IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2418 of 1997 Bare Lal Raman (B.L. Raman), Son of late Shri Chhakauri Lal, Resident of Village Madhupur, Post Office and Polie station auraiya, District Itawa (Uttar Pradesh), presently Principal Jawahar Navodaya Vidyalaya Katihar at kolasi, P.O. & Police Station Sandalpur, District Katihar (Bihar). ------------ Petitioner Versus 1. The Union of India. 2. Navodaya Vidyalaya Samiti (An autonomous Organization under the Ministry of Human Resources Department, Department of Education A-39, Kailash Colony, New Delhi – 110 048 through its Chairman Shri S.R. Bommai, Minister of Human Resources Development, Department of Education, Government of India, New Delhi. 3. The Director, Navodaya Vidyalaya Samiti, A-39, Kailash Colony, New Delhi- 110 048. 4. The Deputy Director (pers.) Shri V.K. Sharma, Navodaya Vidyalaya Samiti, A-39, Kailash Colony, New Delhi- 110 048. 5. The Deputy Director (I.G.), Regional Office, Navodaya Vidyalaya Samiti, E-3/3, Area Colony, Bhopal. 6. The Assistant Director, Navodaya Vidyalaya Samiti, Regional Office: Opposite A.N. College, Boring Road, Patna. 7. The Commissioner, Kendriya Vidyalaya Sangathan (Estt.)-III Sectiion 18, Institutional Area, Sahid Jeet Singh Marg, New Delhi- 110 016. 8. The Assistant Commissioner, Kendriya Vidyalaya Sangathan, Regional Office: Sector-J, Aliganj, Lucknow. --------- Respondents ----------- For the Petitioner : Mr. Binod Kr. Labh, Advocate For the Navoday Vidyalaya : Mr. J.P. Karn, Sr. Advocate ---------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA (ORDER) (06/07/2010) Mihir Kumar Jha, J. Heard learned counsel for the petitioner and Mr. J.P. Karn, learned senior counsel for the Navoday Vidyalaya. The prayer of the petitioner in this writ petitioner reads as below:- “2(i) For quashing Navodaya Vidyalaya Samiti order No. FR-25/93 NVS 2 (Pers) dated 21.1.97 issued under signature of the Director contained in Annexure-25 and order of relieving dated 11-2-97 issued under signature of Asstt. Director, Annexure-26. (ii) For commanding the respondents to get the entire matter be enquired into by c.B.I. Since the high officials have usurped crores of Rupees of Navodaya Vidyalaya Samiti having annual budget of more than five hundred crores. (iii) For commanding the respondent Navodaya Vidyalaya Samiti and to quash the decision of Departmental Promotion Committee being illegal, void and inoperative in law since the petitioner has been recruited under Special Recruitment Drive for SC/ST Communities and made petitioner scape-goat who not participated in scam. (iv) For commanding the respondent to confirm the Service of petitioner as Principal in light of Annexure-12.” Learned counsel for the petitioner with reference to the aforementioned relief would submit that; (i) Once the services of the petitioner after his being appointed on the post of Principal in a Navodaya Vidyalaya vide an appointment letter dated 3 12.7.1993 was allowed to continue for a period of more than three years, he could not have been terminated from the service on account of his alleged unsatisfactory work during the period of probation. (ii) The simplicitor order of termination of the service of the petitioner, on piercing the veil would establish that it was actuated by malice of respondent no.4 and was based on allegation against him. (iii) The service of the petitioner was wholly satisfactory and in fact there was no adverse remark against him in the original period of probation of two years. On the other hand, Mr. J.P. Karn, learned counsel for the Navodaya Vidyalaya Sangathan would submit that the advertisement as also the order of appointment itself had envisaged the continuation of the petitioner on probation initially for two years and extendable by another period of one year as also removal from service on account of unsatisfactory performance in the period of 4 probation. In that context, he would refer to the fact that at least there were two clear communications made to the petitioner on 21.12.1995 and 2.1.1996 intimating that the working of the petitioner within the period of probation was not satisfactory and if the petitioner did not improve his working, his service may not be confirmed in Navodaya Vidyalaya Samiti. He has further submitted that the order of termination of the petitioner has to be read for finding out whether there was any motive or foundation by way of punishment in passing such order. He would, therefore, rely on the content of the order to show that it was an order of termination simpliciter on account of the unsatisfactory service of the petitioner in the period of probation. He has also submitted that the plea of malafide in the present case is not at all made out. The first and core issue