Vineet Taneja vs Union Of India
2009 Latest Caselaw 527 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI

                        W.P.(C) No. 1898 of 2000

                                   Reserved on: January 27, 2009
                                   Decision:    February 13, 2009

       VINEET TANEJA                                  ..... Petitioner
                             Through: Mr.G.D. Gupta, Senior Advocate
                             with Mr. S.K. Sinha and Mr. Vikram
                             Saini, Advocates.
               versus

       UNION OF INDIA & ORS.              ..... Respondents
                     Through: Mr. A.K.Thakur, Advocate
                     for NSICL.
                     Mr. Sewa Ram with Mr. R.K. Bachchan,
                     Advocate for R-1.
       CORAM:
       HON'BLE DR. JUSTICE S. MURALIDHAR

       1. Whether Reporters of local papers may be
          allowed to see the judgment?                  No
       2. To be referred to the Reporter or not?        Yes
       3. Whether the judgment should be reported in Digest? Yes

                              JUDGMENT

13.02.2009

Dr. S. Muralidhar, J.

1. The question that arises for determination in this petition is

whether the National Small Industries Corporation Limited

(„NSICL‟) arrayed as Respondent No.2 in this petition, was justified

in issuing Office Order dated 4th April 1997 terminating the

Petitioner‟s services as management trainee with effect from 16th

January 1997.

2. The Petitioner was selected as a Management Trainee and

informed by the NSICL a letter dated 26th July 1996 that his

selection was subject to the following conditions:

"(a) The duration of training will initially be one

year from the date you report for training, which can however, be extended for another year subject to your satisfactory performance during the first year of training. During the said period, you could be inter-changed and/or deputed for training to other local or outstation units, at the discretion of the management, if and as need be.

(b) You will be paid consolidated stipend of Rs.4,000/- per month during the first year and Rs.4500/- per month during second year of training.

(c) You will be entitled to 15 days leave every year during the period of training."

3. Paras 4 and 6 of the said letter, which are relevant for the present

case, read as under:

"4. The Corporation reserves the right to terminate your training without notice and such termination will not entitle you to any compensation, loss, etc.

6. Your undergoing training in this Corporation, will not confer any right to claim for regular employment in this Corporation. However, on successful completion of training for two years, you will be considered for appointment to a suitable job in the Corporation."

4. By a letter dated 8th August 1996 the Petitioner accepted the

appointment. However on the very next day, 9th August 1996, he

wrote to the NSICL stating that due to "some highly unavoidable

family circumstances" he was unable to "undertake training at

present" and sought extension up to 30th November 1996. By a

letter dated 23rd August 1996 the NSICL informed the Petitioner that

it had allowed his request for extending the time for reporting for

training up to 30th November 1996 and that if he failed to join by 1 st

December 1996 it would be presumed that he was not interested in

the training and that the same would be treated as cancelled without

further reference to him.

5. After the Petitioner reported for the training he was by an

Office Order dated 7th January 1997 transferred as management

trainee to the Regional Office of NSICL at Noida in Uttar Pradesh.

The Petitioner was relieved from the head office on 8th January

1997. He joined the regional office at Noida on 9th January 1997.

According to the Petitioner he thereafter fell ill and had to go on

leave with effect from 16th January 1997. According to him, he

wrote to the Regional Manager at the Regional Office, Noida on 20 th

January 1997 seeking medical leave from 15th January 1997 to 22nd

January 1997. According to him, he again wrote on 31st January

1997 stating that he had been suffering from bronchitis and high

fever and sought medical leave with effect from "16th January 1997

till restoration of my health." He added in the said letter that

"medical certificate in this regard will follow soon." However

according to the Respondent NSICL they did not receive the letters

dated 20th January and 31st January 1997. The Petitioner has also

not placed on record any proof of the NSICL having received the

said letters.

