IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.158 OF 2006 LETTERS PATENT APPEAL NO.158 OF 2006 LETTERS PATENT APPEAL NO.158 OF 2006 IN IN IN WRIT PETITION NO.7567 OF 2005 WRIT PETITION NO.7567 OF 2005 WRIT PETITION NO.7567 OF 2005 Deepak Inder Ahuja ...Appellant Deepak Inder Ahuja ...Appellant Deepak Inder Ahuja ...Appellant Vs. Vs. Vs. The Secretary The Secretary The Secretary Hyderabad Sindh National College Board Hyderabad Sindh National College Board Hyderabad Sindh National College Board Mumbai & Ors. ...Respondents Mumbai & Ors. ...Respondents Mumbai & Ors. ...Respondents Mr.R.S.Apte with Mr. Mandar Limaye for Appellant Mr.R.S.Apte with Mr. Mandar Limaye for Appellant Mr.R.S.Apte with Mr. Mandar Limaye for Appellant Mr.A.G.Kothari for Respondents Mr.A.G.Kothari for Respondents Mr.A.G.Kothari for Respondents CORAM: SHRI D.G. DESHPANDE & CORAM: SHRI D.G. DESHPANDE & CORAM: SHRI D.G. DESHPANDE & SMT. ROSHAN DALVI, JJ. SMT. ROSHAN DALVI, JJ. SMT. ROSHAN DALVI, JJ. DATE : 7TH NOVEMBER, 2006. DATE : 7TH NOVEMBER, 2006. DATE : 7TH NOVEMBER, 2006. P.C. P.C. P.C. 1. Heard the Advocate for the Petitioner and the 1. Heard the Advocate for the Petitioner and the 1. Heard the Advocate for the Petitioner and the Respondents. Respondents. Respondents. 2. This LPA is filed against the judgment of the 2. This LPA is filed against the judgment of the 2. This LPA is filed against the judgment of the learned Single Judge dated 23rd June, 2006. The learned Single Judge dated 23rd June, 2006. The learned Single Judge dated 23rd June, 2006. The Appellant/Petitioner was appointed on probation as a Appellant/Petitioner was appointed on probation as a Appellant/Petitioner was appointed on probation as a Principal of the High School and Junior College conducted Principal of the High School and Junior College conducted Principal of the High School and Junior College conducted by the Respondents at Ulhasnagar, was terminated from by the Respondents at Ulhasnagar, was terminated from by the Respondents at Ulhasnagar, was terminated from services. The termination of his services was on filing services. The termination of his services was on filing services. The termination of his services was on filing of the FIR against him for taking bribe in giving of the FIR against him for taking bribe in giving of the FIR against him for taking bribe in giving admission to students in College. The contention of the admission to students in College. The contention of the admission to students in College. The contention of the Petitioner before the Single Judge was that, in view of Petitioner before the Single Judge was that, in view of Petitioner before the Single Judge was that, in view of the resolution of the Respondent Committee, the services the resolution of the Respondent Committee, the services the resolution of the Respondent Committee, the services are not terminated simplicitor and the background are not terminated simplicitor and the background are not terminated simplicitor and the background circumstances indicate that some incident had occurred circumstances indicate that some incident had occurred circumstances indicate that some incident had occurred before termination and though those circumstances were before termination and though those circumstances were before termination and though those circumstances were not part of the termination letter, the termination is to not part of the termination letter, the termination is to not part of the termination letter, the termination is to be treated as stigmatic. The termination was punitive be treated as stigmatic. The termination was punitive be treated as stigmatic. The termination was punitive and the outcome of those allegations and as such it and the outcome of those allegations and as such it and the outcome of those allegations and as such it should have been preceeded by a full-fledged departmental should have been preceeded by a full-fledged departmental should have been preceeded by a full-fledged departmental inquiry. The submissions were heard at length but he did inquiry. The submissions were heard at length but he did inquiry. The submissions were heard at length but he did not agree with the Petitioner against the LPA. not agree with the Petitioner against the LPA. not agree with the Petitioner against the LPA. 3. The learned Counsel for the Petitioner relied 3. The learned Counsel for the Petitioner relied 3. The learned Counsel for the Petitioner relied upon the Judgment of the Supreme Court, 1986 (3) Supreme upon the Judgment of the Supreme Court, 1986 (3) Supreme upon the Judgment of the Supreme Court, 1986 (3) Supreme Court Cases, 277 Jarnail Singh and Ors. Vs. State of Court Cases, 277 Jarnail Singh and Ors. Vs. State of Court Cases, 277 Jarnail Singh and Ors. Vs. State of Punjab and Ors. and placed reliance on paragraph no.32 Punjab and Ors. and placed reliance on paragraph no.32 Punjab and Ors. and placed reliance on paragraph no.32 which is as follows : which is as follows : which is as follows : " 32. The position is now well settled " 32. The position is now well settled " 32. The position is now well settled on a conspectus of the decisions referred to on a conspectus of the decisions referred to on a conspectus of the decisions referred to hereinbefore that the mere form of the order is hereinbefore that the mere form of the order is hereinbefore that the mere form of the order is not sufficient to hold that the order of not sufficient to hold that the order of not sufficient to hold that the order of termination was innocuous and the order of termination was innocuous and the order of termination was innocuous and the order of termination of the services of a probationer or termination of the services of a probationer or termination of the services of a probationer or of an ad hoc appointee is a termination of an