Alok Kumar vs Pawan Hans Ltd. And Anr.
2015 Latest Caselaw 955 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 5049/2014

%                                                    3rd February, 2015

ALOK KUMAR                                          ..... Petitioner
                          Through:       Mr. Anurag Kishore, Advocate with
                                         Ms. Manisha Aggrawal, Advocate.


                          Versus

PAWAN HANS LTD. AND ANR.                                   ..... Respondents

                 Through:                Mr. S.K. Taneja, Senior Advocate
                                         with Mr. Puneet Taneja, Advocate for
                                         respondent No.1.
                                         Mr. Vikram Jetly, CGSC for
                                         respondent No.2.


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This writ petition under Articles 226 and 227 of the

Constitution of India is filed by the petitioner; who was appointed as a

General Manager (Operations) with the respondent no.1/company/Pawan

Hans Ltd; impugning the letter dated 16.7.2014 of the respondent no.1

terminating the probationary services of the petitioner.

2. The facts of the case are that the petitioner originally was

working in the Indian Air Force and he thereafter sought employment with

the respondent no.1. Petitioner states that respondent no.1 had requested the

Indian Air Force for suggesting name of candidates for filling up the

vacancies of General Manager (Operations) on immediate absorption basis.

Petitioner was informed by the respondent no.1's letter dated 5.8.2011

offering him the post in question and stating that since the post is on

immediate absorption basis, the petitioner will have to seek separation of his

services from Indian Air Force prior to joining the respondent no.1.

Petitioner left the services of Indian Air Force and joined the respondent

no.1 in terms of the appointment letter dated 2.8.2011. The relevant portion

of this appointment letter reads as under:-

"PHHL/CO/PERS/1499/I/ 02.08.2011 Air Cmde A Kumar (16988) F(P) H Command Flying Training Officer Head Quarter Training Command, IAF JC Nagar Post, Bangalore-560006

Sub: Offer of appointment to the post of General Manager (Operations)

Sir,

This has reference to IAF letter No.AIR HQ/22028/P Hans/PO- 2(A) dated 15 July 2011 sponsoring your candidature and further to interview held for the above post on 29th July 2011.

Pawan Hans Helicopters Limited is pleased to offer you appointment to the post of General Manager (Operations) on immediate

absorption basis on the terms and conditions detailed below:-

     A) (i)    PAY SCALE AND ALLOWANES
               Scale of Pay     : Rs.51300-73000 (E-7)
               Basic Pay        : Rs.51300.00 per month
               V.D.A.           : Rs.24213.60 (47.2% of Basic Pay)
               Other Allowances : As per rules of PHHL.

        (ii)   PLACE OF POSTING

You will be under the administrative control of Chairman & Managing Director, Pawan Hans Helicopters Limited, Corporate Office, C-14, Sector-1, NOIDA-201301 (UP).

B) PROBATION/CONFIRMATION

You will be on probation for a period of one year from the date of joining. During the probation period, your services are liable to be terminated without any notice. On satisfactory completion of the probation period, which shall not be deemed to have been completed unless you are informed of it in writing, the Company can terminate your services at any time by giving three months notice or salary in lieu thereof. In case of resignation, you will be required to give six months notice.

     xxxx             xxxx                      xxxx                xxxx

                                               Yours faithfully

                                                    Sd/-
                                              (R.B. Kushwaha)
                                  Dy. General Manager (P&HRD)"

3. Petitioner claims that respondent no.1 wrongly gave the

petitioner only probationary services and in fact it is contended that the letter

of the appointment dated 2.8.2011 contains conflicting clauses because on

the one hand petitioner is appointed on immediate absorption basis whereas

the selfsame letter states that the petitioner is on probation. It is also argued

that the petitioner is deemed to be confirmed on completion of two years

period of probation i.e one year plus extension of one year on the ground

that this is so provided by Recruitment Rule 9.1.4 which states that the

probation period will only be of one year but which probationary period will

not be extended by more than one year for exceptional reasons to be

recorded in writing. It is argued that no exceptional reasons have been

recorded in writing, and much less communicated to the petitioner, and

therefore the petitioner should be taken as a confirmed employee of the

respondent no.1. Finally, it is contended that the impugned order dated

16.7.2014 terminating the services of the petitioner is stigmatic in nature and

therefore the same is illegal because it has been passed without following the

principles of natural justice.