in this writ application is to decide as with regard to the challenge of the petitioner to the order of termination which is basically a question of fact. It is not in doubt that the appointment of the petitioner was made 5 pursuant to an advertisement and further selection. The petitioner at that point of time was working as a teacher in Kendriya Vidyalaya and having found himself to be eligible had filed his candidature. The advertisement in fact published in the Employment News of 23-29 January 1993 had itself contained a condition that the selected candidate will be appointed initially on probation for a period of two years extendable for another one year depending upon the performance, which reads as below:- “4(iii) The selected candidates will be appointed initially on probation for a period of two years extendable for another one year depending upon the performance. The Samiti reserves the right to terminate the services of a probationer at any time during the period of probation or any extension thereof if it is of the opinion that the officer is not fit for permanent appointment.” That again becomes clear from Annexur-7, the order of appointment of the petitioner dated 12th July, 1993 wherein clause no.2 of the appointment letter reads 6 as below:- “2. You will be on probation for a period of two years from the date of appointment extendable by another one year at the discretion of the Competent Authority. Failure to complete the period of probation to the satisfaction of the Competent Authority or found unsuitable for the post during probation period, will render you liable to be discharged from service at anytime without any notice and without assigning any reasons thereto.” It is not in doubt that in terms of the aforementioned appointment letter, the petitioner had joined the Navodaya Vidyalaya only on 17.9.1993 and during continuation of his probation period, he was communicated displeasure as with regard to his working by the Deputy Director (Pers.) vide his letter dated 21.12.1995 (Annexure-17), which reads as follows:- “F-27-230/88-NVS(SA)Vol.2 Dated 21.12.95 The Principal, Jawahar Navodaya Vidyalaya, Kachnaria, Distt. Rajgarh, MADHYA PRADESH Sir, From the visit report of Shri V.K.Sharma, Deputy Director, NVS, RO, Bhopal of your Vidyalaya on 2nd September, 1995, it is observed that you are not taking proper care in managing different affairs of the Vidyalaya. Vidyalaya MANAGEMENT Committee/Purchase Advisory 7 Committees are not being consulted before making major purchases and accounts are not being maintained properly for long time. The academic atmosphere of the Vidyalaya is also deplorable. Number of complaints have been received against your administration. Samiti has taken a serious view about the way in which you are functioning. You are hereby advised to show distinct improvement in the management of affairs of the Vidyalaya forthwith. Kindly confirm action taken within 15 days of the receipt of this letter. Yours faithfully, Sd./- (C.A.S. Raghavan) DEPUTY DIRECTOR (PERS.)” Followed by this communication, there was there was another information given to the petitioner through a letter dated 2.1.1996 that the case of the petitioner for his confirmation was considered and it was found by the Navodaya Vidyalaya Samiti that he had failed to complete his period of probation successfully. The period of probation of the petitioner was accordingly extended for a further period up to 30.6.1996 and it was also made clear that if there was no improvement in his performance during the extended period of probation, his service could be terminated at the end of extended period. Thee is also on record a communication dated 9.9.1996 of the Deputy 8 Director which also goes to show that the petitioner’s working as a Principal was found to be wholly unsatisfactory and to elaborate this aspect, it would be also relevant to quote the said communication, which reads as below:- “Shri B.L. Raman, while performing the duties as a Head of the Institution i.e. as a Principal of Jawahar Navodaya Vidyalaya Kachnaria, Dist. Rajgarh (M.P.) failed miserably on all fronts. During his regime at JNV Kachnaria, Dist. Rajgarh, Shri Raman paid no attention in the fields of Academic, Administration in general and financial matters in particular. His maneuver was nowhere visible on any side, in any field as observed during two inspections of the Vidyalaya by the Officer of this office. On Academic side, Shri Raman, due to his unskillful unpremeditated attitude working helped in reducing the enrolment of the students for JNVST 1995-96, maximum number of parents withdrew their wards from the vidyalaya and the percentage at the Board’s examination of classes X & XII remained too low to be mentioned. And in the field