9911796707
TMI Blog2001 (11) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsequently further extended for a period of three months w.e.f. 30th October 1997. On 6th February 1998, the impugned order of termination was issued. The language used in the order reads: During the period of our work (sic) and conduct was found satisfactory and therefore, your probation was extended for a period months (sic) w.e.f. the forenoon of 30.4.1997 vide office order PG/DIR/DC/479/97 dated 23.6.1997. Again vide office order No. 811 PG/DIR/DC dated 27th October 1997 your probation period was further extended for three months w.e.f. the forenoon of 30th October 1997. Even during thus (sic) extended period of probation your work and conduct has not been found to be satisfactory. and 4 of the above referred appointment letter, dated services are hereby terminated with immediate effect and for the period a cheque No. VR/00/5856 dated 5.2.1998 for ₹ 11.070 (Rupees eleven thousand seventy only) in lieu of on (sic) months notice is enclosed. According to the appellant, the order was punitive and cast a stigma on the appellant and could not be sustained without a full scale departmental inquiry. It has been argued that the termination order was founded upon allegation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... temporary employees , we have thought it best to refer to the facts of Dhingras case to understand what exactly was meant when the Court said: It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C.J. has said in Shrinivas Ganesh v. Union of India (N) (supra), wholly irrelevant. 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 not a punishment and carries with it no evil consequences and so art. 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 sough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia explained the decision of Parshotam Lal Dhingra (supra). It followed the two tests mentioned in Dhingras case viz. (1) Whether the temporary Government servant had a right to the post or the rank, or (2) Whether he has been visited with evil consequences. If punishment were restricted to evil consequences, the Courts task in deciding the nature of an order of termination would have been easier. Courts would only have to scan the termination order to see whether it ex-facie contains the stigma or refers to a document which stigmatises the officer, in which case the termination order would have to be set aside on the ground that it is punitive. In these cases the evil consequence must be assessed in relation to the blemish on the employees reputation so as to render him unfit for service elsewhere and not in relation to the post temporarily occupied by him. This perhaps is the underlying rationale of several of the decisions on the issue. In V.P. Ahuja V. State of Punjab and Others cited by the appellant, the Court construed the language of the order and found that it was ex-facie stigmatic. In Krishnadevaraya Education Trust Anr. v. L.A. Balakrishna , the first lette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Courts have upheld an order of termination of a probationers 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 probationers misconduct have been held to be illegal while terminations motivated by the probationers misconduct have been upheld. The decisions are legion and it is an impossible task to find a clear path through the jungle of precedents. As observed by Alagiriswamy, J. in S.P. Vasudeva V. State of Haryana and Others 1976 (1) SCC 236, at p. 240: After all no government servant, a probationer or temporary, will be discharged or reverted, arbitrarily, without any rhyme or reason. If the reason is to be fathomed in all cases of discharge or reversion, it will be difficult to distinguish as to which action is discharge or reversion simplicitor and which is by way of punishment. The whole position in law is rather confusing. One of the judicially evolved tests to determine whether in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artmental inquiry held to decide whether punitive action should be taken. In State of Uttar Pradesh and Another V. Kaushal Kishore Shukla , the employee had been appointed on a temporary basis for a fixed tenure. During the period of his service, adverse entries were made in his character roll. Complaints were also received by the auditors of the employer. A summary inquiry was held. It was found that the auditors complaint was correct. The employee was transferred to another post. He did not join and the employer terminated his services. This Court, while upholding the order of termination, said that the mere fact that prior to the issue of the termination an inquiry was held against the employee did not make the order of termination into one of punishment. In Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and Another a full scale inquiry was held into the allegations of bribery against a temporary employee. The Court set aside the termination because it found that the report submitted was not a preliminary inquiry report but it was in fact a final one which gave findings as to the guilt of the employee. In Dipti Prakash Banerjee V. Satyendra Nath Bose Nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the word unsatisfactory work and conduct in the termination order will not amount to a stigma. Returning now to the facts of the case before us. The language used in the order of termination is that the appellants work and conduct has not been found to be satisfactory. These words are almost exactly those which have been quoted in Dipti Prakash Banerjees case as clearly falling within the class of non-stigmatic orders of termination. It is, therefore safe to conclude that the impugned Order is not ex facie stigmatic. We are also not prepared to hold that the enquiry held prior to 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 charge sheet 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 termin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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