Regular Second Appeal No. 3493 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3493 of 1986 Date of decision: 30.03.2010 State of Punjab ...Appellant Versus Jagdish Singh ...Respondent CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Ms. Ambika Luthra, AAG, Punjab for the appellant. Mr. Anurag Chopra, Advocate for the respondent. RANJIT SINGH J. Services of the respondent-plaintiff as a Conductor with the Punjab Roadways, Patti, were terminated on 31.07.1983. He had challenged this order on the ground that the order was illegal, null and void. Plea also was that the order was not a speaking order as no reasons were assigned therein. It was also pleaded that juniors to the respondent were retained in service but his services were terminated which will violate Article 14 of the Constitution of equality before the law. Further plea was that no charge sheet or show cause notice was served upon him before passing the order terminating the services. The appellant-State had filed a written statement objecting to jurisdiction of the Court to try the suit. The allegations made in the plaint were denied. It was pointed out that the respondent-plaintiff was appointed on temporary basis and was on probation for a period of 2 years. Finding his conduct not to be Regular Second Appeal No. 3493 of 1986 2 satisfactory, his services were dispensed with in terms of his condition of his appointment. It was provided in the appointment order that the services of the respondent-plaintiff could be dispensed with at any time without assigning any reason. It was accordingly pleaded that there was no requirement of serving a charge sheet or show cause notice as termination was not by way of punishment but his services were only dispensed with on finding that the respondent- plaintiff was not considered suitable for confirmation. On the basis of pleading, the following issues were framed:- 1. Whether the orders dated 31.3.1983 and dated 14.11.1983 are illegal, null and void? OPP. 2. Whether the plaintiff is entitled to the declaration as prayed for? OPP. 3. Whether the civil court has jurisdiction to try and decide the case?OPD. 4. Relief. The trial Court decreed the suit against which the State had filed an appeal. The First Appellate Court has also upheld the said finding. The order of termination passed by the appellant reads as under:- “ Shri Jagdish Singh Conductor No. P 119 is hereby removed from service as per terms and conditions of his appointment order being no longer required with immediate effect.” Regular Second Appeal No. 3493 of 1986 3 The First Appellate Court found that juniors of the respondent-plaintiff were retained and there was no order made that the work and conduct of the respondent-plaintiff was unsatisfactory. Accordingly, the order of termination was held to be bad. In support reference was made to The Manager Govt. Branch Press and another Vs. D.R. Balliappa 1979 Labour Industrial Cases 146. On this short ground and crisp reasoning, the judgment passed by the trial Court was upheld. The substantial question of law as raised by the learned State counsel is whether the services of probationer could be dispensed with innocuously or not and while dispensing with the services of the probationer, was there any need to assign reason in support of the order. The nature of the service of the probationer and the right of the said probationer has been considered in detail in large number of judgments. In the case of Oil and Natural Gas Commission v. Dr. Md. S. Iskander Alia AIR 1980 SC 1242, it was held as under: "Where the short history of the service of the probationer appointed in a temporary post clearly showed that his work had never been satisfactory and he was not found suitable for being retained in service and that was why even though some sort of an enquiry was started, it was not proceeded with and no punishment was inflicted on him and in these circumstances, if the appointing authority considered it expedient to terminate the services of the probationer it could not be said that the order of termination attracted the provisions of Article 311, when Regular Second Appeal No. 3493 of 1986 4 the appointing authority had the right to terminate the service without assigning any reasons." Somewhat similar view was taken by Maharashtra vs. Veerappa R. Saboji AIR 1980 SC 42, which is held as under:- "Ordinarily and generally the rule laid down in most of the cases by this Court is that you have to look to the order on the face of it and find whether it casts any stigma on the Government servant. In such a case there is no presumption that the order is arbitrary or mala fide unless a very strong case is made out and proved by the Government servant who challenges such an order." In Governing Council of Kidwai Memorial Institute of Oncology, Bangalore vs. Dr. Pandurang Godwalkar and another, AIR 1993 SC 392, the same principle was reiterated and it was held that where the service of an employee is terminated during the period of probation or while his appointment is on temporary basis, by an order of termination simpliciter after some preliminary enquiry it cannot be held that as some enquiry had been made against him before issuance of order of termination it really amounted to his removal from service on a charge, as such penal in nature. In the case of Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and another JT 2001 (9) SC 420 the law on the point has been very clearly elucidated in the following Regular Second Appeal No. 3493 of 1986 5 manner:- "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. .......................................................................................... 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. 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." In State of Punjab and others v. Balbir Singh JT 2004 (7) SC 383, it was held that the order of discharge simpliciter, prima facie, is not punitive. It was further observed in this case:- Regular Second Appeal No. 3493 of 1986 6 “In order to determine whether the misconduct is motive or foundation of order of termination, the test to be applied is to ask the question as to what was the "object of the enquiry". If an enquiry or an assessment is done with the object of finding out any misconduct on the part of the employee and for that reason his services are terminated, then it would be punitive in nature. On the other hand, if such an enquiry or an assessment is aimed at determining the suitability of an employee for a particular job, such termination would be termination simpliciter and not punitive in nature. The other test to determine whether, in substance, the order of discharge is punitive in nature is to ascertain the "nature of enquiry" i.e. whether the termination is preceded by a full-scale formal enquiry into allegations involving misconduct on the part of the respondent, which culminated in the finding of guilt, and the "purpose of the enquiry" i.e. whether the purpose of the enquiry is to find out any misconduct on the part of the employee or it is aimed at finding out as to the respondent being unlikely to prove as an efficient police officer." In view of this enunciation of law, it will not be possible to sustain the view taken by the courts below in the judgments. As has been noticed, the services of the probationer which is appointed temporary could be dispensed with without assigning any reason. It would not be possible to take a view that if any junior probationer is Regular Second Appeal No. 3493 of 1986 7 retained, the services of the senior cannot be dispensed with. The work and conduct of the probationer is to be judged and order of confirmation or non confirmation is to be made on the basis of said performance. It would be, thus, contrary to the concept of probation if the work is not allowed to be judged on the basis of performance. The impugned judgment, therefore, is not open to be sustained. The question of law as formulated is accordingly decided. The question now would arise as to what relief is to be granted to the State. I have perused the case file and I have noticed that the operation of the judgment was not stayed. More than one attempt was made to seek the stay but the same was declined by this Court. As a necessary consequence thereof, the respondent- plaintiff continued to perform his duties. The counsel appearing for the respondent-plaintiff has made an attempt to get in touch with him to find out about his present status. He, however, has been unsuccessful in this regard. Either the respondent-plaintiff would be in service or he might have by now retired. Under these circumstance, it would not be equitable to sustain the order of his removal if he has continued to perform his duties. He would by now have also passed the test of being suitable and could not any more by treated as probationer. Accordingly, while deciding the question of law in above terms, the Regular Second Appeal is dismissed. March 30, 2010 (RANJIT SINGH) rts JUDGE