C.W.P No. 4984 of 2009 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No. 4984 of 2009 Date of decision : March 30, 2009 Shamsher Singh, ...... Petitioner (s) v. State of Haryana and others, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. Naresh Kaushal, Advocate for the petitioner. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J The petitioner has challenged the order dated 17.12.2007 whereby his services were terminated during the period of his probation. An appeal against the termination order has also been rejected by the Appellate Authority by holding as follows :- “ The controversy in question stands resolved by the Hon'ble Supreme Court in Krishnadevaraya Education Trust and another vs L.A.Balakrishna, AIR 2001 SC 625, wherein it was held that if the services of a probationer, who was on test, were found not to be satisfactory, the employer had, in terms of the letter of appointment, the C.W.P No. 4984 of 2009 ::2:: right to terminate the services. The Court was seized of the matter relating to the respondent therein, who was appointed on the post of Assistant Professor on probation. Within the period of probation, his services were terminated. It was mentioned in the order terminating his services that the committee after having gone through his records right from the date of his inception into the Institute, was of the opinion that his job proficiency was not up to the mark. The Institution felt that his services were no longer required. The Court held that if the services of the probationer were not satisfactory, meaning thereby he was not suitable for the job, then the employer had a right to terminate his service as a reason thereof. As regards the challenge to the termination order, being stigmatic in nature on account of the observations therein about the services of the probationer to be not satisfactory, the Court held that if the termination during probation was without any reason, perhaps such an order would be challenged on the ground of being arbitrary. On the other hand, if the order stated that the services were being terminated because of his performance to be not satisfactory, the employer ran the risk of the allegation being made that the order itself cast a stigma. According to the Hon'ble Supreme Court, such a contention could not be accepted, as the employer would have to indicate the grounds on which the services C.W.P No. 4984 of 2009 ::3:: of the probationer were terminated. Once the employer stated that the services were not satisfactory, it could terminate the services of the probationer, but that would not be considered to be punishment. The probationer is on test and if the services are not found to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate his services. The Court then proceeded to accept the appeal and set aside the decisions of the Tribunal and that of the High Court, whereby the order of termination had been set aside. Resultantly, the termination order was up-held. The relevant observations of the Hon'ble Supreme Court in para-5 and 6 are reproduced here below :- `There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally services of an employee on probation would be terminated, when he is found C.W.P No. 4984 of 2009 ::4:: not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts stigma. We do not say that such a contention will succeed. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the petitioner were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services.” Counsel for the petitioner has placed reliance on the decision of the Hon'ble Supreme Court in V.P.Ahuja vs State of Punjab and others, AIR 2000 SC 1080 and particularly upon paras 7 and 8 thereof, which read as under :- “7. A probationer, like a temporary servant, is also C.W.P No. 4984 of 2009 ::5:: entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in punitive manner without complying with the principles of natural justice. 8. The affidavits filed by the parties before the High Court as also in this Court indicate the background in which the order, terminating the services of the appellant, came to be passed. Such an order which, on the face of it is stigmatic, could not have been passed without holding a regular enquiry and giving an opportunity of hearing to the appellant.” Counsel for the petitioner has further placed reliance on a latest judgment rendered in Appeal (Civil) No.4812 of 2007, Jaswant Singh Pratap Singh Jadeja vs Rajkot Municipal Corporation and another, decided on 11.10.2007, whereby the Hon'ble Supreme Court has set aside an order of termination of services during probation. However, in the said case, it is not disputed that a notice was issued to the petitioner therein to show cause as to why his services be not terminated. Apart from that the termination order was couched in the following terms :- “Major J.P.Jadeja was appointed as Vigilance Officer (General) in the Vigilance Department of the Rajkot Municipal Corporation. Thereafter Shri Jadeja was on leave from 3.2.2003 to 6.2.2003 and was to have reported for duty on 7.2.2003. However, as he remained absent till 22.3.2003 without any intimation a final notice referred to at serial No.2 above was issued to which a fax C.W.P No. 4984 of 2009 ::6:: report for additional leave was received as referred. A reply was received to the final notice as above. The reply after consideration requires to be rejected. As a Vigilance Officer, it is expected of him to complete inquiries within a fixed time frame and as a result of long absence from such important duties could result in stagnation which cannot be tolerated and is in breach of condition 4/6 of the appointment order. Looking to the assessment of work as referred to hereinabove, the period of probation is extended from 1.1.2003 to 30.4.2003. Thereafter the period is not extended and it is directed that services be thereafter discharged after payment of one month's notice pay.” In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta, (1999) 3 SCC 60, the Hon'ble Supreme Court of India held as follows :- “ 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 C.W.P No. 4984 of 2009 ::7:: 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 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.” I am in agreement with the reasons mentioned in the appellate order. The conduct of the petitioner which led to the termination of his services could be held to have provided motive to the respondents as envisaged in Dipti Prakash Banerjee's case (supra). Resultantly, this writ petition is dismissed with no order as to costs. ( AJAY TEWARI ) March 30, 2009. JUDGE `kk' C.W.P No. 4984 of 2009 ::8::