1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1367 OF 1994 Dinesh P. Singh .. Petitioner Versus B.M.C. & Anr. .. Respondents Ms.V. Perry i/b. Mr.Mihir Desai for petitioner Ms.S.M.Modle for B.M.C. CORAM : ANIL R. DAVE C.J & S.C.DHARMADHIKARI, J. Reserved on : 15th March 2010. Pronounced on : 7th April 2010. ORAL JUDGEMENT:- (Per Dharmadhikari, J) 1] By this petition under Article 226 of the Constitution of India, the petitioner challenges the order passed by the Respondent Corporation dated 28th April 1994 terminating his services. 2] The petitioner submits that he was employed as a Teacher/ Instructor with the Schools and Colleges of the first respondent 2 Corporation since 1991. The petitioner is M.A. in English Literature and B.Ed. He is qualified to hold all academic posts in secondary schools and junior colleges as well as college of Education. Since, 1991, he had been appointed in various secondary schools an colleges of education controlled and administered by respondent No.1. It is the petitioner’s case that the first respondent, in order to avoid granting permanency to teachers, evolved a practice of giving monthly appointments and such monthly appointment letters were issued to even qualified teachers like petitioners. He has been working for about three years and during this period, he received 14 separate appointment letters. However, during this period, he was not served with any memo or adverse remarks. There is no grievance about his work. The practice evolved itself demonstrates that the first respondent/ public body denies permanency to its employees by appointing them temporarily. In the instant case, the petitioner was called for interview in July 1991, prescribed procedure was followed of interviews by the Selection Committee and with effect from 3rd September 1991, He was initially appointed against leave vacancy. Thereafter, he has been appointed in clear vacancy in different 3 secondary schools. This continued up to November 1992. The Principals of the subject secondary schools appreciated his work. The petitioner has annexed copies of the appointment letters and appreciation letters as Annexure A to F to the petition and submits that at one stage he was appointed even as acting Principal. 3] The petitioner then submits that in October 1992 he was appointed as Instructor (Equivalent to a teaching post) in the Corporation’s Hindi Teachers Junior College of Education, Wadala on temporary basis. This appointment was also continued from time to time till 27th December 1993. Thereafter, with effect from 29th December 1993, he was appointed as Instructor on probationary basis for two years. Questioning such an appointment and alleging that even this was not proper, the petitioner contends that to his utter shock and surprise, he was served with the impugned order terminating his service with effect from 29th April 1994. 4] Being aggrieved by this, that the instant petition has been filed. 4 The petition was admitted by this Court on 27th June 1994 but unfortunately could not be heard early. It was placed before us for hearing and final disposal. 5] Ms.Perry appearing on behalf of the petitioner submits that the impugned order is contrary to law and wholly arbitrary. She submits that once the petitioner was appointed by the prescribed procedure and after undergoing a medical test, he could not have been given such temporary appointment. That apart and assuming that the petitioner was a probationer even a probationer’s service cannot be terminated for misconduct. She submits that in the instant case, the order may be innocuous but it is based on misconduct and, therefore, this court should not go by the wording of the order. Instead, this Court should call for the records, leading upto the termination and if the motive and foundation of the impugned order is an alleged misconduct, then, the petitioner cannot be terminated without holding an enquiry. 6] Ms.Perry has submitted as above because of the affidavit in reply 5 filed by the Administrative Officer of the first respondent to this petition. She submits that para 14 of this affidavit states while dealing with the petition that a preliminary enquiry was held against the petitioner for misbehaviour with female student. On the basis of the evidence on record and the order of the Preliminary Enquiry Officer that the administration decided to terminate the service of petitioner with immediate effect. In such circumstances, it is more than apparent, according to Ms.Perry that the foundation of the impugned termination is misconduct of the petitioner and his alleged misbehaviour with a female student. If that is what led to the termination of his service during the probationary period, then, it is casting stigma on his character. For this reason, this Court must interfere with the order under challenge and set aside the same. 7] In support of her submissions, Ms.Perry relies upon following decisions:- 1. Jagdish Mitter Vs. Union of India (AIR 1964 SC 449) 6 2. Kamal Kishore Lakshman (1987) 1 SCC 146; 3. Radhey Shyam Gupta (1999) 2 SCC 21; 4. Dipti Prakash Banerjee (1999) 3 SCC 60; 5. V.P.Ahuja (2000) 3 SCC 239; 6. Pavanendra Narayan Verma (2002) 1 SCC 520 7. Mathew P. Thoman (2003) 3 SCC 263; 8. Ahhijit Gupta (2006) 4 SCC 469; 9. Progressive Education Society 92008) 3 SCC 310. 