A termination order based on unsatisfactory service is not necessarily stigmatic for contractual employees.

Sujoy Paul, J.

This petition filed under Article 226 of the Constitution takes exception to the order dated 1.12.2011 (Annexure P/1) whereby services of the petitioners were terminated by holding that their services were not satisfactory on the basis of Performance Evaluation Report.

2. Shri Awasthy, learned counsel for the petitioners, criticized the said order by contending that the order is stigmatic and punitive in nature. He submits that the matter is squarely covered by the order passed by Indore Bench in W.P. No. 1510/2005(s) (Jitendra v. State of M.P.) decided on 9.07.2008. By taking this court to various paragraphs of the said order, it is submitted that such punitive order may be set aside.

3. Prayer is opposed by Shri Santosh Yadav, PL for the respondents/state by contending that the order is simpliciter in nature. The petitioners being contractual employees, have no right to continue in employment. The termination order is in consonance with the contract of employment. He submits that the judgment of Jitendra (supra) has no application in the present case.

4. No other point is pressed by learned counsel for the parties.

5. I have heard the counsel for the parties at length and perused the record.

6. The impugned order clearly shows that the singular reason for terminating the services of the petitioners is that as per their work evaluation, the work was not found to be satisfactory. Hence, termination order was passed. In the case of Jitendra (supra), the termination order on the face of it, appears to be innocuous (See : para-8). However, the Court examined the stand of the respondents mentioned in the return and found that the reason for termination is based on the report of a Committee which found illegalities and irregularities in purchases. Thus, this court lifted the veil and gathered the real nature and reason for termination. Shri Awasthy, learned counsel for the petitioners is unable to show any such similar reason given in the return. Thus, in my view, the judgment of Jitendra (supra), cannot be applied here. This is settled in law that if an order of termination refers to unsatisfactory service of employee, it cannot be said to be stigmatic. The Apex Court has taken stock of various judgments on this point and in Rajesh Kohli v. High Court of Jammu and Kashmir (2010) 12 SCC 783, opined as under :-

23. This position is no longer res integra and it is well settled that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences this Court has explained at length the tests that would apply to determine if an order terminating the services of a probationer is stigmatic. On the facts of that case it was held that the opinion expressed in the termination order that the probationer "work and conduct has not been found satisfactory" was not ex facie stigmatic and in such circumstances the question of having to comply with the principles of natural justice does not arise.

24. In Verma case this Court had the occasion to determine as to whether the impugned order therein was a letter of termination of services simpliciter or stigmatic termination. After considering various earlier decisions of this Court in para 21 of the aforesaid decision it was stated by this Court thus: (SCC p. 528)

"21. 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 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." In para 29 of the judgment, it further held thus: (SCC pp. 529-30)

"29. Before consid