IMPORTANT POINT
Where an employee on probation is removed from service by an innocuous order of termination: real test to be applied would be; is he discharged as unsuitable or is he punished for his misconduct.

Headnote:SERVICE LAW—Probationer—Termination of service—Question whether termination of service was termination simpliciter or stigmatic termination—Real test to be applied in a situation where an employee is removed by an innocuous order of termination is : Is he discharged as unsuitable or is he punished for his misconduct—Appellant joined service on post of administrative officer in Feb. 1995 and was appointed on probation for one year—In Nov. 1995 he was served with a letter informing that his performance during probation was far from satisfactory and he lacked drive, imagination and initiative—He was issued several such letters and his probationary service came to be extended till 9th April, 1998—His services were terminated by letter dt. 7th April 1998 informing that his service was “unsatisfactory in area of drive, initiative, promptness and leadership”—Order of termination was challenged on ground that it was stigmatic termination by way of punishment for alleged misconduct—High Court allowed the writ—Division Bench allowed appeal and held that termination was not stigmatic and was legitimate exercise of assessment of probationer’s service—Appeal—Read as a whole letters gave impression that removal of appellant from service was only because respondents, after giving a long rope to appellant, came to conclusion that his service was unsatisfactory and there was no hope of his improvement—High Court rightly held that termination was not punitive in nature—Impugned judgment required no interference.
       Held : In the case of the appellant before us, the record in uncertain terms makes it clear that every time the appellants attention was drawn to his deficiencies and he was repeatedly advised to improve his behaviour, conduct and discharge of work. True, that in some of the letters there was intemperate language used (the appellant was also equally guilty of doing that). Notwithstanding the intemperate language, we are unable to accept the contention of the appellant’s counsel that the letter dated 7.4.1998 indicates that the appellant was being charged with the misconduct and, therefore, being removed from service. Read as a whole, the letter gives the impression that the removal of the appellant from service was only because the respondents, after giving a long rope to the appellant, had come to the conclusion that the appellant’s service was unsatisfactory and there was no hope of his improvement. The real test to be applied in a situation where an employee is removed by an innocuous order of termination is: Is he discharged as unsuitable or is he punished for his misconduct? In Allahabad Bank Officers’ Association and another vs. Allahabad Bank and others (1996) 4 SCC 504, this Court was considering a challenge to a compulsory retirement and formulated a practical test to answer the question posed above. This Court (vide para 17) observed that if the order of compulsory removal form the service casts a stigma in the sense that it contains a statement casting aspersion on his conduct or his character, then it can be treated as an order of punishment but not if it merely amounts to highlighting the unsuitability of the employee. As pointed out in this judgment, expressions like “want of application”, “lack of potential” and “found not dependable” when made in relation to the work of the employee would not be sufficient to attract the charge that they are stigmatic and intended to dismiss the employee from service.(Paras 13 and 14)
       The High Court has carefully considered all the circumstances placed before it and arrived at the conclusion that the respondent’s work was under observation during the probationary period and that he was given repeated opportunities to improve his performance for which purpose his probation was extended from time to time. The fact that the authority did not find him fit for confirmation was also brought to his notice several times and yet he was given opportunities of improving by extending his probationary service. The High Court has correctly found that the letter dated 7.4.1998 was not punitive in nature and stated, albeit in prolix fashion, that the service of the appellant were unsatisfactory. The High Court points out, and we agree, that detailed reference to all other correspondence was not necessary, but it did not reflect any malice or bias. Finally, as this Court pointed out in Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and another, (2002) 1 SCC 520 “a termination order which explicitly states what is implicit in every order of termination of a probationer’s appointment, does not ipso facto become stigmatic.” For the aforesaid reasons we are of the view that there is no substance in this appeal. The impugned judgment of the High Court requires no interference.(Paras 17 and 18)

JUDGMENT

Srikrishna, J.—The core issue in this appeal is whether the discontinuation of the probationer-appellant was for unsatisfactory services or for a misconduct.

2. The respondent is an institution carrying on research in basic sciences. It is common ground that the respondent is funded by the Central Government and, therefore, it is “State” within the meaning of Article 12 amenable to the writ jurisdiction under Article 226 of the Constitution of India.

3. The appellant was selected for the post of administrative officer and joined service under the first respondent on 10th February 1995. The letter of appointment issued to the petitioner on 7th October 1994 made it clear that the petitioner was being appointed on probation for a period of one year.

4. On 20th November 1995 the appellant was served with a letter informing him that his performance during the probationary period was “far from satisfactory” and that it had been observed that he lacked drive, imagination and initiative `in the performance of his duties’. He was informed that, despite being told time and again to improve performance in the said areas, but with no effect. He was advised to improve “in order to enable us to consider your case for confirmation favourably”. He was issued several such letters drawing his attention to the fact that his services left much to be desired. His probationary service came to be extended from time to time, the last such extension being granted till 9th April 1998. Finally, by the letter dated 7.4.1998 the petitioner was informed that his service was “unsatisfactory in the areas of drive, initiative, promptness and leadership” and that despite advised verbally and through letter, what were deficiencies in his work he had shown no improvement. His attendance, office work and attention to the academic work and the affairs of the guest house were also unsatiisfactory. The first respondent, therefore, said “your performance, ability and capability during the period of probation has been examined and your service during the period of probation is found to be unsatisfactory and hence you are considered unsuitable for the post you have to. The governing body is of the view that your performance was unsatisfactory and you are not suitable for confirmation”. For these reasons the appellant’s probationary period was not extended on the expiration of his probation period on 9th April 1999 without further extension.

5. The appellant challenged the order of termination of his service on the ground that it was a stigmatic termination by way of punishment for alleged misconducts. The learned single Judge of the High Court allowed the writ petition and quashed the order of termination and directed re-instatement of the appellant with full back-wages. The Division Bench of the High Court, however, allowed the letters patent appeal and held that the letter dated 7th April 1998 was not stigmatic and that it was a legitimate exercise of assessment of probationer’s service by the employer, and, therefore, there was no scope for judicial interference therewith. In this view of the matter, the Division Bench allowed the appeal, set aside the judgment of the learned single Judge and dismissed the writ petition. Hence, this appeal.

6. The learned counsel for the appellant has reiterated the contention that the letter of 7.4.1998 does not amount to termination simpliciter but amounts to a stigmatic dismissal from service as serious misconduct under the bye-laws have been alleged against the appellant for which neither inquiry was held, nor any procedure contemplated under the bye-laws was adopted. The learned counsel drew our attention to the copy of the bye-laws of the respondent under which bye-law no. 12.3 defines Acts of Misconduct or breach of discipline punishable under the Rules. He particularly drew our attention to Bye-law 12.3 (b)(d) and (h) which read as under :

“12.3 Acts of Misconduct :

Any act of misconduct or breach of discipline shall be pun

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2006 Supreme(SC) 357

IMPORTANT POINTWhere an employee on probation is removed from service by an innocuous order of termination: real test to be applied would be; is he discharged as unsuitable or is he punished for his misconduct.

Cases Referred (6)

IMPORTANT POINT
Where an employee on probation is removed from service by an innocuous order of termination: real test to be applied would be; is he discharged as unsuitable or is he punished for his misconduct.