8] On the other hand, Ms.Modle appearing for the respondent No.1 submitted that this is a case of termination simplicitor on account of unsatisfactory performance during the probationary period. There is no stigma. The order does not cast a stigma but merely recites that the services of the petitioner are terminated as they are no longer required. She submits that nothing more be read in this order and merely because it has been pointed out by the respondents in the affidavit in reply that a preliminary enquiry was held for his alleged misbehaviour with female students but that by itself is no ground to go behind the order and 7 conclude that it casts a stigma on petitioner’s character. She submits that all the municipal employees are governed by Bombay Municipal Corporation (Service) Regulations 1989 and as per Rule 28 (b), services of every employee of the Corporation can be terminated at any time during probation period, without assigning any reason. She submits that the power to appoint on probation and terminate service during the probationary period is not challenged by the petitioner. The petitioner had been appointed purely on temporary basis and as an ad hoc arrangement in leave vacancy as has been explained in para 3 of the affidavit. He was given a break because the arrangement came to an end on resumption of concerned employee. The appointments were never made on confirmed basis nor were they in clear vacancy. When a clear vacancy arose in 1992, the administration decided to create four new posts and appointed petitioner to one of them purely as a probationer. In these circumstances, no right was created by virtue of the earlier and the present appointment. All arguments are contrary to the record. 9] Insofar as the subject termination is concerned, Ms.Modle fairly 8 hands over the record to us for our perusal and states that the record contains documents with regard to the earlier appointments given to the petitioner and appraisal of his performance. 10] She submits that the law being clear and the power to terminate not being questioned, then, this is not a fit case where this Court should interfere in exercise of its extra ordinary, equitable and discretionary jurisdiction. Resultantly, the petition must be dismissed. 11] With the assistance of the learned Counsel appearing for parties, we have perused the petition and all annexures thereto, including the impugned order, the affidavit filed by the Corporation and the record handed in for our perusal. We have perused the same purely because the petition was admitted and pending in this Court for nearly 15 years. We have perused it also because of the contents of the affidavit in reply and purely not to cause injustice to the petitioner. 12] The principles which have to be applied while scrutinising such 9 orders are too well settled to require any reiteration. In one of the recent decisions reported in 2008 (3) SCC 310 (Progressive Education Society Vs. Rajendra and Anr), the Supreme Court in the case of a teacher reiterated the settled principles in the following words:- “15. .... The law with regard to termination of the services of a probationer is well established and it has been repeatedly held that such a power lies with the appointing authority which is at liberty to terminate the services of a probtioner if it finds the performance of the probationer to be unsatisfactory during the period of probation. The assessment has to be made by the appointing authority itself and the satisfaction is that of the appointing authority as well. Unless a stigma is attached to the termination or the probationer is called upon to show case for any shortcoming which may subsequently be the cause for termination of the probationer’s service, the management or the appointing authority is not required to give any 10 explanation or reason for terminating the services except informing him that his services have been found to be unsatisfactory.” 13] As far as the argument that there was a preliminary enquiry held against the petitioner which resulted in a finding of the preliminary enquiry officer and based upon which the first respondent decided to terminate the service of petitioner is concerned, even that is not well founded. In other words, the allegations against the petitioner leading to the preliminary enquiry being of misconduct i.e. Alleged misbehaviour with a female student, we should conclude that the termination is a punishment is equally improper and misplaced. The law on the point is too well settled. In A.I.R. 1993 S.C. 392 (Governing Council of Kidwai Memorial Institute of Oncology, Bangalore Vs. Dr.Pandurang Godwalkar and Anr), a two Judge bench of the Supreme Court was considering an identical controversy. While referring to the allegations made by the appellant against the respondent before it, which were some what 11 identical, the Supreme Court rejected the argument that the termination is not simplicitor but for misconduct and in paras 6 to 8 held thus:- “6. Generally in connection with an order of termination, a question is raised before the Court as to what is the motive behind the termination of the service of the employee concerned whether the reason mentioned in the order of termination has to be accepted on its