2006 Supreme(Kar) 291

Karnataka High Court
MARY KUTTY - Appellant
Versus
HINDUSTHAN TIMES, BANGALORE - Respondent
Decided On : 03-24-06
Writ Petition No. 23371 of 2001 (L-TER).

Headnote:Labour & Services -Termination of trainee employee -Termination of trainee employee -Employee terminated on the ground of non-performance and non-improvement of behaviour -Sustainability.

       Cases Referred: AIR 1988 SC 1291; AIR 1999 SC 983.

       Labour & Services -Termination of trainee employee -Termination of trainee employee -Employee terminated on the ground of non-performance and non-improvement of behaviour -Sustainability.

       Cases Referred: AIR 1988 SC 1291; AIR 1999 SC 983.

       Industrial Disputes Act, 1947 -Termination of trainee employee -Section 10(4A) -Termination of trainee employee -Employee terminated on the ground of non-performance and non-improvement of behaviour -Sustainability. [Anand Byrareddy, J]: The counsel would submit that cases, where, there is assessment by the employer of the performance of the employee who is a trainee and thereafter proceeded to terminate the period of training therein, is not stigmatic. Allegations with regard to the character and conduct, without being preceded by an enquiry, however, would certainly be stigmatic. In the present case, she would submit that the letter of termination clearly alludes to the character and conduct of the petitioner without indicating the instance or circumstance, which warranted such reference to the conduct or character and therefore she would submit that the order of termination is ,clearly stigmatic and hence warrants interference of the Court. Settled Principles: Whether an employee at the end of the probationary period automatically gets confirmation in the post or whether an order of confirmation or any specific act on the part of the employer confirming the employee is necessary, will depend upon the provisions in the relevant Service Rules relating to probation and confirmation. There are broadly two sets of authorities of the Court dealing with this question. In those cases where the Rules provide for a maximum period of probation beyond which probation cannot be extended, the Court has held that at the end of the maximum probationary period there will be a deemed confirmation of the employee unless Rules provide to the contrary. This is the line of cases starting with State of Punjab vs. Dharam Singh, (1968) 3 SCR 1: (AIR 1968 SC 1210); MK Agarwal vs. Gurgaon Gramin bank, 1987 Supp SCC 643 : (AIR 1988 SC 286); Om Prakash Maurya vs. UP Co-operative Sugar Factories Federation, Lucknow, 1986 Supp SCC 95; (AIR 1986 SC 1844); State of Gujarat vs. Akhilesh C. Bhargav, (1987) 4 SCC 482 : (AIR 1987 SC 2135). However, even when the Rules prescribe a maximum period of probation, if there is a further provision in the Rules for continuation of such probation beyond the maximum period, the Courts have made an exception and said that there will be no deemed confirmation in such cases and the probation period will be deemed to be extended. In this category of cases we can place Samsher Singh vs. State of Punjab, (1974)2 SCC 831 : (AIR 1974 SC 2192) which was the decision of a Bench of seven Judges where the principle of probation not going beyond the maximum period fixed was reiterated but on the basis of the Rules which were before the Court, the Court said that the probation was deemed to have been extended. A similar view was taken in the case of Municipal Corporation, Raipur vs. Ashok Kumar Misra, (1991) 3 SCC 325 : (1991 AIRSCW 1241). In Satya NarayanAthya vs. High Court of Madhya Pradesh, (1996) 1 SCC 560: (1996 AIR SCW 55), although the Rules prescribed that the probationary period should not exceed two years, and an order of confirmation was also necessary, the termination order was issued within the extended period of probation. Hence the termination was upheld (AIR 1998 SC 1291). We may advert to a few cases on the question of stigma. We shall refer initially to cases where a Special Rule relating to termination of probationer required a particular condition to be satisfied and where the said condition was referred to in the order of termination. In Hari Singh Mann vs. State of Punjab, (1975) 3 SCC 182: (AIR 1974 SC 2263), the probationer was governed by Rule 8(b) of the Punjab Service Rules, 1959 and the fact that the word unfit as required by the Rules was used, was held not to be a ground for quashing the order on the ground of stigma , for to hold that in amounted to stigma would amount to robbing the authority of the right under the rule. Similarly where a Rule required a show cause notice issued and an inquiry to be conducted before terminating probation, such as