Bombay High Court
The Principal Rizvi College Of ... vs (Dr.) Mrs. Reshmi Tyagi & Another on 23 March, 2017
Bench: G. S. Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Writ Petition NO. 4051 OF 2001
1.The Principal )
Rizvi College Of Arts, Science and Commerce, )
Rizvi Complex, Off.Carter Road, Bandra (West), )
Mumbai-400050. )
)
2.Chairman/President/Managing Trustee )
Rizvi Eduction Society, C/o.Rizvi College of Arts, )
Science & Commerce, Rizvi Complex, )
Off Carter Road, Bandra (W), Bombay-400050 )...Petitioners
versus
1. (Dr.) Mrs.Reshmi Tyagi. )
58, Monalisa, St.John Baptista Road, )
Near Mount Mary Steps, Bandra (W), )
Mumbai-400050 )
)
2. The Registrar )
University of Mumbai. )...Respondents
---
Mr.Yashodeep Deshmukh with Mr.Mahesh Mishra and Mr.Amit T.Dubeyi/b.
Mr.Ravi Thankaian, for the Petitioners.
Mr.Sunil D. Dighe, for Respondent No.1.
......
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CORAM : G. S. KULKARNI, J.
RESERVED ON : 17 February 2017
PRONOUNCED ON : 23 MARCH 2017
---
JUDGMENT:-
1. This petition filed under Article 226 of the Constitution of
India challenges the judgment and order dated 29 June 2001 of the
learned Presiding Officer, Bombay University and College Tribunal (for
short 'the Tribunal'), whereby the orders of termination dated 19.4.1999,
of the petitioner, terminating the probationary appointment of respondent
No.1 are quashed and set aside with a direction to reinstate the services of
respondent No.1 with 50% backwages.
2. In nutshell the facts are :
Petitioners are conducting a Arts, Science and a Commerce
college at Mumbai. By a letter of appointment dated 10 September 1997,
Respondent No.1 was appointed as a full time lecturer with effect from 4
September 1999 in the subject of Chemistry on purely temporary basis for
one year up to 20 April 1998 and subject to the approval of the University
of Bombay. The services were to be governed by the provisions of Bombay
University Act,1974 and the Statutes, Ordinances, Regulations and Rules
of the University.
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3. The Petitioners by a letter dated 19 March 1998 informed
Respondent No.1 that University of Bombay has approved appointment of
Respondent No.1 by a letter dated 12 February 1998 as a Full-Time
Lecturer in Chemistry "on probation" basis from 4 September 1997.
4. The case of the Petitioners is that the appointment of
Respondent No.1 being a probationary appointment, the assessment of
performance was required to be undertaken. In this regard, the Petitioners
have referred to letters dated 26 May 1998, 8 July 1998, 8 July 1998, 18
July 1998, 8 October 1998 as also the 'form of assessment of work of
college lecturers' as required to be maintained as per the University
Statute 422 namely "Appendix - D-2" for the academic year 1997-98 and
1998-99. The contents of these letters can be noted.
5. By letter dated 26 May 1998, the Petitioners informed
Respondent No.1 that the self assessment of the work as submitted in
Appendix-D2 for the academic year 1997-98 showed that the
teaching/practical performance is very poor and Respondent No.2 should
improve the same. Similarly by letter dated 8 July 1998 this letter
pertaining to S.Y.B.Sc., Respondent no.1 was informed in regard to
negligence in the experiments which had caused a loss to the department
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and the institute. Respondent no.1 was given instructions to take adequate
care in such matters in future. Another letter dated 8 July 1998 pertaining
to T.Y.B.Sc, concern was in regard to gravimetric and volumetric solutions
given to students of T.Y.B.Sc. without performing the analysis of the
experiment before distributing it to the students. It was informed that this
caused variations in the results of the students and the students do not get
the correct results. Respondent No.1 was informed that it was her duty to
check the solutions and take readings prior to the practicals. Further a
letter dated 18 July 1998 the Petitioners informed Respondent No.1 of her
being relieved from T.Y.B.Sc Chemistry Practicals with effect from 18 July
1998 and was instructed to co-operate with the senior colleagues in the
department in smooth and proper conducting of practicals. As regards
letter dated 8 October 1998 of the Petitioners to Respondent No.1, it was
in the nature of warning firstly in relation to the complaints of the
students that Respondent No.1 was not preparing lessons and was unable
to explain the topics properly as also Respondent No.1 was not solving
queries of the students on the subject and secondly that inspite of earlier
memos/warning, Respondent No.1 was not taking care to perform the
exercises before giving solutions to the students and with the result, large
quantity of chemical was wasted which was a loss to the college as also
the whole schedule of practical was disturbed. In a letter dated 7
October 1998 of the Head of the Department of Chemistry addressed to
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the Principal of the College, the Head of the Department informed various
complaints of the students in regard to the practicals being conducted by
Respondent No.1.
