Delhi High Court

Ex.Ct/Painter, Crpf Suresh Kumar vs Uoi & Ors. on 22 December, 2009

Author: Pradeep Nandrajog

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment Reserved on: 25th November, 2009
                       Judgment Pronounced on: 22nd December, 2009

+                          W.P.(C) No.2128/1996


       EX.CT/PAINTER, CRPF SURESH KUMAR .....Petitioner
                 Through : Mr.O.N.Sharma, Advocate

                                       versus

       UOI & ORS.                          ..... Respondents
                 Through : Ms.Aakriti Gandotra, Adv. for R-1

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?

     2. To be referred to the Reporter or not?                               No

     3. Whether the judgment should be reported in the
        Digest?                                                              No


PRADEEP NANDRAJOG, J.

1. On 8.2.1993 the petitioner was appointed, on

probation as a constable (painter) under CRPF. In the letter of

appointment issued to the petitioner it was clearly indicated

that he would be on probation for a period of 3 years.

2. While still on probation the petitioner was

communicated an adverse entry in his ACR to the effect that

he was an inefficient painter and his work and conduct

required close watch. The petitioner submitted a response

stating that when he joined service he lacked experience in

the trade and that he would improve his working.

3. On 6.4.1995 the petitioner was put to notice that

his work continued to be unsatisfactory requiring outside help

to be taken for completion/performance of the work assigned

to him. The petitioner submitted a reply stating that all work

assigned to him was dutifully performed.

4. On 5.6.1995 following order was communicated to

the petitioner:-

"In pursuance of Sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1955. I.N.Bhardwaja Commandant 107 Bn., RAF/CRPF hereby give a notice to No.933070042 Constable/Painter Suresh Kumar of HQ Coy 107 Bn. RAF/CRPF and order that his service shall stand terminated with effect from the date of expiry of a period of one month from the date on which this notice is served on or as the case may be tendered to him."

5. The instant writ petition was filed urging that the

termination being based on the alleged inefficiency of the

petitioner, was punitive, and hence without issuing a charge

memo and holding an inquiry, the services of the petitioner

could not be terminated. Alternatively it has been pleaded

that the termination being stigmatic i.e. labeling the petitioner

as an inefficient person required an inquiry to be held after

issuing a show cause notice to the petitioner and giving him an

opportunity to defend himself.

6. It is not in dispute that in terms of Rule 16 of the

CRPF Rules 1955, a Member of the Force is to be initially

enrolled for a period of 3 years and during this period of

engagement, is liable to be discharged from service at any

time on one month‟s notice issued by the appointing authority.

It is also not in dispute that such employees are governed by

the CCS (Temporary Service) Rules 1965.

7. Rule 5 of the CCS (Temporary Service) Rules

permits the appointing authority to terminate the services of a

temporary government servant by giving him a month‟s prior

notice or salary for one month.

8. It is thus apparent that the respondents have the

necessary power to terminate the services of the petitioner

after giving him one month prior notice.

9. It may be noted at the outset that in the writ

petition no mala fide has been alleged against the appointing

authority who has issued the termination notice.

10. With reference to the ACR entry recorded by the

appointing authority that the work of the petitioner was

unsatisfactory and that he was an inefficient person as also

with reference to the communication dated 6.4.1995

whereunder petitioner was informed of his continued

inefficiency, contention urged is that the foundation of the

order of discharge from service is the alleged inefficiency of

the petitioner and hence it is not a case of discharge

simpliciter but a case of casting a stigma on the petitioner.

11. What is a stigma?

12. In the decision reported as 1987 (1) SCC 146 Kamal

Kishore Lakshman Vs. Pan Amercian World Airways it was

observed: According to Webster's New World Dictionary, it

(stigma) is something that detracts from the character or

reputation of a person..... The Legal Thesuras by Burton gives

the meaning of the word 'to be blemish, defect, disgrace,

disrepute, imputation, mark of disgrace or shame'.

13. In the decision reported as AIR 1961 SC 177 State

of Orissa Vs. Ram Narayan Dass it was held that the words

„unsatisfactory work and conduct‟ in the termination order will

not amount to a stigma.

14. The reason is obvious. Notwithstanding subjecting

a new recruit to the rigors of a selection process, the employer

has a right to see whether the recruit is able to perform the

duties assigned to him. Being on probation, the recruit is kept

under a watch to ascertain his performance. Not only is the

recruit under the scrutiny but even the initial judgment of the

employer is under a scrutiny for the reason even the employer

has to consider and decide whether his initial judgment was

correct. Logic demands that where the new recruit is able to

discharge the duties assigned to him he should be

permanently absorbed. It would be most illogical to say to the

recruit that I find nothing wrong with your work but still I do

not permanently absorb you. That is why some decisions have

taken the view that it would be unfair not to point out the

shortcomings in the work of a probationer thereby depriving

him an opportunity to improve himself and all of a sudden

discharge him from service stating that his work is not up to

the mark.

15. Thus, we do not find the order of discharge as

casting a stigma merely because in the past, communications

were sent to the petitioner requiring him to improve his

working. Even if we read in the order of discharge that it is

premised on the inefficiency of the petitioner, as noted above,

law does not treat the same to be as stigmatic.

16. Thus, it cannot be said that the order of discharge is

punitive.

17. With respect to the plea whether the notice dated

6.4.1995 was the foundation or the motive for the action, we

note that the said controversy is unnecessary for the reason in

the said notice no misdemeanour or misconduct was alleged.

It was simply pointed out to the petitioner that he was not

working efficiently. That apart, we have enough case law

where pertaining to a misconduct detected during the

probation of an employee a show cause notice was issued to

respond as to why on account of the stated misconduct the

services be not terminated, but ignoring the show cause

notice, a simple order of discharge from service was issued.

When questioned in a Court on the plea that the veil be lifted

to see as to what was the foundation of the order, it was held

that motive and foundation are two different concepts. We

may quote only from one decision reported as 1980 (2) SCC

593 Gujarat Steel Tube Vs. Gujarat Steel Tubes Majdoor Sangh.

As to foundation, it was observed:-

".......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."

18. As to motive, it was observed:-

"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."

19. Suffice would it be to state that if an inquiry is

conducted into an alleged misconduct behind the back of the

officer and a simple order of termination is passed, „founded'

on the report of the inquiry indicting the employee, the action

would be tainted but where no findings are arrived at any

inquiry or no inquiry is held but the employer chooses to

discontinue the services of an employee against whom

complaints are received it would be a case of the complaints

motivating the action and hence order would not be bad as

observed in the decision reported as AIR 1999 SC 983 Dipti

Prakash Banerjee Vs. Satvendera Nath Bose National Centre

for Basic Sciences (para 22).