4. Respondent no.1 on the other hand pleads that petitioner was

never a confirmed employee but was serving a probationary period and since

the petitioner's services were not found to be suitable, these services were

terminated for the reasons which have been given in the termination letter

dated 16.7.2014. It is argued on behalf of the respondent no.1 that in terms

of the relevant Recruitment Rules 9.1.5 and 9.1.6, there is no automatic or

deemed confirmation because these rules specifically state that there is no

automatic confirmation and that an employee will be deemed to be on

probation unless confirmed in writing. It is also argued that the impugned

order of termination of services dated 16.7.2014 is not stigmatic in nature

because it only gives reasons for termination of probationary services, and

once reasons which are germane for the termination of probationary services

are given, it cannot be said that the impugned order of termination of

services is stigmatic.

5(i) The first argument which is urged on behalf of the petitioner

that petitioner is deemed to have been a confirmed employee from the very

inception in view of the appointment letter using the term on immediate

absorption basis, and which expression is found in the letter of the

respondent no.1 dated 5.8.2011 addressed to the petitioner, is an argument

without basis because of two reasons. Firstly and admittedly the

appointment letter dated 2.8.2011 specifically in para B mentions that the

appointment of the petitioner is on probation basis. If the petitioner was not

comfortable with this clause of probationary services, then, he should not

have joined the services of the respondent no.1 pursuant to the letter of

appointment dated 2.8.2011. Petitioner after having taken benefit of the

letter dated 2.8.2011 now cannot turn around to question the specific terms

in the appointment letter stating that the services of the petitioner are

initially on probation.

(ii) Also, I do not find that the petitioner is justified in arguing that

the expression 'on immediate absorption basis' as used in the appointment

letter dated 2.8.2011, and the letter of the respondent no.1 dated 5.8.2011,

should be read as giving permanent employment, because, the expression

used in these letters of the respondent no.1 are on immediate absorption

basis i.e immediate employment and not immediate permanent employment

by permanent employment in the post. Further, there has to be a harmonious

construction of the various terms contained in the appointment letter dated

2.8.2011, and if the argument urged on behalf of the petitioner is accepted,

the same will amount to wiping away para B which specifically talks of the

petitioner being appointed on probation. Therefore the petitioner cannot, at

this stage, seek to nullify para B which talks of the appointment of the

petitioner on probation allegedly on account of the appointment letter using

the expression 'on immediate absorption basis'.

(iii) The first argument urged on behalf of the petitioner is therefore

rejected.

6. To appreciate the second argument urged on behalf of the

petitioner that whether the petitioner is deemed to be confirmed after the

completion of the initial period of probation with further extension of one

year, the relevant rules will have to be referred to, and which Rules 9.1.1,

9.1.4, 9.1.5 and 9.1.6 read as under:

"9.1.1 All employees first appointment in the service of the Company including employees appointed to a higher grade on the basis of an open selection shall be placed on probation for a period of one year during which period their performance will be watched with a view to determining their suitability for confirmation against the regular post.

xxxxx

9.1.4 The period of probation may be extended at the discretion of the Competent authority, but will not be extended by more than one year for exceptional reasons to be recorded in writing.

9.1.5 Unless exempted under these rules, every employee appointed in the Company's service will be issued a formal order of confirmation on satisfactory completion of probationary period of the extended period of probation may be applicable the employee will be deemed to be on probation until so confirmed in writing.

9.1.6 An order relating to confirmation of extension of probation will normally be communicated within one month from the date of completion or the probationary period or extended period of probation, non-compliance of this stipulation will not, however, result in automatic confirmation of the employee." (underlining added)

7. On behalf of the petitioner, reliance is placed upon Rule 9.1.4

alongwith the judgment of the Supreme Court in the case of Rajinder Singh

Chauhan and Ors. Vs. State of Haryana and Ors. (2005) 13 SCC 179

whereas on behalf of respondent no.1 reliance is placed upon Rules 9.1.5

and 9.1.6 which require a specific order to be passed for confirmation of

services of a probationary employee and that there is no automatic

confirmation and the judgment of the Supreme Court in the case of Head

Master, Lawrence School, Lovedale Vs. Jayanthi Raghu and Anr. (2012) 4

SCC 793.

