IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.2402/2008 Reserved on: 5.5.2009 Decided on:25.5.2009 Ram Lal Sharma. …Petitioner. Versus Himachal Pradesh Road Transport Corporation and another. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes. For the petitioner : Mr. Ramakant Sharma, Advocate vice Mr. Bhuvnesh Sharma, Advocate. For the Respondents : Mr. Adarsh Sharma, Advocate. Rajiv Sharma, J. The petitioner was appointed as a Conductor in the respondent- corporation on 8.10.1990. He was put on probation for a period of two years to start with. His probation was extended vide order dated 3.8.1992. He was served with a memorandum dated 3.8.1992. He filed reply to the same. It appears from the records that the petitioner had approached the learned Himachal Pradesh Administrative Tribunal by way of OA No. 72/1993 after the issuance of memo dated 3.8.1992. The petitioner was discharged by the employer on 4.1.1993. The learned Himachal Pradesh Administrative Tribunal was pleased to direct the original application to be 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 treated as representation to be decided by the Managing Director of the respondent-corporation. In view of the pendency of the original application, the operation of order dated 4.1.1993 was stayed by the Managing Director on 20.1.1993. The representation made by the petitioner was rejected by the Managing Director on 19.5.1993. Consequently, the order dated 4.1.1993 was revived. Mr. Ramakant Sharma, Advocate has strenuously argued that the office order dated 4.1.1993 is punitive in nature. He then argued that a regular inquiry was required to be conducted on the basis of specific allegations of misconduct attributed to his client in memorandum dated 3.8.1992. Mr. Adarsh Sharma, Advocate has supported the order dated 4.1.1993. He submitted that the order is neither stigmatic nor punitive. He then contended that the suitability of the petitioner was adjudged by the Managing Director on the basis of his conduct and he was not found suitable. I have heard the learned counsel for the parties and have perused the pleadings carefully. The petitioner was appointed on 8.10.1990. His probation was extended on 3.8.1992 for further period one year from 8.10.1992. A bare perusal of memorandum dated 3.8.1992 reveals that only the work and conduct of the petitioner was seen and it was not found satisfactory. He was permitted to file the reply to this memorandum dated 3.8.1992. He filed the reply to the same. The competent authority after taking into consideration the reply filed by the petitioner dispensed the services of the petitioner on 4.1.1993. The impugned order dated 4.1.1993 is neither punitive nor stigmatic as argued by Mr. Ramakant Sharma. In fact, it was not necessary for the corporation while assessing the suitability of the 3 petitioner to mention specific instances as per memorandum dated 3.8.1992. The motive to discharge the services of the petitioner was his unsuitability. In fact, as and when services of the person, who is appointed on probation, is terminated it pre-supposes that the probationer is unfit for job. The question what language in termination order would amount to stigma has been gone into detail by their Lordships of the Hon’ble Supreme Court in Dipti Prakash Banerjee versus Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others, (1999) 3 SCC 60. Their Lordships have held as under: “29. 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 v. State of Punjab, (1975) 3 SCC 182 : (AIR 1974 SC 2263), the probationer was governed by Rule 8(b) of the Punjab Service Rules, 1959 and the fact that the word 'unfit' as required by the Rules was used, was held not to be a ground for quashing the order on the ground of 'stigma', for to hold that it amounted to 'stigma' would amount to robbing the authority of the right under the rule. Similarly where a Rule required a show cause notice issued and an inquiry to be conducted before terminating probation, such as Rule 55-B of the Central Civil Services (CCA) Rules, there would be no question of characterising the simple order of termination as one founded on the allegations which were the subject of the inquiry. That was because, in such a case, the purpose of the inquiry was to find out if the officer was to be continued in service and not to find out if he was guilty. State of Orissa v. Ram Narayan Das, AIR 1961 SC 177; Ranendra Chandra v. Union of India, AIR 1963 SC 1552. In State of Gujarat v. Akhilesh C. Bhargav, (1987) 4 SCC 482 : (AIR 1987 SC 2135), the 4 termination order merely referred to Rule 12(bb) of the Indian Police Service (Probationer) Rules, 1959. It was contended that the reference to the said Rule 12(bb) itself amounted to a stigma but this was rejected following Ram Narayan Das case (AIR 1961 SC 177).” Their Lordships of the Hon’ble Supreme Court in Chandra Prakash Shahi versus State of U.P. and others, (2005) 5 SCC 152 have held that the probationer has no right to post on which he is placed on probation. His services can, therefore, be terminated during or at the end of probation, on account of his unsuitability. Their Lordships have further held that if determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. Their Lordships have held as under: “26. In Radhey Shyam Gupta v. U. P. State Agro Industries Corporation Ltd., (1998) 8 JT (SC) 585 : (1999) 2 SCC 21 : (1999 AIR SCW 207 : AIR 1999 SC 609 : 1999 All LJ 315), which related to a probationer, the whole legal position was reviewed by Brother M. Jagannadha Rao, J., in an illuminating and research-oriented judgment and after considering various decisions including the decision in Kaushal Kishore Shukla's case (1991 AIR SCW 793) (supra) and a still later decision in Commissioner of Food & Civil Supplies, Lucknow, U.P. v. Prakash Chandra Saxena, (1994) 5 SCC 177 : 1994 (3) Scale 12 : (1994 AIR SCW 2537), so as to trace the development of law relating to this aspect of service jurisprudence, laid down that there has not been any conflict of opinion inter se various judgments including those laying down the "Motive" and "Foundation" theory. It was held that the question whether the order by which the services were terminated was innocuous or punitive in nature had to be decided on the facts of each case after considering the relevant facts in the light of the surrounding circumstances. Benefit and protection of Article 211(2) of the Constitution is 5 available not only to temporary servants but also to a probationer and the Court in an appropriate case would be justified in lifting the veil to find out the true nature of the order by which the services were terminated. 27. The whole case law is thus based on the peculiar facts of each individual case and it is wrong to say that decisions have been swinging like a pendulam; right, the order is valid; left, the order is punitive. It was urged before this Court, more than once including in Ram Chandra Trivedi's case (AIR 1976 SC 2547 : 1976 Lab IC 1647) (supra) that there was a conflict of decisions on the question of order being a simple termination order or a punitive order, but every time the Court rejected the contention and held that the apparent conflict was on account of different facts of different cases requiring the principles already laid down by this Court in various decisions to be applied to a different situation. But the concept of "motive" and "foundation" was always kept in view. 28. The important principles which are deducible on the concept of "motive" and "foundation", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive". 29. "Motive" is the moving power which implies action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act. An order 6 terminating the services of an employee is an act done by the employer. What is that factor which implied the employer to take this action. If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary enquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary enquiry. 30. Applying these principles to the facts of the present case, it will be noticed that the appellant, who was recruited as a Constable in the 34th Battalion, Pradeshik Armed Constabulary, U.P., had successfully completed his training and had also completed two years of probationary period without any blemish. Even after the completion of the period of probation under Para 541 of the U.P. Police Regulations, he continued in service in that capacity. The incident in question, namely, the quarrel was between two other Constables in which the appellant, to begin with, was not involved. When the quarrel was joined by few more Constables on either side, then an enquiry was held to find out the involvement of the constables in that quarrel in which filthy language was also used. It was through this enquiry that appellant's involvement was found established. The termination was founded on the report of the preliminary enquiry as the employer had not held the preliminary enquiry to find out whether the appellant was suitable for further retention in service or for confirmation as he had already completed the period of probation quite a few years ago but was held to find out his involvement. In this situation, particularly when it is admitted by the respondent that the performance of the appellant throughout was unblemished, the order was definitely punitive in character as it was founded on the allegations of misconduct.” In the present case, the notice has been issued to the petitioner when the employer was not satisfied with his work and conduct. It is always expected from the employer to keep on reviewing the work and 7 conduct of the employee to assess whether he is suitable to be retained on the post or not during the period of probation. The petitioner was on probation for a period of two years which was extended by another one year. It was during the extended period of probation that his work and conduct was looked into by the employer. The fact that it has been mentioned in the notice that few passengers were found ticket-less at the time of checking of the bus will not make the termination of the petitioner stigmatic/punitive. This was quoted only to apprise the petitioner that his work and conduct was not satisfactory. Similarly, their Lordships of the Hon’ble Supreme Court in Pavanendra Narayan Verma versus Sanjay Gandhi PGI of Medical Sciences and another, (2002) 1 SCC 520 have held that even during the extended period if “work and conduct” has not been found to be satisfactory, such an order would not be ex facie stigmatic. Their Lordships have further held that when the services of probationer are terminated for unsuitability for the job it will not by itself be stigmatic. Their Lordships have held as under: “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. 