Air Force Senior Secondary School vs Mrs. Promila Kumar & Anr
2010 Latest Caselaw 5139 Del

                                                          UNREPORTABLE


*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                               WP (C) No.6662/2010


                                      Date of Decision: November 11, 2010


       AIR FORCE SENIOR SECONDARY SCHOOL        ...... Petitioner
                      through Mr. A.K.Bhardwaj, Advocate


                      versus


       MRS. PROMILA KUMAR & ANR                ..... Respondents
                      through Mr. R.K.Saini with Mr. Atul Wadera
                      and Mr. Sitabh Ali Chaudhary, Advocates
                      for respondent No.1.
                      Mr. Elgin John for Ms. Anju Bhattacharya
                      Advocate for respondent No.2.

       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? No
2.     To be referred to the reporter or not? No
3.     Whether the judgment should be reported in the „Digest‟? No

REKHA SHARMA, J. (ORAL)

Respondent No.1 was employed as PGT Hindi in the petitioner‟s

school vide appointment letter dated April 01, 2008 which stipulated

that she was to remain on probation for a period of one year from the

date of her joining and was entitled to be confirmed on the post after

the expiry of the said period. However, no order either confirming her

on the post or dispensing with her services was passed on the expiry of

the period of one year. She continued to hold the post till

April 29, 2009, on which date she was served with a termination letter

WP (C) No.6662/2010 Page 1 stating that her services were no longer required as the experience

certificate produced by her at the time of interview was found to be

forged after verification.

Respondent No.1 challenged the order of her termination before

the Delhi School Tribunal. Relying upon the judgment of this Court in

the case of Veena Sharma Versus Deputy Director of Education and

Others, being WP(C) No.10247/2009 dated March 25, 2010, the

Tribunal vide its order dated April 30, 2010 set-aside the order of

termination holding that since respondent No.1 had completed the

probation period of one year and as no order extending her probation

was passed during the currency of the probation period, she was

deemed to have been confirmed on the post. It was, thus, further held

that having become a confirmed employee, the services of

respondent No.1 could not be terminated without an inquiry.

Consequently, the Tribunal issued a direction to the petitioner to

reinstate respondent No.1 into service with 50% of the salary and

allowances for the intervening period along with consequential

benefits. The Tribunal also granted liberty to the petitioner to take

disciplinary action against respondent No.1, if so advised, as per the

provisions of Delhi School Education Act & Rules, 1973.

Aggrieved by the order of the Tribunal, the petitioner-School

preferred the present writ petition.

It is submitted by the learned counsel for the petitioner that the

judgment in the case of Veena Sharma (supra) on which the Tribunal

has placed reliance was taken in appeal before the Division Bench of

this Court and the Division Bench vide order dated August 16, 2010

has reversed the finding of the learned Single Judge holding that, "an

WP (C) No.6662/2010 Page 2 express order of confirmation is necessary to give the employee a

substantive right to the post and from the mere fact that he is allowed

to continue in the post after the expiry of the specified period of

probation, it is not possible to hold that he should be deemed to have

been confirmed." Relying upon the judgment of the Division Bench,

learned counsel for the petitioner contends that since the service of

the petitioner in the present case was also not confirmed, she

continued to be on probation and hence, the order of the Delhi School

Tribunal that in the absence of an order continuing her probation

beyond the period of one year, she should have been deemed to have

been confirmed, is liable to be set-aside.

The learned counsel for respondent No.1 does not dispute the

binding nature of the order passed by the Division Bench but submits

that it has no applicability to the case in hand as the order in question

dated April 29, 2009 is not a simplicitor order of termination but is

couched in a language that carries a stigma with it. The order in

question reads as under:-

"TERMINATION LETTER

1. Reference is made to your appointment letter no. 3W/833/2/ED dated 01 Apr 08.

2. Your services are no longer required as the experience certificate produced by you at the time of interview have been found forged after verification.

3. Further actions as deemed would be informed to you from time to time by post."

Undoubtedly, the aforesaid order is not a simplicitor order of

termination. It accuses respondent No.1 of having produced a forged

experience certificate. Hence, it carries a taint with it. It is true that

WP (C) No.6662/2010 Page 3 no inquiry is required to be held before terminating the services of an

employee on probation but such an employee can also not be visited

with an order which is stigmatic. Since respondent No.1 continued to

be on probation in the absence of an order confirming her on the post,

the petitioner could easily do away with her services by merely stating

that the same were no longer required, but the use of additional words

in her termination letter that "her services were being terminated

because of her having produced a forged experience certificate" do

carry a stigma and it is these words which make the termination letter

bad in law. Even the Division Bench while reversing the order of the

learned Single Judge in the case of Veena Sharma (supra) has held

that, "As we have not concurred with the finding that the employee

was a confirmed employee, the conclusion arrived at as an inevitable

corollary relating to the violation of the doctrine of natural justice is

also set aside, for there is no stigma attached to the order of

termination." The words "for there is no stigma attached to the order of

termination" used by the Division Bench are significant. They imply

that if the order of termination carries stigma, then the termination can

be held to be bad.

For what has been noticed above, I up-hold the order of Tribunal

dated April 30, 2010 setting-aside the order of termination dated

April 29, 2009 though for reasons different than those assigned by the

Tribunal. The writ-petition is dismissed with liberty to the petitioner to

take appropriate action against her as per law, if so advised.

NOVEMBER 11, 2010                                  REKHA SHARMA, J
PC.

WP (C) No.6662/2010                                                  Page 4