task to find a clear path through the jungle of
precedents." Having observed thus, the Court formulated the judicial test
to determine as to on which side of the fence the case lay, in the following
words (vide para 21):
"One
of the judicially evolved tests to determine whether in substance an order of
termination is punitive is to see whether prior to the termination there was
-
a full scale
formal enquiry
-
into allegations
involving moral turpitude or misconduct
-
which (c)
culminated in a finding of guilt. If all three factors are present the
termination has been held to be punitive irrespective of the form of the
termination order.
Conversely
if any one of the three factors is missing, the termination has been
upheld." It referred to Dipti Prakash Banerjee (supra) and pointed out
that in Dipti Prakash Banerjee (supra) the termination letter expressly made
reference to an earlier letter which had explicitly referred to all the
misconducts of the employee and a report of an inquiry committee which had
found that the employee was guilty of misconduct and so the termination was
held to be stigmatic and set aside. Finally, this Court said that whenever a
probationer challenges his termination the court's first task will be to apply
the test of stigma or the 'form' test. If the order survives this examination
the "substance" of the termination will have to be found out. What
this Court further observed in para 29 is crucial and of great relevance:
"Before
considering the facts of the case before us one further, seemingly intractable,
area relating to the first test needs to be cleared viz. what language in a
termination order would amount to a stigma? Generally speaking when a probationer's
appointment is terminated it means that the probationer is unfit for the job,
whether by reason of misconduct or ineptitude, whatever the language used in
the termination order may be. Although strictly speaking the stigma is implicit
in the termination, a simple termination is not stigmatic. A termination order
which explicitly states what is implicit in every order of termination of a
probationer's appointment, is also not stigmatic. The decisions cited by the
parties and noted by us earlier, also do not hold so. In order to amount to a
stigma, the order must be in a language which imputes something over and above
meter unsuitability for the job." In the case of the appellant before us,
the record in uncertain terms makes it clear that every time the appellants
attention was drawn to his deficiencies and he was repeatedly advised to
improve his behaviour, conduct and discharge of work. True, that in some of the
letters there was intemperate language used (the appellant was also equally
guilty of doing that). Notwithstanding the intemperate language, we are unable
to accept the contention of the appellant's counsel that the letter dated
7.4.1998 indicates that the appellant was being charged with the misconduct
and, therefore, being removed from service. Read as a whole, the letter gives
the impression that the removal of the appellant from service was only because
the respondents, after giving a long rope to the appellant, had come to the
conclusion that the appellant's service was unsatisfactory and there was no
hope of his improvement.
The
real test to be applied in a situation where an employee is removed by an
innocuous order of termination is: Is he discharged as unsuitable or is he
punished for his misconduct? In Allahabad Bank Officers' Association and
another vs. Allahabad Bank and others (1996) 4 SCC 504, this Court was
considering a challenge to a compulsory retirement and formulated a practical
test to answer the question posed above. This Court (vide para 17) observed
that if the order of compulsory removal form the service casts a stigma in the
sense that it contains a statement casting aspersion on his conduct or his
character, then it can be treated as an order of punishment but not if it
merely amounts to highlighting the unsuitability of the employee. As pointed
out in this judgment, expressions like "want of application",
"lack of potential" and "found not dependable" when made in
relation to the work of the employee would not be sufficient to attract the
charge that they are stigmatic and intended to dismiss the employee from
service.
The
learned counsel for the appellant, however, strongly contends that the
"stigma" cast on the employee may not be confined to his personal
character but may also affect his capacity to work. The test, learned counsel
for the appellant submitted, is that, if what is stated in the order of
termination is read by a future employer, it prejudices the future employment
of the employee. In the face of the law laid down in the judgment just
referred, we are unable to accept this as the correct test.
In Ravindra
Kumar Misra vs. U.P. State Handloom Corporation Ltd. and another AIR 1987 SC
2408 this Court pointed out that in a large corporation administration is bound
to be impersonal and in regard to public officers assessment of service has got
to be in writing for purposes of record, though it cannot be assumed that such
an assessment recorded and the order of termination made with reference to that
record would automatically take a punitive character.
The High
Court has carefully considered all the circumstances placed before it and
arrived at the conclusion that the respondent's work was under observation
during the probationary period and that he was given repeated opportunities to
improve his performance for which purpose his probation was extended from time
to time. The fact that the authority did not find him fit for confirmation was
also brought to his notice several times and yet he was given opportunities of
improving by extending his probationary service. The High Court has correctly
found that the letter dated 7.4.1998 was not punitive in nature and stated,
albeit in prolix fashion, that the service of the appellant were
unsatisfactory. The High Court points out, and we agree, that detailed reference
to all other correspondence was not necessary, but it did not reflect any
malice or bias. Finally, as this Court pointed out in P.N. Verma's case (supra)
"a termination order which explicitly states what is implicit in every
order of termination of a probationer's appointment, does not ipso facto become
stigmatic".
For
the aforesaid reasons we are of the view that there is no substance in this
appeal. The impugned judgment of the High Court requires no interference. The
appeal is hereby dismissed without any order as to costs.
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