of Administration, leadership as well as administrative qualities of a Good Administrator were nowhere seen in him and because of this disquality he failed to take all the staff members all along with him. The morale among the staff was moribund as is observed by the Member of Panel Inspection 9 Team. Financial irregularities during his period of stay were at the peak. Being a paymaster, being a Drawing and Disbursing Officer of big residential organization, he did not bother even to adhere to the norms/rules regulations/budget allocation etc. framed/fixed by the Samiti in utilizing the funds placed at his disposal. Due to such below average of way of workings of Shri Raman, the Samiti had to suffer loss of worth lacs of rupees towards boarding and lodging, uniforms, toilet items, CCA, Contingency, hostel equipments, mess items and other huge purchases the total of which of course will be determined and recovered from his with interest plus panel interest in due course of time. He even did not care to obtain the approval of Chairman VMC in purchasing furniture and other materials resulting rejection of the materials by the VMC by which the Samiti had to suffer unaccountable and umpteen financial loss. Though all principals including Shri Raman were directed to get the STD facility disconnected with immediate effect yet he failed in this sphere too and expenditure on telephone due to his STD facility was on very high side leading to huge loss of exchequer. Shri B.L.Raman, knowingly and intentionally appointed a part time Driver, notwithstanding that the vehicle of the Vidyalaya is off the road and requires repair and the same has resulted unnecessary expenditure towards payment of wages of a driver. Not even the wages of a 10 Driver, Shri Raman appointed number of employees perhaps his kith and kin on daily wage/part time basis without seeking the approval of his higher authorities and that too counted towards unauthorized expenditure/loss to the funds of the Samiti. Condition of the mess/mess items as noticed by the panel inspection team is quite unmentionable and is found in a very critical condition. Shri Raman as long as he remained the head of the institution used to buy fuel wood worth thousands of rupees ignoring intentionally the availability of gas cylinders and disel bhattis which was merely a wastage of funds. These misdeed of Shri B.L.Raman, has been viewed very seriously by the Director NVS and he becomes liable to be penalized for all these losses, for each and every penny spent over and above the allotted budget, amount spent on purchases made without following the prescribed procedure and in all other fields as stated above. The amount will be calculated and recovered from him in any case. If Shri B.L Raman, has to say anything in this regard he may submit his reply to the undersigned within a fortnight from the date he receives this memorandum.” Before the petitioner could have submitted his explanation to the aforesaid letter dated 2.1.1996 his probation was again extended for the period up to 31.12.1996 by 11 letter dated 13.9.1996 and after the petitioner had submitted his explanation, the authority had gone to consider that as he was not found fit for confirmation and his services on completion of extended period of probation would stand terminated. In the opinion of this Court, the petitioner having been already informed at least on three occasions as with regard to his unsatisfactory working cannot complain that there was no opportunity given to him to improve his performance or that the reasons which came with regard to his unsatisfactory working was a bolt out of the blue. Once this aspect becomes clear, the issue of the petitioner alleging violation of the terms of the contract either in the advertisement or in the appointment letter merely because the petitioner could continue in probation 21 days beyond the extended period can have no relevance in the eyes of law. There was no deeming clause or a clause in the appointment letter or in the rule of the Navodaya Vidyalaya that the moment a person would be able to cross the limit of three years, he would be deemed to be automatically confirmed 12 and in fact, there being no such concept of deemed confirmation even otherwise in service jurisprudence, the petitioner had to abide by the decision of the authority with regard to the evaluation of his service during the period of probation for his getting his order of confirmation. Once this aspect becomes clear that merely because the petitioner was allowed to continue for a period of 21 days beyond the extended period of probation of three months as per the date of appointment, that will not make any difference in the impugned order termination of his service which has been