Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences, (SC) BS4328
SUPREME COURT OF INDIA

Before:- G.B. Pattanaik and Mrs. Ruma Pal, JJ.

Civil Appeal No. 7523 of 2001 (arising out of SLP (Civil) No. 16368 of 1999). D/d. 5.11.2001

Pavanendra Narayan Verma - Appellant

Versus

Sanjay Gandhi P.G.I. of Medical Sciences - Respondents

For the Appellant :- S.B. Sanyal, Senior Advocate and Akhilesh Kumar Pandey, Advocate.

For the Respondent :- N. Trivedi, Additional Solicitor General, D.N. Arora, R.C. Verma, Ms. Kiran Kapoor and Mukesh Verma, Advocates.

Constitution of India, Articles 16 and 311 - Industrial Disputes Act, 1947, Schedule 2, Item 3 - Probationer - Termination of service - Whether punitive - Appellant appointed on post with clause of termination with notice and to undergo probation for one year which period can be extended or curtailed - Appellant's service terminated after holding inquiry - Language used in order read "work and conduct has not been found satisfactory" - Contention that order is punitive - Held, employer has full right to satisfy himself as to the competence of probationer and hold enquiry to that effect - Hence impugned order cannot be said to be ex-facie stigmatic - Appeal dismissed accordingly.

[Paras 31, 32 and 36]

Cases Referred :-

Parshottam Lal Dingra v. Union of India, AIR 1958 Supreme Court 36.

Shamsher Singh v. State of Punjab, 1974(2) SCC 831.

Benjamin (A.G.) v. Union of India, 1967(1) Lab LJ 718.

V.P. Ahuja v. State of Punjab, 2000(2) SCT 327 (SC).

Krishnadevaraya Education Trust v. L.A. Balakrishna, 2001(1) SCT 784 (SC).

H.F. Sangati v. Registrar General, High Court of Karnataka, 2001(2) SCT 333 (SC).

S.P. Vasudeva v. State of Haryana, 1976(1) SCC 236.

State of Uttar Pradesh v. Kaushal Kishore Shukla, 1991(1) SCT 760 (SC).

Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd., 1999(1) SCT 366 (SC).

Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta, 1999(1) SCT 861 (SC).

Chandra Prakash Shahi v. State of U.P., 2000(2) SCT 946 (SC).

State of Orissa v. Ram Narayan Dass, AIR 1961 Supreme Court 177.

Mohinder Singh Gill v. Chief Election Commissioner, New Delhi, AIR 1978 Supreme Court 851.

JUDGMENT

Ruma Pal, J. - Leave granted.

2. The appellant has challenged the decision of the High Court of Allahabad dismissing his writ petition and upholding an order passed by the respondent No. 1 terminating the appellant's services.

3. The appellant was temporarily appointed on 10th April, 1996 to the post of Joint Director (Materials Management) of respondent No. 1. Clauses 3 and 4 of the letter of appointment provided :

4. The period of probation was extended on 23rd June, 1997 for a period of six months w.e.f. 30th April, 1997. This was subsequently further extended for a period of three months w.e.f. 30th October, 1997. On 6th February 1998, the impugned order of termination was issued. The language used in order reads :

5. According to the appellant, the order was punitive and cast a stigma on the appellant and could not be sustained without a full scale departmental inquiry. It has been argued that the termination order was founded upon allegations of misconduct against the appellant. A summary inquiry had been held by the respondents in which a charge-sheet had been issued to the appellant. The inquiry officer had submitted a report to the respondents, a copy of which was not made available to the appellant, but immediately after the completion of the inquiry the impugned order of termination had been passed. In support of the submission that the order was punitive, our attention was drawn by the appellant its statements made in the counter-affidavit filed by the respondent before the High Court where the respondents have alleged that the appellant's integrity and honesty were doubtful.

6. The respondents have submitted that the inquiry was held merely to assess the appellant's fitness for being continued on probation. The respondents claimed to have received various complaints regarding the discharge of the appellant's duties and in order to give the appellant an opportunity of placing the true facts before the respondent the summary inquiry was held so that the suitability of the appellant for being confirmed in the post of Joint Director (Material Management) could be fairly assessed. It was also submitted that the order was not stigmatic nor punitive and that no statement in the counter-affidavit would change that position.

7. The High Court has accepted the submissions of the respondents and accordingly dismissed the writ petition.

8. Since the decision in Parshottam Lal Dingra v. Union of India, AIR 1958 Supreme Court 36, Courts have had to perform a balancing act between denying a probationer any right to continue in service while at the same time granting him the right to challenge the termination his service when the termination is by way of punishment. The law has developed along apparently illogical lines in determining when the termination of a temporary appointee or probationer's services amounts to punishment.