8(i). In my opinion, the arguments urged on behalf of the petitioner

do not merit acceptance because no doubt it is written that the maximum

period of probation will be two years in terms of Rule 9.1.4, however the

categorical language of Rules 9.1.5 and 9.1.6 leave no manner of doubt that

there is no automatic confirmation of services of a probationary employee

and in fact the employee is deemed to be on probation unless it is confirmed

in writing that the probationary services have come to an end and the

employee has been confirmed. Merely because there is no specific order

passed by the respondent no.1 of exceptional reasons which have to exist in

terms of Rule 9.1.4, cannot in law make any difference, because, Rule 9.1.4

does not provide the consequence that if the exceptional reasons are not

recorded in writing, then, the probationary employee is deemed to be

confirmed in services, and in fact on the contrary Rules 9.1.5 and 9.1.6

specifically talk of there not being an automatic confirmation in services of a

probationary employee merely because of completion of the probationary

term and these rules require a specific confirmation in writing of end of the

period of probation and of confirmation in services. Therefore, the argument

urged on behalf of the petitioner being deemed to be confirmed in services

by placing reliance upon the language of Rule 9.1.4 is misconceived.

(ii) Reliance placed on behalf of the petitioner on the judgment of

the Supreme Court in the case of Rajinder Singh Chauhan and Ors.

(supra) will not help the petitioner because in the facts in the said case of

Rajinder Singh Chauhan and Ors. (supra) it was found that the

probationary period could not exceed two years under any circumstances

whereas in the present case by virtue of Rule 9.1.4 it is not as if the

probationary services cannot extend beyond two years and all that is

required is that there exist exceptional reasons to be record in writing. This

aspect of probationary services of being of more than two years taken with

the fact that there is no specific rule existing of automatic confirmation

merely on account of there not being an order passed of existence of

exceptional circumstances, and further in view of the specific language of

Rules 9.1.5 and 9.1.6 which state that there is no automatic confirmation but

there has to be a specific confirmation order in writing for confirming the

services of the petitioner, the judgment in the case of Rajinder Singh

Chauhan and Ors. (supra) relied upon by the petitioner will not apply and

what will actually apply is the ratio of the recent judgment of the Supreme

Court in the case of Head Master, Lawrence School (supra) relied upon by

the respondent no.1 and the relevant paras of which judgment read as under:-

"25. It is apt to note here that the Learned Counsel for both the sides have heavily relied on the decision in High Court of M.P. v. Satya Narayan Jhavar:(2001) 7 SCC 161. In the said case, the three-Judge Bench was considering the effect and impact of Rule 24 of the Madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of Services) Rules, 1955.

26. It may be mentioned that the decision rendered in Dayaram Dayal v. State of M.P.:AIR 1997 SC 3269, which was also a case under Rule 24 of the said Rules, was referred to the larger Bench. In Dayaram Dayal (supra), it had been held that if no order for confirmation was passed within the maximum period of probation, the probationer judicial officer could be deemed to have been confirmed after expiry of four years' period of probation.

xxxxx

27. After referring to the decisions in Dharam Singh:AIR 1968 SC 1210, Sukhbans Singh:AIR 1962 SC 1711 and Shamsher Singh:(1974)2 SCC 831 and other authorities, the three-Judge Bench expressed thus: (Satya Narayan Jhavar case (supra), SCC p. 169, para 11)

"11. The question of deemed confirmation in service Jurisprudence, which is upon language of the relevant service rules, has been subject matter of consideration before this Court times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. Other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that officer concerned is deemed to have been confirmed upon expiry of the maximum period of

probation in case before its expiry order of termination has not been passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same require a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor the person concerned has passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired."(emphasis supplied)

28. After so stating, it was further clarified as follows: (Satya Narayan Jhavar case (supra), SCC p. 187, para 37)

"37. Ordinarily a deemed confirmation of a probationer arises when the letter of appointment so stipulates or the Rules governing service condition so indicate. In the absence of such term in the letter of appointment or in the relevant Rules, it can be inferred on the basis of the relevant Rules by implication, as was the case in Dharam Singh (supra). But it cannot be said that merely because a maximum period of probation has been provided in Service Rules, continuance of the probationer thereafter would ipso facto must be held to be a deemed confirmation which would certainly run contrary to Seven Judge Bench judgment of this Court in the case of Shamsher Singh (supra) and Constitution Bench decisions in the cases of Sukhbans Singh (supra), G.S. Ramaswamy:AIR 1966 SC 175 and Akbar Ali Khan:AIR 1966 SC 1842."

