Bombay High Court
Shaikh Farheen Sultana Abdul ... vs The President Dayanand Shikshan ... on 2 December, 2015
Bench: R.V. Ghuge
*1* 2.wp.11285.15
kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11285 OF 2015
SHAIKH FARHEEN SULTANA ABDUL SAMAD
VERSUS
THE PRESIDENT DAYANAND SHIKSHAN SANSTHA LATUR AND OTHERS
...
Advocate for Petitioner : Shri Gunale V.D.
AGP for Respondent No.4/ State: Shri D.R.Korde.
...
ig CORAM: RAVINDRA V. GHUGE, J.
DATE :- 02nd December, 2015
Oral Order:
1 The Petitioner is aggrieved by the judgment and order dated
08.10.2015 delivered by the University and College Tribunal (herein after
referred to as "the Tribunal") by which, Appeal No.1/2009 preferred by
the Petitioner for challenging the order of termination dated 26.04.2009
w.e.f. 01.06.2009, has been dismissed.
2 Shri Gunale, learned Advocate for the Petitioner, has
strenuously criticized the impugned judgment. His submissions can be
summarized in brief as follows:-
(a) Though the advertisement was published for selection of a
Lecturer in Hindi subject and the Petitioner was at Sr.No.1 in
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the order of merit, she was not appointed till she raised the
issue before the concerned University under the Right to
Information Act, 2005.
(b) By the appointment order dated 17.12.2007, the Petitioner
was appointed on probation w.e.f. 18.12.2007.
(c) The University approved the appointment of the Petitioner for
the probation period from 18.12.2007 to 17.12.2009.
(d) The Management issued a notice dated 09.01.2009 pointing
out the shortcomings in her performance.
(e) The Petitioner replied to the said notice on 12.01.2009.
(f) By the order of termination dated 26.04.2009, the Petitioner
was intimated that her performance was not satisfactory and
hence, her probation period would be brought to an end w.e.f.
01.06.2009.
(g) Accordingly, the Petitioner was discontinued as a probationer
w.e.f. 01.06.2009.
(h) By the judgment and order dated 04.05.2010, Appeal
No.01/2009 preferred by the Petitioner before the Tribunal
was allowed and the Petitioner was directed to be reinstated
in service and was awarded compensation of Rs.20,000/-.
The back-wages were denied.
(i) The Management preferred Writ Petition No.5984/2010
*3* 2.wp.11285.15
before this Court.
(j) By the judgment dated 27.07.2011, the petition filed by the
Management was allowed and the judgment of the Tribunal
dated 04.05.2010 was quashed and set aside on the ground
that the documents pertaining to lack of performance of the
Petitioner and opportunity of improvement given to her, were
not considered by the Tribunal.
(k) Appeal No.1/2009 was, therefore, remitted back to the
Tribunal for a fresh decision by considering the said
documents.
(l) By the impugned judgment and order dated 08.10.2015,
Appeal No.1/2009 has been dismissed by the Tribunal.
3 The Petitioner submits that she produced the chart pertaining
to 08 students to the Management to indicate marginal improvement in
their performance in between Semester-I and Semester-II. The contention
is that this improvement indicates that the Petitioner is a good teacher.
4 It is further submitted that after receiving the notice dated
09.01.2009, the Petitioner submitted a detailed reply dated 12.01.2009 so
as to convince the Management that she was a good teacher and she was
competent to be confirmed in employment after completion of the
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probation period. The order of termination dated 26.04.2009 is a
stigmatic order and the said order cannot be sustained since the
Management has attached a stigma to the performance of the Petitioner.
5 The Petitioner relies upon the judgment delivered by this
Court in the matter of Vishwanath Dnyanoba Kirade vs. Nav Akanksha
Mahila Mandal, 2015 (4) ALL MR 702, in support of the contention that
if a stigmatic order of termination is issued, it amounts to being punitive
in nature and such order is unsustainable if a proper enquiry is not
conducted in accordance with the procedure laid down in law. The
judgments of the Apex Court relied upon by this Court in Vishwanath
Kirade case (supra) are also cited in support of the Petitioner's case.
6 Shri Gunale further submits that the Management had
developed animosity towards the Petitioner since she had involved the
University in the process of her appointment. Because of her persuasion,
the Management had appointed her. As such, the Management was bent
upon terminating the services of the Petitioner and hence, a concocted
story of lack of performance and not being suitable for the Institution, has
been put forth by the Management. It is, therefore, submitted that the
impugned judgment of the Tribunal deserves to be quashed and set aside.
