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2016 Supreme(J&K) 376
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Alok Aradhe, J.
Sandeep Kumar - Appellant
Vs.
S.M.V.D. University - Respondent
SWP No. 920 of 2011 & MP No. 1331 of 2011
Decided On : 05-10-2016
Advocate Appeared:
For the Appellant : Sunil Sethi, Veenu Gupta
For the Respondent: D.C. Raina, Vikas Magotra
The employer has the authority to discharge an employee based on unsatisfactory performance as per the relevant statutes, and the mention of unsatisfactory performance does not necessarily make the order stigmatic.
Headnote:
Termination - Employment Dispute - J&K Shri Mata Vaishno Devi University Act, 1999, Statute 25(1) and 25(3)
Fact of the Case:
The petitioner, a Horticulture Assistant, challenged the validity of his discharge from services by the University. The petitioner's appointment was initially on a contractual basis, extendable to five years, with provisions for termination by the University or resignation by the petitioner.
Finding of the Court:
The Court found that the petitioner's services were discharged based on unsatisfactory performance, and the order of discharge was not stigmatic in nature. The Court also noted that the University had the authority to terminate the petitioner's services as per the relevant statutes.
Issues: The issues revolved around the nature of the petitioner's discharge, the authority of the University to discharge the petitioner, and the adequacy of the performance evaluation process.
Ratio Decidendi: The Court held that the mere mention of unsatisfactory performance does not make the order stigmatic, and the University had the authority to discharge the petitioner as per the relevant statutes. The Court also emphasized the employer's right to evaluate and make decisions regarding employee performance.
Final Decision: The Court dismissed the petitioner's case, finding no merit in the challenge to the discharge.
Key Points: - The University had the authority to terminate the petitioner’s services as per the relevant statutes. (!) (!) - The mere mention of unsatisfactory performance in the discharge order does not render the order stigmatic. (!) (!) - Statute 25(1) allows removal for misconduct or violation of code; Statute 25(3) allows removal on one month's notice or payment in lieu for contract/probation employees. (!) (!) (!) - The discharge was based on overall performance and not on stigma; no formal stigma attached according to the court. (!) (!) - The case discusses absence of a departmental inquiry being required where the employer’s judgment on performance is involved, citing State of Punjab v. Sukhwinder Singh as supportive. (!) - The court held there was no merit in the petition and dismissed it. (!) - The relevant appointment clause permitted one month’s notice or payment in lieu, and permitted termination by the University if necessary. (!) - The petitioner’s appointment began on a contractual basis extendable to five years, with probationary period and potential five-year term inclusive of probation. (!) (!) - The record shows informal inquiry and assessment of suitability leading to discharge, not a stigma-based punishment. (!)
What is the authority of the University to discharge an employee based on unsatisfactory performance?
What is the significance of the term "unsatisfactory performance" in a discharge order regarding stigma?
What is the role of Statute 25(1) and 25(3) in determining termination or discharge of contract-based employees?
Alok Aradhe, J.
1. In this petition, the petitioner has assailed the validity of the order dated 25-03-2011 passed by respondents by which services of the petitioner, who was working a Horticulture Assistant, have been discharged. In order to appropriate the petitioner's grievance, few facts need mention which are stated infra. The petitioner was appointed as Assistant in Horticultural Services on contractual basis on a consolidate remuneration, initially for a period of six months on 05-12-2005. Thereafter, the tenure of the petitioner was extended from time to time. By an order dated 05-05-2009, the petitioner was offered appointment as Horticulture Assistant in the establishment of respondents in the pay scale of Rs. 5500-175-9000 on contract basis for a period of one year, which was extendable to another year. However, the extended period of appointment was to be treated as period of probation. The order of appointment further provided that on satisfactory completion of period of probation, the appointment shall be for a period of five years inclusive of the period of probation. The order of appointment clearly stipulates that during the aforesaid period, the services of the petitioner may be terminated by the respondent by giving one month's notice and the petitioner was also given liberty to resign from the service of the University by giving one month's notice.
2. The petitioner accepted the offer of appointment and submitted his joining report on 06-05-2009. Thereafter, the respondent by an order dated 25-03-2011 on the basis of overall performance of the petitioner, found that performance of the petitioner is not satisfactory and, therefore, his services are no longer required by the University. Accordingly, services of the petitioner were discharged in terms of Clause (1) of the order of appointment of the petitioner dated 05-05-2009 by giving him one month's salary. In the aforesaid factual background, the petitioner has approached this Court.
3. Learned counsel for the petitioner submitted that the impugned order is not an order of termination but is an order of discharge and there is no provision either in the letter of appointment or in the Ordinances of the University empowering the same to discharge the services of the petitioner. It is further submitted that in the fact situation of the case, provisions of Statute 25(1) of Chapter 2 will apply and no Departmental Inquiry has been held before passing the order of termination. It is argued that the impugned order is stigmatic in nature. It is also submitted that no notice with regard to non-satisfactory performance was ever issued to the petitioner and he was not given an opportunity to improve his performance. On the other hand, the respondents had granted him increments, which show that the services rendered by the petitioner were satisfactory. Lastly, it is submitted that since the services of the petitioner were terminated by a stigmatic order, an opportunity of hearing ought to have been afforded to him. In support of aforesaid submissions, learned counsel for the petitioner has referred to decision of Supreme Court in case of Anoop Jaiswal v. Government of India, (1984) 2 SCC 369 : 1984 AIR (SO 369.
4. On the other hand, learned senior counsel for the respondents, while inviting attention of this Court on the averments made in the writ petition, pointed out that the petitioner has not drawn any distinction with regard to the termination and discharge in the pleadings, therefore, the argument raised on behalf of the petitioner that he has been terminated from services is beyond the pleadings. In this connection, reference has been made to averments made in paragraph 16, Clauses (g) and (h). It is submitted that the word 'termination' is of wider amplitude and is covered within its ambit 'discharge' also. It is also submitted that mere mention in the order of discharge that the services of the petitioner have not been found satisfactory would not tanta