29. Regard being had to the aforesaid principles, the present Rule has to be scanned and interpreted. The submission of Mr. Viswanathan, learned senior Counsel for the appellant, is that the case at hand comes within the third category of cases as enumerated in para 11 of Satya Narayan Jhavar (supra). That apart, it is urged, the concept of deemed confirmation, ipso facto, would not get attracted as there is neither any restriction nor any prohibition in extending the period of probation. On the contrary, the words "if confirmed" require further action to be taken by the employer in the matter of confirmation.

30. On a perusal of Rule 4.9 of the Rules, it is absolutely plain that there is no prohibition as was the rule position in Dharam Singh (supra). Similarly, in Om Prakash Maurya:1986 Supp SCC 95, there was a restriction under the Regulations to extend the period of probation. That apart, in the rules under consideration, the said cases did not stipulate that

something else was required to be done by the employer and, therefore, it was held that the concept of deemed confirmation got attracted.

31. Having so observed, we are only required to analyse what the words "if confirmed" in their contextual use would convey. The Division Bench of the High Court has associated the said words with the entitlement of the age of superannuation. In our considered opinion, the interpretation placed by the High Court is unacceptable. The words have to be understood in the context they are used. Rule 4.9 has to be read as a whole to understand the purport and what the Rule conveys and means.

xxxxx

xxxxx

37. Bearing in mind the aforesaid conceptual meaning, when the language employed under Rule 4.9 is scrutinised, it can safely be concluded that the entitlement to continue till the age of superannuation i.e. 55 years, is not absolute. The power and right to remove is not obliterated. The status of confirmation has to be earned and conferred.

38. Had the rule making authority intended that there would be automatic confirmation, Rule 4.9 would have been couched in a different language. That being not so, the wider interpretation cannot be placed on the Rule to infer that the probationer gets the status of a deemed confirmed employee after expiry of three years of probationary period as - that would defeat the basic purpose and intent of the Rule which clearly postulates "if confirmed". A confirmation, as is demonstrable from the language employed in the Rule, does not occur with efflux of time. As it is hedged by a condition, an affirmative or positive act is the requisite by the employer. In our considered opinion, an order of confirmation is required to be passed.

39. The Division Bench has clearly flawed by associating the words "if confirmed" with the entitlement of the age of superannuation without appreciating that the use of the said words as a fundamental qualifier negatives deemed confirmation. Thus, the irresistible conclusion is that the present case would squarely fall in the last line of cases as has been enumerated in paragraph 11 of Satya Narayan Jhavar (supra) and, therefore, the principle of deemed confirmation is not attracted."

(underlining added)

(iii) The facts of the present case and the relevant rules in the

present case are similar to the facts and rules of the judgment in the case of

Head Master, Lawrence School (supra) and therefore the ratio of the same

squarely applies and it has to be held that there is no deemed or automatic

confirmation of the petitioner on completion of the probation period of one

year plus one year and therefore the argument of the petitioner deemed to

have been confirmed in services is rejected.

9. Let us now examine the argument that whether the impugned

order dated 16.7.2014 is an order which is stigmatic in nature. The

impugned order is preceded by the show cause notice dated 1.4.2014 which

reads as under:-

01.04.2014

"Air Cmde Alok Kumar General Manager (Ops) Pawan Hans Limited C- 14, Sector -1, NOIDA-201301 (UP) Show Cause

This has reference to the letter No. Pawan Hans/CO/PERS/1499-I dated 02.08.2011 vide which you were appointed as General Manager (Ops) and you were on Probation vide Clause (B) of the said letter.

Your Probation was extended till 31.03.2014 subject to review of your performance from time to time by the Competent Authority. While assessing your performance during the above period, the Competent Authority observed and recorded that the performance of the

Operation Department for which you are directly responsible has not been upto the desired level. There have been revenue losses attributable mainly due to improper rostering of Pilots, lack of your administrative control over the functioning of Operations Department.

During your tenure there has been series of disruption of flying and other act of indiscipline by the pilots as mentioned below :

(a) Dated 14.06.2012: There was stoppage of flying for about six hours resulting in financial loss of about 24.73 lacs.

(b) Dated 31.12.2012: A strike notice was received from the Pilots proposing to go on strike after 14 days w.e.f. 15.01.2013.