ad hoc appointee is a termination of an ad hoc appointee is a termination simpliciter in accordance with the terms of the simpliciter in accordance with the terms of the simpliciter in accordance with the terms of the appointment without attaching any stigma to the appointment without attaching any stigma to the appointment without attaching any stigma to the employee concerned. It is the substance of the employee concerned. It is the substance of the employee concerned. It is the substance of the order i.e. the attending circumstances as well order i.e. the attending circumstances as well order i.e. the attending circumstances as well as the basis of the order that have to be taken as the basis of the order that have to be taken as the basis of the order that have to be taken into consideration. In other words, when an into consideration. In other words, when an into consideration. In other words, when an allegation is made by the employee assailing the allegation is made by the employee assailing the allegation is made by the employee assailing the order of termination as one based on misconduct, order of termination as one based on misconduct, order of termination as one based on misconduct, though couched in innocuous terms, it is though couched in innocuous terms, it is though couched in innocuous terms, it is incumbent on the court to lift the veil and to incumbent on the court to lift the veil and to incumbent on the court to lift the veil and to see the real circumstances as well as the basis see the real circumstances as well as the basis see the real circumstances as well as the basis and foundation of the order complained of. In and foundation of the order complained of. In and foundation of the order complained of. In other words,d the court in such case, will lift other words,d the court in such case, will lift other words,d the court in such case, will lift the veil and will see whether the order was made the veil and will see whether the order was made the veil and will see whether the order was made on the ground of misconduct, inefficiency, or on the ground of misconduct, inefficiency, or on the ground of misconduct, inefficiency, or not. In the instant case we have already not. In the instant case we have already not. In the instant case we have already referred to as well as quoted the relevant referred to as well as quoted the relevant referred to as well as quoted the relevant portions of the averments made on behalf of the portions of the averments made on behalf of the portions of the averments made on behalf of the State-respondent in their several affidavits State-respondent in their several affidavits State-respondent in their several affidavits alleging serious misconduct against the alleging serious misconduct against the alleging serious misconduct against the petitioners and also the adverse entries in the petitioners and also the adverse entries in the petitioners and also the adverse entries in the service records of these petitioners, which were service records of these petitioners, which were service records of these petitioners, which were taken into consideration by the Departmental taken into consideration by the Departmental taken into consideration by the Departmental Selection Committee without giving them any Selection Committee without giving them any Selection Committee without giving them any opportunity of hearing and without following the opportunity of hearing and without following the opportunity of hearing and without following the procedure provided in Article 311(2) of the procedure provided in Article 311(2) of the procedure provided in Article 311(2) of the Constitution of India, while considering the Constitution of India, while considering the Constitution of India, while considering the fitness and suitability of the appellants for the fitness and suitability of the appellants for the fitness and suitability of the appellants for the purpose of regularising their services in purpose of regularising their services in purpose of regularising their services in accordance with the government circular made in accordance with the government circular made in accordance with the government circular made in October, 1980. Thus the impugned orders October, 1980. Thus the impugned orders October, 1980. Thus the impugned orders terminating the services of the appellants on the terminating the services of the appellants on the terminating the services of the appellants on the ground that "the posts are no longer required" ground that "the posts are no longer required" ground that "the posts are no longer required" are made by way of punishment." are made by way of punishment." are made by way of punishment." 3. On the other hand Counsel for the Respondent 3. On the other hand Counsel for the Respondent 3. On the other hand Counsel for the Respondent relied on the Judgment of the Supreme Court in 2002(1) relied on the Judgment of the Supreme Court in 2002(1) relied on the Judgment of the Supreme Court in 2002(1) ALL M R 302 Supreme Court in the case of Pavanendra ALL M R 302 Supreme Court in the case of Pavanendra ALL M R 302 Supreme Court in the case of Pavanendra Narayan Verma Vs. Sanjay Gandhi P.G.I. Medical Sciences Narayan Verma Vs. Sanjay Gandhi P.G.I. Medical Sciences Narayan Verma Vs. Sanjay Gandhi P.G.I. Medical Sciences and our attention is drawn to paragraph nos.24, 29, 31 and our attention is drawn to paragraph nos.24, 29, 31 and our attention is drawn to paragraph nos.24, 29, 31 and 32. and 32. and 32. . "24. In State of Uttar Pradesh Vs. . "24. In State of Uttar Pradesh Vs. . "24. In State of Uttar Pradesh Vs. Kaushal Kishore Shukla 1991 (I) SCC 691, the Kaushal Kishore Shukla 1991 (I) SCC 691, the Kaushal Kishore Shukla 1991 (I) SCC 691, the employee had been appointed on a temporary basis employee had been appointed