6. The Petitioner by a letter dated 15th February 1997 requested

for grant of leave from 16th January 1997 to 28th February 1997 due

to sickness as he had been advised complete bed rest and stated that

"medical certificates in this regard will follow soon." It is

significant that till this date no medical certificate was sent by the

Petitioner. The aforementioned letter is acknowledged as having

been received by the NSICL as is evident from an internal Office

Memo dated 20th March 1997 from the Regional Office, Noida to

the Head Office, a copy of which has been placed on record. The

Regional Office, Noida noted that he had not joined duty even after

28th February 1997, the date till which he had sought leave. It was

opined in the said note that the Petitioner did not seem to "be fit to

serve in the Corporation" on account of irregularity in the

attendance.

7. The Petitioner wrote a further letter on 14th March 1997 with

which he enclosed three medical certificates. He sought leave up to

16th March 1997. This letter addressed to the Regional Office

appears to have been received by them much later.

8. The Petitioner claims to have written again on 18th March

1997 seeking leave till 31st March 1997. However the receipt of this

letter is denied by the Respondent and no proof of the said letter

having been received by the NSICL is placed on record.

9. The following Office Order was passed by NSICL on 4th April

1997 which is the subject matter of challenge in the present petition:

"Office Order It has been reported that Shri Vineet Taneja, Management Trainee, R.O., Noida applied for leave from 16.1.1997 to 28.2.97 on medical grounds without sending any medical certificate. It has further been reported that after the expiry of said leave neither he attended the office nor sent any information/application. His absence with effect from 16.1.1997 to 28.2.1997 without sanction of leave and un-authorised absence with effect from 1.3.1997 till date has been viewed seriously by the Management. Accordingly it has been decided to terminate his services as Management Trainee w.e.f.16.1.1997 and his name struck off from the rolls of the Corporation with effect from 16.1.1997."

10. It appears that three days thereafter the Regional Office in

Noida received the Petitioner‟s letter dated 14th March 1997

enclosing the medical certificates. It informed the Petitioner by a

letter dated 7th April 1997 that his case is being forwarded to the

Head Office for suitable action. However since by that date the

Petitioner‟s services had already been terminated. The Head Office

at Noida by a letter dated 21st April 1997 wrote to the Petitioner as

under:

"Dear Sir, Please refer to your application dated 14.3.1997 applying for Medical Leave from 16.1.1997 to 16.3.1997 forwarded to us by Regional Office, Noida vide their ION No.NSIC: TRG:33:96-97 dated 7.4.1997.

In this connection, your attention is invited to this office order of even number dated 4.4.1997 (sent under Registered cover) terminating your services as Management Trainee w.e.f. 16.1.1997 (copy of said office order dated 4.4.1997 is again enclosed for ready reference)."

11. The Petitioner gave a representation on 26th April 1997

protesting against the termination of his services. By a letter dated

7th May 1997 he was informed that the earlier decision dated 4 th

April 1997 remained unchanged.

12. According to the Petitioner, based on the legal advice that he

sought soon thereafter, he did not file a petition at that time.

Subsequently, he came across a news item dated 8th March 2000 in

which the decision of the Supreme Court (reported as V.P. Ahuja v.

State of Punjab JT 2000 (3) SC 1) was discussed. In the said

decision it was held that if the order of termination was ex-facie

stigmatic and punitive then the termination order passed without

following the principles of natural justice was liable to be set aside.

The Petitioner thereafter filed the present petition on 4th April 2000.

13. Mr. G.D. Gupta, learned Senior counsel appearing for the

Petitioner makes the following submissions:

(a) the impugned order of termination is violative of the principles of

natural justice.

(b) Even if the Petitioner was only a trainee, since order was

stigmatic, the formality of the show cause notice followed by an

enquiry had to be complied with, failing which the termination order

stands vitiated. Reliance is placed on the judgment of the Supreme

Court in V.P. Ahuja v. State of Punjab 2003 SCC 239.

(c) The Petitioner was really never informed of the reasons why his

reasonable request for grant of leave on medical ground was being

turned down. Petitioner had to remain absent for bonafide reasons

and that the impugned order is therefore punitive and

disproportionate.

14. On behalf of the Respondents it is submitted that the petition

is barred by laches and the explanation for filing the petition after

nearly three years after the order of termination was not satisfactory.

When the Petitioner was only a trainee there was no question of

NSICL having to issue a show cause notice prior to the termination

of his services. The opinion formed that the Petitioner‟s services

were not up to the mark would not be considered to be stigmatic.