(c) Dated 03.09.2013: There was disruption of flying for about two hours resulting in financial loss to Rs. 3.59 lacs.

(d) Dated 16.10.2013: There was interruption of flying at Ghadchiroli.

(e) Dated 02.12.2013 and 03.12.2013: Besides disruption of flying, a strike notice was served by Pilots and also there was a financial loss of about 136 lacs.

(f) Dated 19.02.2014 disruption of flying for about two hours.

Besides, the financial loss to the company on account of AOG and LD thereon during the last financial year was about Rs. 4 crores to Rs.5 crores which is mainly due to the operational dislocation and inefficiency/indiscipline

The above incidents are indicative of your lack of Planning Coordination and Administrative control in the Operations Department which has caused not only the indiscipline and financial loss but also brought disrepute to the Company. Thus the Competent Authority found your performance to be below the desired level.

You are therefore hereby advised to explain within a period of 15 days of receipt of this letter to the CMD as to why you services should not be terminated under Clause-B of your terms and conditions of appointment dated 02.08.2011 and Clause No. 9.1.7 of Service Rule

of Pawan Hans as applicable to you, failing which it will be presumed that you have no explanation of offer action as deemed proper will be taken as per rules of the company without any further reference to you.

(By Order and in the name of the Chairman-cum-Managing Director)

Sd/-

(AC Poricha) Head (Personnel)"

10. The impugned order dated 16.7.2014 reads as under:-

        "Pawan Hans/CO/Pers/1487/5101               16.07.2014

        Air Cmde Alok Kumar
        General Manager (Operations)
        Pawan Hans Limited, Corporate Office
        C-14, Sector-1
        NOIDA-201301

This has reference to letter No.PHHL/CO/PERS-1499-1 dated 02.08.2011 vide which you were appointed as General Manager (Operations) on Probation vide Clause-B of the said letter and subsequent letter No.PHL/CO/PERS/1006/2888 dated 22.01.2014 vide which your probation period was extended till 31.03.2014.

After reviewing your performance during the probation period and extended period and your letter dated 25.03.2014, the Competent Authority found your performance not satisfactory and not up to the standard required for the post for which a Show Cause was issued to you vide letter No.PHL/CO/PERS/1006/2916 dated 01.04.2014. The Competent Authority after considering the reply submitted by you vide your letter No.PHL/OPS/CO/Per-141 dated 22.04.2014 and your performance during the above period has decided not to confirm your service in PHL. Therefore, under Clause No.9.1.7(a) PHL's Service Rule as applicable to you, a notice is hereby given to you that your services will stand terminated w.e.f. 16.08.2014.

(By order and in the name of the Chairman-cum-Managing Director) Sd/-

(Sanjiv Bahl) Executive Director"

11. I have had an occasion to examine the aspect of when can the

termination order of services be said to be stigmatic in the judgment in the

case of The Managing Committee of Shiksha Bharti Senior Secondary

Public School Vs. Director of Education and Anr. in W.P.(C)

No.10573/2009 decided on 3.9.2013 and the relevant paras of the said

judgment read as under:-

"4. Law with respect to termination of services of a probationer is now well-settled. Termination has to be by a non-stigmatic order.

However, it has been held that stating that the performance is not satisfactory or giving of facts in the termination order will not amount to the termination order being a stigmatic one. Also the principles of natural justice have not to be followed before termination of services of a probationer. If an enquiry is held and the enquiry report forms the foundation of termination of services of a probationer, only then, principles of natural justice are required to be followed, however, where the enquiry against a probationer is only for determining employee's suitability for continuing in service and the enquiry report only forms the motive for removal (as differentiated from a foundation for removal) then, a detailed enquiry in terms of the service rules is not necessary. In the recent judgment in the case of Muir Mills Unit of NTC (U.P.) Ltd. Vs. Swayam Prakash Srivastava & Anr. (2007) 1 SCC 491 Supreme Court has observed that even if the termination order states that services of a probationer has been terminated on account of the work being not satisfactory, the order cannot be said to be stigmatic. It is also held in this judgment that the principles of natural justice need not be followed for termination of

services of the probationer. Paras 44 to 46 of the said judgment are relevant and the same 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.

