IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16-2-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE T.RAJA W.P.No.180 of 2010 and M.P.Nos.1 and 2 of 2010 1.Government of India Rep. By its Secretary to Government Ministry of Health & Family Welfare Dept. of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy (AYUSH) Red Cross Building New Delhi. 2.The National Institute of Siddha Rep. By the Hon'ble Ministry of Health and Family Welfare Government of India and President General Body of NIS Nirman Bhavan New Delhi 3.The Director Department of Ayush Ministry of Health and Family Welfare Government of India Red Cross Building New Delhi .. Petitioners vs 1.Prof.Dr.S.Boopathiraj 2.The Registrar Central Administrative Tribunal Madras Bench, City Civil Court Complex Chennai 104. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for a writ of certiorari to call for the records relating to the final order passed by the second respondent herein in O.A.No.828 of 2009 dated 30.12.2009 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr.Mr.Mohan Parasaran ASGI for Mr.K.M.Venugopal for PP1 & 3 Mr.M.T.Arunan for P2 For Respondents : Mr.M.Ravi for R1 R2 – Tribunal ORDER (Order of the Court was made by M.CHOCKALINGAM, J.) This writ petition is brought forth seeking to quash the final order made by the second respondent Central Administrative Tribunal in O.A.No.828 of 2009 dated 30.12.2009. 2.The Court heard the learned Additional Solicitor General of India appearing for the petitioners 1 and 3, the learned Counsel for the second petitioner and also the learned Counsel for the first respondent and looked into the averments in the affidavit in support of the petition and counter affidavit also. 3.This writ petition came to be filed under the following circumstances: (a) The first respondent, who was initially appointed as an Assistant Medical Officer in the year 1982 in Indian Medicine and Homeopathy Department in the State of Tamilnadu, was promoted as Lecturer and Reader in the said Department. The second petitioner conveyed their approval to appoint him as Professor at National Institute of Siddha (NIS), Chennai, for a period of two years on deputation with effect from 30.9.2004. He was asked to submit his option within a period of one month which was complied with. Following the same, he was appointed as Director-in-charge of National Institute of Siddha, Chennai, from 20.9.2006 to 7.12.2006 and again as Director-in-charge from 10.9.2007 to 16.9.2008. On 8.10.2007, he was offered appointment in the regular Faculty Post of Professor (Gunapadam) subject to his taking voluntary retirement from Tamil Nadu Government Service. Pursuant to the same, he submitted his application during December 2007 for voluntary retirement from the post of Professor. In the meanwhile, by proceedings dated 22.7.2008, of the second petitioner, he was posted as Director of the National Institute of Siddha, Chennai. As per the order, he was appointed as Director of National Institute of Siddha on regular basis for a period of three years extendable to five years. He assumed charge of Director. While he was functioning so, the impugned order dated 19.8.2009, came to be made by the third petitioner terminating his service. (b) Aggrieved over the said order, he preferred O.A.No.828 of 2009. In the meanwhile, an advertisement was made in the news papers on 25.10.2009, calling for applications to fill up the post of Director of National Institute of Siddha, Chennai. Hence he filed O.A.No.1054 of 2009 before the Central Administrative Tribunal. On https://hcservices.ecourts.gov.in/hcservices/ enquiry, the Tribunal set aside the order of termination dated 19.8.2009. Aggrieved over the same, this writ petition has been brought forth by the Government. 4.Advancing arguments on behalf of the petitioners 1 and 3, the learned Additional Solicitor General of India would submit that the order of the Tribunal is illegal and against law; that it is well settled that a probationer can be discharged if it is found that he is not suitable for the post which he is holding; that the same cannot be in violation of Article 311(2) of the Constitution of India; that in the instant case, the order is not punitive in nature; that a particular attitude of tendency displayed can well influence the decision of the confirming authority while judging his suitability or fitness for confirmation; that a detailed enquiry is not at all necessary to terminate a probationer; that it is pertinent to note that even during the period of deputation and probation, the first respondent had not shown satisfactory performance and had totally adverse remarks even after providing sufficient opportunity to correct himself; that he assumed charge on 17.9.2008; that the order of termination came to be passed on 19.8.2009 i.e., during the period of probation; that under the circumstances, the contention that the first respondent is not on probation is unsustainable; that in case the first respondent is reinstated, the department would be disabled to perform departmental enquiry in accordance with Rules; that under the circumstances, the order of the Tribunal has got to be set aside and the order of termination be affirmed. 5.The learned Counsel for the second petitioner adopted the above arguments. 6.Contrary to the above contentions, the learned Counsel for the first respondent while sustaining the order under challenge put forth the very same contentions which were raised before the learned Single Judge. 