6. Further Appendix "D-2"- a form for assessment of work of
college lecturers was maintained for the Academic year 1997-98 and
1998-99 which contains evaluation of the performance of Respondent
No.1 in which at page 4 on a statement titled "Evaluation by the Head of
the Department or the Senior-most in the Department or Principal" in items
(III), (V), (VI) and (X) the performance is shown to be poor and at item
(VII), (VIII) and (IX) it has been shown to be average and the observation
of the Principal dated 25 May 1998 on the evaluation of the Head of the
Department was with a remark "below average". Further in the form
"Appendix - D-2" for the academic year 1998-99 dated 23 March 1999 in
item nos.III, VI and X the evaluation was shown to be poor, in respect of
item no.V, it was shown to be average and in respect of item no.VII and IX,
it was shown to be good. On this evaluation of the department, the
observation of the Principal was with a remark "Not satisfactory".
7. The petitioner's case is that the letters dated 8 July 1998 and
18 July 1998 were not replied by respondent no.1 and only after the
warning letter dated 8 October 1998, the Respondent No.1 submitted a
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reply dated 27 October 1998 in which the Respondent took the
opportunity to reply to all the letters/memos of the Petitioners dated 26
May 1998, 8 July 1998. In this reply Respondent No.1 also raised a
technical issue to state that 'Appendix-D-2 form', is for confirmed teachers
and what Petitioner's should have maintained was the form in Appendix-
D-1. There was no specific denial of the contents of memos by respondent
no.1, however respondent no.1 stated that her performance was proper
and requested that the warning letter dated 8 October 1998 be
withdrawn.
8. On the above background by a communication dated 19 April
1999 the petitioners terminated the probationary appointment of
respondent No.1 in terms of letter of appointment issued to respondent
No.1. The termination letter reads thus:
"Madam,
With reference to above letters, your appointment as a
Lecturer in the Department of Chemistry, in this College
stands terminated w.e.f. Monday, the 31 st May,1999 (A/N)
under S.418(1) of Terms and Conditions of Service of
Teacher No.Aff/Recog/457 of 1984 dt.14.08.1984 of Bombay
University Act,1974.
Sd/-19.4.99
(Dr.S.G.A.Zaidi)
PRINCIPAL
sd/
9. Respondent No.1 being aggrieved by the above
communication terminating her services approached the University and
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College Tribunal by filing an appeal under Section 59 of the Maharashtra
Universities Act,1994. The termination was challenged by Respondent
No.1 interalia on the principal ground that no show cause notice and
inquiry was conducted before terminating her services. It was contended
that the termination was malafide without any reason and without
following due process of law. It was the case of Respondent No.1 that the
warning letters were issued on false ground. Respondent No.1 also
contended that in the letter dated 27 October 1998 she had furnished a
proper explanation in regard to all the memos issued to her. It was also
contended that the order of termination casted a stigma on Respondent
No.1.
10. Petitioners appeared before the tribunal in the Respondent's
appeal as also filed their written statement interalia denying the case of
Respondent No.1 in the appeal. It was contended that Respondent No.1
was appointed on probation and during the course of the probation her
performance was examined and assessed in accordance with the
procedure, as also shortcomings in the performance of her duties were
also informed to the respondent no.1 from time to time. It was denied that
the order of termination dated 19 April 1999 was punitive, casting any
stigma on Respondent No.1. It was the case of the petitioners that neither
the termination order, cast any stigma nor was it a case of misconduct or
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any action punitive in nature, but the same was in accordance with the
terms and conditions of the service of Respondent No.1, as Respondent
No.1 was terminated during probation, on account of unsuitability and
unsatisfactory performance. The case of Respondent No.1 that a show
cause notice was required to be issued or that the action in issuing the
termination order is malafide, was denied by the petitioners in dealing
with respondent no.1's case on merits in the written statement.
11. The learned Presiding Officer of the University Tribunal by
the impugned judgment and order allowed the appeal of Respondent No.1
directing reinstatement. The impugned order proceeds on the premise
that there were certain procedural irregularities in maintaining D1 and D2
form which pertained to the assessment of Respondent No.1's
performance. The Tribunal also took into consideration the service record
of Respondent No.1 prior to issuance of appointment letter namely, the
earlier temporary appointment. As regards suitability of respondent no.1,
the learned Presiding Officer took into consideration the qualification of
Respondent No.1 and observed that a general rule would be that a person
having good educational qualification would a good teacher.