face value or the background in which such order of termination simplicitor has been passed should be examined to find out as to whether an officer on probation or holding a temporary appointment has been, in fact, dismissed from the service without initiating any departmental enquiry. In an employee who is on probation or holding an appointment on temporary basis is removed from the service with stigma because of some specific charge, then a plea cannot be taken that as his service was temporary or his appointment was on probation, there was no 12 requirement of holding any enquiry, affording such an employee an opportunity to show that the charge levelled against him is either not true or it is without any basis. But whenever 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 simplicitor after some prleiminary enquiry it cannot be held that as some enquiry had been made against him before the issuance of order of termination it really amounted to his removal from service on a charge as such penal in nature.” “7. When an appointment is made on probation, it presupposes that the conduct, performance, ability and the capacity of the employee concerned have to be watched and examined during the period of probation. He is to be confirmed after the expiry of probation only when his service during the period of probation is found to be satisfactory and he is considered suitable for the post 13 against which he has been appointed. The principle of tearing of the veil for finding out the real nature of the order shall be applicable only in a case where the court is satisfied that there is a direct nexus between the charge so levelled and the action taken. If the decision is taken, to terminate the service of an employee during the period of probation, after taking into consideration the overall performance and some action or inaction on the part of such employee then it cannot be said that it amounts to his removal from service as punishment. It need not be said that the appointing authority at the stage of confirmation or while examining the question as to whether the service of such employee be terminated during the continuance of the period of probation, is entitled to look into any complaint made in respect of such employee while discharging his duties for purpose of making assessment of the performance of such employee.” 14 “8. Even if such employee while questioning the validity of an order of termination simplicitor brings on the record that some preliminary enquiry or examination of some allegations had been made, that will not vitiate the order of termination. Reference in this connection may be made to the case of Oil & Natural Gas Commission Vs. Dr.Mohd. S.Iskender Ali (1981) 3 SCR 603: (AIR 1980 SC 1242), where it was pointed out that a temporary employee is appointed on probation for a particular period “only in order to test whether his conduct is good and satisfactory so that he may be retained”. It was also said that even if misconduct, negligence, inefficiency may be the motive or the influencing factor which induced the employer to terminate the service of the employee which such employer admittedly had under the terms of the appointment, such termination cannot be held to be penalty or punishment. Same view has been reiterated in connection with appointment on temporary or ad hoc basis in the cases of 15 Ravindra Kumar Misra Vs. U.P. State Handloom Corporation Ltd. (1987) Suppl. SCC 739 (A.I.R. 1987 SC 2408); State of Uttar Pradesh Vs. Kaushal Kishore Shuila (1991) 1 SCC 691: (1991 AIR SCW 793) and Triveni Shankar Saxena Vs. State of U.P. (1992) 1 JT (SC) 37: (1992 AIR SCW 110).” 14] In the instant case we have perused the record only to deal with the submission of Ms.perry that it is a misbehaviour with the female student which led to his termination and that is nothing but a punishment. From the record, we did not find anything which would enable us to conclude that the termination is not simplicitor but a punishment. There may have been a preliminary enquiry but it is the over all service record on which the termination is based. It is the present performance of the petitioner as a whole that the decision to terminate his services was taken by the first respondent. The cause or reason for the termination is not the alleged misbehaviour but as held by the Supreme Court, is based on the overall assessment of the petitioners performance. Therefore, there is no 16 substance in the argument with regard to the preliminary enquiry and the findings of the Preliminary Enquiry Officer. 