Rule 55-B of the Central Civil Services (CCA) Rules, there would be no question of characterising the simple order of termination as one founded on the allegations which were the subject of the inquiry. That was because, in such a case, the purpose of the inquiry was to find out if the officer was to be continued in service and not to find out if he was guilty. State of Orissa vs. Ram Narayan Das, AIR 1961 SC 177; Ranendra Chandra vs. Union of India, AIR 1963 SC 1552. In State of Gujarat vs Akhilesh C. Bhargav, (1987) 4 SCC 482: (AIR 1987 SC 2135), the termination order merely referred to Rules 12(bb) of the Indian Police Service (Probationer) Rules, 1959. It was contended that the reference to the said Rule 12 (bb) itself amounted to a stigma but this was rejected following Ram Narayan Das case (AIR 1961 SC 177). Court adverted to some more cases and to particular words employed while passing orders of termination of probationers. In State of Bihar vs. Gopi Kishore Prasad, AIR 1960 SC 6889, a show cause notice was given seeking a reply to the allegation regarding the officers bad reputation and in regard to certain perverse decisions given by him in his judicial functions during the period of probation. The termination order stated that certain facts were brought to the notice of the Government about his unsatisfactory work and conduct and that grave doubts had arisen about his integrity which indicated that he was a corrupt and an unreliable office!: It was also said that confidential inquiries revealed that he was a corrupt officer and that annual confidential reports of his superior officer referred to his bad reputation and therefore his work during the period of probation was not satisfactory. The Constitution Bench of the Court held that it was a clear case of stigma and the matter indeed required a full fledged departmental inquiry under Rule 55 of the CCS (CCA) Rules. In Jagdish Mitter vs. Union of India, AIR 1964 SC 449 the use of the words "undesirable to be continued" in service was held by the Constitution Bench to amount to stigma. This case was followed in State of U.P. vs. Madan Mohan Nagar, AIR 1967 SC 1260 where the order said that the officer had outlived his utility and such an order was held to amount to a stigma. Jadish Mitter, (AIR 1964 SC 449) was approved by the Seven Judge Bench in Samsher Singh s case (AIR 1974 SC 2192) on this point. But in Kanwar Arun Kumar vs. U.P. Hill Electronics Corporation, (1997) 2 SCC 191, the termination order used the word unsatisfactory and the same was upheld as it did not amount to stigma. In two cases arising under industrial law, one in Chandu Lal vs. Pan American World Airways, (1985) 2 SCC 727: (AIR 1985 SC 1128) and Kamal Kishore Lakshman vs. Pan American Land Ways Inc., (1987) 1 SCC 146: (AIR 1987 SC 229) where the termination order used the word loss of confidence: the said orders were held to contain stigma and therefore punitive. In Jagdish Prasad vs. Sachiv, Zila Gaon Committee, (1986) 2 SCC 338: (AIR 1986 SC 1108), the termination order stated that the officer had concealed certain facts relating to his removal from an earlier service on charge of corruption and therefore not suitable for appointment. This was held to amount to stigma. But in Union of India vs. R.S. Dhabe, (1969) 3 SCC 603, where the order merely said found unsuitable , it was held not to amount to stigma. In Allahabad Bank Officers Association vs. Allahabad Bank,. (1996) 4 SCC 504: (1996 AIR SCW 2432), the order was one of compulsory retirement and said that a Special Committee had unanimously recommended for the officers compulsory retirement, that the Chairman and Managing Director agreed with the Committee s views regarding want of application to Bank s work and lack of potential and that the officer was also found to be not dependable . The Court after referring to a number of cases explained that the words not dependable were used, in the context of the facts of the case and not as an aspersion on his reputation but in relation to his work and were to be understood in that sense in the setting of the words want of application and or lack of potential . It was observed: "Any person reading the letter on the order of compulsory retirement would not be led to believe that there was something wrong with Appellate order as regards his conduct or character. They would only indicate that he had ceased to be useful to the Bank in his capacity as a Manager. "Again in High Court of Judicature of Patna vs. Pandey Madan Mohan Prasad Sinha, (1997) 10 SCC 409 it was held that termination of probationer on basis of un communicated adverse remarks, was valid [AIR 1999 SC 983].

       Cases Referred: AIR 1988 SC 1291; AIR 1999 SC 983.