12. In assailing the impugned orders passed by the Tribunal, Mr.
Deshmukh, learned Counsel for the petitioners, has made the following
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submissions :-
i) The appointment of respondent no.1 was, admittedly, an
appointment on probation of two years, that is, for the academic
years 1997-1998 and 1998-1999 and this was subject to assessment
of performance of respondent no.1. Taking into consideration the
assessments, the respondent no.1, by the communication dated 19
April 1999, the services of Respondent No.1 were simplicitor
discharged.
ii) There is nothing in the discharge letter dated 19/04/1999 casting
any stigma on respondent no.1.
iii) The termination simplicitor was in consonance with the letter of
appointment and the requirement under the rules.
iv) The termination being a simplicitor termination, it cannot be called
to be a punitive action requiring the Departmental Enquiry to be
held as alleged by the respondent no.1.
v) The respondent no.1, at no point of time, had raised a grievance
about the memos issued to her from time to time, except her reply
to the memo dated 08/10/1998 in which the respondent no.1 tried
to reply the earlier memos dated 08/07/1998 and 18/07/1998.
vi) Respondent no.1 could never have urged about any fabrication or
interpolation in the assessment report namely Form D-2 maintained
by the petitioners and in any case, by no stretch of imagination, one
or two entries as objected in the said assessment report can be
said to be any fabrication or interpolation or change the assessment
conclusion in the report.
vii) It is not the case of respondent no.1 that the other entries in Form
D-2 which assessed the performance of respondent no.1 to be
average, could be objected by respondent no.1.
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viii) The petitioners had sufficient material, namely, the memos, the
assessment sheet in Form D-2 for the respective academic years on
the basis of which the Governing Body was within its powers to
reach a conclusion that the probation of respondent no.1 ought not
be conformed.
ix) As regards the grievance of respondent no.1 that Form D-2 was
maintained and not Form D-1, it is submitted that no prejudice
whatsoever is caused to respondent no.1, inasmuch as, this would
not obliterate the requirement of having a record for the purpose of
assessment of the performance of respondent no.1. It is submitted
that, in fact, providing Form D-2 was more beneficial, inasmuch as,
the entire information in regard to the assessment of respondent
no.1's performance was informed to respondent no.1.
x) It is submitted that in any case, even if Forms D-1 and D-2 are
maintained, for the assessment of performance of a probationary
appointee, no grievance can be made by the respondent no.1 if the
same are taken into consideration to take a decision on the
confirmation of probation or otherwise.
xi) Respondent no.1 had no material to show that the performance of
assessment, as undertaken, was without any basis or in that case,
even the final decision would have no basis.
xii) It is submitted that it would be completely the discretion of the
management to undertake performance appraisal and there is no
requirement of having several materials but even a meagre material
would be sufficient material to take a decision to terminate an
employee during the probationary period, by not confirming the
probation.
xiii) All the grievances which are raised by respondent no.1, are raised
for the first time before the Tribunal and there is no material of any
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prior grievance in that regard as made by respondent no.1.
In support of his submissions, learned Counsel for the
petitioners has relied on the following decisions :-
i) Abhijeet Gupta Vs. S.N.B. National Centre, Basic Sciences and Others1,
ii) Chaitanya Prakash and Anr. Vs. H. Omkarappa2,
iii) Syed Azam Hussaini Vs. Andhra Bank Limited3,
iv) Registrar, Appellate Side, High Court, Calcutta & Ors. Vs. Jayanta
Kumar Dasgupta & Ors.4
13. On the other hand, Mr. Dighe, learned Counsel for respondent
no.1, has made the following submissions :-
i) The petitioners have not followed the mandatory procedure as
required under Statute 418 (1) of the Bombay University Statutes
read with Statute 422, in terminating the services of respondent
no.1.
ii) It was mandatory for the petitioners to maintain form in Appendix
D-1 as Statute 422 would provide, namely "the form of six monthly
report for submission during the period of probation and for
conformation in service of the teachers." However, what was
maintained by petitioners was a form in D-2 which is a 'Form for
assessment of work of a College Lecturer' as required under Statute
422.
iii) The assessment in the forms are mala fide. Also, there is tampering
at some places and to this effect, observations are correctly made in
the impugned Judgment.
