TMI Blog1999 (2) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... pay scale was to be in the scale of ₹ 1400-1600-2300- 2600 with allowances. The appellant joined on 2.5.1995. As we are concerned with the question of validity of the appellant's termination of probation, it is necessary to refer to the events that took place during the period of probation. On 11.12.1995, the Director of the respondent organisation informed the appellant that the appellant's work was not satisfactory on several counts. The points mentioned in this letter are as follows:- (i) Your handling of the movement to the new campus was good till the good impression was spoiled by your refusal to handle the furniture in the Director's room and your statements about other administrative staff members, which were not corroborated by academic members present. Later movement to the JD Block by Prof. A.Mookerjee and the Director's office found you non-cooperative. (ii) You have been preparing false bills; the fact that they were passed by your immediate superior does not mitigate your guilt. (iii) Your handling of quotations about cleaning agencies, xerox machines, purchases of stationery etc. were faulty and several times you were told to redo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Director, he was to report to the Administrative Officer, the Director was perhaps sending the above letters without consulting the said Administrative Officer. The report dated 25.4.1996 of the Administrative Officer to the Director gives a contrary version. It states that the appellant was found to be an excellent working hand, conscientious and willing to take responsibility, that he had always been discharging his assigned works even despite constraints, that he was regular and punctual, and was conducting himself very well in the discharge of his duties even when there was no helping hand and that his service during the period of probation has been extremely satisfactory . But the Director issued a further letter dated 30.4.1996 stating that the appellant's performance during the period of probation had been reviewed and stating that regrettably your performance has been far from satisfactory , that by letters dated 11.12.1995 and 15.4.1996 his attention had been drawn to various areas of unsatisfactory performance, but no improvement was discernible. It was stated that in order to afford the appellant an opportunity to improve performance and in order to ena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... headed by Prof. (Smt.) Monisha Bose - (i) Why Sri P.Chakraborty went downstairs, whether he used unacceptable language and whether he was involved in physical assault, and (ii) Whether Sri D.P.Banerjee used provocative language and whether he was involved in physical assault? The petitioner was not very cooperative in the enquiry. The said enquiry committee inter alia made the following recommendation: Sri D.P.Banerjee was involved in the scuffle and also used Mr. Pradip Bose to obtain the false signatures. As such, he should surely be punished. We recommend that a person of such dubious character should not be confirmed. On 30.10.1996, we have a report of a different kind from the Administrative Officer. That report is totally in favour of the appellant. It states that, with reference to the letter dated 17.10.1996, the Administrative Officer had to state that his earlier note dated 25.4.1996 regarding the appellant's performance was obviously not taken into account by the Director, that reports were being called on `selective basis' rather than by standard format applicable to all employees. He stated that the appellant's performance was exemplary, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances, the Management is unable to confirm your service in the Centre and as such the Management is unable to continue your service on the expiry of the stipulated period or probation on the Ist May 1997 and your service shall stand terminated after the close of working hours of 1 May 1997. In case you want to appeal against the decision, you may appeal to the Governing Body of the Centre. 10. You will be paid one month's pay although the contract of employment does not stipulate any such payment. It is this order of the respondent that was unsuccessfully challenged before the single Judge and the Division Bench of the High Court. In this appeal, it is contended by Sri Jaideep Gupta, learned counsel for the appellant that the order terminating the appellant's probation is liable to be set aside on two grounds. Firstly, that the findings in the letter of the Director dated 11.12.95 shows that certain findings arrived at behind the back of the appellant were the foundation of the impugned order; secondly on the ground that it refers to certain communications by the Director to the appellant which contain material amounting to `stigma' and also because these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r not depends upon whether certain allegations which are the cause of the termination are the motive or foundation. In this area, as pointed out by Shah,J. (as he then was) in Madan Gopal vs. State of Punjab [AIR 1963 S.C. 531] there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. This very question was gone into recently in R.S.Gupta vs. U.P.State Agro Industries Corporation Ltd. Anr. [J.T. 1998 (8) S.C. 585] and reference was made to the development of the law from time to time starting from Purshottam Lal Dhingra vs. Union of India [1958 SCR 828], to the concept of `purpose of inquiry' introduced by Shah,J. (as he then was) in State of Orissa vs. Ram Narayan Das [1961 (1) SCR 606] and to the seven Bench decision in Samsher Singh vs. State of Punjab [1974 (2) SCC 831] and to post Samsher Singh case-law. This Court had occasion to make a detailed examination of what is the `motive' and what is the `foundation' on which innocuous order is based. This Court in that connection referred to the principles laid down by Krishna Iyer,J. in Gujarat Steel Tube vs. Gujarat Steel Tubes Mazdoor Sangh [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as `founded' on the allegations and will be bad. But if the inquiry was not held, no finding were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid. In the light of the above principles, laid down in R.S.Gupta's case we do not think anything more is to be added. Point 1 is decided accordingly. Points 2: In the present case before us, the order of termination dated 30.4.97 is not a simple order of termination but is a lengthy order which we have extracted above. It not only says that performance during probation is not satisfactory but al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al or standard. The Legal Thesuras by Burton gives the meaning of the word to be blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame. The Webster's Third New International Dictionary gives the meaning as a mark or label indicating a deviation from a norm. According to yet another dictionary `stigma' is a matter for moral