Delhi High Court
Surjit Kumar vs National Airport Authority & Anr. on 17 July, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 3289/1992
% 17th July, 2013
SURJIT KUMAR ......Petitioner
Through: Mr. Abhishek Kaushik, Adv. and Mr. Gopal
Singh, Adv.
VERSUS
NATIONAL AIRPORT AUTHORITY & ANR. ...... Respondents
Through: Ms. Anjana Gosain, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition, petitioner seeks quashing of the letter of
termination of services dated 22.5.1992 issued by the respondent no.1/employer.
Petitioner's own case is that petitioner's appointment was a temporary appointment
pursuant to the appointment letter dated 17.5.1990. Paras 3 and 5 of the said
appointment letter are relevant and the same read as under:-
"3. This appointment will be temporary till further orders and a
appointees will have no right to permanent appointment till ordered.
He has being on the post of his satisfactory performance of the office.
5. His services can be terminated without showing any reason by
giving one month's notice. The authority can also terminate his
services without giving notice of paying one month's salary in lieu
thereof alongwith other allowances. (emphasis added)
2. The aforesaid paras show that petitioner was only a temporary
employee and it was specifically stated that he has no right to a permanent
employment unless so ordered, and the petitioner's services could be terminated
without showing any reason by giving one month's notice.
3. In the present case, termination is by the letter dated 22.5.1992, and
termination is non-stigmatic. This letter reads as under:-
"ORDER OF TERMINATION OF SERVICE SH. SURJIT
KUMAR, EQUIPMENT MECH.
In pursuance of clause 5 of the offer of appointment made to
him vide Executive Director, Delhi Region, New Delhi, letter No.
A.12015/4/90-EC (D) dt. 17.5.90, I K.Teckchandani, Executive
Director, Delhi Region, NAA, IGI Airport, New Delhi, terminate
the services of Sh. Surjit Kumar, Equipment Mech., O/o the
officer-in-Charge, ACS, Kota with immediate effect and direct that
he shall be entitled to claim a sum equivalent to the amount of his
pay and allowances for the notice period of one month at the same
rates at which he was drawing them immediately before the
termination of his service."
4. I have recently had an occasion to consider more or less identical
situation in the judgment in the case of Aditya Beri Vs. Air India & Ors W.P(C)
2511/2012 decided on 24.5.2013. Paras 3,5 to 8 of the said judgment are relevant
and they read as under:-
3. On behalf of respondents, it is argued that services of a probationary
officer can always be terminated by a non-stigmatic order and since the
petitioner's services as a probationary officer have been terminated by a
non-stigmatic order dated 23.4.2012, no challenge can be laid to such an
order. It is also argued that principles of natural justice are not required
to be followed for removal of a probationary officer.
4. xxxxxxxxxxxx
5. A reading of the aforesaid appointment letter shows that undoubtedly
petitioner was on probation for one year from 4.8.2011 and during which period
his services could be terminated at any time without assigning reasons by
giving a 30 days notice in writing. However para 9 of the appointment letter
also states that employment will be subject to applicable rules and regulations
of the company and establishment orders and such other orders or instructions
issued from time to time. Undoubtedly, para 3 of the appointment letter has not
been complied with because the notice of termination is not for a period of 30
days, however, even if the notice period of 30 days is not complied with that
would not mean that for that reason alone automatically the terminal order has
to be quashed. It has been held by the Supreme Court in the case of S.S. Shetty
Vs. Bharat Nidhi Ltd., AIR 1958 SC 12 that at best because of non-compliance
of a term of giving a particular notice period, the employee will only be entitled
to monetary emoluments of such period and not an order for reinstatement in
services. Of course, it is a moot point as to whether para 3 of the appointment
letter has to be read harmoniously with para 9 whereby standing order only
requires a seven days notice. In any case, I need not pronounce on this issue
because if the petitioner feels aggrieved, he can file a suit for recovery of notice
pay of one month and this issue will be examined in such proceedings.
At this stage, counsel for the respondents states that petitioner will be
paid one month's salary within a period of one month from today. The same be
done.
6. The crucial issue urged on behalf of the petitioner is that petitioner was
terminated pursuant to enquiry proceedings and therefore petitioner's services
could not be terminated without following the principles of natural justice. In
order to appreciate this contention paras 2 to 9 of the judgment of the Supreme
Court in the case of V.P. Ahuja (supra) which are relied upon by the petitioner
need to be referred to, and the same read as under:-
"2. The appellant was appointed as Chief Executive in the Establishment of
Punjab Co-operative Cotton Marketing and Spinning Mills Federation Limited
by order dated 29th of September, 1998. One of the terms of his appointment
was that he would be on probation for a period of two years which could be
extended further at the discretion of the Management. It further provided that
during the probation period, the Management shall have the right to terminate
his services without notice. His services were terminated by order dated 2-12-
1998 reading as under:
"ORDER
Sh. V.P. Ahuja, S/o Late Sh. H.N. Ahuja was appointed on probation for 2
years as Chief Executive of the Co-op. Spg, Mills Ltd., vide orders Endst.
No. Spinfed/CCA/7844-45 dated 29-9-1998 and posted at Bacospin.
