Punjab-Haryana High Court
Dr. Vijay Lakshmi Singh vs Union Of India & Others on 10 October, 2023
Neutral Citation No:=2023:PHHC:131712
CWP-14811-2018 -1- 2023:PHHC:131712
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
133 CWP-14811-2018
Date of Decision : 10.10.2023
Dr. Vijay Lakshmi Singh ......... Petitioner
Versus
Union of India and others ......... Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present : Mr.B.S.Khehar, Advocate
for the petitioner.
Mr.Vivek Singla, Advocate
for respondents No.2 and 3.
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JAGMOHAN BANSAL, J. (Oral)
1. The petitioner through instant petition under Article 226 of
Constitution of India is seeking setting aside of order dated 10.05.2018
(Annexure P-4) whereby services of the petitioner have been terminated.
2. The petitioner was offered post of Assistant Professor on
probation vide letter dated 31.03.2017 (Annexure P-1). The probation
period was 03 years, however, as per terms and conditions of appointment
letter, the respondent was supposed to yearly review performance of the
petitioner. The petitioner feeling aggrieved from the act and omissions of
the Professor Dheeraj Sharma, Director IIM, Rohtak filed complaint dated
25.03.2018 (Annexure P-2). The complaint was filed on 25.03.2018 and
she came to be terminated vide order dated 10.05.2018.
3. Learned counsel for the petitioner submits that as per appointment
letter, the respondent was supposed to yearly assess performance of the
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petitioner. The petitioner joined respondent organisation on 01.09.2017
and impugned order came to be passed on 10.05.2018 i.e. within less than
one year from the date of joining. It shows that respondent had passed
impugned order without assessing performance of the petitioner in terms of
appointment letter. The petitioner lodged complaint against Director and in
the said complaint, serious allegations were made. The Director was
pressurizing the petitioner to make statement against faculty colleague who
came to be terminated on 03.04.2018. The Director had threatened the
petitioner to spoil her carrier. The petitioner did not surrender, thus, she
came to be terminated vide order dated 10.05.2018.
4. Per contra, learned counsel for the respondents submits that
the petitioner was appointed on probation. The yearly assessment does not
mean that assessment should be framed on completion of one year whereas
assessment is made in the month of March-April of every year. A
candidate is required to complete at least 03 months period for the
assessment and petitioner had already completed 06 months by March-
April, 2018, thus, assessment of performance of the petitioner was made.
The petitioner was on probation and it is settled proposition of law that in
case of probationer, an employer is not required to follow procedure
prescribed by Article 311 of Constitution of India. The employer has
discretion to dispense with services of an employee if during probation
his/her conduct is not found satisfactory. With respect to complaint of the
petitioner, he submits that as per petition, there was allegation of sexual
harassment against the Director whereas there was no such averment in the
complaint dated 25.03.2018. In terms of guidelines issued by Hon'ble
Supreme Court in the case of Vishakha and others vs. State of
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Rajasthan, AIR 1997 SC 3011, a committee was constituted on the
complaint of the petitioner. The petitioner joined the proceedings and
committee prepared its report which was placed before the Faculty
Development & Evaluation Committee. In view of recommendation of
Faculty Development & Evaluation Committee, the petitioner was
terminated by Director.
5. In rebuttal, learned counsel for the petitioner submits that two
members of the Committee were probationers, thus, there was no
possibility of justice.
6. I have heard the argument of learned counsel for the parties
and perused the record.
7. From the perusal of record, it comes out that the petitioner was
appointed vide letter dated 31.07.2017 on probation. There was 03 years
probation period. The petitioner filed complaint against Director wherein
various allegations were made. The Committee was constituted to look
into the complaint of the petitioner. The petitioner joined the proceedings.
Before the Committee members, she more or less did not support
allegations except her allegation with respect to threatening by Director.
8. The Committee prepared its report and minutes of meeting
were recorded. As per minutes of meeting dated 25.03.2018, the
Committee found that allegations of the petitioner against the Director were
false and she made allegations with malafide intention. Member of Board
of Governors formed an opinion that appropriate action in consonance with
terms of appointment be taken against the petitioner. As per minutes of
meeting dated 10.05.2018 of Faculty Development & Evaluation
Committee, it was found that performance of the petitioner was not upto
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mark. The said Committee after discussion and deliberation unanimously
decided to recommend termination with immediate effect.
