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Judgment
Heard Shri A. Bimol, the learned counsel appearing for the appellants and Shri Kh. Tarunkumar, the learned counsel appearing for the respondent.
The instant writ appeal is directed against the judgment and order dated 18102016 passed by the learned single Judge by which the order dated 07092013 issued by the appellants was set aside and the respondent herein was directed to be reinstated with half salary from the date of termination till the date of his reinstatement.
1 The facts which are relevant for deciding the writ appeal, are that the respondent herein was initially engaged as Block Health Programme Manager under the PartB of National Rural Health Mission on contract basis which came to be extended from time to time. While he was working in that capacity, the respondent along with four others were appointed as Medical Social Worker vide order dated 08092011 issued by the Director, JNIMS on the recommendation of a Selection Board and accordingly, the respondent along with four others were placed on probation for a period of two years with effect from the date of their joining. 3.2. The respondent was arrested by the police, Nungba P.S. in connection with a case under FIR No. 28 (1) 2013 NBA P.S. u/S. 364A/ 400, IPC & 25 (1C) A and since he was kept in police custody for more than 48 hours, the Director, JNIMS issued an order dated 31072013 placing him under suspension w.e.f. 26072013 in contemplation of a departmental proceeding under Rule 10(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. At about the same time, the Mission Director, District Health Mission Society, Tamenglong submitted a report to the O.C., Tamenglong Police Station informing that the respondent was found to be working as the Block Programme Manager of PHC, Haochong in contravention of the rules, even though he had reportedly started working in JNIMS as Medical Social Worker. On 06092013, a similar complaint also came to be made by the Director, JNIMS against the respondent to the O.C., Porompat Police Station and on the basis of the said reports/complaint, two cases under FIRs'' " (i) FIR No. 13(9)2013 TML P.S. u/S. 409/417/420, IPC; and (ii) FIR No. 275(9)2013 PRT P.S. u/S. 406/420, IPC were registered against him. However, the respondent was discharged from the said cases by the learned CJM on the ground that the offences alleged to have been committed by the respondent, were purely civil in nature without any criminal liability. But the earlier case registered vide FIR No. 28(1)2013 NBA P.S. u/S. 364A/ 400, IPC & 25(IC) A is still pending for disposal.
3.3 A Committee was constituted for assessing the performance of the probationers in JNIMS including the respondent and the Committee having found that the service of the respondent was unsatisfactory, recommended termination of his service. On receipt of the recommendation submitted by the Committee and after having considered the matter in detail and followed the due process, the Director, JNIMS, in exercise of power conferred under Rule 52 of the Rules and Regulation of JNIMS, issued the order dated 07092013 terminating the service of the respondent with immediate effect. The said order dated 07092013 came to be challenged by the respondent by way of a writ petition being W.P. (C) No. 251 of 2016 on the inter alia grounds that the said two cases registered under FIR No. 13(9)2013 TML P.S. u/S. 409/417/420, IPC & FIR No. 275(9) 2013 PRT P.S. u/S. 406/420, IPC had been closed vide an order dated 27022015 passed by the Ld. CJM, Tamenglong; that if the registration of the aforesaid cases against the respondent was not the reason for termination of his service, the authorities ought to have informed him of any shortcoming or unsatisfactory service on his part and that since the termination of the respondent- s service having been made without giving any notice or informing him about the unsatisfactory service rendered by him, the same was badinlaw in terms of the decision of the Hon- ble Supreme Court in Dr. Mrs. Sumati P. Shere v. Union of India & Ors., reported in (1989) 3 SCC 311 : (AIR 1989 SC 1431) and Pradip Kumar v. Union of India & Ors., reported in (2012) 13 SCC 182 : (2013 AIR SCW 294). The said writ petition was contested by the appellants herein contending inter alia that the respondent was terminated from service due to his unsatisfactory service, rendered by him during the period of probation, in exercise of power conferred under Rule 52 of the Rules and Regulations of JNIMS and the termination being simpliciter and not punitive in nature, it did cast no stigma to the respondent and therefore, the same is permissible in law.