on a temporary basis employee had been appointed on a temporary basis for a fixed tenure. During the period of his for a fixed tenure. During the period of his for a fixed tenure. During the period of his service, adverse entries were made in his service, adverse entries were made in his service, adverse entries were made in his character roll. Complaints were also received by character roll. Complaints were also received by character roll. Complaints were also received by the auditors of the employer. A summary inquiry the auditors of the employer. A summary inquiry the auditors of the employer. A summary inquiry was held. It was found that the auditor’s was held. It was found that the auditor’s was held. It was found that the auditor’s complaint was correct. The employee was complaint was correct. The employee was complaint was correct. The employee was transferred to another post. He did not join and transferred to another post. He did not join and transferred to another post. He did not join and the employer terminated his Services. This the employer terminated his Services. This the employer terminated his Services. This Court, while upholding the order of termination, Court, while upholding the order of termination, Court, while upholding the order of termination, said that the mere fact that prior to the issue said that the mere fact that prior to the issue said that the mere fact that prior to the issue of the termination an inquiry was held against of the termination an inquiry was held against of the termination an inquiry was held against the employee did not make the order of the employee did not make the order of the employee did not make the order of termination into one of punishment. termination into one of punishment. termination into one of punishment. . "29. Before considering the facts of the . "29. Before considering the facts of the . "29. Before considering the facts of the case before us one further, seemingly case before us one further, seemingly case before us one further, seemingly intractable, area relating to the first test need intractable, area relating to the first test need intractable, area relating to the first test need to be cleared viz. what language in termination to be cleared viz. what language in termination to be cleared viz. what language in termination order would amount to a stigma. Generally order would amount to a stigma. Generally order would amount to a stigma. Generally speaking when a probationer’s appointment is speaking when a probationer’s appointment is speaking when a probationer’s appointment is terminated it means that the probationer is unfit terminated it means that the probationer is unfit terminated it means that the probationer is unfit for the job, whether by reason of misconduct or for the job, whether by reason of misconduct or for the job, whether by reason of misconduct or ineptitude, whatever the language used in the ineptitude, whatever the language used in the ineptitude, whatever the language used in the termination order may be. Although strictly termination order may be. Although strictly termination order may be. Although strictly speaking the stigma is implicit in the speaking the stigma is implicit in the speaking the stigma is implicit in the termination, a simple termination is not termination, a simple termination is not termination, a simple termination is not stigmatic. A termination order which explicitly stigmatic. A termination order which explicitly stigmatic. A termination order which explicitly states what is implicit in every order of states what is implicit in every order of states what is implicit in every order of termination of a probationer’s appointment, is termination of a probationer’s appointment, is termination of a probationer’s appointment, is also not stigmatic. The decisions cited by the also not stigmatic. The decisions cited by the also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold parties and noted by us earlier, also do not hold parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order so. In order to amount to a stigma, the order so. In order to amount to a stigma, the order must be in a language which imputes something must be in a language which imputes something must be in a language which imputes something over and above mere unsuitability for the job. over and above mere unsuitability for the job. over and above mere unsuitability for the job. . "31. Returning now to the facts of the . "31. Returning now to the facts of the . "31. Returning now to the facts of the case before us. The language used in the order case before us. The language used in the order case before us. The language used in the order of termination is that the appellant’s "work and of termination is that the appellant’s "work and of termination is that the appellant’s "work and conduct has not been found to be satisfactory". conduct has not been found to be satisfactory". conduct has not been found to be satisfactory". These words are almost exactly those which have These words are almost exactly those which have These words are almost exactly those which have been quoted in Dipti Prakash Banerjee’s case as been quoted in Dipti Prakash Banerjee’s case as been quoted in Dipti Prakash Banerjee’s case as clearly falling within the class of non stigmatic clearly falling within the class of non stigmatic clearly falling within the class of non stigmatic orders of termination. It is, therefore safe to orders of termination. It is, therefore safe to orders of termination. It is, therefore safe to conclude that the impugned Order is not ex facie conclude that the impugned Order is not ex facie conclude that the impugned Order is not ex facie stigmatic. stigmatic. stigmatic. . "32. We are also not prepared to hold . "32. We are also not prepared to hold . "32. We are also not prepared to hold