1 (2006) 4 Supreme Court Cases 469
2 (2010) 2 Supreme Court Cases 623
3 1995 Supp (1) Supreme Court Cases 557
4 2005 SCC OnLine Cal 171 : 205 3 CHN 52 : (2005) 5 SLR 197 (DB) : 2005 Lab
IC 3783
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iv) The termination of respondent no.1 was to accommodate another
person whom the management wanted to accommodate and not for
bona fide reason or on poor performance of respondent no.1.
v) Form D-1 as filled up by respondent no.1 on 16/04/1999, bears
signature of the Principal dated 25/04/1999 and thus, the
Governing Body did not have sufficient material before it to pass a
resolution not to confirm the probationary appointment of
respondent no.1.
vi) The assessment of performance of respondent no.1 during the
probation period was required to be done objectively.
vii) In support of his submissions, Mr. Dighe has placed reliance of a
decision in the case of State Bank of India and Others Vs. Palak
Modi and Another5.
14. On the above rival submissions, I have perused the relevant
documents as placed on record, as also the impugned Judgment.
15. It is not in dispute that the appointment of respondent no.1
under the appointment order dated 10/09/1997 was on probation. The
probation was for two years as per the statutes of the University. The
relevant statute for probation and confirmation is Statute No.418 which
reads thus :-
"Probation and Confirmation
418 (1) A teacher shall, subject to the procedure
prescribed for selection and appointment, be
appointed, in the first instance, on probation for a
period not exceeding 24 months from the date on
which he joins duties after the expiry of which he shall
5 2012 STPL (Web) 699 SC
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be confirmed and informed accordingly in writing; or
his services shall be terminated provided that at least
one month's notice is served on him prior to the expiry
of the period of probation or one month's Pay, D.A.
and C.L.A. in lieu thereof, is paid to him.
It shall not be necessary to assign any reason for
terminating the services of a teacher on probation if it
is held that he has not completed his probation
satisfactorily.
The Governing Body of the College may, in
exceptional cases and for reasons to be recorded,
reduce the period of probation and shall have the right
to assess the suitability of a teacher for confirmation
even before the expiry of the period of 24 months from
the date of joining but not earlier than 9 months from
that date on the basis of the assessment report
justifying special consideration.
(2) The Principal of the College shall
maintain assessment report of a teacher on probation,
in the form prescribed for the purpose by the
University, as shown in Appendix 'D-1' for every six
months and complete it at the end of each term of the
academic year. The Principal shall send to the
Chairman of the Governing Body, at least two months
before the date of expiry of the period of probation, his
assessment report with a definite recommendation. If
a teacher is not to be confirmed at the end of the
probationary period a confidential report justifying the
recommendation should be attached and such cases be
referred to the Chairman of the Governing Body for
further action. The Governing Body shall be the
deciding authority in such cases.
(3) If the Governing Body terminates the
services of a teacher on probation on the ground of
reduction in work-load or abolition of the post and if
he is re-appointed on probation in the same college or
a college under the same Governing Body subsequently
within a year, the period spent by a teacher on
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probation during the previous appointment(s) shall be
counted towards the total period of probation of 24
months. He shall be eligible for annual increment,
condonation of break in service and confirmation,
subject to satisfactory assessment report of his work in
the college(s) in which is has served.
(4) A teacher whose service is terminated
during the period of probation on the ground of
unsatisfactory assessment shall not be reappointed by
the Governing Body."
A perusal of the above statute would indicate that services of a
probationary appointee can be terminated provided at least one month's
notice is served on the appointee prior to the expiry of period of probation
or one month's Pay, D.A. and C.L.A. in lieu thereof is paid. It also
specifically provides that it shall not be necessary to assign any reason for
terminating the services of a teacher on probation if it is held that he has
not completed his probation satisfactorily. The Governing Body of the
institution may, in exceptional cases, reduce the period of probation and
shall have the right to assess the suitability of the teacher for confirmation
even before the expiry of period of 24 months from the date of joining.
Sub-clause (2) of Statute 418 also provides that Principal of college shall
maintain assessment report of a teacher on probation, in the prescribed
form in Appendix 'D-1' for every six months and complete it at the end of
each term of the academic year. It provides that the Principal shall send to
the Chairman of the Governing Body, at least two months before the date
of expiry of the period of probation, his assessment report with a definite
recommendation. It provides that if a teacher is not to be confirmed at the
end of the probationary period a confidential report justifying the
recommendation should be attached and such cases be referred to the
Chairman of the Governing Body for further action. The Governing Body
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shall be the deciding authority in such cases.