After having heard the learned counsels appearing for the parties, the learned single Judge vide its judgment and order dated 18102016 held that the termination was due to certain shortcomings in the service rendered by the respondent on the basis of the recommendation of the Committee and it was stigmatic in nature. The learned single Judge further held that before the termination order was issued, the respondent was not given any notice or prior information of the recommendation of the Committee and therefore, the termination order was not sustainable in law in view of principle laid down by the Hon- ble Supreme Court in Dr. Mrs. Sumati P. Shere (AIR 1989 SC 1431) (supra) and accordingly, the termination order was set aside.
Being aggrieved by the impugned judgment and order dated 18102016 passed by the Learned single Judge, the appellants preferred the present writ appeal on the inter alia grounds that Rule 52 of the Rules and Regulations of JNIMS provides that unless otherwise specified in the recruitment rules, all employees will be on probation for two years. During the probation the employees shall be required to render satisfactory service failing which his/her service shall be liable to be terminated at the time without any notice or reason being assigned for the same. Since the service rendered by the respondent was found to be unsatisfactory, his service was terminated in exercise of power conferred under the said Rule 52 thereby no illegality was committed by the appellants. The termination of the respondent- s service on the ground of unsatisfactory service in terms of the said rule cannot be termed as stigmatic and holding of an enquiry to assess the performance of the respondent without informing him or giving him notice thereof, also cannot be held to be illegal or punitive.
The short question that arises for consideration by this Court is as to whether the learned single Judge is justified in holding that the termination order is stigmatic and setting aside the same in terms of the principle laid down by the Hon- ble Supreme Court in Dr. Mrs. Sumati P. Shere v. Union of India & Ors., reported in (1989) 3 SCC 311 : (AIR 1989 SC 1431). Shri A. Bimol, the learned counsel appearing for the appellants has submitted that the decisions of the Hon- ble Supreme Court relied upon the learned counsel appearing for the respondent, are not applicable to the facts of the present case. According to him, there are other decisions which would apply to the facts of the present case and in support of his contention, he has relied upon the decision rendered by the Hon- ble Supreme Court in Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences & Anr., reported in (2002) 1 SCC 520 : (AIR 2002 SC 23) wherein the appellant was temporarily appointed on 10041996 to the post of Joint Director (Material Management) and his period of probation was extended from time to time. On 06021998, his service was terminated in terms of Clauses 3 and 4 of the letter of appointment and the termination order was questioned by him by way of a writ petition on the ground that the same was punitive and it cast a stigma on him and was founded upon the allegations of misconduct against him. The Hon- ble High Court dismissed the writ petition. The Hon- ble Supreme Court, dismissing the appeal, held:'' " '' 31. Returning now to the facts of the case before us. The language used in the order of termination is that the appellant- s '' work and conduct has not been found to be satisfactory'' . These words are almost exactly those which have been quoted in Dipti Prakash Banerjee (AIR 1999 SC 983) case as clearly falling within the class of nonstigmatic orders of termination. It is, therefore safe to conclude that the impugned order is not ex facie stigmatic. 32. We are also not prepared to hold that the enquiry held prior to the order of termination turned this otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A chargesheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. None of the three factors catalogued above for holding that the termination was in substance punitive exists here.'' Further he has placed reliance in Rajesh Kohli v. High Court of Jammu & Kashmir & Anr., reported in (2010) 12 SCC 783 : (2010 AIR SCW 6877, paras 18 and 19) wherein the petitioner who was working as the probationary judicial officer, filed the writ petition under Article 32 of the Constitution of India challenging the administrative order of the Hon- ble High Court of Jammu & Kashmir recommending the termination of his service and the order issued by the State of Jammu and Kashmir on such recommendation dispensing with the service of the petitioner as a District & Sessions Judge. The main ground on which the aforesaid orders were challenged by the petitioner was that the said orders were