8 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 (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. 28. Therefore, whenever a probationer challenges his termination, the court's 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. 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 9 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 in 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. “ Their Lordships of the Hon’ble Supreme Court in Mathew P. Thomas versus Kerala State Civil Supply Corporation Limited and others, (2003) 3 SCC 263 have held that even though in show cause notice serious allegations of misconduct are mentioned, but the order of termination is based on unsatisfactory performance in terms of appointment order it would amount to order simpliciter. Their Lordships have held as under: “10. Paras 1 to 3 of the show-cause notice reflect about the unsatisfactory performance of the duty of the appellant. Paras 4 and 5 of the show cause notice were not taken into consideration in passing the order of termination of services as is evident from the termination order although reference is made to the show-cause notice. The last para of the show-cause notice also indicates that the action was proposed in terms of Clause 2 of the order of appointment namely, terminating the services during probationary period. The 10 order of termination of services refers to relevant clause in the order of appointment and explanation given by the appellant to the show-cause notice. The last paragraph of the said order shows that his explanation was found unsatisfactory. The appellant had wrongfully recommended acceptance of bad stock not once but several times; as such it was held that his services have been unsatisfactory. Hence, the order of termination was passed. From this order of termination, it is clear that the respondents did not rely on paras 4 and 5 of the show-cause notice. The Division Bench in the impugned judgment, after perusal of the files observed that the appointing authority had abandoned those charges and concentrated only on the lapses committed by the appellant in wrongfully recommending acceptance of bad stock. We have no good reason to differ with this finding recorded by the Division Bench after perusal of the relevant: files and records. Even otherwise paras 4 and 5 of the show-cause notice stand withdrawn as per the direction given by the High Court. This being the position, no prejudice is caused to the appellant to complain that High Court has exceeded its power to judicial review when such a deletion of paras 4 and 5 from the show cause notice is to the benefit and advantage of the appellant. This also protects the appellant from any adverse affect when he seeks employment elsewhere and prospective employer may not have any ground to take adverse view of the alleged misconduct contained in paras 4 and 5 of the show- cause notice.” In the present case, the petitioner was put on probation for a period of two years to start with and it was clearly stipulated in the appointment letter dated 6.11.1990 that in case his work and conduct during the period of probation in the opinion of the authority is found not satisfactory, his 11 services were liable to be dispensed with or without any notice. It is mentioned in the show cause notice issued to the petitioner that his work and conduct was not satisfactory and the instances which had led the authorities to form such opinion were mentioned. Their Lordships of the Hon’ble Supreme Court in State of Haryana and another versus Satyender Singh Rathore, (2005) 7 SCC 518 have held that where an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Their Lordships have held as under: “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 termination of service is simpliciter or punitive has been examined in several cases e.g. Dhananjay v. Chief Executive Officer, Zilla Parishad, Jalna (2003 (2) SCC 386) and Mathew P. Thomas v. Kerala State Civil Supply Corporation Limited and Ors. (2003 (3) SCC 263). 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 Bamerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta (1999 (3) SCC 60) and Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences (2002 (1) SCC 520) 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 12 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 (supra) 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: "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 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 times 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 categorize or classify strictly orders of termination simpliciter falling 13 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." 10. When the factual scenario of the present case is considered in the background of legal principles set out above, the inevitable conclusion is that the High Court was not justified in interfering with the order of termination.” Accordingly, in view of the discussions made hereinabove, it is declared that the discharge is simpliciter and not punitive. The misconduct mentioned in the show cause notice was only a motive and not foundation leading to the discharge of the petitioner. The order dated 4.1.1993 is neither issued by way of punishment nor it can be termed as stigmatic. His