Important Point
When there is a reason for terminating the services during the probationary period and the order an innocuous manner, such an order has to be regarded as by way of punishment.

Headnote:Service Law - Dismissal from service probationer-Failure to return to duty on expiry of leave even after notice-Dismissal-Appellant still on probation at time of dismissal order High Court holding that order of dismissal cast stigma -Not sustainable-When there is reason for terminating services during probationary period and order terminating services is worded in an innocuous manner such an order cannot be regarded as by ways of punishment.
       Held : It is not in dispute that when the order dated 30th November, 1994 was passed, the respondent was still on probation. The reason for passing of the said order appears to be the absence of the respondent from duty. In the order of appointment, it was clearly stipulated that the respondent’s services could be terminated during the probationary period if the services were unsatisfactory. When judging the performance of a person if the services are terminated during the period of probation, obviously there has to be a reason for such termination. If the services are terminated during the probationary period without any reason whatsoever, it is possible that such an order may be impugned on the ground that it has been passed arbitrarily. On the other hand, when there is a reason for terminating the services during the probationary period for terminating services is worded in an innocuous manner, we do not see any force in the contention that such an order has to be regarded as by was of punishment. (Para 5)
       Impugned order dated 30th November, 1994 is only of one sentence which states that the respondent’s services were being Barkhast ‘dismissed’. The real word used there was ‘Barkhast’ and under the circumstances even the use of the word ‘dismissed’ cannot, in our opinion, be regarded as by way of punishment. (Para 6)

Order

Special leave granted.

2. The respondent was employed as an Assistant Manager on 6th October, 1993. She was put on probation for one year. It appears that leave was granted to her from 16th October, 1994 to 25th October, 1994. Thereafter, she did not join duty despite notices dated 7th November, 1994 and 23rd November, 1994.

3. Impugned order dated 30th November, 1994 was passed which reads as follows:

“Smt. Priyanka Joshi, Assistant Manager (Plant) is being Barkhast (dismiss) from the service of Sangh with effect from the afternoon today dated 30.11.94 under Gangmul Service Rules. 1992”

4. The respondent filed a writ petition contending that her services could not be terminated without following the procedure of holding an inquiry. The Single Judge dismissed the writ petition that the impugned order did not cast any stigma. The respondent then filed an appeal which was allowed by the High Court by holding that the perusal of the impugned order showed that it was an order of dismissal and did cast a stigma.

5. In our opinioin, the Division Bench of the High Court was not correct in the conclusion which it arrived at. It is not in dispute that when the order dated 30th November, 1994 was passed, the respondent was still on probation. The reason for passing of the said order appears to be the absence of the respondent from duty. In the order of appointment, it was clearly stipulated that the respondent’s services could be terminated during the probationary period if the services were unsatisfactory. When judging the performance of a person if the services are terminated during the period of probation, obviously there has to be a reason for such termination. If the services are terminated during the probationary period without any reason whatsoever, it is possible that such an order may be impugned on the ground that it has been passed arbitrarily. On the other hand, when there is a reason for terminating the services during the probationary period for terminating services is worded in an innocuous manner, we do not see any force in the contention that such an order has to be regarded as by was of punishment.

6. Impugned order dated 30th November, 1994 is only of one sentence which states that the respondent’s services were being Barkhast ‘dismissed’. The real word used there was ‘Barkhast’ and under the circumstances even the use of the word ‘dismissed’ cannot, in our opinion, be regarded as by way of punishment.

7. For the aforesaid reason, the appeal is allowed. The judgment of the Division Bench is set aside with the result that the writ petition filed by the respondent in the High Court stands dismissed.

(C.R.) Appeal allowed.

*************

Parallel Citations of other Journals :

Ganganager Zila Dugdh UtpadakSahkari Sangh Ltd. & Anr. v. Priyanka Joshi & Anr., 1999(6) Supreme 154

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Judicial Analysis

SupremeToday

1999 Supreme(SC) 713

Important PointWhen there is a reason for terminating the services during the proba­tionary period and the order an innocuous manner, such an order has to be regarded as by way of punishment.

Judicial Analysis

Important Point
When there is a reason for terminating the services during the probationary period and the order an innocuous manner, such an order has to be regarded as by way of punishment.