Reliance is placed on the judgments of the Supreme Court in

Krishnadevaraya Education Trust v. L.A.Balakrishna (2001) 9

SCC 319, State of Punjab v. Bhagwan Singh (2002) 9 SCC 636,

Pavanendra Narayan Verma v. Sanjay Gandhi PGI Of Medical,

Sciences (2002) 1 SCC 520 and Muir Mills Unit of NTC (U.P.) Ltd.

v. Swayam Prakash Srivastava (2007) 1 SCC 491.

15. As regards the plea of laches this Court is not entirely

satisfied with the explanation offered by the Petitioner for waiting

till 4th April 2000 to challenge an order dated 4 th April 1997

terminating his services. However this Court finds that even on

merits the Petitioner has not been able to make out a case for

interference.

16. The law in relation to the termination of the services of a

trainee or a probationer is fairly well settled. In Pavanendra

Narayan Verma the Supreme Court has explained at length the tests

that would apply to determine if an order terminating the services of

a probationer is stigmatic. On the facts of that case it was held that

the opinion expressed in the termination order that the probationer‟s

"work and conduct has not been found satisfactory" was not ex facie

stigmatic. In those circumstances the question of having to comply

with the principles of natural justice did not arise. In para 29 of the

judgment, it was explained (SCC, p.529):

"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 mere unsuitability for the job."

17. On the facts of the present case the decision taken by the

Respondent to terminate the services of the Petitioner cannot be held

to be either arbitrary or reasonable. Here is a case of an employee

choosing to stay away from duty from 16th January 1997 onwards

without there being any sanction of such leave. Further although

leave was sought on medical grounds, medical certificates were

enclosed only with the letter dated 14th March which in any event

was received by the Respondent after the termination order had been

passed. In the written submissions filed by the petitioner an attempt

is made for the first time to introduce an alleged medical certificate

issued by a doctor for the period 17th March to 6th April 1997 which

the petitioner says he "remembers at this stage...was sent with letter

dated 18.3.1997, though it appears by mistake, it was left out from

being mentioned as an enclosure to the said letter." This Court finds

the explanation unconvincing and in any event cannot permit such

material to be relied upon for the first time, eight years after the writ

petition was filed.

18. In the written submissions the petitioner refers to the decision of

the Supreme Court in Dr. Sumati Shere v. Union of India (1989) 3

SCC 311 to contend that the contents of the inter-office memo to the

effect that the petitioner was "careless, non-punctual and irregular in

attending office" ought to have been communicated to him and that

the failure to do so vitiated the order. This Court finds that the

decision in Sumati Shere turned on facts which were different from

the facts on hand. In the instant case, the termination order dated 4th

April 1997 cannot be said to be stigmatic if one were to apply the

tests enumerated by the Supreme Court in Pavanendra Narayan

Verma and the other decisions discussed therein. In

Krishandevaraya Education Trust it was held that "the probationer

is on test and if the services are found not be satisfactory, the

employer has, in terms of the letter of appointment, the right to

terminate the services." Again in Muir Mills Unit of NTC (U.P)

Ltd. it was held that: "In the event of a non-stigmatic termination of

the services of a probationer, principles of audi alteram partem are

not applicable. 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 the termination would be valid."

In State of Punjab v. Bhagwan Singh the Court declined to interfere

with the termination simpliciter of the services of a probationer. The

contention of the petitioner here that there is a difference between a

probationer and a person undergoing training is untenable for the

simple reason that the terms and conditions of the petitioner‟s

appointment in the instant case indicate to the contrary. They make

it abundantly clear that "The duration of training will initially be one

year from the date you report for training, which can however, be

extended for another year subject to your satisfactory performance

during the first year of training" and further that "the Corporation

reserves the right to terminate your training without notice and such

termination will not entitle you to any compensation, loss, etc." This

was accepted by the petitioner without demur.

19. There is no ground made out for interference with the

impugned order dated 4th April 1997 issued by the Respondent No.2

NSICL terminating the Petitioner‟s services as Management

Trainee.

20. The petition is dismissed with no order as to costs.

S. MURALIDHAR, J.

FEBRUARY 13, 2009 dn