R.S.A No. 2473 of 1980 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A No. 2473 of 1980 Date of decision : September 01, 2009 The Secretary, Department of Horticulture & another, ...... Appellant (s) v. Raghu Raj, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. K.K.Gupta, Addl. Standing Counsel for the Chandigarh Administration. Ms. Alka Sarin, Advocate for the respondent. *** 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 This appeal has been filed against the judgment of the lower appellate Court reversing that of the trial Court and thereby decreeing the suit of the plaintiff-respondent for declaration that the order of termination dated 12.8.1977 passed six days prior to the completion of the period of probation was null, void, illegal and inoperative. Before proceeding further, it would be appropriate to set down the exact words of the order dated 12.8.1977 as under :- “The services of Shri Raghu Raj son of Shri Jagroop R.S.A No. 2473 of 1980 ::2:: beldar are terminated with immediate effect as his work and conduct during the period of probation has been found unsatisfactory.” The learned trial Court found that the order was not stigmatic and was within the competence of the appointing authority. However, the lower appellate Court held that the said order was stigmatic and having been passed without affording an opportunity of hearing was bad. The following question of law has been proposed :- “ Whether the order dated 12.8.1977 is stigmatic ?” It is not disputed that during probation, services of any employee on probation can be terminated without affording him hearing only if his work and conduct are not satisfactory. In Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta (SC), 1999(1)SCT 861, the Hon'ble Supreme Court held as follows :- “ 19. As to in what circumstances an order of termination of a probationer can be said to be punitive or not depends upon whether certain allegations which are the cause of the termination are the motive or foundation. In this area, as pointed out by Shah, J (as he then was) in Madan Gopal v. State of Punjab, AIR 1963 SC 531 there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. This very question was gone into recently in RS.Gupta v. U.PState Agro Industries Corporation Ltd. and another, JT 1998 (8) SC 585 and R.S.A No. 2473 of 1980 ::3:: reference was made to the development of the law from time to time starting from Purshottam Lal Dhingra v. Union of India, 1958 SCR 828, to the concept of `purpose of inquiry' introduced by Shah, J (as he then was) in State of Orissa v. Ram Narayan Das, 1961(1) SR 606 and to the seven Bench decision in Samsher Singh v. State of Punjab, 1974(2) SCC 831 and to post Samsher Singh case-law. This Court had occasion to make a detailed examination of what is the `motive' and what is the `foundation' on which innocuous order is based. 20. This Court in that connection referred to the principles laid down by Krishna Iyer, J in Gujarat Steel Tubes v. Gujarat Steel Tubes Mazdoor Sangh, 1980 (2) SCC 593. As to `foundation', it was said by Krishna Iyer, J as follows :- `.........a termination effected because the master is satisfied of the misconduct and of the desirability of terminating the service of the delinquent servant, it is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case, the grounds are recorded in different proceedings from the formal order, does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the R.S.A No. 2473 of 1980 ::4:: inquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service, the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used.' and as to motive : `On the contrary, even if there is suspicion of misconduct, the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or pecuniary cut-back on his full terminal benefits is bound. For, in fact, misconduct is not then the moving factor in the discharge.” As to motive one other example is the case of State of Punjab v. Sukh Raj Bahadur, 1968(3) SCR 234 where a charge memo for a regular inquiry was served, reply given and at that stage itself the proceedings were dropped and a simple termination order was issued. It was held, the order of simple termination was not founded on any findings as to misconduct. In that case, this Court referred to A.S.Benjamin v. Union of India, R.S.A No. 2473 of 1980 ::5:: Civil Appeal No.1341 of 1966 dt. 13.12.1996 (SC) where a charge memo was issued, explanation was received, an inquiry officer was also appointed but before the inquiry could be completed, the proceedings were dropped and a simple order of termination was passed, the reason for dropping the proceedings was that “departmental proceedings will take a much longer time and we are not sure whether after going through all the foundations, we will be able to deal with the accused in the way he deserves”. The termination was upheld. 21. If findings were arrived at in inquiry 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 inquiry was not held, no findings were arrived at and the employer was not inclined to conduct an inquiry 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 the employer did not want to inquire 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. R.S.A No. 2473 of 1980 ::6:: In the light of the above principles, laid down in R.S.Gupta's case we do not think anything more is to be added. Point 1 is decided accordingly. 22. In the present case before us, the order of termination dated 30.4.1997 is not a simple order termination but is a lengthy order which we have extracted above. It not only says that performance during probation is not satisfactory but also refers to a letter dated 30.4.1996 by which the period of probation was extended by six months from 2.5.1996, and to letters dated 17.10.1996 and 31.10.1996. It concludes by saying that the appellant's conduct, performance, ability and capacity during the whole period of probation was not satisfactory and that he was considered `unsuitable' for the post for which he was appointed. 24. There is, however, considerable difficulty in finding out whether in a given case where the order of termination is not a simple order of termination, the words used in the order can be said to contain a `stigma'. The other issue in he case before us is whether-even if the words used in the order of termination are innocuous,-the court can go into the words used or language employed in other orders or proceedings referred to by the employer in the order of termination ? 25. As to what amounts to stigma has been considered in Kamal Kishore Lakshman v. Pan American World R.S.A No. 2473 of 1980 ::7:: Airways, 1987(1) SC 146. This Court explained the meaning of `stigma' as follows :- ` According to Webster's New World Dictionary, it (stigma) is something that detracts from the character or reputation of a person, a mark, sign etc., indicating that something is not considered normal or standard. The Legal Thesuras by Burton gives the meaning of the word to be blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame. The Webster's Third New International Dictionary gives the meaning as a mark or label indicating a deviation from a norm. According to yet another dictionary `stigma' is a matter for moral reproach.' Similar observations were made in Allahabad Bank Officers' Association v. Allahabad Bank, 1996(4)SCC 504:1996(3)SCT 263(SC). At the outset, we may state that in several cases and in particular in State of Orissa v. Ram Narayan Das, AIR 1961 SC 177, it has been held that use of the words `unsatisfactory work and conduct', in the termination order, will not amount to stigma.” As regards the finding of the lower appellate Court that in fact the appointing authority had admitted that it had applied its mind to all the complaints against the respondent and had then decided to terminate his services, in view of the observations in paras 20 and 21 (supra), the present R.S.A No. 2473 of 1980 ::8:: is a case where complaints were the `foundation' and not the motive. In view of the express stipulation of the Hon'ble Supreme Court with regard to the words used viz. `unsatisfactory performance' in the above quoted judgment, it must be held that the order passed does not amount to stigma. In the circumstances, the question of law formulated has to be answered in favour of the appellant. In this view of the matter, this appeal is allowed, the judgment of the lower appellate Court is set aside and that of the trial Court is upheld. No order as to costs. As the main appeal has since been allowed, all the pending civil miscellaneous applications, if any, also stand disposed of. ( AJAY TEWARI ) September 01, 2009. JUDGE `kk'