16. In the case of Respondent No.1, assessment in the form
Appendix 'D-2' was maintained by the Principal to assess the performance
of respondent no.1. Statute 422 speaks about 'Appendix D-2'. It would be
appropriate to note as to what Statute 422 would prescribe. Statute 422
reads thus :-
"Assessment of Teacher's Work
422 "At the beginning of each term every teacher shall
prepare his academic programme and submit it to the
Principal through the Head of his Department, if any. At the
end of the academic year the teacher shall prepare a report
of the work done by him and submit it to the Principal
through the Head of his Department, if any.
The assessment report of the teachers shall be
maintained by the Principal of the Colege in the forms as
shown in Appendices 'D-1', 'D-2' and 'D-3' for the following
purposes :-
A. (1) For submission of six-monthly reports during
the period of probation.
(2) For confirmation in service of the teacher.
B. (3) for assessment at the time of crossing the stage
of Rs.1300/650 in the pay-scale of a Lecturer.
C. (4) For consideration at the time of interview for a
higher post.
(5) For triennial assessment of the work of the
teacher.
(6) For other specific purposes.
The adverse remarks as well as remarks of
appreciation shall be brought to the notice of the teacher
concerned by the Principal and in the case of the Principal by
the Chairman of the Governing Body for their guidance.
No Lecturer shall be permitted to cross the stage of
Rs.1,300/650 in the revised pay-scale except on the
recommendation of the assessment committee which shall
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consist of the following persons :-
(1) The Principal of the College (convener),
(2-3) Two nominees of the Vice-Chancellor for the college
for a calender year.
The assessment committee shall mark its
recommendation in terms of the guidelines framed by the
Executive Council from time to time."
(emphasis supplied)
17. A perusal of Statute 422 would indicate that at the beginning
of each term, 'every teacher' shall prepare his / her academic programme
and submit to the Principal through the Head of the Department.
Thereafter at the end of the academic year, the teacher shall prepare a
report of the work done by him and submit it to the Principal through the
Head of the Department. It provides that the assessment report of the
teachers are required to be maintained by the Principal of the college in
the forms as shown in Appendices 'D-1', 'D-2' and 'D-3' which is for
submission of six-monthly reports during the period of probation and for
confirmation in service of a teacher, as relevant for the purposes of the
present case.
18. A cumulative reading of Stature 418 and Statute 422 makes it
clear that for the purpose of assessment of performance of a probationer,
form in Appendix 'D-2' can also become relevant. Statute 418 though
prescribes the requirement of Form 'D-1' in sub-clause (2) for such
assessment, however Statute 422 provides assessment report of the
teachers to be maintained by the Principal of the college in the form in
Appendices 'D-1', 'D-2' and 'D-3' for the purpose of assessment "during the
period of probation and for confirmation in service of the teacher" as clauses
(1) and (2) of Statute 422 would provide. This shows that there is nothing
illegal for an institution to assess the performance by maintaining form
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Appendix D-2.
19. In the present case, as the record would indicate, the
petitioners had maintained the assessment of respondent no.1 in the form
in Appendix 'D-2' which is meant for assessment for the work of College
Lecturer. This was maintained for both the academic year 1997-1998 and
1998-1999. What is relevant is that the entire information in the various
columns in Form 'D-2' for both the assessment years has been filled up by
respondent no.1 and accordingly after filling up the said information,
Respondent No.1 has endorsed her signature on the said form. For the
academic year 1997-1998, the form as filled up by respondent no.1 is
dated 23/03/1999. After this, form in Appendix 'D-2' was filled up by
respondent no.1, in the columns as provided on the last page the same are
filled up by the Head of the Department under the title 'Evaluation by the
Head of the Department' which is the assessment of respondent no.1's
performance and containing assessment remarks. During the course of
hearing of this petition, learned Counsel for petitioner was called upon to
produce the originals before the Court as the Tribunal having considered
the originals of these forms, have made certain observations. A perusal of
the originals of these forms for both the assessment years shows that as
regards the evaluation for the assessment year 1997-1998, the
performance of respondent no.1 has been shown to be 'average' and at
four places, it has been shown to be 'poor'. This is the assessment of the
Head of the Department. This assessment is considered by the Principal
with a remark 'below average'.
20. Similarly, in the assessment form for the academic year 1998-
1999, at three places, the performance is shown to be 'good', at one place,
it is shown to be 'average' and at three places, it has been shown to be
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'poor'. This evaluation is made by the Head of the Department with an
endorsement of the Principal as 'not satisfactory' which is dated
12/04/1999.