7.This Court paid its anxious considerations on the submissions made. 8.It is not in controversy that the first respondent was posted as Director of National Institute of Siddha, Chennai, by an order of the first petitioner dated 22.7.2008. While he was serving so, the impugned order dated 19.8.2009 terminating his service was served upon him. Though deliberations were made elaborately on either side, the controversy between the parties is whether the impugned order of termination was passed during his probation period or not, and also whether the termination is bad since it was made without following the principles of natural justice. Pointing to the order of appointment, the learned Additional Solicitor General of India would submit that the first respondent was on probation for a period of one year from the date on which he assumed charge; and that since he assumed charge on 17.9.2008 and the order of termination came to be passed on 19.8.2009, it was well within the period of probation. Contrarily it is contended by the learned Counsel for the first respondent pointing to the very same order of appointment, that the appointment of the first respondent to the post of Director at the National Institute of Siddha was on regular basis for a period of https://hcservices.ecourts.gov.in/hcservices/ three years extendable to five years with effect from the date of assumption of charge of the post or until further orders whichever is earlier. Under the circumstances, it would be more apt and appropriate to reproduce the order of appointment which reads as follows: "Consequent upon the recommendation of the Selection Committee and in accordance with the NIS Service Rules, 2004, the undersigned is directed to convey the approval of the competent authority, i.e., Hon'ble Minister for Health & F.W., Government of India, in his capacity as the President of the General Body, National Institute of Siddha (NIS), Chennai, to the appointment of Dr.S.Boopathiraj to the post of Director, National Institute of Siddha, Chennai in the pay scale of Rs.18400-22400 + N.P.A., on regular basis for a period of three years, extendable to five years, with effect from the date of assumption of charge of the post or until further orders, whichever is earlier. Dr.Boopathiraj will be on probation for a period of one year from the date he assumes charge. This has the approval of the Appointments committee of Cabinet." 9.The very reading of the order of appointment would clearly indicate that the first respondent was appointed on regular basis for a period of three years, extendable to five years, with effect from the date of assumption of charge of the post. It also speaks of the fact that he should be on probation for a period of one year from the date he assumes charge. Merely because the order reads that he was appointed on regular basis for a period of three years, extendable to five years, it cannot be understood that the first respondent need not undergo probation period. The first respondent should undergo probation for a period of one year from the date of assumption of charge, and hence that clause has got to be given effect. Even as per the averments made by the first respondent, he was posted as the Director of National Institute of Siddha by proceedings dated 22.7.2008. Admittedly, he assumed charge on 17.9.2008, and the order of termination was made on 19.8.2009. Hence, it would be quite clear that the order of termination was made during the probation period of one year. 10.Now, at this juncture, the learned Counsel for the first respondent brought to the notice of the Court that he was deputed as Director in charge at the National Institute of Siddha, Chennai, from 20.9.2006 till 7.12.2006 and again as Director in charge from 10.9.2007 to 16.9.2008. He would further add that since he has already worked on deputation as Director even before the regular order of appointment dated 22.7.2008, the period of one year probation should be calculated from the date from which he was functioning as Director. This contention cannot be countenanced for two reasons. Firstly, the first respondent has applied for voluntary retirement from the post of Professor during December 2007, and no orders came to be passed. Secondly, he was working only on deputation as Director-in-charge, and at that time, there was no regular appointment, and he was not appointed as Director of National Institute of Siddha. He was appointed only by the proceedings dated https://hcservices.ecourts.gov.in/hcservices/ 22.7.2008. Had the contention of the first respondent been correct that he has already undergone the probation period of one year even before he assumed charge pursuant to the proceedings dated 22.7.2008, there was no need for adding the clause that the first respondent would be on probation for a period of one year from the date he assumes charge. Hence it would be quite evident that the order of termination came to be passed when the first respondent was under probation period of one year. 11.It is also further contended by the first respondent that the order of termination is bad and illegal since it is violative of the conditions imposed under Rule 29(d) of the National Institute of Siddha Service Rules 2004 and Rule 34(a) of the bye-laws of the National Institute of Siddha and also violative of