stigmatic. The Hon- ble Supreme Court held:'' " '' 22. In our considered opinion, none of the aforesaid two orders could be said to be a stigmatic order as no stigma is attached. Of course, the aforesaid letters were issued in view of the resolution of the Full Court meeting where the Full Court of the High Court held that the service of the petitioner is unsatisfactory. Whether or not the probation period could be or should be extended or his service should be confirmed is required to be considered by the Full Court of the High Court and while doing so necessarily the service records of the petitioner are required to be considered and if from the service records it is disclosed that the service of the petitioner is not satisfactory it is open for the respondents to record such satisfaction regarding his unsatisfactory service and even mentioning the same in the order would not amount to casting any aspersion on the petitioner nor could it be said that stating in the order that his service is unsatisfactory amounts to a stigmatic order. 23. This position is no longer res integra and it is well settled that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences (AIR 2002 SC 23) this 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 and in such circumstances the question of having to comply with the principles of natural justice does not arise.'' On the other hand, Shri Kh. Tarunkumar, the learned counsel appearing for the respondent reiterated his arguments advanced before the Learned single Judge and in support of his contention, he has relied upon the decision of the Hon- ble Supreme Court rendered in Dr. Mrs. Sumati P. Shere v. Union of India & Ors., reported in (1989) 3 SCC 311 : (AIR 1989 SC 1431) wherein the appellant was appointed as Assistant Surgeon, Grade'' "I in the Naval Headquarters on ad hoc basis for a period of six months or till a regular candidate became available whichever was earlier and she was continued in service by giving her successive extensions from time to time. But by a letter dated 12011985, the Headquarter Office of the Western Naval Command informed her that her services would stand terminated w.e.f. 15021985. Being aggrieved by it, she moved the Hon- ble High Court of Bombay with a writ petition which stood transferred to the Bombay Bench of the Central Administrative Tribunal which held that the removal was not by way of penalty. On an appeal being preferred against it by the appellant, the Hon- ble Supreme Court held:'' " '' 4. In this appeal, counsel for the appellant raised several contentions. We do not consider it necessary to advert to all those contentions except the one which according to us is sufficient to allow this appeal. It is not disputed that the appellant upon interview was appointed on ad hoc basis against a substantive vacancy. From time to time, the orders were made by continuing her services. She has also earned increments in the pay scale admissible to the post. It is not the case of the respondents that a regular candidate selected by the Public Service Commission has been posted in her place. Therefore, in the normal case, she would have continued till a select candidate replaced her. The respondents, however, have taken the stand that they were not satisfied with the performance of the appellant. But it appears that at no time she was informed about her deficiencies. The order of termination came like a thunderbolt from the blue. 5. We must emphasise that in the relationship of master and servant there is a moral obligation to act fairly. An informal, if not formal, giveandtake, on the assessment of work of the employee should be there. The employee should be made aware of the defect in his work and deficiency in his performance. Defects or deficiencies; indifference or indiscretion may be with the employee by inadvertence and not by incapacity to work. Timely communication of the assessment of work in such cases may put the employee on the right track. Without any such communication, in our opinion, it would be arbitrary to give a movement order to the employee on the ground of unsuitability.'' He has placed reliance in Union of India & Ors. v. Mahaveer C. Singhvi, reported in (2010) 8 SCC 220 : (AIR 2010 SC 3493, para 28) wherein the respondent who was appointed to IFS on 21091999 was deployed to East Asia Division of Ministry of External Affairs. In confirmation of the allocation of Spanish to him, the respondent was posted in Madrid Spain but for his language training, he was directed to proceed to Valladolid, which was a great distance from Madrid. On account of sudden deterioration of the health condition of his parents, the respondent sought permission to join the language course at a later date which was granted. The respondent intended to join the course in July/August, 2002 but was served