that the enquiry held prior to order of that the enquiry held prior to order of that the enquiry held prior to order of termination turned this otherwise innocuous order termination turned this otherwise innocuous order termination turned this otherwise innocuous order into one of punishment. An employer is entitled into one of punishment. An employer is entitled into one of punishment. An employer is entitled to satisfy itself as to the competence of a to satisfy itself as to the competence of a to satisfy itself as to the competence of a probationer to be confirmed in service and for probationer to be confirmed in service and for probationer to be confirmed in service and for this purpose satisfy itself fairly as to the this purpose satisfy itself fairly as to the this purpose satisfy itself fairly as to the truth of any allegation that may have been made truth of any allegation that may have been made truth of any allegation that may have been made about the employee. A charge sheet merely about the employee. A charge sheet merely about the employee. A charge sheet merely details the allegations so that the employee may details the allegations so that the employee may details the allegations so that the employee may deal with them effectively. The enquiry report deal with them effectively. The enquiry report deal with them effectively. The enquiry report in this case found nothing more against the in this case found nothing more against the in this case found nothing more against the appellant than an inability to meet the appellant than an inability to meet the appellant than an inability to meet the requirements for the post. None of the three requirements for the post. None of the three requirements for the post. None of the three factors catalogued above for holding that the factors catalogued above for holding that the factors catalogued above for holding that the termination was in substance punitive exist termination was in substance punitive exist termination was in substance punitive exist here." here." here." 4. In fact these Judgments relied upon by the 4. In fact these Judgments relied upon by the 4. In fact these Judgments relied upon by the Petitioner have been referred by the learned Single Judge Petitioner have been referred by the learned Single Judge Petitioner have been referred by the learned Single Judge and it was found by the Single Judge that from the and it was found by the Single Judge that from the and it was found by the Single Judge that from the wordings of the termination order it cannot be said that wordings of the termination order it cannot be said that wordings of the termination order it cannot be said that the termination order was stigmatic. Reliance was placed the termination order was stigmatic. Reliance was placed the termination order was stigmatic. Reliance was placed by the Single Judge upon Rule 5(3) of the Maharashtra by the Single Judge upon Rule 5(3) of the Maharashtra by the Single Judge upon Rule 5(3) of the Maharashtra Employees of Private Schools (Conditions Services) Employees of Private Schools (Conditions Services) Employees of Private Schools (Conditions Services) Regulation Act, 1977 which refers as under: Regulation Act, 1977 which refers as under: Regulation Act, 1977 which refers as under: . "5(3) If in the opinion of the . "5(3) If in the opinion of the . "5(3) If in the opinion of the Management, the work or behaviour of any Management, the work or behaviour of any Management, the work or behaviour of any probationer during the period of his probation, probationer during the period of his probation, probationer during the period of his probation, is not satisfactory, the Management may terminate is not satisfactory, the Management may terminate is not satisfactory, the Management may terminate his services at any time during the said period his services at any time during the said period his services at any time during the said period after giving him one month’s notice (or salary of after giving him one month’s notice (or salary of after giving him one month’s notice (or salary of one month in lieu of notice)" one month in lieu of notice)" one month in lieu of notice)" 5. In fact in the case Jarnal Singh relied by the 5. In fact in the case Jarnal Singh relied by the 5. In fact in the case Jarnal Singh relied by the Petitioner referred above charges were framed in the Petitioner referred above charges were framed in the Petitioner referred above charges were framed in the inquiry. Subsequently it was found that it was not inquiry. Subsequently it was found that it was not inquiry. Subsequently it was found that it was not necessary to go ahead so in that case also it was found necessary to go ahead so in that case also it was found necessary to go ahead so in that case also it was found that the employer was not legally under obligation to that the employer was not legally under obligation to that the employer was not legally under obligation to hold any departmental inquiry into the charges. hold any departmental inquiry into the charges. hold any departmental inquiry into the charges. 6. The contents of the resolution and the charges, 6. The contents of the resolution and the charges, 6. The contents of the resolution and the charges, notices and letters exchanged between the parties and the notices and letters exchanged between the parties and the notices and letters exchanged between the parties and the contents of FIR were considered by the Single Judge contents of FIR were considered by the Single Judge contents of FIR were considered by the Single Judge properly. Therefore, we do not find any error apparent properly. Therefore, we do not find any error apparent properly. Therefore, we do not find any error apparent on the face of the record or any miscarriage of justice on the face of the record or any