CWP No.10506 of 1988 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.10506 of 1988 (O&M) Date of Decision: 06.12.2011 Mr. Balwan Singh Sharai, Ex-Accountant Mata Parkash Kaur Welfare Centre for Hearing and Speech Handicapped, Sehgal Niwas, Karnal at present residing in V. Khark Jatan, P.O. Bainsi, Teh. Meham, District Rohtak (Haryana). ... Petitioner Versus The State of Haryana through its Chief Secretary to Government, Haryana at Chandigarh and others. ... Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:Mr. Vivek Singla, Advocate for Mr. I.D. Singla, Advocate for the petitioner. Mr. Anjum Ahmed, Addl. AG, Haryana, for respondent No.1. None for respondents No.2 and 3. ***** 1.Whether reporters of local papers may be allowed to see the judgment? NO 2.To be referred to the reporters or not? YES 3.Whether the judgment should be reported in the digest? YES K. KANNAN, J. (Oral) 1. The writ petition challenges the order of termination of service by the 2nd respondent, which is the Haryana Welfare Society for Hearing and Speech Handicapped, a Society registered under the Society Registration Act. It is an admitted case that the termination order was issued on 12.01.1988 during the time when the petitioner was still undergoing a period of probation in terms of the order of appointment dated CWP No.10506 of 1988 (O&M) [2] 17.07.1987. The order insofar as it is stated relevant, as follows: “Your services are hereby terminated with immediate effect as your work and conduct has not been found satisfactory during the probation period. You should hand over the charge of your duties to P.R.O. of the Institute alongwith the cash in hand with you.” 2. The learned counsel appearing for the petitioner states that although the order of termination reads as a termination simpliciter, it really constituted a stigma against him. He would read the stigma in the order of termination through the contentions raised in the written statement. The initial cause of action for the writ petition must be on the facts and documents brought prior to the incident and cannot be picked up from the counter itself. There is, however, case law to the effect that motivation of employer could be relevant and even a reply filed in Court could be taken as expression of what was intended by the respondent. The reply brings out three facts: (i) his work and conduct was not good; (ii) deaf and dumb children studying in the school which the Society was running got lost during the relevant time and the petitioner along with two other persons were suspected of being guilty of dereliction of duty and (iii) the petitioner did not know how to keep accounts regularly. As regards the contention that the two children went missing, there is no denial of the incident itself but the learned counsel wants to contend that it was a Chowkidar, who was responsible and the petitioner had no role to play and it was the petitioner, who brought the episode of the missing children to the Management's knowledge. A termination order of probation is invariably on some satisfaction that the work and conduct is not good; if it were to be merely whimsical, it cannot stand the test CWP No.10506 of 1988 (O&M) [3] of validity itself. Therefore, it would defy logic for anyone to contend that the respondents could not have any reason to terminate the services of a probationer. So long as the action was not motivated and was not a biased action, the termination on an observation that the person was not found to be fit cannot be taken as a stigmatic. 3. Learned counsel appearing for the petitioner refers to three decisions of Hon'ble the Supreme Court relating to termination of service of probationers. In “Smt. Rajinder Kaur v. Punjab State and another, AIR 1986 SC 1790”, the issue was of termination of services of a lady constable during the period of probation. The Court found that the constable's services was civil service under Article 311(2) of the Constitution and the rule contemplated under law, which applied to such a person was the Punjab Police Rules. 1934. The termination was effected without reference to the manner prescribed under the statutory rules. It was, therefore, held to be bad. In “V.P. Ahuja v. State of Punjab and others, AIR 2000 SC 1080”, the termination of service was on the following expressions: “if he failed in the performance of his duties administratively and technically, therefore, as per Clause (i) of the appointment order, the services are hereby terminated with immediate effect.” The Court held that the probationer like a temporary servant is also entitled to certain protection and his services cannot be terminated arbitrarily and arbitrary exercise of power that falls foul of Article 14 shall be definitely a matter for intervention by Court. In this case, the respondent, who was issuing an order of termination had even without casting any aspersion had CWP No.10506 of 1988 (O&M) [4] observed that the petitioner was perceived to be in someway responsible for missing of the children. I cannot take the termination as, therefore, an arbitrary exercise. Yet another judgment of Hon'ble the Supreme Court in “Dipti Prakash Banerjee v. Satendra Nath Bose National Centre for Basic Sciences, Calcutta and others, AIR 1999 SC 983” dealt with the case of termination for probationer where there were definite allegations made against him that he had prepared false bills and misbehaved with women academic staff members. There were serious allegations against him and the termination, the Court held could not be taken as mere simpliciter termination. The manner in which the termination came about after branding him as a person that had fabricated false bills and having misbehaved with women, was serious and the Court was under such circumstances stating that the termination was stigmatic. 4. For considering a case whether a termination of probationer was stigmatic, it should be seen from the order of termination itself whether there is anything that constitutes stigma. Secondly, it should be seen whether there was any arbitrariness involved in the action. If there was a justification, which the employer was giving and under the circumstances when the decision was taken, the statements made by the employer could seem to be true, then a further probe of whether the petitioner was entitled to full-fledged inquiry becomes meaningless. What is possible for a civil servant, who has the benefit under Article 311 of the Constitution, cannot be stretched unrealistically to a person, who does not obtain such protection. The mandate of Article 14 cannot be stretched again to require an employer to provide all the paraphernalia of a full- fledged domestic inquiry to a probationer. CWP No.10506 of 1988 (O&M) [5] 5. The understanding of law has also undergone a fair amount of change with reasonable flexiblities made available to an employer to terminate the services of a probationer. In “Rakesh Kumar Srivastava v. State of Jharkhand (2011) 4 SCC A47” the Supreme Court held that while terminating the service of a probationer, there is no requirement of giving a show cause notice. If an enquiry indeed had been done behind the back of an employee and the same had formed the foundation of discharge, it would be bad. On the other hand, if no enquiry had been held or contemplated, there is no necessity to issue a notice. This distinction was brought out in “Kazia Mohammed Muzzaammil v. State of Karnataka (2010) 8 SCC 155”. 6. I find no scope for interference with the decision. Even apart from the legal submissions about the termination, the services of the petitioner has come to an end after barely one year of service in a social service organization. The matter cannot be required to be revisited for fresh consideration and the person reinstated after 24 years of the event. It will be wholly inexigent to direct a reinstatement in such a situation. 7. The writ petition ought to fail and is, accordingly, dismissed. DECEMBER 06, 2011 ( K. KANNAN ) Rajan JUDGE