LPA No. 518 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 518 of 2002 Date of Decision: 6.2.2009 Mrs. Meena Singla and another. ...Appellants Versus Punjab Backward Classes Land Development and Finance Corporation. ...Respondent CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.N.D.Achint, Advocate for the petitioners. Mr.Vipul Dharmani, Advocate for the respondent. ADARSH KUMAR GOEL, J.(Oral) 1. This appeal has been preferred by the petitioners against the order of learned Single Judge dated 29.11.2001 dismissing the writ petition against the order of termination passed on 11.7.1997 during the period of probation. 2. Case of the appellants-writ petitioners is that they were recruited as Clerks in pursuance of advertisement dated 18.9.1996. They were given appointment letters dated 30.12.1996. The conditions of the appointment letter were that they will be on probation for a period of 2 years which could further be extended by one year. The petitioners joined duties on 7.1.1997. Case of the petitioners further is that they fell sick and left the office on 11.7.1997 leaving an application for leave for one day. On the LPA No. 518 of 2002 2 next day they were not allowed to join the duty and therefore, their services were terminated. They also produced medical certificate to the effect that they were suffering from Gastroenteritis and fever respectively, and had been advised rest. The order of termination was to the effect that it was not considered necessary to continue them in service. 3. Contention raised on behalf of the petitioners was that termination of service was illegal and arbitrary and without following the natural justice and also without giving one month's notice. 4. The contesting respondents defended the order of termination by submitting that the order was passed in accordance with terms of appointment. The petitioners did not appear in the type test as required. They were unauthorisedly absent. Order of termination was passed when they had rendered about three months' service and question of recording ACR had not arisen. Work and conduct of the petitioners, thus provided a motive for termination of their service. 5. Learned Single Judge, after considering the judgments of Hon'ble Supreme Court, inter alia, in A.P. State Fed. of Coop. Spinning Mills Ltd. V. P.V.Swaminathan, 2001 (3) SCT 128, Dipti Prakash Banerjee v. Satyendra Nath Bose, National Centre for Basic Sciences, Calcutta, 1999 (1) S.C.T. 861, Samsher Singh v. State of Punjab and another, AIR 1974 SC 2192, Shri D.K.Yadav v. M/s. J.M.A. Industries Ltd. 1993 (4) SLR 126, V.P. Ahuja v. State of Punjab, JT 2000 (3) SC 1 and Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36, Dr. T.C. M. Pillai v. The Indian Institute of Technology, Guindy, Madras, 1971 (2) SLR 679 held that the impugned order was not stigmatic and did not suffer from any legal defect.. Misconduct of the appellants-writ LPA No. 518 of 2002 3 petitioners was not the foundation but the motive for passing the order of termination. 6. We have heard the learned counsel for the parties and perused the record. 7. The order of termination is as under:- “Miss Rajwant Kaur and Mrs. Meena Singla, Clerks on probation and it is not considered necessary to keep them in service and therefore, their services are hereby terminated with immediate effect. Dated, Chandigarh K.S.SANDHU 11.7.97 Executive Director” 8. A perusal of the order shows that no stigma has been attached to the petitioners. The conditions of appointment in letter of appointment inter alia are as under:- “1. You are appointed against a purely temporary post and subject to that is stated in item (iii) below, your services will be liable to be terminated at any time on a notice of one month, or either side provided that either side would be required to pay in lieu of short notice, salary for the period by which the notice falls short of one month. 2. You will be treated on probation for a period of 2 years which may be extended up to a maximum of a years. During the period of probation or during the extended period thereof, as the case may be, if your work/conduct is found to be unsatisfactory, your service will be terminated forthwith without giving any LPA No. 518 of 2002 4 notice or pay in lieu thereof, on completing the probationary period satisfactorily your services will be liable to be terminated on a notice of one month provided that the Corporation would be prepared to pay in lieu of short notice. Your salary for the period by which the notice falls short similarly, in case you desire to leave the service of this Corporation during the period of probation on after the completion of the probation period, whether original or extended as the case may be you shall have to deposit one month salary with the corporation or the salary for the period of short of such notice. 3. You shall have to serve the Corporation at least for 2 years before you are allowed to go to any other undertaking or Department and in case you may wish to leave the service of the corporation, you will do so, after giving due notice as above and tendering your resignation.” 9. It is well settled that unless the employee has acquired right to continue in service, the order of termination per se cannot be held to be punitive so as to attract Article 311 of the Constitution. During the period of probation service of the employee can be terminated based on performance of the employee unless the discretion is exercised arbitrarily and malafide. Mere fact that unsatisfactory work and conduct is taken into account is not enough to infer that order of termination is stigmatic. Reference may also be made to judgments of the Hon'ble Supreme Court in State of W.B. and others v. Tapas Roy,(2006) 6 SCC 453 and Municipal Committee, Sirsa v. Munish Ram, AIR 2005 SC 792. 10. Learned counsel for the petitioners submitted that this order LPA No. 518 of 2002 5 may not debar the petitioners from making a representation to the petitioners. We find that after upholding the termination learned Single Judge in the concluding para observed as under:- “During the course of arguments, learned counsel for the petitioners has pointed out that three other similarly situated employees namely Anju Prashar, Jagtar Singh and Umesh whose services had also been terminated during the period of probation have been taken back in service on a representation made by them and, therefore, the petitioners also deserve to be taken back in service. He pointed out that there are still vacancies existing in the respondent-Corporation. The petitioners are at liberty to approach the Corporation for this purpose. Needless to say that in case any such representation is made by the petitioners, the respondent shall consider the same sympathetically in accordance with law. The decision shall not be influenced by the alleged misconduct which has admittedly not been enquired into.” 11. In view of above, no further order is called for. 12. The appeal is disposed of. (ADARSH KUMAR GOEL) JUDGE 6.2.2009 (JITENDRA CHAUHAN) mk JUDGE