reproach. Similar observations were made in Allahabad Bank Officer's Association vs. Allahabad Bank [1996 (4) SCC 504]. At the outset, we may state that in several cases and in particular in State of Orissa vs. Ram Narayan Das [AIR 1961 S.C. 177], it has been held that use of the word `unsatisfactory work and conduct', in the termination order, will not amount to stigma. We may advert to a few cases on the question of stigma. We shall refer initially to cases where a special Rule relating to termination of probationer required a particular condition to be satisfied and where the said condition was referred to in the order of termination. In Hari Singh Mann vs. State of Punjab [1975 (1) SCC 774), the probationer was governed by Rule 8(b) of the Punjab Service Rules, 1959 and the fact that the word `unfit' as requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount to stigma. This case was followed in State of U.P. vs. Madan Mohan Nagur [AIR 1967 C.C. 1260] where the order said that the officer had `outlived his utility' and such an order was held to amount to a stigma. Jagdish Mitter was approved by the Seven Judge Bench in Samsher Singh's case on this point. But in Kunwar Arun Kumar vs. U.P. Hill Electronics Corporation [1997 (2) SCC 191, the termination order used the word `unsatisfactory' and the same was upheld as it did not amount to stigma. In two cases arising under industrial law, one in Chandu Lal vs. Pan American World Airways [1985 (2) SCC 727] and Kamal Kishnore Lakshman vs. Pan American Land Ways Inc. [1987 (1) SCC 146] where the termination order used the word `loss of confidence', the said orders were held to contain stigma and therefore punitive. In Jagdish Prasad vs. Sachiv Zila Gaon Committee [1986 (2) SCC 338], the termination order stated that the officer had concealed certain facts relating to his removal from an earlier service on charge of corruption and therefore not suitable for appointment. This was held to amount to stigma. But in Union of India vs. R.S.Dhabe [1969 (3) SCC 603] where the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reby informed that your service as Principal of this Institution is terminated ..... Now the copy of Resolution of the Managing Committee appended to the order of termination stated that the Report of the Manager was read at the meeting and that the facts contained in the Report of the Manager being serious and not in the interests of the institute, that therefore the Committee unanimously resolved to terminate his probation. The Report of the Manager was not extracted in the enclosure to the termination order but was extracted in the Counter filed in the case and read as follows: It will be evident from the above, that the Principal's stay will not be in the interest of the Institution. It is also evident that the serious view of the lapses is enough to justify dismissal but no educational institution should take all this botheration. As such my suggestion is that our purpose will be served by termination of his services. Why, then, we should enter into any botheration. For the termination of his period of probation, too, the approval of the DIOS will be necessary. Accordingly, any delay in the matter may also be harmful to our interests. Accordingly, I suggest th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent that the employer in the present case had given ample opportunity to the employee by giving him warnings, asking him to improve and even extended his probation twice and this was not a case of unfairness and this Court should not interfere. It is true that where the employee had been given suitable warnings, requested to improve, or where he was given a long rope by way of extension of probation, this Court has said that the termination orders cannot be held to be punitive. Hindustan Paper Corporation vs. Purendu Chakraborty [1996 (11) SCC 404] See in this connection, Oil Natural Gas Commission vs. Md. S.Iskendu [1980 (3) SCC 428], Unit Trust of India vs. T.Bijaya Kumar [1992 (5) Serv.L.R. 855 (SC)], Principal, Institute of P.G.Medical Education Research, Pondichery vs. S.Andel others [1995 Suppl. (4) SCC 609] and a labour case Oswal Pressure Die Carting Industry vs. Presiding Officer [1998 (3) SCC 225]. But in all these cases, the orders were simple orders of termination which did not contain any words amounting to stigma. In case we come to the conclusion that there is stigma in the impugned order, we cannot ignore the effect it will have on the probationer& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motive. But as these definitive conclusions of misconduct are evident on the face of this letter dated 11.12.95 and this letter falls within the whole period , the conclusion is inescapable that these findings were part of the foundation of the impugned order and it is not a case of mere motive. On this ground, the order requires to be set aside. We shall next take up the second aspect relating to stigma. We shall assume that the words used in the impugned order do not contain any stigma. We shall then refer to the three other letters to which the order makes a reference. In the first letter dated 30.4.96, we do not find anything objectionable. Coming to the next letter, we however find that para (iii) refers to the scuffle between the appellant and one P.Chakraborty regarding which the appellant made a complaint on 28.5.96. An Inquiry Committee is said to have been appointed and it gave a Report. The extract from the report of the Committee dated 15.7.1996 is found in the Counter of the respondents. The Inquiry Committee found the appellant's behaviour reprehensible , and it confirmed that the appellant was involved in a scuffle and did misdeeds like obtaining false signa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of State of Haryana vs. Jagdish Chander [1995 (2) SCC 567] that merely because an order of termination was set aside on grounds of lack of opportunity, it was not necessary to direct reinstatement and backwages. Reliance in Jagdish Chandra's case was placed upon Managing Director, ECIL vs. B.Karunakar [1993 (4) SCC 727]. It is true that such an order not granting reinstatement or back wages was passed in Jagdish Chander's case following Karunakar's case. But it has to be noticed that in Karunakar's case, there was a regular departmental inquiry but the inquiry report was not given to the officer. This Court directed the report to be given and set aside the proceedings from that stage and stated that no order for reinstatement or backwages need be passed at that stage. But in cases like the present where no departmental inquiry whatsoever was held, Karunakar's case, in our view, cannot be an authority. As to backwages, on facts, the position in the present case is that there is no material to say that the appellant has been gainfully employed. The appellant is, therefore, entitled to reinstatement and backwages till the date of reinstatement from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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