the principles of natural justice since opportunity of being heard was not given to him. Contrarily it is contended by the learned Additional Solicitor General of India that the order of termination was without any imputation, stigma, penal or punitive consequences and it was only a termination of service simpliciter; that a decision to terminate his services was taken during the probation period since the performance during that period was not found satisfactory; that as per the bye- laws of the Institute, service under the Institute was only temporary until it was made permanent; that the conditions of service of temporary officials were governed by the provisions of the CCS(TS) Rules 1965, and liable to termination at any time; that as per the Rules relating to temporary official, he has been terminated without any notice; that there was no violation of either anyone of the rules or bye-laws or principles of natural justice. Rule 34(a) of the bye- laws of the National Institute of Siddha reads as follows: "34.Service under the Institute shall be temporary until it is made permanent. (a)A person appointed on a regular vacancy shall be placed on probation for a period of two years in the case of Direct Recruitment and for one year in the case of Promotion provided probation shall apply to promoted persons only once in each Group of post at the time of his entry to that Group. In case an official is considered unfit for the post on which he is placed on probation, his reversion/termination should be considered. Cases of probation of official should be reviewed every six months. In case the result of review of performance of an official is found indifferent, he should be warned of the consequences, i.e. termination of his service/reversion to the post from which he is promoted. Such a warning should be issued at least six months in advance after which the performance of the official concerned should be continuously kept under observation. If during the period of probation or any extension thereof, as the case may be, if the person is not found fit for temporary or permanent appointment, he shall be discharged or reverted to the post held by him prior to his appointment in the service, as the case may be." 12.Placing reliance on the above rule, it is urged by the first respondent that he was never warned of any consequences that his https://hcservices.ecourts.gov.in/hcservices/ termination of service was in time during the period of probation; that his performance was to the best of the interest of the Institute; that even assuming that his performance was found indifferent, he should have been warned of the consequences and the said warning should have been issued to him at least six months in advance; that even after the issuance of such warning, the performance should have been kept under observation continuously; and that if the performance continued to be unsatisfactory, he was liable to be discharged; but, in the instant case, the said procedure as contemplated under Rule 34(a) of the bye-laws of the National Institute of Siddha was not at all followed. Pointing to Rule 28 of the National Institute of Siddha Rules, 2004, the learned Counsel for the first respondent would submit that he was not informed of any indifference in any performance during the period of probation. Rule 28 of the National Institute of Siddha Rules, 2004, reads as follows: "28.Unsatisfactory Progress during Probation: If it appears to the appointing authority at any time during or at the end of the period of probation that a member of the Service has not made sufficient use of this opportunities or that he has failed to give satisfaction, the appointing authority may cancel his appointment/promotion." 13.To decide the controversy between the parties as stated above, the Court has to apply the test whether the termination was punitive or simpliciter. In the case on hand, the order of termination reads that the competent authority having regard to his performance and after going through the relevant records, has come to the conclusion that he is not fit for the permanent appointment to the post of Director of NIS, and hence the order of termination proceeded on the footing that he was not fit for permanent appointment to the said post. The order of termination does not contain any imputation or stigma nor speak of punitive consequences. In view of the lapses and irregularities noticed, the authority has found that his performance was not satisfactory, and hence he was not fit to be appointed to the permanent post when he was undergoing the probation period. The subjective satisfaction of the authority was arrived only by way of an internal enquiry. Not even a charge memo was served upon him calling for explanation. Hence, it was not a fit case where the termination of his service was punitive. It could be seen that the termination order also reads that in view of his present status as temporary employees on a probation, the competent authority has decided to terminate his services in the post of Director, NIS, and repatriate him to the State of Tamil Nadu which would also be indicative of the fact that it was not a punitive measure. 