passed primarily on account of the fact that his services during the period of probation were not satisfactory. The aspect that the order of termination is in the form of punishment is again wholly unsustainable. The relevant part of the impugned order of the petitioner dated 21.1.1997 reads as follows:- “In accordance with the provisions contained in Para-1 (viii) of Ministry of Home Affairs O.M. No. 44/1/59-Estt. (A) dated 15th April, 1959 and in exercise of the powers conferred upon the undersigned, and in accordance with the terms and conditions of the 13 appointment as Principal in Navodaya Vidyalaya Samiti, the undersigned hereby orders the termination from service of Shri B.L. Raman, Principal (on probation), Navodaya Vidyalaya, Katihar (Bihar, as he has not been found fit for confirmation by the Competent Departmental Promotion Committee.” Such order on the face of record cannot be said to be influenced by any allegation against the petitioner. It is true that while evaluating the performance of the petitioner, certain displeasure was communicated to him with regard to his lack of working ability but then they have definitely not weighed in absence of its being made foundation in impugned order and therefore, the impugned order cannot be said to be stigmatic so as to make it bad in the eyes of law. This aspect of the matter in fact stands settled by the judgment of the Apex Court in the case of State of Maharashtra Vs. Veerappa R. Saboji & Anr. reported in AIR 1980 SC 42 wherein the test of termination of a probationer or temporary Government servant has been laid down in the following words:- “Per Pathak, J.- Where the services of a temporary Government servant or a probationer Government servant are terminated by an 14 order which does not ex facie disclose any stigma or penal consequences against the government servant and is merely a termination order simpliciter, there is no case ordinarily for assuming that it is anything but what it purports to be. Where, however, the order discloses on the face of it that a stigma in cast on the government servant or that it visits him with penal consequences, then plainly the case is one of punishment. There may still be another kind of case where although the termination of services is intended by way of punishment, the order is framed as a termination simpliciter. In such a case, if the Government servant is able to establish by material on the record that the order is in fact passed by way of punishment, the innocence of the language in which the order is framed will not protect it if the procedural safeguards contemplated by Article 311(2) of the Constitution have not been satisfied. In a given case, the government servant may succeed in making out a prima facie case that the order was by way of punishment but an attempt to rebut the case by the authorities may necessitate sending for the official records for the purpose of determining the truth. It is in such a case generally that the official records may be called for by the Court. It is not open to the court to send for the official records on a mere allegation by the Government servant that the order is by way of punishment. For unless there 15 is material on the record before the Court in support of that allegation, an attempt by the Court to find out from the record whether the termination of service is based on the unsuitability of the Government servant in relation to the post held by him or is in reality an order by way of punishment will in effect be an unwarranted attempt to delve into the official records for the purpose of determining the nature of the order on the basis of a mere allegation of the Government servant. On a sufficient case being made out on the merits before the Court by the Government servant it is open to the Court to resort to scrutiny of the official records for the purpose of verifying the truth. The Court should not decline to peruse the official records in an appropriate case and where considerations of privilege and confidentiality do not suffer, the information set forth in the records should be made available to the Government servant. The mere possibility that the official records could confirm what the Government servant had set out to prove and prima facie had, indeed, proved should not shut out disclosure of the information.” In a concurring view, it was also held that :- “Per Untwalia, J.:- Even in the case of a temporary or officiating Government servant his services cannot be terminated by way of punishment casting a stigma on 16 him in violation of the requirement of Article 311(2). This principle is beyond any dispute but the difficulty comes in the application of the said principle from case to case. If a Government servant is compulsorily retired