with order of discharge dated 13062002. The Hon- ble Supreme Court held:'' " '' 42. From the facts as disclosed and the submissions made on behalf of the respective parties, there is little doubt in our minds that the Order dated 1362002, by which the respondent was discharged from service, was punitive in character and had been motivated by considerations which are not reflected in the said order.'' He has further placed reliance in Pradip Kumar v. Union of India & Ors., reported in (2012) 13 SCC 182 : (2013 AIR SCW 294) wherein the respondent was a practising advocate mainly dealing with customs, excise and service tax matter. On 22042006, he appeared for an interview before the Selection Committee for the post of Member (Judicial) in CESTAT and on his being selected, he assumed charge as Member (Judicial) in CESTAT on 22112006. During the period of his service, he was given the annual increments in the years 20072008 but to his utter shock and dismay, he received the order dated 19112009 which extended his period of probation; first up to 21112008 and further up to 21112009. In the meantime, on 14092009 the respondent received a note from the President of the CESTAT annexing therewith a copy of the complaint from the members of the Bar about an incident which was alleged to have occurred in the respondent- s Court on 09092009. The President, CESTAT prepared a report on 18112009 regarding the said incident. The respondent was discharged from service from the post of Member (Judicial), CESTAT vide order dated 20112009 which was challenged by him by way of an application before the CAT on the ground that his service was terminated as a direct consequence of the complaint made by the representatives of the Bar and the report of the President, CESTAT but it was dismissed. The respondent being aggrieved challenged it before the High Court by way a writ petition which was allowed by the High Court. The Hon- ble Supreme Court, dismissing the appeal preferred by the Union of India, held that in our opinion, the controversy herein is squarely covered by a number of earlier judgments of this Court which has been considered and affirmed in Union of India & Ors. v. Mahaveer C. Singhvi, reported in (2010) 8 SCC 220 : (AIR 2010 SC 3493, para 9). The Hon- ble Supreme Court held:- '' 17. The respondent challenged the judgment and order of the Tribunal dated 492003, dismissing his OA No. 2038 of 2002, before the Delhi High Court in WP (C) No. 8091 of 2003. It was emphasised on his behalf that his discharge from service was not a discharge simpliciter, but the decision taken in that behalf was the result of an enquiry conducted behind his back in relation to a complaint alleged to have been made by Mrs. Narinder Kaur Chadha regarding threatening, abusive and sexually explicit remarks allegedly made by the respondent to her daughter. It was submitted that the same would be evident from the pleadings made on behalf of the petitioners which would unequivocally constitute an admission on the part of the petitioners that the Order of discharge dated 1362002 discharging the respondent from his duties was passed because of the respondent- s alleged misconduct which was the very foundation of the said order.''
There can be no any dispute between the learned counsels appearing for the parties that on the issue relating to the termination of a probationer, there are numerous decisions rendered by the Hon - ble Supreme Court wherein the principle applicable to all cases arising out of such termination of a probationer, appears to have not been finally settled by the Hon- ble Supreme Court and this is evident from the observations made by the Hon- ble Supreme Court in some cases. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences & Anr. (AIR 2002 SC 23) (supra), the Hon- ble Supreme Court observed as under:'' " '' 19. Thus some courts have upheld an order of termination of a probationer- s services on the ground that the enquiry held prior to the termination was preliminary and yet other courts have struck down as illegal a similarly worded termination order because an inquiry had been held. 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.'' Similarly, the Hon- ble Supreme Court in Union of India & Ors. v. Mahaveer C. Singhvi (AIR 2010 SC 3493) (supra), observed as under:'' " '' 2. Although the aforesaid order appears to be an innocuous order of discharge simpliciter of a probationer, the same has given rise to a question of law relating to service jurisprudence which has been considered over and over again for the last five decades. However, even though the principles laid down by this Court in the various cases have been uniformly followed, there have been individual cases which have thrown up new but related issues which have been considered on their own merits.''
