Hari Singh vs Indian Agricultural Research ...
2006 Latest Caselaw 81 Del

JUDGMENT

Sanjiv Khanna, J.

1. The present writ petition is directed against the two orders passed by the Tribunal dated 2.3.2002 and 27.1.2003. By the first order, the learned Tribunal dismissed the Original Application No.697/01 filed by the petitioner and by the subsequent order dated 27.1.2003, the learned Tribunal has dismissed the review application filed by the petitioner. The petitioner has impugned both these orders passed by the learned Tribunal as well as the order dated 5.1.2001 passed by Indian Agricultural Research Institute, respondent no.1 terminating the services of the petitioner as Security Officer, Director Office, in the respondent no.1.

2. The petitioner was appointed as a Security Supervisor on 27.2.1999 and he joined the said post on 22.3.1999. Two clauses of the appointment letter dated 27.2.1999 are relevant for adjudication of the present writ petition read as under:-

5. He will be on probation period of 2 years on the post from the date of joining, which can be extended by the competent authority as per rules. He can be terminated or demoted for non-completion of the probation period tot he satisfaction of competent authority.

6. His appointment can be terminated by either side without disclosing any reason with one month notice under Rule 5 of Central Civil Service (Temporary) Rules, 1965. Appointing authority can terminate the services of the appointed person without any notice and without payment of any salary in lieu thereof during the probation period.

3. It is the case of the respondents that in terms of the above clauses 5 and 6, respondent no.1 has terminated the services of the petitioner vide order dated 5.1.2001 which reads as under:-

INDIAN AGRICULTURE RESEARCH INSTITUTE

NEW DELHI- 110012.

No.7-1/99-Estb-2 Dt 05/01/2001

ORDER

Joint Director (Administration) with the consent of Director, Indian Agriculture Research Institute being the appointing authority, terminates with immediate effect the services of Sh. Hari Singh, Security Supervisor in terms of para 5 and 6 of the conditions mentioned in this office appointment proposal order of even number dt. 27/2/2000.

Sd/-

(GYANCHAND SHARMA)

JOINT DIRECtor (ADMINISTRATION)

4. It may be mentioned here that the petitioner was arrested in a criminal case on 11.10.1995 and remained suspended till 1.1.2001, when his suspension order was revoked. In this criminal case u/s 498 and 304A of the Indian Penal Code, 1872 the petitioner was subsequently acquitted on 11.11.2002.

5. Learned counsel for the petitioner has raised three contentions. Firstly, the order dated 5.1.2001 was not passed by a competent authority and that the petitioner could have been removed from service only by Director of the respondent no.1 institution and not by a Joint Director. Secondly, it was submitted that the petitioner was a probationer and the order dated 5.1.2001 terminating his services was stigmatic and punitive in nature and therefore an order of punishment could not have been passed without holding proper enquiry. Lastly, it was submitted that the petitioner was entitled to be paid one month's salary before termination of his services or issued one month's notice before termination. It was submitted that the respondents did not issue any notice or pay one month's salary and therefore the order of termination under Rule 5 of the Central Civil Services(Temporary) Rules, 1965 was void ab initio. In support of the above arguments the petitioner relied upon the judgments of the Supreme Court in the case of Prabhu Dayal Birari v. M. P. Rajya Nagrik Aapurti Nigam Ltd ; Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors. AIR 1999 SCC 983; V.P. Ahuja v. State of Punjab AIR 2000 SCC 1080.

6. Learned counsel for the respondent controverter the submissions of the petitioner. He submitted that the order of termination was passed after due consideration and approval by the Director of the respondent no.1. He referred to clauses 5 and 6 of the appointment letter and submitted that the service of the petitioner was terminated within the probation period and therefore there was no need to issue any notice or pay one month's salary in lieu thereof. It was also submitted that the order of termination was not stigmatic and cannot be treated as an order of punishment.

7. We have considered the submissions made by the learned counsel for the parties and also perused the original records produced by the respondent no.1 before us. It is clear from the records produced before us that before terminating the services of the petitioner, the matter was considered at various levels and after due consideration the Director of the respondent no.1 in terms of clauses 5 and 6 of the offer of appointment dated 27.2.1999 terminated the services of the petitioner. Therefore, we do not find any merit in the first contention raised by the learned counsel for the petitioner.

8. Clauses 5 and 6 of the appointment letter have been quoted above. Clause 5 states that the petitioner would be on probation for a period of two years from the date of his joining, and the said period may be extended. It further states that the services of the petitioner may be terminated for non-completion of the probation period to the satisfaction of the competent authority. Clause 6 on the other hand states that appointment can be terminated by either side without disclosing any reason with one month's notice under Rule 5 of the Central civil Services (Temporary) Rules, 1965. The second sentence of clause 6 further provides that the appointment authority can terminate the services of the petitioner without notice and without payment of any salary in lieu thereof during the probation period.

9. In our opinion, on reading clause 6 of the letter dated 27.2.1999 it is clear that it consists of two parts. The first part, relates to termination of appointment by either side without disclosing any reason with one month's notice under Rule 5 of the aforesaid Rules. The second part relates to right of the appointing authority to terminate services of the petitioner without any notice and without payment of any salary in lieu thereof during the probation period.

10. It is an admitted case that when termination order dated 5.1.2001 was issued, the petitioner was still working as a probationer and was therefore within probation period of two years. Accordingly in terms of clause 6, the services of the petitioner could be terminated by the appointing authority without any notice and without payment of salary in lieu thereof. It may be also relevant to state here that it depends upon the terms and conditions mentioned in the appointment letter or the Rules whether an employee is entitled to one month's notice or payment of one month's salary in lieu thereof. In case there is violation then as held by the Supreme Court in the case of Prabhu Dayal (supra) the termination may be held to be void and illegal. However, the Supreme Court has also held that issue of notice or payment of salary in lieu thereof may not be a condition precedent to termination of employment and in such cases it is not necessary to simultaneously pay salary along with termination notice. Reference in this regard may be made to the decisions in the case of Bachi Ram v. Uniion of India , Union of India v. Arun Kumar Roy AIR 1986 SC 737; Rakesh Kumar Singh v. Committee of Management AIR 1986 SC 3070; Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. ; State of U.P v. Kamla Devi .

11. We also find that the order of termination of services of the petitioner dated 5.1.2001 cannot by any stretch be regarded as punitive or stigmatic. It is well settled that services of a probationer can be terminated for unsatisfactory work but this by itself does not amount to punishment. Only when an order terminating the services of a probationer creates an indelible stigma effecting the future prospects of an employee that it is to be regarded as a punitive order. Ex facie the order dated 5.1.2001 is not stigmatic.(Refer State of Punjab v. Sukhwinder Singh and Pavanedra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences ).

12. It is an admitted case that the petitioner was not a permanent employee but was a temporary employee and within the probation period. The respondents have also pointed out that the post of Security Supervisor has since been abolished under the 10% cut as per the Government of India Orders and the cadre is full up to its capacity. In view of the reasons given above we do not find any merit in the present writ petition and the same is dismissed. No costs.