or one who is officiating in a higher post is reverted to his parent cadre, or when the services of an officiating or temporary Government servant are dispensed with by an order of termination simpliciter, then problems arise in finding out whether it is by way of punishment. In different kinds of situation, different views have been expressed. Yet the underlying principle remains the same. One should not forget a practical and reasonable approach to the problem in such cases. Ordinarily and generally, and there may be a few exceptions, any of the three courses indicated above is taken recourse to only if there are some valid reasons for taking the action against the Government servant. If a probe in the matter is allowed to be made in all such cases than curious results are likely to follow. In a given case there may be valid reasons, may be of a serious kind, which led the authorities concerned to adopt one course or the other as the facts of a particular case demanded. If one were to say in all such cases that the action has been taken by way of punishment then the natural corollary to this would be that such action could be taken if there was no such reason in the background of the action. Then the argument advanced is that the action was 17 wholly arbitrary, mala fide and capricious and, therefore, it was violative of Article 16 of the Constitution. Where to draw the line in such cases? Ordinarily and generally the rule would be that you have to look to the order on the face of it and find whether it casts any stigma on the Government servant. In such a case there is no presumption that the order is arbitrary or mala fide unless a very strong case is made out and proved by the Government servant who challenges such an order.” Applying the aforesaid test, this Court will have no difficulty in holding that the order of termination is not by way of stigma or is based on any foundation by way of punishment. The last submission of the counsel for the petitioner as with regard to malafide of the respondent no.4 has to be only noted for its being rejected. Quite often, it has been said that the plea of malafide is a plea of loosing litigant. In the present case, the only paragraph with regard to the malafide as pointed out by the petitioner in this writ application is paragraph no. 29, which reads as below:- “29. That the concerned respondent No.4, 5 and 6 has committed offence under 18 Section 3(ix)(x) of The Scheduled Cast and the Scheduled Tribes (Prevention of Atrocities) Act 1989 and they deserve sevior punishment for unnecessarily harassing the petitioner a member of Scheduled Cast Community.” It is clear that there is no personal malafide alleged against the respondent no.4. By now, it is well settled that a plea of malafide has to be specific and pointed in order to elicit answer from the concerned respondent. Here as noted above, there is no allegation of malafide which is capable of being replied and the only allegation as per the counsel for the petitioner in paragraph no.29 in fact is not even a plea of malafide. It is settled law that the person against whom personal mala fides or ‘malice in fact’ is imputed should be impleaded eo nomine as a party respondent to the proceedings and he should be afforded opportunity to meet with those allegations. In his absence, no enquiry into the correctness or otherwise of the allegations can be made. The reason is very simple. The principles of natural justice require that no 19 person should be condemned unheard. Now if allegations have been made against a person who is not made party to the proceedings and the court proceeds on the basis of those allegations, the person against whom such allegations have been leveled is condemned unheard. Reference in this case may be made in the case of State of Bihar Vs. P.P. Sharma reported in 1992 Supp (1)SCC 222:AIR 1991 SC 1260, State of Punjab Vs. Chaman Lal reported in 1995(2)SCC 570, in the case of J.N. Banavalikar Vs. Municipal Corporation of Delhi reported in 1995 Supp (4) SCC 89:AIR 1996 SC 326, in the case of All India State Bank Officers’ Federation Vs. Union of India reported in 1997(9)SCC 151 and in the case of I.K. Mishra Vs. Union of India reported in 1997(6) SCC 228:AIR 1997 SC 3740. Thus it is well-settled in law that the person against whom mala fide or bias was imputed should be impleaded as a party respondent to the proceedings and given an opportunity to meet those allegations. In his/her absence no enquiry into those allegations would be made, otherwise that by 20 itself amount to violation of the principles of natural justice on account of condemning a person without giving him an opportunity. Consequently, this Court also would not find any merit even in the plea of malafide. That being