IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 20247 of 2009 Date of Decision: 23.12.2009 Vikas --Petitioner Versus Registrar, Punjab & Haryana High Court and others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Gaurav Mohunta, Advocate for the petitioner. *** PERMOD KOHLI.J (ORAL) Services of the petitioner as Water Man in the Court of Addl. Civil Judge (Sr. Divn.), Tohana have been terminated during probation vide the order dated 14.11.2007 by the District & Sessions Judge, Fatehabad by a simple endorsement as “ no longer required”. It is not in dispute that the petitioner was on probation at the time of passing of the aforesaid order. After his services were dispensed with, the petitioner applied under the RTI Act and secured copy of another order of the even date passed by the District & Sessions Judge, Fatehabad in his office file. The copy of the same is also placed on record as Annexure P-6 along with the impugned termination order. It is this order which is made basis for challenging the order of termination during probation. The aforesaid office order reads as under:- “ Sh. Vikas, Waterman in the Court of Addl. Civil Judge (Sr. Divn.), Tohana was appointed vide appointment letter dated 17.6.2006 subject to various terms and conditions including that he shall remain on probation for a period of two years and if during this period his work and conduct is found not satisfactory, his services shall be liable to be dispensed CWP. No. 20247 of 2009 -2- with. The work and conduct of the official has been observed by the undersigned being the Appropriate Authority. The undersigned is dissatisfied with the work and conduct of the official. Although the official was orally told several times to improve his work and conduct but he has failed to do. The services of Sh. Vikas are being terminated during the period of probation without assigning any reason and without giving any opportunity of being heard. Separate orders are being passed accordingly.” In the context of certain observations made in the order above to the fact that the District & Sessions Judge is “ dissatisfied with the work and conduct of the official.” It is sought to be contended that the order is stigmatic and punitive in nature. The petitioner accordingly preferred an appeal under Rule 14 (1) of the Haryana Subordinate Courts Establishment (Recruitment and General Conditions of Services) Rules, 1997. The appeal was heard by learned Administrative Judge for the District of Fatehabad. Vide the impugned order dated 16.4.2009 the appeal has been dismissed by the Hon'ble Administrative Judge holding that the order served upon the petitioner with the simplicitor endorsement “ no longer required” is neither stigmatic nor punitive. It has been further observed that the other part of the office order which has been relied upon having been obtained under the RTI Act is not part of the termination order, hence, cannot be taken into consideration in finding out the characters of the order of termination served upon the petitioner. Mr. Gaurav Mohunta, learned counsel appearing for the petitioner has assailed the findings of the Hon'ble Administrative Judge and also contended that both the orders are to be read together having been passed by the learned District & Sessions Judge, Fatehabad for purposes of CWP. No. 20247 of 2009 -3- termination of service of petitioner and a conjoint reading of both the orders would definitely establish that the order is stigmatic and punitive in nature. He has also referred to the judgement of Hon'ble Supreme Court in case of V.P. Ahuja Vs. State of Punjab and others reported as 2000 (3) SCC 239. Petitioner has also referred to Rule 7 of the Punjab Civil Services (Punishment and Appeal) Rules, 1997 to argue that termination being a major penalty, under Rule 14, it was obligatory upon the authorities to have held an inquiry and provide an opportunity of being heard before passing the impugned order. In sum and substance the argument is that before passing the impugned order no opportunity of being heard has been provided to the petitioner, thus, the order is liable to be quashed. Further reference is made to the cases of Mathew P. Thomas Vs. Kerala State Civil Supplies Corporation Ltd. Reported as 2003(3) SCC 263 and Chandra Prakash Shahi Vs. State of Uttar Pradesh reported as 2000 (5) SCC 152. I have heard Mr. Gaurav Mohunta learned counsel for the petitioner and carefully gone through the order Annexure P-6 in the writ petition. Annexure P-6 comprises of two parts. The one served upon the petitioner with a simple endorsement “ no longer required”, whereas the other part of the office order deals with the opinion of the learned District & Sessions Judge, Fatehabad, wherein he has observed about the unsatisfactory work and conduct of the petitioner during probation. Assuming that the office order be also construed as part of the other order served upon the petitioner, the question still would be whether the observations of the District & Sessions Judge to dispense with the services of the petitioner during probation amounts to and can be construed as stigmatic and punitive in nature. The contention raised in the appeal before CWP. No. 20247 of 2009 -4- the Hon'ble Administrative Judge and in this Court is two fold. One that the order served upon the petitioner is without any reason. The petitioner was admittedly a regular employee holding the post on substantive basis, though, on probation. On the one hand it is contended that the order of termination is without any valid reasons and on the other other hand it is sought to be pressed that the reasons recorded in the office order amounts to stigma and that makes the order punitive. It cannot be ignored that whenever services of the probationer are dispensed with the authority has to satisfy himself about his work and conduct during the probation. Unless such an opinion is formulated dispensing with the service would become arbitrary. It is in this context that the District & Sessions Judge in his office order has recorded about the unsatisfactory work and conduct of the petitioner during the probation. Admittedly, the petitioner has not alleged any malafide against the District & Sessions Judge. In absence of there being any allegation of malafide or bias the context in which the observations have been made is to be examined. A distinction has to be drawn between motive of termination and the foundation of termination. No motive is attributed, thus, observations recorded in the order have to be construed and appears to be the ground for dispensing with the services of the petitioner during probation. In case of Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others reported as 1999(3) SCC 60 Hon'ble Supreme Court has held as under:- “ 21. 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 CWP. No. 20247 of 2009 -5- and will be bad. But if the enquiry was not held, no finding 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 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 the ratio of the aforesaid judgements, the inescapable conclusion is where the termination during probation is on the basis of certain allegations of mis-conduct, the order would be punitive in nature. However, where the authority has recorded about the unsatisfactory and unsuitability of the employee and terminated the services without assigning any reason or simply on the ground of unsatisfactory work and conduct or unsuitability the order would be valid in law. In the instant case, even if, the office order is taken into consideration it has only recorded about the unsatisfactory work and conduct which ultimately culminated into unsuitability of the petitioner and thus cannot be construed as stigmatic or punitive in nature. In view of the above discussion, this petition is liable to be dismissed. I order accordingly. (PERMOD KOHLI) JUDGE 23.12.2009. lucky Whether to be reported to the Reporters? Yes.