9. From the perusal of record, it comes out that complaint of the
petitioner was considered by a Committee consisting of different members.
The report of the Committee was considered in a meeting wherein one
member of the Board of Governors was also present. The Committee in its
meeting dated 25.03.2018 as well as Committee of Faculty Development &
Evaluation in its meeting dated 10.05.2018 formed an opinion that
petitioner be terminated with immediate effect. In view of opinion of two
Committees, the competent authority terminated the petitioner.
10. It is settled proposition of law that a probationer can be
terminated if the employer forms an opinion that services of the employee
are not as per satisfaction. There is no need to comply with procedure
prescribed by Article 311 of Constitution of India. This Court cannot sit
over decision of the different Committees as well as appointing authority.
The Court is not supposed to re-evaluate the evidence. The Court can
interfere if there is prima facie misuse of power or abuse of process of law.
11. A three-judge Bench of Hon'ble Supreme Court in Rajasthan
High Court vs. Ved Priya & Anr., 2020 (2) SCT 423 has held that an
employer is not required to follow procedure prescribed under Article 311
of Constitution of India with respect to termination of a probationer. It is
an employer who has to adjudge his suitability for continuation and
confirmation in service. The relevant extracts of the judgment read as :
16. It is thus clear that the entire objective of
probation is to provide the employer an opportunity to
evaluate the probationer's performance and test his
suitability for a particular post. Such an exercise is a
necessary part of the process of recruitment, and must
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not be treated lightly. Written tests and interviews are
only attempts to predict a candidate's possibility of
success at a particular job. The true test of suitability is
actual performance of duties which can only be applied
after the candidate joins and starts working.
17. Such an exercise undoubtedly is subjective,
therefore, Respondent 1's contention that confirmation
of probationers must be based only on objective
material is far-fetched. Although quantitative
parameters are ostensibly fair, but they by themselves
are imperfect indicators of future performance.
Qualitative assessment and a holistic analysis of non-
quantifiable factors are indeed necessary. Merely
because Respondent 1's ACRs were consistently marked
"Good", it cannot be a ground to bestow him with a
right to continue in service.
18. Furthermore, there is a subtle, yet fundamental,
difference between termination of a probationer and
that of a confirmed employee. Although it is undisputed
that the State cannot act arbitrarily in either case, yet
there has to be a difference in judicial approach
between the two. Whereas in the case of a confirmed
employee the scope of judicial interference would be
more expansive given the protection under Article 311
of the Constitution or the Service Rules but such may
not be true in the case of probationers who are denuded
of such protection(s) while working on trial basis.
19. Probationers have no indefeasible right to
continue in employment until confirmed, and they can
be relieved by the competent authority if found
unsuitable. It is only in a very limited category of cases
that such probationers can seek protection under the
principles of natural justice, say when they are
"removed" in a manner which prejudices their future
prospects in alternate fields or casts aspersions on their
character or violates their constitutional rights. In such
cases of "stigmatic" removal only that a reasonable
opportunity of hearing is sine qua non. Way back in
Parshotam Lal Dhingra v. Union of India [Parshotam
Lal Dhingra v. Union of India, AIR 1958 SC 36] , a
Constitution Bench opined that : (AIR p. 49, para 28)
"28. ... In short, if the termination of service is
founded on the right flowing from contract or the
service rules then, prima facie, the termination is
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not a punishment and carries with it no evil
consequences and so Article 311 is not attracted.
But even if the Government has, by contract or
under the rules, the right to terminate the
employment without going through the procedure
prescribed for inflicting the punishment of
dismissal or removal or reduction in rank, the
Government may, nevertheless, choose to punish
the servant and if the termination of service is
sought to be founded on misconduct, negligence,
inefficiency or other disqualification, then it is a
punishment and the requirements of Article 311
must be complied with."
12. In the case in hand, a committee consisting of different
members evaluated performance of the petitioner and thereafter formed an
opinion that she needs to be terminated. The respondent has not passed any
order which is stigmatic in nature. As the impugned order is not stigmatic
and from the perusal of record, it comes out that respondent has followed
proper procedure and thereafter1` formed an opinion that petitioner needs
to be terminated, this Court does not find any ground to interfere with
impugned order of termination.
13. In the wake of above facts and discussion, this Court finds
that the present petition deserves to be dismissed and accordingly
dismissed.
( JAGMOHAN BANSAL )
10.10.2023 JUDGE
anju
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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