46 We are also of the view that the award of the Labour Court is perverse as it had directed grant of back wages without giving any finding on the gainful employment of respondent No.1 and held that the discontinuance of the services of a probationer was illegal without giving any finding to the effect that the disengagement of respondent No.1 was in any manner stigmatic. The decision in the case of MP State Electricity Board v. Jarina Bee (Smt) (supra), this Court held that payment of full back wages was not the natural consequence of setting aside an order of removal. In the instant case, though the termination was as far back as in 1983, the Industrial Adjudicator has not given any finding on unemployment. This Court in a recent case of State of Punjab v. Bhagwan Singh (2002)9SCC636 has held 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 the termination would be valid."

5. The Supreme Court in the judgment in the case of State of W.B. and Others Vs. Tapas Roy (2006) 6 SCC 453 has held that where the discharge order mentions other instances of unauthorized absence of the probationer and concluding that he was not interested in training and had no respect for discipline, then making of such remarks in the termination order cannot be said to make the

termination order a stigmatic one. Paras 4,5 7 and 8 of the judgment in the case of Tapas Roy (supra) read as under:-

"4. The High Court allowed the writ petition holding that Rule 10 of the Rules did not apply in the facts of the case. It was also of the view that the statement, quoted below; in the order of discharge casts a stigma on the respondent. Since no opportunity of hearing had been granted to the respondent, therefore, the order could not be sustained. The decision of the Tribunal was, accordingly, set aside and the appellants were given liberty to take appropriate action against the respondent on the same grounds in accordance with law.

5. The particular passage from the order of discharge which the High Court found to be stigmatic reads as follows:

"I am convinced that he is not likely to make an efficient constable and is unsuitable for the Police Department. His frequent unauthorised absence from training centre also indicates his lack of interest in training and his scant respect for discipline."

7. The order of discharge has, as we have already indicated, set out several instances of the respondent absenting himself unauthorisedly from the training centre. These facts have been relied upon for the purpose of concluding that the respondent was not interested in the training and had no respect for discipline. This conclusion was a ground for holding that the respondent was unsuitable for the Police Department.

8. The High Court was of the view that Rule 10 of the Rules did not apply to orders which were stigmatic. As has already been held by this Court in Pavanendra Narayan Verma v. Sanjay Gandhi Post Graduate Institute Medical Sciences 2002(92)FLR349(SC) that in order to constitute a stigmatic order necessitating a formal inquiry, it would have to be seen whether prior to the passing of the order, there was an inquiry into the allegations involving moral turpitude or misconduct so that the order of discharge was really a finding of guilt. If any of these three factors are absent, the order would not be

punitive. We have also held that a stigma in the wider sense of the word is implicit in every order of termination during probation. It is only when there is something more than imputing unsuitability for the post in question, that the order may be considered to be stigmatic. In our view, the language quoted earlier in the discharge order, cannot be said to be stigmatic as it neither alleges any moral turpitude or misconduct on the part of the respondent nor was there an inquiry as such preceding the order of discharge. The order has been passed strictly in terms of Rule 10 of the Rules. We are, accordingly, of the view that the appeal must be allowed. It is, accordingly, allowed and the impugned order is set aside."

(emphasis added)

6. Also, the Supreme Court in the judgment reported as Chaitanya Prakash and Anr. Vs. H. Omkarappa (2010) 2 SCC 623 has again held that there is no need for following the principles of natural justice while terminating the services of a probationer and even if the termination order refers to the unsatisfactory services of the probationer, the order is not stigmatic. Paras 18 and 21 of this judgment read as under:-

"18. It is no longer res integra that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. In this connection, we make a reference to the decision of the decision of the Supreme Court in Abhijit Gupta v. S.N.B. National Centre, Basic Sciences (supra), wherein also a similar letter was issued to the concerned employee intimating him that his performance was unsatisfactory and, therefore, he is not suitable for confirmation. We have considered the ratio in light of the facts of the said case and we are of the considered opinion that the basic facts of the said case are almost similar to the one in hand. There also, letters were issued to the concerned employee to improve his performance in the areas of his duties and that despite such communications the service was found to be unsatisfactory. In the result, a letter was issued to him pointing out that his service was found to be unsatisfactory and that he was not suitable for confirmation, and, therefore, his probation period was not extended and his service was terminated, which was challenged on the ground that the same

was stigmatic for alleged misconduct. The Supreme Court negatived the said contention and upheld the order of termination.