9. In 1974, Krishna Iyer, J. had said, "The need, in this branch of jurisprudence, is not much to reach perfect justice but to lay down a plain test which the administration and civil servant can understand without subtlety and apply without difficulty" Shamsher Singh v. State of Punjab, 1974(2) SCC 831 : AIR 1974 Supreme Court 2192 : 1974 Lab. IC 1280.

10. Since "Dhingra is the Magna Carta of the Indian civil servant, although it has spawned diverse judicial trends, difficult to be disciplined into one single, simple practical formula applicable to termination of probation of freshers and of the services of temporary employees Shamsher Singh v. State of Punjab (supra) we have thought it best to refer to the facts of Dhingra's case to understand what exactly was meant when the Court said :

11. In that case the employee had been reverted back from an officiating post. The records showed that adverse remarks had been made against the employee in his confidential reports while he was officiating. The remarks were placed before the General Manager who said that he was "disappointed" to read them and that he should be reverted as a subordinate "till he makes good the shortcomings noticed....." The order of reversion was passed by the General Manager soon after this. When the issue ultimately came before this Court, this Court upheld the order of reversion, saying :

12. Therefore, although the General Manager had issued the order of termination on the basis of the adverse reports, the order was not considered as a punishment because it did not jeopardise the appellant's career prospects. It is also clear from the paragraph quoted that punishment means the deprivation of a right which the employee otherwise has. Thus, if he is already in service and is reverted from an officiating post, although he does not have a right to continue in the officiating post, he still has a right to be considered for promotion. If he is on probation or on a temporary appointment, he has a right to seek new employment if his appointment or probation is terminated. Anything which jeopardises these rights would be by way of punishment.

13. Another Constitution Bench of this Court in Benjamin (A.G.) v. Union of India, 1967(1) Lab LJ 718 explained the decision of Parashottam Lal Dhingra (supra). It followed the two tests mentioned in Dhingra's case viz.

14. If 'punishment' were restricted to "evil consequences", the Court's task in deciding the nature of an order of termination would have been easier. Courts would only have to scan the termination order to see whether it ex- facie contains the stigma or refers to a document which stigmatises the officer, in which case the termination order would have to be set aside on the ground that it is punitive. In these cases the 'evil consequence' must be assessed in relation to the blemish on the employee's reputation so as to render him unfit for service elsewhere and not in relation to the post temporarily occupied by him. This perhaps is the underlying rationale of several of the decisions on the issue.

15. In V.P. Ahuja v. State of Punjab, 2000(3) SCC 239 : 2000(2) SCT 327 (SC) cited by the appellant, the Court construed the language of the order and found that it was ex-facie stigmatic.

16. In Krishnadevaraya Education Trust v. L.A. Balakrishna, 2000(1) Scale 196 : 2001(1) SCT 784 (SC) the first letter of termination mentioned that the Committee appointed to go into the question of general performance of each staff had found that the employee, who had been appointed on probation, "was not upto the mark". This was followed by a second order of termination which did not refer to the employee's performance at all. The Court held that it was preferable that the order of termination did not mention that the employee's performance was not satisfactory as then "the employer runs the risk of the allegation being made that the order of itself casts a stigma". Nevertheless, the Court held that the reasons stated in the first order did not mean that the termination may be by way of punishment because "the probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services."

17. Finally, this Court in H.F. Sangati v. Registrar General, High Court of Karnataka, 2001(3) SCC 117 : 2001(2) SCT 333 (SC) dealt with the question whether an order terminating the appointment of a probationer Munsiff could be considered to be punitive. In that case during the period of probation, several adverse remarks had been made in the confidential records of the probationer. The Administrative Committee of the High Court considered these confidential records and came to the conclusion that the appellant was not fit to be confirmed in the post of a judicial officer. They recommended to the High Court accordingly. The High Court accepted the recommendation at a Full Court meeting and referred the matter to the State Government. The State Government accepted the recommendation and discharged the probationer from service. The order of termination mentioned that the employee was "unsuitable to hold the post of Munsiff". The Court held that the order did not cast any stigma on the employee and was not punitive.

18. But the law does not rest there. In Shamsher Singh v. State of Punjab (supra) the Courts were asked to look behind the form of the order to find out whether the termination was in substance punitive. So when a full scale inquiry is held against a probationer or a temporary appointee and he is found guilty, an order terminating his services for this reason has been seen as punitive and bad. It is this search for the 'substance' behind the 'form' of the order of punishment which has lead to some apparently conflicting decisions.

