Pinaki Ghosh vs Internation Airport Authority Of ...
2007 Latest Caselaw 1826 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. The appellant herein was appointed as Legal Officer by the respondent-IAAI with effect from 8th March, 1984 through appointment letter dated 23rd March, 1984. In the said appointment letter it was stated that the appellant's appointment/continuation in service would be subject to his being medically fit. Clause 7 of the said appointment letter, which is relevant for the purpose for deciding the present appeal and reference to which was made during the course of submissions, is as under:

7. Notwithstanding any of the clauses of this letter of appointment, the Authority reserves the right to terminate your appointment at its absolute discretion after giving you one month's notice or on payment of one month's salary in lieu thereof without assigning any reason. Similarly, you shall be at liberty to resign from the service after giving one month's notice.

2. Another clause, which is also relevant, is Clause 9 which reads as follows:

You will abide by the rules and Regulations of the authority which may be in force from time to time.

3. In Clause 17 of the said appointment letter it was stated that if the terms and conditions in the appointment letter are acceptable to him he would return the attached acceptance of the terms and conditions of his appointment and that he would report for duty to the General Manager Madras on or before 23rd March, 1984. The appellant accordingly accepted the aforesaid terms and conditions including the term that he will abide by the rules and regulations of the authority, which may be in force from time to time.

4. Regulation 12 of the IAAI (General Conditions of Service) Regulations, 1980 reads as follows:

12. Probation:(1) Every person regularly appointed in the Authority otherwise than on deputation shall be required to be on probation for a period not less than one year from the date of appointment or for such period as the Authority may prescribe but not exceeding two years.

(2) During the period of probation an employee directly recruited shall be liable to be discharged from service if his performance is not found satisfactory or up to the standard.

(3) xxxx

(4) xxxxx

(5) xxxxx.

5. It is claimed by the appellant that during the course of his employment the respondent found the services of the appellant very satisfactory and that he was commended also by the then General Manager. He alleges that when the new General Manager took over charge, he started expressing dissatisfaction about the performance of the appellant. One of the letters issued to the appellant by the said General Manager was brought to our notice in support of the aforesaid stand taken by the appellant. The said memo is dated on 22/25th January, 1985 wherein the General Manager had expressed dissatisfaction with the performance of the appellant. It was also recited in the said memo that making allegations against senior officers was not a healthy tendency. The appellant was warned and asked to refrain from making such allegations and was called upon to improve his performance. In reply to the aforesaid memo, the appellant wrote a letter dated 16th February 1985 stating that it was difficult to work and show improvement in the assigned task without the help of an assistant and he denied that he had levelled allegations against senior officers. On 16th March, 1985 another memo was issued to the appellant whereby he was directed to show cause why disciplinary action should not be initiated against him for his lapses which were mentioned in the said memo. It was stated in the said memo that during the second week of March, 1985 two volumes of personal files were handed over to the appellant after obtaining proper receipt, as the same were required by him. On 11th March, 1985, the said two files were returned to the Dealing Assistant after taking a receipt, half an hour in advance. On verification of the said files it was found that a particular file was totally empty and that some papers from the other file were missing. The appellant replied to the said memo on 16th March itself.

6. On 22nd March, 1985 the impugned order of termination was issued which reads as follows:

Shri Pinaki Ghosh was apponted as Legal Officer with effect form 23rd March, 1984 on temporary basis. During the 1st, 2nd and 3rd quarters of probation period, the performance of Shri Pinaki Ghosh was adjudged unsatisfactory. Despite (Ample) counseling and written warning issued to him from time to time, there has been no improvement.

Since the performance of Shri Pinaki Ghosh, Legal Officer, still continues to be unsatisfactory, it has been decided to terminate the services of Shri Pinaki Ghosh as per Clause 7 of his appointment letter No. PERS-II 1002/9/78-PART/82 dated 8th March, 1984 with effect from 23rd March, 1985 (aftrernoon). He will be paid one month salary in lieu of notice as stipulated in Clause 7 of his appointment letter referred to above.

7. After receipt of the aforesaid letter of termination, the appellant challenged the validity and legality of the same on the ground that the same is stigmatic and, therefore, no such termination order could be issued without initiating proper departmental inquiry. It was also submitted that the appointment letter did not have any condition that the appellant would remain on probation and, therefore, there could not have been an order of termination simplicitor. It was also submitted that in case any termination is contemplated, the same must be done after drawing up proper regular departmental inquiry. Initially the aforesaid challenge was made before the Calcutta High Court where it was finally held that the said Court had no jurisdiction and subsequently a writ petition was filed in this Court on which the learned Single Judge heard the counsel appearing for the parties and by the impugned judgment and order dated 28th August, 2006, dismissed the writ petition. The order of the learned Single Judge is under challenge in this appeal on which we have heard the learned Counsel appearing for the parties.

8. Mr. Dipak Bhattacharya, the learned Counsel appearing for the appellant, submitted before us that the aforesaid order of termination is ex facie illegal as it is stigmatic and, therefore, the said order is required to be set aside and quashed. In support of his contention counsel has relied upon the decision of the Supreme court in Delhi Transport Corporation v. DTC Mazdoor Congress reported (1991) 1Supp. SCC 600 as well as several other decisions of the Supreme Court including in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences Calcutta . Counsel for the respondent however relied upon the decision of the Supreme Court in Muir Mills Unit of NTC(UP) Ltd. v. Swayam Prakash Srivastava and Anr. .