*5* 2.wp.11285.15
7 I have considered the lengthy submissions of Shri Gunale on
behalf of the Petitioner as have been recorded herein above.
8 It is trite law that a probationer does not have a right to be
regularized in employment. It is also trite law that a candidate who is
selected for being appointed on probation, cannot have a right to
appointment.
The Petitioner had approached the concerned University for
seeking appointment. It is apparent that the University could not and has
not exerted pressure on the Management to issue an order of appointment
to the Petitioner. The appointment order clearly indicates that the
Petitioner was put under probation from 18.12.2007 to 17.12.2009.
10 It is not in dispute that the Management has specifically
stated in the order dated 26.04.2009 that despite opportunities, since the
Petitioner has not improved her performance, she is found to be
unsuitable for the organization. After a period of five weeks from the date
of notice of termination, the Petitioner has been disengaged during her
probation period w.e.f. 01.06.2009, which is the beginning of a new
academic year 2009-2010. It is, therefore, apparent that the Management
has not shown any undue haste in terminating the services of the
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Petitioner. The contention of the Petitioner that the Management was bent
upon terminating her services is, therefore, put to rest.
11 Reliance placed upon the judgment of this Court in the matter
of Vishwanath Kirade (supra) by the Petitioner is misplaced. The charges
levelled upon the concerned employee in the Vishwanath Kirade case
(supra) by the Management are reproduced in paragraph 12 which read
as under:-
"12. Notwithstanding the above, the respondent issued the
order of termination dated 9.10.2009 to the
petitioner listing out ten charges against him. I find
the order of termination to be self explanatory.
Allegations ranging from not undergoing a medical
examination, chewing tobacco and spitting on the
premises, not working properly, negligence in duties,
lodging a false complaint against the management
with the Social Welfare Department, willful
disobedience, arguing in arrogant manner with the
Head Master, making sexual advances towards the
girl students, not having the requisite qualifications
for the post on which he is selected, committing a
fraud on the Maharashtra State Board of Technical
Education, remaining unauthorizedly absent etc. have
been levelled upon the petitioner. Shri Godbole,
learned Advocate, therefore, contends that it is a
stigmatic order of termination, without issuance of
show cause notice, much less conducting an enquiry
as per Rules or proving the charges."
12 It is, therefore, apparent that the Management in Vishwanath
Kirade case (supra) had levelled serious and grave charges against the
*7* 2.wp.11285.15
employee including the charge of making sexual advances towards girl
students besides committing a fraud on the statutory authorities. No
charge sheet was issued much less a departmental enquiry. Naturally, this
Court, by placing reliance upon the judgments delivered by the Apex
Court as well as this Court (reproduced below), concluded that the order
of termination was not an innocuous order, was not a simplicitor
termination of the probation period as specific charges were levelled upon
the Petitioner and no enquiry was conducted.
(a) Dipti Prakash Banerjee Vs. Satyendra Nath Bose National
Centre for Basic Sciences, [(1993) 3 SCC 60].
(b) Jarnail Singh and others Vs. State of Punjab and others, [AIR
1986 SC 1626].
(c) Usha Ramchandra Mule Vs. Presiding Officer, Additional
School Tribunal and others, [2003 (1) M.L.J.90 : 2003 (1)
ALL MR 618].
(d) Syed Nasiruddin Karimuddin Vs. N.B.Shaikh, [2002 (1) All
MR 193].
(e) Indra Pal Gupta Vs. Managing Committee, Model Inter
College, [(1984) 3 SCC 384].
(f) Radhey Sham Gupta Vs. U.P. State Agro Industries
Corporation Ltd. and Anr., [(1999) 2 SCC 21].
(g) Samsher Singh Vs. State of Punjab, [(1997) 2 SCC 831].
13 In the case of Dipti Banerjee (supra), the Apex Court has
observed in paragraphs 18 to 22 and 25 to 27 as under:-
*8* 2.wp.11285.15
"18. 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?
19.
Point 1:
As to in what circumstances an order 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 v.