14.Under the above stated circumstances, the following decisions, in the considered opinion of the Court, would squarely apply to the present facts of the case. (i) The Apex Court has held in a decision reported in (2005) 13 SUPREME COURT CASES 652 (STATE OF U.P. AND OTHERS V. ASHOK KUMAR) as follows: https://hcservices.ecourts.gov.in/hcservices/ 6. The order of termination simpliciter as referred above does not disclose any stigma. Whether a complaint is the motive leading to termination simpliciter or it is the foundation of the termination order has been considered by this Court and held consistently by this Court that when there is no inquiry resulting in the termination order, the complaint is the motive of the order of termination, on the other hand where the complaint leads to the inquiry resulting in the termination order it is the foundation of the order of termination. This Court in a recent decision in State of Haryana v. Satyender Singh Rathore1, after discussing the various decisions of this Court, held in para 9 of the judgment as under: (SCC pp. 522-23) "9. We find that the High Court did not consider the question of stigma or the effect of any enquiry held before the order of termination was passed. The question whether the enquiry purportedly held provided the motive or the foundation was required to be considered by the High Court in detail. That has not been done. The question whether the termination of service is simpliciter or punitive has been examined in several cases e.g. Dhananjay v. Chief Executive Officer, Zilla Parishad, Jalna and Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd. An order of termination simpliciter passed during the period of probation has been generating undying debate. The recent two decisions of this Court in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences4 and Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences after survey of most of the earlier decisions touching the question observed as to when an order of termination can be treated as simpliciter and when it can be treated as punitive and when a stigma is said to be attached to an employee discharged during the period of probation. The learned counsel on either side referred to and relied on these decisions either in support of their respective contentions or to distinguish them for the purpose of application of the principles stated therein to the facts of the present case. In the case of Dipti Prakash Banerjee after referring to various decisions it was indicated as to when a simple order of termination is to be treated as ‘founded’ on the allegations of misconduct and when complaints could be only as a motive for passing such a simple order of termination. In para 21 of the said judgment a distinction is explained thus: (SCC pp. 71-72) ‘21. If findings were arrived at in an enquiry as to misconduct, behind 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 https://hcservices.ecourts.gov.in/hcservices/ will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry 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 enquire 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.’ From a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a time the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorise or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service."" (ii) In (1999) 7 SUPREME COURT CASES 350 (STATE U.P. AND ANOTHER V. RAM KRISHNA AND ANOTHER), the Apex Court has held thus: "15.As we have already stated earlier, by the second appointment letter, the respondent was appointed only for a period of three months purely on a temporary basis subject to termination without notice, therefore, we come to the conclusion that the respondent was not in regular government service. Moreover, his position was like that of a probationer. As during the period of service of the respondent the authority found that the services of the respondent were not satisfactory and accordingly terminated them, it cannot be said that the termination order was bad in law. This fact is sufficient for us to hold that the impugned order was an order of termination simpliciter of a temporary government servant namely the respondent, therefore, the provisions of Article 311 would not be attracted." 15.All the above would make it evident that the first respondent who was actually on his probation period of one year, was terminated since his service during that period was not found satisfactory, and he was not fit to be appointed to the permanent post. That apart, the termination order did not contain any imputation, stigma, penal or punitive consequences, and it was only a simpliciter. Under the circumstances, the contention put forth by the first respondent's side that he did not know the enquiry to be conducted and no https://hcservices.ecourts.gov.in/hcservices/ opportunity of being heard was given to him would not at all arise. This Court is of the view that the Central Administrative Tribunal has not adverted to the above aspects, but has taken an erroneous view, and therefore, the order of the Tribunal has got to be set aside, and the order of termination be sustained. 16.In the result this writ petition is allowed setting aside the order of the Central Administrative Tribunal. No costs. Consequently connected MPs are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: The Registrar Central Administrative Tribunal Madras Bench, City Civil Court Complex Chennai 104. 1 cc To Mr.M.Ravi, Advocate, SR.10503 1 cc To Mr.M.T.Arunan, Advocate, SR.10321 1 cc To Mr.K.M.Venugopal, Advocate, SR.10305 WP No.180 of 2010 SA(CO) sra 23.02.2010 https://hcservices.ecourts.gov.in/hcservices/