21. The contention as urged on behalf of respondent no.1 is that
in the column of evaluation as made by Head of the Department for the
academic year 1997-1998, though there is no dispute about the three clear
entries showing 'average' performance, but at four places it is seen that
there is some overwriting in the column of 'average' and cancelling the
'average', a tick-mark has been made in column 4 as "poor". Similarly in
the evaluation in the Form 'D-2' for the academic year 1998-1999,
although there are three clear entries in the column 'good' and one entry
as 'average', at three places, the 'average' entry has been cancelled and
there are tick-marks made in the column 'poor' by Head of the
Department. Learned Counsel for respondent no.1 does not dispute the
remarks of the Principal that the performance is noted to be 'not
satisfactory', as also this assessment is made on 12/04/1999 that is before
the meeting of the Governing Body.
22. Having considered the forms maintained in Appendix 'D-2' as
regards the performance of respondent no.1 for academic years 1997-
1998 and 1998-1999, it can be clearly seen that the Principal has made
the observations of the performance being 'below average' and 'not
satisfactory' for these respective academic years. Also, the contention of
respondent no.1 of interpolation in the remark 'average' as made by the
Head of the Department cannot be accepted. This is for the reason that
for the first academic year (1997-1998), there were three clear entires of
'average performance' and there are four entries of 'poor' performance.
Even if the submission on behalf of respondent no.1 is to be accepted that
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the 'average' remark (tick-mark) was cut and entries were made in the
column of 'poor', this would not assist the respondent no.1. It can be very
well seen that though at some places, 'average' has been cancelled and
initialed and there are tick-marks in the column 'poor', it would not
obliterate the clear entries of 'average' performance made in the other
columns, on which there is no dispute of any cancellation or interpolation.
Thus these contentions of respondent no.1 would not take away the effect
of the observations of the Principal who noted performance of Respondent
No.1 as 'below average'. Same would be the case in regard to the remarks
as for the subsequent academic year 1998-1999 where there is an entry of
one clear average performance and in about 3 entries there is cancellation
in the 'average' column with the initials and tick-marks in the column
'poor'. This cannot be termed as interpolation as the Head of the
Department thought it appropriate not to maintain the performance as
'average' but mark it as 'poor'. In any case, this would not take away the
effect of the remarks/observations of the Principal that the performance
was 'not satisfactory'. I was required to examine this issue and make the
above observations as the entire thrust of the submissions of Mr. Dighe,
learned Counsel for respondent no.1, was on these two forms and to
examine the issue of perversity in the findings of the Tribunal, which I find
none on this aspect.
23. In my clear opinion, there was sufficient material in Form
Appendix 'D-2' as maintained for both these academic years that the
performance of respondent no.1 was not satisfactory. The submission that
there is interpolation and fabrication as urged on behalf of respondent
no.1, also cannot be accepted as there is no material on record to support
this contention. It is also not the case that 'excellent' or 'very good' remarks
were cut/struck of to make Respondent No.1 performance as average or
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poor.
24. The next contention as urged on behalf of respondent no.1 is
that there was an illegality on the part of the petitioners in not
maintaining Form 'D-1' and maintaining Form 'D-2' and therefore, the
decision taken by the Governing Body on the basis of Form 'D-2' cannot be
accepted. This submission, in my opinion, lacks merit. As noted above,
Statutes 418 and 422 can both be relevant for the purpose of assessment
of performance of a probationer. Statute 422 contemplates requirement of
both the forms namely Form in Appendix 'D-1' and Form in Appendix 'D-2'.
In the present case, assessment in form Appendix 'D-2' was maintained
which is admittedly filled up by respondent no.1 for both the academic
years namely academic years 1997-1998 and 1998-1999, and was
thereafter evaluated by the Head of the Department and the consequent
remarks of the Principal that the performance is 'below average' and "not
satisfactory" respectively and were placed before the Governing Body.
Though Form 'D-1' was not maintained but what was maintained by the
petitioners was assessment in Form 'D-2', this would not render the action
of termination as an illegality. In fact, in both the academic years, Form
'D-2' was filled up by respondent no.1. She had no grievance in that
regard. Even Statute 422 contemplates Form 'D-2' to be maintained which
is a form for assessment of work of College Lecturer whereas Form 'D-1' is
a form which is required to be filled up by the concerned teacher who is
appointed on probation. This form is also required to be filled up by the
Lecturer and counter-signed by the Principal. Form D-2 appears to be a
consolidated form requiring the employee to furnish all the details of the
performance for the academic term as also providing for evaluation by the
management.