15] One of us (S.C.Dharmadhikari, J) had an occasion to consider similar controversy in the case of Nilambari Dinkar Pawar Vs. Shikshan Prasarak Sanstha and Ors., (2007 (3) Mh.L.J. 822). After referring to the factual position, this is what is observed in paras 18 and 19 of the said decision:- “18. As far as the appointment of petitioner is concerned, the appointment order makes it clear that she has been appointed on 20th July 1993 purely on probation for two years. Her services have been terminated on 29th March 1995 during the period of her probation. The termination is permissible if the work or behaviour during the period of probation is not satisfactory. In this behalf, a reference can usefully be made to a decision of this Court reported in 1998 (1) Bom. Case Reporter page 592, Shri Vithal 17 Pandharinath Dhere Vs. Shree Kedarnath Shikshan Sanstha and Ors. The Division Bench in para 6 observes as under:- “6. We find considerable force in the submission made on behalf of the respondents. In our opinion, section 5(3) of the said Act which provides for termination of services of an employee speaks of “work” or “behaviour” of any probationer not found satisfactory. Even assuming that the work of the petitioner was found satisfactory on the basis of non production of any confidential record as provided under Rule 15(6) the management would be free to come to a conclusion that the behaviour of the employee was not satisfactory. In the instant case, the Tribunal has relied on the representation which was received by the management which prompted the management to pass a resolution in question. The resolution passed by the management was passed on 27th March 1987 and referring to the representation, the resolution stated that the same was received from the 18 teaching and non teaching staff and it was dangerous and unsatisfactory to keep the petitioner in service, as according to the management, the complaints were found to be true and thus a serious note was taken of the fact and that the presence of the petitioner was not found in the interest of the school. In our opinion, the management is best judge of the situation as to whom to continue and whom not to continue. Admittedly, when the petitioner was on probation, it is the satisfaction of the management which decides the issue as to whether a person on probation requires to be continued or not. Coming to the arguments of Mr.Langote that it would result into a stigma being attached to the character of the petitioner, in our opinion, suffice it to say that the order challenged by the petitioner before the Tribunal simply stated that his services were not required. If as a result of appeal preferred by the petitioner, certain facts come to light and if they are interpreted as a stigma to the 19 character of petitioner, the petitioner has himself to blame. “19. In yet another decision of this Court, reported in 1988 (3) BCR 365, Premier Education Society Vs. J.K.Kripalani, this Court has observed as under:- “20. A person who is appointed on probation may be relieved from service, if he is found unsuitable. It is well established that such removal does not cast any stigma provided it is only removal on the ground of probationer’s service being unsatisfactory or unsuitable. As observed by the Supreme Court in the case of Hari Singh Mann Vs. State of Punjab and Anr. Reported in A.I.R. 1974 S.C. 2263 to hold that the words “unfit to be appointed” are a stigma would robe the authorities of the power to judge fitness for work or suitability to the post at the time of 20 confirmation. Termination of services on account of inadequacy for the job or for temperamental or other defect not involving moral turpitude is not a stigma which can be called discharge by punishment. Fitness for the job is one of the most important reasons for confirmation.” “21. Of course a mere form of the order terminating services simplicitor is not conclusive. If in fact the order of termination is passed in attendance of circumstances which indicate that it is by way of punishment such circumstances can be looked into and the order of termination can be quashed if it is found that it was in fact by way of punishment.” “23. The whole purpose of probation is to assess whether a person can function properly in the post to which he is appointed. The termination during the 21 probationary period for not coming up to the requirements of the post cannot be considered as punishment. There was, therefore, no question of holding an enquiry in a case such as the present case.” 15] A faint attempt was made that the affidavit in reply and more particularly para 14 thereof making reference to misconduct and misbehaviour of the petitioner, we should infer that the termination casts a stigma on the petitioner’s character. However, even this argument is not sound inasmuch as the law is well settled that an order of this nature being subsequently challenged and during the course of the same if the allegations of malafide and arbitrariness levelled by the employee are denied, then, without anything more in the light of the pleas and the denials raised long after passing of the order, it cannot be that the order is punitive and not a termination simplicitor. In these circumstances, merely because in the affidavit in reply the pleas raised by the petitioner are denied, it cannot be said that the order is not of simplicitor termination but a punishment inflicted without enquiry on the petitioner. 22 16] In the result, we are of the opinion that the order does not suffer from any error apparent or perversity nor can it be termed as arbitrary and malafide warranting our interference in writ jurisdiction. This is a case of termination simplicitor of a probationer on appraisal of his performance during the probationary period. In such circumstances, it will not be possible to accede to any of the pleas raised before us. Resultantly, the petition fails and it is accordingly dismissed. Rule is discharged. No costs. (CHIEF JUSTICE) (S.C.DHARMADHIKARI, J)