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2013 Supreme(J&K) 134
JAMMU & KASHMIR HIGH COURT
M.M.Kumar; CJ, Dhiraj Singh Thakur, JJ.
R.D.Vishwakarma (Dr.) -Appellant
Versus
U.O.I. & Ors. -Resopndent
SWP No. 1008/2003, CMA No. 1549/2004 c/w SWP No. 2034/2003, CMA No. 2230/2003
Decided On : 14-03-2013
Mr. M.K. Raina, Advocate for the Petitioner.
Mrs. Neeru Goswami, Sr. Panel Counsel, Advocate for the Respondents.
The court established that for an order of discharge to warrant a regular departmental enquiry, it must contain stigma, and upheld the award of wages to the discharged employee based on the interim order issued by the High Court.
Headnote:
Stigma - Employment Discharge - Rule 10, 11, 12 of Appointment, Promotion, Seniority etc Rules, 1971 - The court examined the order of discharge and found no stigma attached to it, thus ruling out the need for a regular departmental enquiry. The court also upheld the award of wages to the discharged employee.
Fact of the Case:
The case involved a dispute over the discharge of Dr. R. D. Vishwakarma from the post of Assistant Commissioner in Kendriya Vidyalaya Sangathan due to unsatisfactory performance during his probation period.
Finding of the Court:
The court found that the order of discharge did not contain any stigma and did not warrant a regular departmental enquiry. The court also upheld the award of wages to the discharged employee.
Issues: The pivotal question of law was whether the order of discharge was in fact an order of dismissal casting stigma and warranting an enquiry. Another issue was the entitlement of the discharged employee to the salary as Assistant Commissioner for the specified period.
Ratio Decidendi: The court ruled that the order of discharge did not contain any stigma and did not warrant a regular departmental enquiry. The court also upheld the award of wages to the discharged employee, citing the interim order issued by the High Court.
Final Decision: Both the petitions were dismissed, and the parties were left to bear their own costs.
1. These two writ petitions* filed under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir calls in question the order of the Central Administrative Tribunal, Chandigarh Bench in TA-54/JK of 2002 dated 20.05.2003 (for brevity the Tribunal). One of the petitions namely SWF no. 1008/2003 has been filed by the original applicant-writ petitioner and the other one has been preferred by the Union of India and its officers being SWP no. 2034/2003. The Tribunal in its impugned order has upheld the order dated 5th/6th April, 1999 discharging the original applicant-Dr. R. D. Vishwakarma from service on the ground that his work and conduct was not satisfactory and reverted him to his original post of Principal, Kendriya Vidyalaya Sangathan. The pivotal question of law is 'whether the order of discharge is in fact an order of dismissal casting stigma and warranting an enquiry'. The Union of India has petitioned against the award of salary which relief necessarily emanates from the interim order of this High Court before transfer of the petition to the Tribunal.
2. In order to put the controversy in its proper perspective few facts may first be noticed. On 10.11.1995, respondent no. 3-Kendriya Vidyalaya Sangathan (KVS) issued an advertisement inviting application for filling up one post of Assistant Commissioner from the Scheduled Tribe quota. The original applicant-Dr. Vishvakarma was working on the post of Principal with respondent no. 3-KVS. He was eligible for the direct quota post of Assistant Commissioner and applied. He was selected and appointed vide appointment letter dated 20.03.1996 (Annexure-B). According to the terms and conditions of appointment, the original applicant-writ petitioner was to remain on probation for a period of two years which was extendable up to three years. He was to be confirmed upon successful completion of period on his own turn according to the availability of a permanent vacancy. The original applicant-writ petitioner joined on the post of Assistant Commissioner in KVS on 08.04.1996. As repeated reference has been made on behalf of the petitioner to documents extending the period of probation with advise, it would, be apposite to make express reference to the letter dated 17.02.1998 (Annexure-F) which is set out below in extenso:-
"KENDRIYA VIDYALAYA SANGATHAN
18, INSTITUTIONAL AREA
SHAHID JEET SINGH MARG NEWDELHI-110016
F. No. 3-1/96-KVS(Estt.I) Dated: 17/2/98
MEMORANDUM
Dr. R. D. Vishwakarma was appointed to the post of Assistant Commis#31;sioner initially on probation for two years vide this office memorandum No. F.1-33/93-KVS(E.I) dated 20.03.96.
The work and conduct of Dr. Vishwakarma during first year of probation has been assessed by the competent authority who has found that he has not been able to cope up with the assignment. Dr. Vishwakarma is hereby required to improve upon his performance during the remaining period, (emphasis added)
(D. K. Srivastava)
Jt. Commissioner (Admn.)"
3. After apprising the original applicant-writ petitioner that he needed to improve his performance during the remaining period of his probation, the respondent-Kendriya Vidyalaya Sangathan extended the period of probation upto 07.10.1998 vide letter dated 07.04.1998 and the same is set out below in extenso:-
"KENDRIYA VIDYALAYA SANGATHAN 18,
INSTITUTIONAL AREA SHAHID JEET SINGH MARG
NEW DELHI-110016
F. No. 3-1/96-KVS(Estt.I) Dated: 07/04/98
MEMORANDUM
Dr. R. D. Vishwakarma was appointed to the post of Assistant Commis#31;sioner w.e.f. 8.4.1996 on probation of 02 years. After reviewing the work and performance of Dr. R. D. Vishwakarma during the period of probation, the competent authority has decided to extend the period of probation in respect of Dr. R. D. Vishwarkama upto 7.10.1998 which, accordingly, stands extended upto 7.10.1998.
4. Another letter was sent to the original applicant-writ petitioner bringing to his notice that his work and conduct was not satis