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25. In my opinion, the petitioners making the assessment by
having the assessment of the performance of respondent no.1 by
maintaining form in Appendix 'D-2' and not by maintaining Form 'D-1'
would not amount to any illegality so as to render the decision of the
Governing Body not to confirm the services of respondent no.1, as an
illegal decision. At the most non-maintaining of form Appendix D-1 but
maintaining form in Appendix 'D-2', can be said to be some irregularity, on
the part of the Petitioners, which may be due to the overlapping provisions
in Statute 418 and 422 as noted above. Even respondent no.1 at the
relevant time had no grievance in as much as, the entire information in
Form Appendix 'D-1' was required to be filled up by the employee,
whereas in form in Appendix 'D-2' the information is filled up by the
employee and there are columns of assessment of the performance by the
management, at two levels, one at by the Head of the Department and
thereafter by the Principal. It cannot be overlooked that when Statute 418
and 422 provide for particular forms as noted above, it only aids and
assists maintaining a record of performance during the probation period of
the concerned appointee.
26. In the present case, the assessments as made in Form
Appendix 'D-2' for the two academic years was placed before the
Governing Body and the decision not to confirm Respondent No.1 was
taken. It is not a case that there was no assessment of respondent No.1's
performance or that there was no material before the Governing Council
about the performance of Respondent No.1. The record indicates that
there was sufficient material before the Governing Council to consider the
same and take a decision, whether the probationary appointment of
respondent no.1 needs to be continued or discharged. Respondent no.1,
however, found it convenient to raise technical objection that Form
Pvr 22 wp4051-01.doc
Appendix 'D-1' ought to have been prepared and not Form Appendix 'D-2'.
For the reasons as set out above, these contentions, as urged on behalf of
respondent no.1, are without any substance and are required to be
rejected.
27. Taking into consideration the entire material as placed on
record, there is much substance in the submissions as urged on behalf of
the petitioners. It is a well settled principle of law that an employee who
has been appointed on probation would not have an absolute legal right to
demand confirmation of the probation. A decision to confirm the services
is required to be taken on the basis of the performance rendered by the
probationary appointee. If the performance is not satisfactory, then the
employer has all the right to form an opinion that such probationary
appointee is not suitable for confirmation and the probation in that event
need not be extended and the services can be terminated. Thus, on the
premise that the appointee on probation would not have a legal right to
the post and when the employer, on coming to a conclusion that the
performance is unsatisfactory and that the employee is not suitable, the
employer would be entitled to discharge / simplicitor terminate the
services of the probationary appointee.
28. In the present case, the termination order dated 19/04/1999
clearly shows that it is an order of a simplicitor discharge of the services of
respondent no.1. There is nothing in the termination order which can be
said to cast any stigma on respondent no.1 requiring the need of a
domestic enquiry being undertaken by following the principles of natural
justice. The law in this regard is well settled. (See Oil and Natural Gas
Commission and Ors. Vs. Dr. Md. S. Iskendar Ali - AIR 1980 SC 1242).
29. It is well settled, as also the rules in the Statute 418 and 422
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would contemplate that before a probationary appointee is confirmed,
there is an obligation on the employer to consider whether the work of
the probationer is satisfactory or whether the probationary appointee is
suitable for the post. The petitioners had maintained a performance
appraisal in Form Appendix 'D-2'. Not only that, but as regards
performance of respondent no.1, time to time memos were issued and
more particularly, the memo dated 26/05/1998 by which respondent no.1
was informed that the teaching performance is very poor as also in the
memos dated 08/07/1998, 18/07/1998 and 07/10/1998 and the warning
dated 08/10/1998. All these memos came to be replied only by
respondent no.1 a common letter 27/10/1998. A perusal of the
respondent no.1 reply does not show that she has seriously disputed these
memos. Considering all these documents it cannot be said that there was
no material for petitioners to come to a conclusion to hold respondent
no.1 not suitable and not confirmed the probationary appointment.
30. It is surely not a case of a punitive termination, inasmuch as,
there is nothing on record to show that the termination has preceded by
some kind of formal enquiry into any allegation of misconduct culminating
into a finding of guilt and that, in fact, under the garb of simplicitor
termination, there is a punitive action taken against respondent no.1.
Learned Counsel for petitioner, in this regard, is justified in relying on the
decision of Supreme Court in the case of Abhijeet Gupta (supra) wherein
their Lordships have upheld termination and the conclusions of the High
Court observing that the respondent worker was under observation during
the probationary period and was given opportunities to improve the
performance and ultimately, the authority did not find the employee fit for
confirmation, in such a case, it cannot be said that the termination is
punitive in nature.
