RSA No.133/2004 Page 1 of 4 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Judgment: 07.02.2011 + R.S.A.No.133/2004 & C.M.No.7127/2004 DR. (MRS) SUMAN SINGH CHAUHAN ………..Appellant Through: Mr. Sanjeev Bhandari, Advocate. Versus BHARAT SCOUTS & GUIDES & ANR. ……….Respondent Through: Mr. Kunwar C.M. Khan, Advocate. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. (Oral) 1 This appeal has impugned the judgment and decree dated 09.02.2004 which has endorsed the findings of the trial Judge dated 27.01.1999 whereby the suit of the plaintiff Suman Singh Chauhan seeking a declaration that the order of termination dated 08.01.1996 be declared null and void had been dismissed. The plaintiff had been selected to the post of Officer on Special Duty (OSD) with Bharat Scouts and Guides. Her letter of appointment was dated 27.03.1995 and she resumed duties w.e.f. 14.07.1995. Admittedly the Bharat Scouts and Guides Staff Service (Conduct) Rules as revised on 24.09.1994 were applicable to the appellant. Under Rule 11 all appointees had to pass a probation period of one year. After satisfactory completion of this period, the said person would or would not be confirmed to her post on the RSA No.133/2004 Page 2 of 4 recommendations of the Director. The services of the appellant had been terminated under Rule 17. The allegation against her was that her work and conduct both were dissatisfactory; she had participated in an election campaign which was against the rules; her work was also not-satisfactory. She was consequently terminated vide order dated 08.01.1996 which was admittedly within the period of probation. 2 Issues had been framed before the trial Judge. Before this Court, it has been urged that the termination of the respondent was mala-fide; her services had been malafidely terminated and this was at the instance of respondent No. 2. Learned counsel for the appellant has pointed out that the letter of termination of the appellant dated 08.01.1996 was signed by the Director Shri K.B.C. Nair under pressure and this is evident from the fact that Shri K.B. C. Nair had himself succumbed to pressure and resigned from the Organization on 15.01.1996. Thus the malafides on the part of the department are clear and manifest. Learned counsel for the appellant has placed reliance upon (1984) 2 SCC 3G9 Anup Jaiswal Vs. Government of India to support his submission that where the form of the order is merely a camouflage for an order of dismissal for misconduct, it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. 3 Admittedly in the courts below no issue of malafide had been framed. Trial Court had disposed of the suit dismissing it on basis of the preliminary objections alone. In the first appellate court in the grounds of appeal, no specific assertion of malafides was made by the appellant. RSA No.133/2004 Page 3 of 4 4 There are two concurrent findings of fact against the appellant 5 Before this Court, it is urged that the appellant is aggrieved by the fact that her services had been terminated on account of mis-conduct. Learned counsel for the respondent has drawn attention of this Court to Rule 17 which specifically postulates that termination of services of a person on an unsuccessful completion of probation would not amount to penalty. This is contained in the Explanation of Rule 17 sub-clause (vii) which reads as follows:- “The following shall amount to penalty within the meaning of this rule, namely; of a probationer during or at the end of the period of his/her probation.” 5 It is thus clear that the termination of the services of the appellant was not by way of penalty. 6 The substantial question of law was formulated by this Court on 21.08.2008. It reads as under:- “Whether termination of service of a probationer on the basis of alleged incident of misconduct precludes the court from finding out the real basis and purport of impugned order?” 7 As is evident from the record and noted hereinabove Supra apart from the fact that no specific issue was framed on the question of malafide and the rules of the respondent organization fully permitting the department to terminate the services of a probationer on any count, in terms of Rule 17, the appellant was rightfully terminated. This legal proposition is unfaulted and calls for no interference. This Court is not a third fact finding Court. It cannot delve into a third fact finding exercise since both the courts below had examined the factual matrix of the matter on the basis of the pleadings which had been addressed before them. This Court is RSA No.133/2004 Page 4 of 4 precluded from going into that arena. 8 The substantial question of law is answered in the negative; against the appellant and in favour of the respondent. Appeal as also pending applications are dismissed. INDERMEET KAUR, J. FEBRUARY 07, 2011 A