21. In Abhijit Gupta (Supra.), this Court considered as to what will be the real test to be applied in a situation where an employee is removed by an innocuous order of termination i.e whether he is discharged as unsuitable or he is punished for his misconduct. In order to answer the said question, the Court relied and referred to the decision of this Court in Allahabad Bank Officers Assn. v. Allahabad Bank (1996) 4 SCC 504; where it is stated thus:

"14. ...As pointed out in this judgment, expressions like "want of application", "lack of potential" and "found not dependable" when made in relation to the work of the employee would not be sufficient to attract the charge that they are stigmatic and intended to dismiss the employee from service."

7. In the case of Rajesh Kumar Srivastava Vs. State of Jharkhand and Ors. (2011) 4 SCC 447 Supreme Court has held that while taking a decision to terminate the services of the probationer, no notice is required to be given to the probationer nor is the probationer required to be given any opportunity of hearing. Para 10 of the said judgment reads as under:-

"10. The aforesaid decision to release him from service was taken by the Respondents considering his overall performance, conduct and suitability for the job. While taking a decision in this regard neither any notice is required to be given to the Appellant nor he is required to be given any opportunity of hearing. Strictly speaking, it is not a case of removal as sought to be made out by the Appellant, but was a case of simple discharge from service. It is, therefore, only a termination simpliciter and not removal from service on the grounds of indiscipline or misconduct. While adjudging his performance, conduct and overall suitability, his performance record as also the report from the higher authorities were called for and they were looked into before any decision was taken as to whether the officer concerned should be continued in service or not."

8. In the case of Abhijit Gupta Vs. S.N.B.National Centre, Basic Sciences & Ors. (2006) 4 SCC 469 Supreme Court has held that even when a termination order of a probationer referred to earlier letters which called the probationer a person of "perverted mind" and "dishonest, duffer having no capacity to learn" yet, the order would not be stigmatic one, and merely that if such an order was read by a prospective employer would prejudice the probationer's future employment, the same is not a correct test to determine the termination order as stigmatic. Paras 4,5,8,10,13, 15,16 and 17 are relevant which read as under:-

"4. On 20th November 1995 the appellant was served with a letter informing him that his performance during the probationary period was "far from satisfactory" and that it had been observed that he lacked drive, imagination and initiative 'in the performance of his duties'. He was informed that, despite being told time and again to improve performance in the said areas, but with no effect. He was advised to improve "in order to enable us to consider your case for confirmation favourably". He was issued several such letters drawing his attention to the fact that his services left much to be desired. His probationary service came to be extended from time to time, the last such extension being granted till 9 th April 1998. Finally, by the letter dated 7.4.1998 the petitioner was informed that his service was "unsatisfactory in the areas of drive, initiative, promptness and leadership" and that despite advised verbally and through letter, what were deficiencies in his work he had shown no improvement. His attendance, office work and attention to the academic work and the affairs of the guest house were also unsatisfactory. The first respondent, therefore, said "your performance, ability and capability during the period of probation has been examined and your service during the period of probation is found to be unsatisfactory and hence you are considered unsuitable for the post you have to. The governing body is of the view that your performance was unsatisfactory and you are not suitable for confirmation". For these reasons the appellant's probationary period was not extended on the expiration of his probation period on 9th April 1999.

5. The appellant challenged the order of termination of his service on the ground that it was a stigmatic termination by way of punishment for alleged misconducts. The learned single Judge of the High Court allowed the writ petition and quashed the order of termination and directed re-instatement of the appellant with full back- wages. The Division Bench of the High Court, however, allowed the letters patent appeal and held that the letter dated 7th April 1998 was not stigmatic and that it was a legitimate exercise of assessment of probationer's service by the employer, and, therefore, there was no scope for judicial interference therewith. In this view of the matter, the Division Bench allowed the appeal, set aside the judgment of the learned single Judge and dismissed the writ petition. Hence, this appeal.

8. Heavy reliance was placed on Dipti Prakash Banerjee v. Satyendra Nath Bose National center for Basic Sciences, Calcutta and Ors. [1999]1SCR532 ,where this Court held that the termination of service of the employee in similar circumstances amounted to misconduct. We may mention here that it is common ground that while the matter was pending before the learned single Judge, sometime in the year 2005, the appellant attained the age of superannuation. The learned Counsel for the appellant contended that in the letter dated 7.4.1998 there is reference to certain earlier letters in which the appellant had been called a person of "perverted mind" and "dishonest, duffer having no capacity to learn". A reading of all the letters referred to in the letter of 7.4.1998 would clearly make out a case of allegations of misconduct against the appellant, in the submission of the learned Counsel.

10. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. (2002)ILLJ690SC this Court considered what should be the best to determine whether a letter of termination of service was termination simpliciter or stigmatic termination. After referring to a number of authorities including the judgment in Parshotam Lal Dhingra v. Union of India (1958)ILLJ544SC and Dipti Prakash Banerjee (supra) the Court observed (vide para 19):

"Courts continue to struggle with semantically indistinguishable concepts like motive" and "foundation"; and terminations founded on a probationer's misconduct have been held to be illegal while terminations motivated by the probationer's misconduct have been upheld. The decisions are legion and it is an impossible task to find a clear path through the jungle of precedents."

13. In the case of the appellant before us, the record in uncertain terms makes it clear that every time the appellants attention was drawn to his deficiencies and he was repeatedly advised to improve his behavior, conduct and discharge of work. True, that in some of the letters there was intemperate language used (the appellant was also equally guilty of doing that). Notwithstanding the intemperate language, we are unable to accept the contention of the appellant's counsel that the letter dated 7.4.1998 indicates that the appellant was being charged with the misconduct and, therefore, being removed from service. Read as a whole, the letter gives the impression that the removal of the appellant from service was only because the respondents, after giving a long rope to the appellant, had come to the conclusion that the appellant's service was unsatisfactory and there was no hope of his improvement.

15. The learned Counsel for the appellant, however, strongly contends that the "stigma" cast on the employee may not be confined to his personal character but may also affect his capacity to work. The test, learned Counsel for the appellant submitted, is that, if what is stated in the order of termination is read by a future employer, it prejudices the future employment of the employee. In the face of the law laid down in the judgment just referred, we are unable to accept this as the correct test.

16. In Ravindra Kumar Misra v. U.P. State Handloom Corporation Ltd. and Anr.(1988)ILLJ73SC this Court pointed out that in a large corporation administration is bound to be impersonal and in regard to public officers assessment of service has got to be in writing for purposes of record, though it cannot be assumed that such an assessment recorded and the order of termination made

with reference to that record would automatically take a punitive character.

17. The High Court has carefully considered all the circumstances placed before it and arrived at the conclusion that the respondent's work was under observation during the probationary period and that he was given repeated opportunities to improve his performance for which purpose his probation was extended from time to time. The fact that the authority did not find him fit for confirmation was also brought to his notice several times and yet he was given opportunities of improving by extending his probationary service. The High Court has correctly found that the letter dated 7.4.1998 was not punitive in nature and stated, albeit in prolix fashion, that the service of the appellant were unsatisfactory. The High Court points out, and we agree, that detailed reference to all other correspondence was not necessary, but it did not reflect any malice or bias. Finally, as this Court pointed out in P.N. Verma's case (supra) "a termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, does not ipso facto become stigmatic"

(underlining added)

9. It is therefore clear that an honest assessment of the nature of service performed by an employee when so stated in the order of termination does not make the termination order stigmatic. The case of Abhijit Gupta (supra) is a stark example on the point that even if the termination order makes reference to earlier letters which call the employee of "perverted mind" and "dishonest, duffer having no capacity to learn" cannot make the termination order a stigmatic one. The Supreme Court has also observed that while taking a decision with respect to termination of services of a probationer no notice is necessary to be given to the probationer."

12(i). A reading of the aforesaid paras and the ratios of the Supreme

Court judgment which are stated therein shows that the reason given of

unsatisfactory performance in the termination of service letter cannot be said

to be stigmatic in nature. In fact, the observations of the Supreme Court in

the case of Tapas Roy (supra) referred to in the judgment in W.P.(C)

No.10573/2009 makes it abundantly clear that once the facts stated in the

termination are only the reasons and the conclusions for holding that the

employee was unsuitable for his services, then the order cannot be said to be

stigmatic because only if the order imputes something more than

unsuitability for the post in question only then the order would be considered

to be stigmatic.

(ii) A reference to the impugned order of termination of services

dated 16.7.2014 shows that the same only contains the reasons with respect

to unsuitability of the petitioner to the post in question and therefore the

impugned order cannot be said to be stigmatic in nature.

13. In view of the above, I do not find any merit in the petition and

the same is therefore dismissed. No costs.

FEBRUARY 03, 2015                                VALMIKI J. MEHTA, J
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