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31. In Sumati P. Shere (Dr.) Vs. Union of India 6, considering
the decision in Parshotam Lal Dhingra Vs. Union of India7 and Dipti
Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic
Sciences8, Their Lordships made the following observations in para nos.10,
11, 12 and 14.
"10. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI
of Medical Sciences and Anr.9 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 v. Union of India and Dipti
Prakash Banerjee the Court observed (vide SCC p. 527para 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." (emphasis in
original)
11. 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 SCC p. 528, para 21):
"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) 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
6 (1989) 3 SCC 311 : 1989 SCC (L & S) 471 : (1989) 11 ATC 127
7 1958 SCR 828 : AIR 1958 SC 36
8 (1999) 3 SCC 60 : 1999 SCC (L & S) 596
9 (2002) 1 SCC 520 : 2002 SCC (L & S) 170
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termination has been upheld."
12. 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: 9SCC pp. 529-30_
"29. 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."
14. 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' Assn. and Anr. v. Allahabad Bank 10,
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
10 (1996) 4 SCC 504 : 1996 SCC (L & S) 1037
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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."
32. In Chaitanyprakash and Another (supra), Their Lordships,
following the principles as laid down in Abhijeet Gupta (supra), upheld
the termination when the probationary appointee was informed during the
probation period about the deficiency and the performance being
unsatisfactory during the probation period, such termination was justified.
33. The above discussion would lead me to conclude that the
respondent no.1 being a probationary appointee, could not have claimed
any legal right to the post. The petitioners, taking into consideration the
performance of respondent no.1, have issued an order of discharge
simplicitor or a simplicitor termination without casting a stigma, in such
an event the respondent no.1 cannot question the order of termination so
as to label such an action as punitive, requiring an inquiry to be conducted
before initiating such an action. It is well settled that in case of a
probationary appointment, the employer has every right to bring cessation
of the employment of a probationary without assigning any reason. This
is also borne out by Statute 418 as in the present case. As regards the
probationary appointment, employer would be justified not to extend the
period of probation or confirm the probationary and / or terminate the
services of the probationary on or before the expiry of the period of
probation. These are the complete prerogatives of an employer in case of
a termination which is without any stigma and when it is not a punitive
action as per the test as laid down by the Supreme Court in the case of
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Abhijeet Gupta (supra). The suitability of the probationary was a matter
in the absolute discretionary domain of the petitioners in the present case.
There was sufficient material available with the petitioners to take a
decision discharging the services of respondent no.1 and not continuing
the probation. No reason for such termination was required to be given.
Such right to discharge the services of respondent no.1 cannot be curtailed
in the absence of any material to show that the order of discharge
simplicitor was ostensible and in reality what was meant was a
punishment to be awarded to respondent no.1.
34. A perusal of the impugned order clearly demonstrates that the
above well-established principles are completely overlooked by the
learned Presiding Officer of the Tribunal. The learned Presiding Officer
has, in fact, completely misinterpreted the information as contained in
Form 'D-2'. It has also misdirected itself to the real requirement of the
assessment of performance as reflected in the petitioners requiring to
maintain the assessment in Forms 'D-1' and 'D-2'. It has also misdirected
itself that Statute 422 would not require assessment and / or maintaining
of Form 'D-2' even for a probationary appointee. As regards the suitability
of respondent no.1, the Tribunal has taken into consideration the prior ad-
hoc appointment of respondent no.1 for some period between September
1994 to April 1995, this certainly could not have been a consideration, as
what was being assessed was the performance of respondent no.1 for the
academic years 1997-1998 and 1998-1999 under the appointment order
in question. These observations and findings as recorded by the Tribunal,
if tested on the above clear position in law and the mandate of the said
statutes of the University are required to be held as perverse, and thus
cannot be sustained to uphold reinstatement and setting aside, of the
termination of respondent no.1. In any case, order of termination is of the
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year 1999. About 17 years have already passed there was an interim stay
operating in favour of the petitioners.
35. Resultantly, the petition needs to succeed. It is allowed in
terms of prayer clause (a) which reads thus :-
"(a) That a writ of certiorari or a writ in the nature of
certiorari or any other appropriate writ, order and
direction to be issued calling for the records and
proceedings of Appeal No.24 of 1999 on the file of the
Hon'ble Mumbai University and College Tribunal at
Mumbai and after perusing the same, quash and set aside
the order passed by the Hon'ble Tribunal on 29th June,
2001."
There shall be no order as to costs.
(G. S. KULKARNI, J.)