State of Punjab
(1964) ILLJ 68 SC
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 v. U.P. State Agro
Industries Corporation Ltd. and Anr.,
(1999)ILLJ432SC and reference was made to the
development of the law from time to time starting
from Purshottam
Lal Dhingra v. Union
of India
(1958) ILLJ 544 SC, to the concept of 'purpose of
inquiry' introduced by Shah, J. (as he then was) in
State of Orissa v. Ram Narayan Das :
(1961)ILLJ552SC and to the seven Bench decision in
Samsher Singh v. State of Punjab :
(1974)IILLJ465SC 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.
20. This Court in that connection referred to the
principles laid down by Krishna lyer, J. in Gujarat
Steel Tube v. Gujarat
Steel Tubes Mazdoor Sangh :
*9* 2.wp.11285.15
(1980)ILLJ137SC . 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, 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 terminology
is used.
and as to motive:
On the contrary, even if there is suspicion 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 v. Sukh Raj Bahadur (1970) ILLJ 373
SC 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 v. 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
*10* 2.wp.11285.15
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'.
21. The termination was upheld.
22. 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 findings 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.
25. 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.
27. 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
*11* 2.wp.11285.15
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?"
14 In the case of Syed Nasiruddin (supra), this Court has noted
that the Management had issued two notices calling upon the employer to
explain away the charges leveled on him. The employee chose to avoid
submitting any reply and it was in the said backdrop that this Court had
observed that the employee had lost the opportunity of submitting his
explanation. It is observed in paragraph No.7 of the judgment that the
concerned employee remained silent and was totally non-cooperative in
the matter.
15 The observations of this Court in the case of Vishwanath
Kirade (supra) in paragraphs 33 and 34 read as under:-
"33. The Apex Court in the case of D.P. Bannerjee (supra)
has concluded that a stigmatic termination is in fact,
punitive in nature. The ratio laid down by the Apex
Court in the case of Radhey
Sham Gupta Vs. U.P
.
State Agro
Industries Corporation Ltd. and Anr. ,
[(1999) 2 SCC 21] and in the case of Samsher Singh
Vs. State of Punjab [(1997) 2 SCC 831] (Seven
Judges' Bench), has concluded that a stigmatic
termination, if is founded on charges of mis-deeds /
mis-conducts, the employer is under an obligation to
go into the charges and issue the order of
punishment. The foundation or the motive of the
termination is to be considered. The distinction made
by the Apex Court as regards motive and foundation
*12* 2.wp.11285.15
is that allegations leveled against an employee would
be the foundation. If termination on account of the
allegations is the cause of issuance of the termination
order, the motive of the employer is established.
34. In the Usha Ramchandra Muley's judgment (supra),
this Court has concluded in paragraph No.7 that
merely because the explanation given by an employee
viz-a-viz an allegation leveled against him is found to
be unsatisfactory by the employer, would not mean
that the charges are proved against the said
employee. It was, therefore, held that the employer
needs to establish the charges leveled upon the
employee before issuing a stigmatic termination
which is punitive in nature."
16 In the instant case, the order of termination is an innocuous
order which brings to the notice of the Petitioner that her performance
was not satisfactory and there was no improvement despite oral and
written notices. The record reveals that self appraisal reports were
considered by the Head of Department and the opinion expressed by the
Head of Department was that the Petitioner is not suitable for the
organization. It is based on this internal record of appraisal and
assessment that the Management concluded that the Petitioner was not
suitable for the post on which she was appointed.
17 It cannot be disputed that an employee is placed under
probation so as to test his/ her suitability for the post on which the
appointment is made. The subjective assessment of the Management as to
*13* 2.wp.11285.15
whether such employee is suitable for the organization, needs to be given
weightage.
18 Considering the principles laid down by a Three Judges Bench
(Lord Greene, M.R., Somervell, L.J., and Singleton, J.) in the Associated
Provincial Picture Houses Ltd. v/s Wednesbury Corporation reported in
(1947) 2 ALL ER 680 : (1948) 1 KB 223, the scope of judicial scrutiny
with regard to such subjective assessment of the Management is limited. It
would be difficult for this Court to question the bonafides of the
Management with regard to it's conclusion that the candidate is not
suitable for the organization. Unless the order of terminating the
probation period is stigmatic and punitive in nature, scope of interference
is limited.
19 In the light of the above, I do not find that the Tribunal has
wrongly considered the fact situation and the law applicable to the case.
The impugned judgment, therefore, cannot be termed to be perverse or
erroneous.
20 As such, this petition being devoid of merit is, therefore,
dismissed.
(RAVINDRA V. GHUGE, J.)