9. In the light of the aforesaid submissions of the counsel for the parties we have also perused the records placed before us. We have also considered the original records relating to the service of the appellant. The said records disclose that the appellant was appointed as a Legal Officer on 8th March, 1984 pursuant to the letter dated 23rd March, 1984. The original records which are maintained by the respondent regarding performance of the appellant indicate that there was a report submitted to the higher authorities bringing to their notice deficiencies and shortcomings of the appellant. The said information was given by the Law Officer to the General Manager under his letter dated 23rd August, 1984 on which the General Manager requested the Law Officer to ask the appellant to come up the expected requirements and expectations. Again on 19th September, 1984 another letter was written by the Law Officer to the General Manager regarding incomplete information furnished by the appellant. The third quarterly report of the appellant placed on record indicates that the appellant was counselled many times in camera as well as by his seniors. He was also warned in writing and repeatedly counselled regarding his short falls. There are several letters on record indicating lapses and short comings in the functioning of the appellant. There was also an allegation against the appellant regarding missing documents from the original file which was placed in the custody of the appellant, which was replied to by the appellant stating that he was ignorant about it and tried to put the blame on other officers. Be that as it may, we are required to examine in this appeal as to whether or not the order of termination against the appellant was in any manner illegal or stigmatic.

10. We have discussed the performance of the appellant as is reflected from his service records maintained by the respondent. The same clearly indicates that performance of the appellant was not satisfactory. There were lapses and the performance of the appellant in discharging his duties was shown to be poor and he was found to be inefficient in his work.

11. There can be no denial of the fact that apart from the terms and conditions of his appointment as reflected from his order of appointment dated 23rd March, 1984, he was also governed by the Rules and Regulations of the respondent. Provisions of Regulation 12 are definitely and certainly applicable to the appellant by virtue of which he continued to be on probation when the aforesaid termination order was issued. The appellant is bound by the terms and conditions of service i.e. the regulations including Regulation 12. In view of the aforesaid position the appellant cannot claim to be a confirmed employee of the respondent as he continued to be on probation in terms of the said regulation. There is no order on record to indicate that he was confirmed by issuing a specific order by the respondent or the probation period had expired and there is a provision for deemed confirmation. We are, therefore, of the conclusive opinion that the appellant continued to be on probation and was a probationer on the date when the order of termination was issued. In this connection we may refer to the decision of the Supreme Court in Municipal Committee Sirsa v. Munshi Ram wherein, after referring to an earlier decision of the Supreme Court in Krishnadevaraya Education Trust and Anr. v. L.A. Balakrishna , it was held that a person having been appointed as a probationer and his working having been found not to the satisfaction of the employer, it was open to the management to terminate his services. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. the Supreme Court, after referring to a large number of earlier decisions, held thus:

...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. 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.

12. Having concluded thus on the aforesaid issue, the next issue which we are required to consider is whether the order of termination could be said to be stigmatic and if so what is its effect. In the order of termination it is mentioned that during the probation period the performance of the appellant was found to be unsatisfactory. The said order also mentions about the counselling and warning given to appellant to improve his performance. In paragraph 2 of the said order it was stated that since the performance of the appellant still continues to be unsatisfactory, a decision is taken to terminate his services as per Clause 7 of his appointment letter. It was submitted before us by the counsel for the appellant that Clause 7 does not give any reason to terminate service on the ground of unsatisfactory performance. It is well established that a person during the period of his probation could be terminated without assigning any reason. There are umpteen number of cases and it is settled position of law by the Supreme Court that if service of a probationer is found to be unsatisfactory during the period of probation, the employer has the right and authority to terminate service.

13. The question whether termination of services of a probationer by the respondent by mentioning in the order itself that his service and performance are unsatisfactory, amounts to a stigmatic order, is no longer res integra in view of the decision of the Supreme Court in Muir Mills Unit of NTC (UP) Limited (supra). Facts of the said case are almost similar to the present case. In the said case a letter was issued to the employee stating that his performance has not been found to be satisfactory and therefore he has failed to complete the probationary period successfully. It was further mentioned in the said letter that therefore his services were being terminated with immediate effect. In the light of the aforesaid, the Supreme Court has held in paragraph 43 of the said judgment that it is clear from the clause in the appointment letter and termination letter that the Mill had reserved all rights to discharge respondent No. 1 from the service of the Mill without assigning any reason and without any notice. In Paragraph-46 of the said judgment the Supreme Court has also referred to the ratio laid down by it in State of Punjab v. Bhagwan Singh that even if the termination order of the probationer refers to the performance being not satisfactory, such an order cannot be said to be stigmatic and his termination would be valid. Therefore, since the appellant continued to be on probation, his service could be terminated due to unsatisfactory performance. In Registrar High Court of Gujarat v. C.G. Sharma it was observed that an employee who is on probation could be removed from service due to unsatisfactory work. That being the position, the order of termination in this case neither could be termed as illegal nor stigmatic as provisions of Regulation 12 was applicable to the appellant when his service was terminated, apart from provision of Clause-7. In our considered opinion even if a wrong reference is made in the impugned order to a particular provision, the same would not render the order illegal as power is vested in the authority to take action accordingly for termination of service of a probationer for unsatisfactory work as provided for under Regulation 12.

14. In this view of the matter, we find no merit in this appeal and the same is dismissed.