However, he failed in the performance of his duties administratively and
technically. Therefore, as per Clause-I of the said appointment order, the
services of Sh. V.P. Ahuja are hereby terminated with immediate effect.
Sd/-
(Managing Director)
SPINFED"
3. This order was challenged by the appellant in the Punjab and Haryana High
Court through a writ petition which was dismissed by order dated 26th of
March, 1999 reading as under:
"Vide order dated 2-12-1998, Annexure-P-17 petitioner has been asked to
quit, concededly during the period of probation. The impugned order is not
stigmatic and nothing at all has been urged that may detract from such an
order being passed during the currency of probation. Insofar as, thus, order,
Annexure-P-17 is concerned, we find no infirmity therein."
4. It is this order which is challenged in this appeal.
5. The observation of the High Court that.-
"The impugned order is not stigmatic and nothing at all has been urged that
may detract from such an order being passed during the currency of
probation."
is surprising, to say the least. The order by which the services of the appellant
were terminated has already been quoted by us above. The order, ex facie, is
stigmatic as also punitive. The order is founded on the ground that the appellant
had failed in the performance of his duties administratively and technically. It is
for this reason that the services of the appellant were terminated. As pointed out
above, the order ex facie, is stigmatic.
6. Learned Counsel for the respondents has contended that the appellant, after
appointment, was placed on probation and though the period of probation was
two years, his services could be terminated at any time during the period of
probation without any notice, as set out in the appointment letter. It is contended
that the appellant cannot claim any right on the post on which he was appointed
and being on probation, his work and conduct was all along under scrutiny and
since his work was not satisfactory, his services were terminated in terms of the
conditions set out in the Appointment Order. This plea cannot be accepted.
7. A probationer, like a temporary servant, is also entitled to certain protection
and his services cannot be terminated arbitrarily, nor can those services be
terminated in a punitive manner without complying with the principles of
natural justice.
8. The affidavits filed by the parties before the High Court as also in this Court
Indicate the background in which the order, terminating the services of the
appellant, came to be passed. Such an order which, on the face of it, is
stigmatic, could not have been passed without holding a regular enquiry and
giving an opportunity of hearing to the appellant.
9. The entire case law with respect to a "probationer" was reviewed by this
Court in a recent decision in Dipti Prakash Banerjee v. Satvendra Nath Bose
National center for Basic Sciences. This decision fully covers the instant case as
well, particularly as in this case, the order Impugned is stigmatic on the face of
it."
7. In my opinion, the aforesaid paragraphs of V.P. Ahuja (supra)
cannot be read to mean that for termination of services of a probationary officer
by non-stigmatic orders principles of natural justice have to be followed. In the
facts in the case of V.P. Ahuja (supra) the order was taken as stigmatic because
the order specifically stated that the petitioner failed in performance of his duties
administratively and technically. This was taken to be stigmatic by the Supreme
Court and therefore consequently the Supreme Court observed for following the
principles of audi alteram partem.
8. I may state that the Supreme Court in the recent judgment in the
case of Muir Mills Unit of NTC (U.P.) Ltd. Vs. Swayam Prakash Srivastava
and Anr. (2007) 1 SCC 491 has held that even if the order of termination of a
probationary officer states that services of the probationary officer are not
satisfactory, yet, it will not make the order as a stigmatic order. The Supreme
Court in Muir Mills (supra) has also held that principles of audi alteram partem
need not be followed before removing the services of a probationer. The relevant
observations of the Supreme Court are in paras 44 and 45 and which read as
under:-
"44. Also in the case of Registrar, High Court of Gujarat and Anr. v. C.G.
Sharma it was observed that an employee who is on probation can be
terminated from services due to unsatisfactory work.
45. This Court's decision in the case of P.N. Verma v. Sanjay Gandhi PGI
of Medical Sciences can be referred to in this context, where it was held by this
Court that, the services of a probationer can be terminated at any time before
confirmation, provided that such termination is not stigmatic. This Court
in State of Madhya Pradesh v. Virendera Kumar Chourasiya also has held that
in the event of a non-stigmatic termination of the services of a probationer,
principles of audi alteram partem are not applicable."
5. Therefore, since the petitioner was only a temporary employee, and he
has been terminated by a non-stigmatic order, petitioner cannot have any grievance
of non-compliance of the principles of natural justice. Petitioner is bound by the
terms of the temporary employment. It was only after petitioner would have
become a permanent employee of the respondent no.1 that the issue of application
of principles of natural justice would have arisen. Petitioner not being a permanent
employee and only a contractual employee/temporary employee, whose services
can be terminated by one month's notice, and whose services have been terminated
accordingly, the petitioner cannot be granted any relief in the writ petition.
6. It was sought to be contended on behalf of the petitioner that against
the father of the petitioner there was an enquiry and he was exonerated in wrongly
getting the petitioner appointed, however that is not an issue in the writ petition
because the petitioner as stated above was only a temporary employee whose
services could have been terminated by giving a one month's notice and which has
been so done in the facts of the present case. The writ petition is accordingly
dismissed, leaving the parties to bear their own costs.
JULY 17, 2013 VALMIKI J. MEHTA, J.
ib