19. Thus some Courts have upheld an order of termination of a probationer's services on the ground that the enquiry held prior to the termination was preliminary and yet other Courts have struck down as illegal a similarly worded termination order because an inquiry had been held. Courts continue to struggle with semantically indistinguishable concepts like 'motive' and 'foundation'; and terminations founded on a probationer's misconduct have been held to be illegal while terminations motivated by the probationer's misconduct have been upheld. The decisions are legion and it is an impossible task to find a clear path through the jungle of precedents.

20. As observed by Alagiriswamy, J. in S.P. Vasudeva v. State of Haryana, 1976(1) SCC 236, at p 240.

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 (c) which 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 missing, the termination has been upheld.

22. The three factors are distinguishable in the following passage in Shamsher Singh v. State of Punjab (supra) where it was said :

23. Thus in Benjamin's case (supra), complaints had been received against a temporary employee. A notice had been sent to the employee to show cause why disciplinary action should not be taken against him. The inquiry officer was appointed but before the inquiry was completed, the services of the employee were terminated with one month's salary in lieu of notice. The Constitution Bench upheld the order of termination and drew a distinction between a preliminary inquiry and a departmental inquiry. It was held that a preliminary inquiry held to satisfy the Government whether there was no reason to dispense with the services of the temporary employee should not be mistaken for a departmental inquiry held to decide whether punitive action should be taken.

24. In State of Uttar Pradesh v. Kaushal Kishore Shukla, 1991(1) SCC 691 : 1991(1) SCT 760 (SC) the employee had been appointed on a temporary basis for a fixed tenure. During the period of his service, adverse entries were made in his character roll. Complaints were also received by the auditors of the employer. A summary inquiry was held. It was found that the auditor's complaint was correct. The employer was transferred to another post. He did not join and the employer terminated his services. This Court, while upholding the order of termination, said that the mere fact that prior to the issue of the termination an inquiry was held against the employee did not make the order of termination into one of punishment.

25. In Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd., 1999(2) SCC 21 : 1999(1) SCT 366 (SC) a full scale inquiry was held into the allegations of bribery against a temporary employee. The Court set aside the termination because it found that the report submitted was not a preliminary inquiry report but it was in fact a final one which gave findings as to the guilt of the employee.

26. In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta, 1999(3) SCC 60 : 1999(1) SCT 861 (SC) the termination order itself referred to three other letters. One of the letters explicitly referred to misconduct on the part of the employee and also referred to an Inquiry Committee's report, which report in its turn had found that the employee was guilty of misconduct. The termination was held to be stigmatic and set aside.

27. The case of Chandra Prakash Shahi v. State of U.P., 2000(5) SCC 152 : 2000(2) SCT 946 (SC) related to a constable who was on probation after successfully completing his training. The constable completed his period of probation without blemish. One year later, his services were terminated by issuance of a notice in terms of Rule 3 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. An inquiry was held into the allegations of misconduct. The Court found as a fact that the inquiry was not held to judge the suitability of the constable but with a view to punish him. The order was held to be punitive and set aside.

28. Therefore, whenever a probationer challenges his termination the courts first task will be to apply the test of stigma or the 'form' test. If the order survives this examination the 'substance' of the termination will have to be found out.

29. Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma ? Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.

30. As was noted in Dipti Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences (supra):

31. Returning now to the facts of the case before us. The language used in the order of termination is that the appellant's "work and conduct has not been found to be satisfactory". These words are almost exactly those which have been quoted in Dipti Prakash Banerjee's case as clearly falling within the class of non stigmatic orders of termination. It is, therefore safe to conclude that the impugned Order is not ex facie stigmatic.

32. We are also not prepared to hold that the enquiry held prior to order of termination turned this otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed the service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A charge sheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. None of the three factors catalogued above for holding that the termination was in substance punitive exist here.

33. It was finally argued by the appellant that the intention of the respondents to punish him was clear from the following statement in the affidavit filed on their behalf:

34. That an affidavit cannot be relied on to improve or supplement an order has been held by a Constitution Bench in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, AIR 1978 Supreme Court 851

35. Equally an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order. This is also what was held in State of Uttar Pradesh v. Kaushal Kumar Shukla (supra) :

36. Having held against the appellant on all counts, we dismiss the appeal but without any order as to costs.

Appeal dismissed.