From the above observations of the Hon- ble Supreme Court, it is clear that the principles have been laid down by the Hon- ble Supreme Court in various cases, some of which are followed in some subsequent cases and others are followed in other cases, may be, for the reason that some of the earlier decisions are not referred to at all in the subsequent decisions. To name one, the principle laid down in Dr. Mrs. Sumati P. Shere v. Union of India (AIR 1989 SC 1431) (supra) is not referred to in Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences & Anr. (AIR 2002 SC 23) (supra). These two principles do not sail in the same boat for the reason that in Dr. Mrs. Sumati P. Shere case, it has been held that if the service of an employee is to be terminated on the ground of unsatisfactory service, an opportunity should be provided to improve his service prior to the issuance of the termination order and in Pavanarendra Narayan Verma case, the Hon- ble Supreme Court was not prepared to hold that enquiry held prior to the order of termination turned the otherwise innocuous order into one of punishment. The Hon- ble Supreme Court has added that although strictly speaking, 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. 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. But in Rajesh Kohli v. High Court of Jammu & Kashmir & Anr., reported in (2010) 12 SCC 783 : (2010 AIR SCW 6877), the Hon- ble Supreme Court has held that if from the service records it is disclosed that the service of the petitioner is not satisfactory, it is open for the respondents to record such satisfaction regarding his unsatisfactory service and even mentioning the same in the order would not amount to casting any aspersion on the petitioner nor could it be said that stating in the order that his service is unsatisfactory amounts to a stigmatic order. The Hon- ble Supreme Court has further held that this position is no longer res integra and it is well settled that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences, this 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 and in such circumstances, the question of having to comply with the principles of natural justice does not arise. Although the principles have been laid down in various cases, one thing common in all the decisions is that an employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose, to satisfy itself as to the truth of any allegation that may have been made about the employee. Moreover, the Hon- ble Supreme Court in Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences & Anr. (supra), after referring to the earlier decisions namely Parshotam Lal Dhingra v. Union of India, reported in AIR 1958 SC 36, considered to be the Magna Carta of the Indian Civil Servant; Benjamin (AG) v. Union of India, reported in (1967) 1 LLJ 718 (SC), has emphasised the judicially evolved test to determine whether in substance an order of termination is punitive is to see whether prior to the termination, there was (a) a fullscale formal enquiry; (b) into allegations involving moral turpitude or misconduct which; (c) culminated in a finding of guilt. If all three factors are present, the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld. Therefore, we are of the view that any issue arising out of a termination order of a probationer will have to be decided on the facts of each case keeping in mind the various principles laid down by the Hon- ble Supreme Court referred to hereinabove and it will have to be examined as to which principle would apply to the facts of the case by applying the aforesaid test.
In the present case, after the respondent having been appointed as a Medical Social Worker, he was placed on probation for two years along with other incumbents. While on probation, three cases were registered against him but he had been discharged from two cases and one is still pending for disposal. It is the specific stand of the appellants that the registration of the said cases was not the foundation of his termination. For purposes of confirmation in their services, the performances of all the probationers including the respondent were required to be examined and assessed by the appellants, for which a Committee was constituted, in terms of the said Rule 52. It may be noted that the performance of the respondent was required to be assessed, whether the said cases are registered against him or not. The Committee found that the service rendered by the respondent during probation was not satisfactory and accordingly, on its recommendation, he was terminated from service on the ground of unsatisfactory service. By applying the test as aforesaid, it is found that all the factors are not present and therefore, we are of the view that the termination order is not stigmatic nor is it punitive with penal consequences and will not amount to casting any aspersion on him. It is a termination simpliciter. The principles have been laid down by the Hon- ble Supreme Court in a catena of decisions which the Hon- ble Supreme Court in Rajesh Kohli v. High Court of Jammu & Kashmir & Anr. (2010 AIR SCW 6877) (supra) held that this position is no longer res integra. But the principle laid down by the Hon- ble Supreme Court in Dr. Mrs. Sumati P. Shere (supra) which is referred to and relied upon in Pradip Kumar v. Union of India, reported in (2012) 13 SCC 182 : (2013 AIR SCW 294) will not apply to the facts of the present case and moreover, it cannot be said to have overruled the principles laid down by the Hon- ble Supreme Court in Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences & Anr. (AIR 2002 SC 23) (supra) and many others. It appears that while deciding the writ petition by the learned single Judge, the legal position which is no longer reintegra, has not been brought to the notice of the learned single Judge. Moreover, the termination order was admittedly issued in exercise of power conferred under Rule 52 and in the absence of the validity and correctness of the said Rules and Regulations of the JNIMS being challenged by the respondent, the action taken pursuant thereto cannot be said to be erroneous. Therefore, we find no infirmity in the termination order.
For the reasons stated hereinabove, the writ appeal is allowed and consequently, the impugned judgment and order dated 18102016 passed by the learned single Judge is set aside with no order as to costs. Appeal allowed.