IMPORTANT POINT
Order of termination of Appellant, a temporary employee on probation, after making a preliminary enquiry stating "your work and conduct has not been found to be satisfactory" is neither punitive nor stigmatic. His termination on payment of one month s salary in lieu of notice is according to contract.

Headnote:Service Jurisprudence-Appellant a temporary employee on probation with respondent-Service contract providing termination during it on one month s notice or salary in lieu thereof-Appellant s probation was extended-Preliminary enquiry made to confirm or terminate-Found appellant was not fit-Terminated paying one month s notice-Whether termination is punitive or stigmatic? (No)-Effect-Appeal dismissed-Case law reviewed-What language in termination order would amount to stigma? Substance of termination-Reliance of language in affidavits-Cannot be relied to improve or supplement order of termination.
       Held : 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. (Para 19)
       One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct (c) 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. (Para 21)
       Therefore, whenever a probationer challenges his termination the courts first task will be to apply the test of stigma or the form test. If the order survives this examination the substance of the termination will have to be found out. Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? Generally speaking when a probationer s appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the 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. The decisions cited by the parties and noted by us earlier, also do not hold so. 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. As was noted in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences [1999(3) SCC 60]:
       "At the outset, we may state that in several cases and in particular in State of Orissa v. Ram Narayan Das, AIR 1961 SC 177, it has been held that use of 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 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 s 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 termination was in substance punitive exist here. (Paras 28, 29, 30, 31 & 32)
       Held further : It was finally argued by the appellant that the intention of the respondents to punish him was clear from the following statement in the affidavit filed on their behalf.
       "It is important to mention herein that even honesty and integrity of the petitioner was also under cloud as he took undue favours by misusing his position from the suppliers and maligned the reputation of the institute."
       That an affidavit cannot be relied on to improve or supplement an order has been held by a Constitution Bench in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, AIR 1978 SC 851.
       "..... when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise...."
       Equally an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order. This is also what was held in State of Uttar Pradesh v. Kaushal Kumar Shukla, 1991(1) SCC 691:
       "The allegations made against the respondent contained in the counter-affidavit by way of a defence filed on behalf of the appellants also do not change the nature and character of the order of termination." (Paras 33, 34 & 35)
       Held finally : Having held against the appellant on all counts, we dismiss the appeal but without any order as to costs. (Para 36)

JUDGMENT

Ruma Pal, J.-Leave granted.

2. The appellant has challenged the decision of the High Court of Allahabad dismissing his writ petition and upholding an order passed by the respondent No.1 terminating the appellant s services.

3. The appellant was temporarily appointed on 10th April 1996 to the post of Joint Director (Materials Management) of respondent No.1 Clauses 3 and 4 of the letter of appointment provided:

"3. This appointment is temporary and can be terminated on one month s notice from either side or in lieu of this notice on payment of a sum equivalent to one month s salary.

4. You will be on probation for a period of one year from the date of appointment and the probation period may at the discretion of the competent authority be curtailed or extended by such period as deemed necessary."

4. The period of probation was extended on 23rd June 1997 for a period of six months w.e.f. 30th April 1997. This was subsequently 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.

Therefore, under terms & conditions No. 3 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 Rs. 11.070 (Rupees eleven thousand seventy only) in lieu of on (sic) months notice is enclosed."

5. 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 allegations of misconduct against the appellant. A summary inquiry had been held by the respondents in which a charge-sheet had been issued to the appellant. The inquiry officer had submitted a report to the respondents, a copy of which was not made available to the appellant. But immediately after the completion of the inquiry the impugned order of termination had been passed. In support of the submission that the order was punitive, our attention was drawn by the appellant to statements made in the counter affidavit filed by the respondent before the High Court where the respondents have alleged that the appellant s integrity and honesty were doubtful.

6. The respondents have submitted that the inquiry was held merely to assess the appellant s fitness for being continued on probation. The respondents claimed to have received various complaints regarding the discharge of the appellant s duties and in order to give the appellant an opportunity of placing the true facts before the respondent the summary inquiry was held so that the suitability of the appellant or being confirmed in the post of Joint Director (Material Management) could be fairly assessed. It was also submitted that the order was not stigmatic nor punitive and that no statement in the counter affidavit would change that position.

7. The High Court has accepted the submissions of the respondents and accordingly dismissed the writ petition.

8. Since the decision in Parshottam Lal Dhingra v. Union of India1, Court have had to perform a balancing act between denying a probationer any right to continue in service while at the same time granting him the right to challenge the termination of his service when the termination is by way of punishment. The law has developed along apparently illogical lines in determining when the termi

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2001 Supreme(SC) 1542

Cases Referred (11)