Case: Director Aryabhatta Research Institute of Observational Sciences (ARIES) Vs. Devendra Joshi and Ors

Respondent No. 1 pertaining to his unsatisfactory work. The said letters were issued prior to the representations made by Respondent No. 1 against the appointment of Respondent No. 4. A perusal of the Memorandum dated 23rd December, 2008 would show that there is a prima facie finding recorded in the preliminary inquiry against Respondent No. 1 which cannot be attributed to the representation made by Respondent No. 1 against the appointment of Respondent No. 4. We are constrained to hold that there is no basis for the finding of the High Court that the real reason for the Order dated 31st December, 2008 was to ensure that the manner in which Respondent No. 4 was appointed to the post of Engineer-C (Civil) remained concealed. We are satisfied that the Order dated 31st December, 2008 does not suffer from any infirmity and it is an Order of termination simpliciter. There is sufficient material on record to indicate that Respondent No. 1 was informed about his unsatisfactory performance during the period of his probation.12. A plain reading of the Order dated 31st December, 2008 would show that it is an innocuous order terminating the services of Respondent No. 1 at the end of the probation period. As no allegations of misconduct are made in the Order, there is no stigma. Even the High Court is of the opinion that there is no stigma. The fact remains that there was a preliminary inquiry conducted by the Management in which there was a prima facie finding recorded against the Respondent No. 1 of his involvement in an act of misconduct. The Appellants decided not to proceed further and hold a detailed inquiry to prove the misconduct of Respondent No. 1. However, the service of Respondent No. 1 was terminated at the end of the period of probation which cannot be said punitive. Therefore, the Order dated 31st December, 2008 is an order of termination simpliciter. In view of the above it cannot be said that misconduct was the foundation for the order of termination.13. It will be useful to refer to the relevant portion of a judgment of this Court in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd.1, wherein it was held as follows:33. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer, as stated by Shah, J. (as he then was) in Ram Narayan Das case. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. It has been so decided in Champaklal case. The purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed if at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur case and in Benjamin case. In the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the Rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.34. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employees conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. We do not agree with the findings of the High Court that the Order dated 31st December, 2008 was passed only to punish Respondent No. 1 for his objection to the appointment of Respondent No. 4 to the post of Engineer-C (Civil). As the appointment of Respondent No. 4 was not assailed by Respondent No. 1 in the Writ Petition, the High Court ought not to have adjudicated the issue of validity of the appointment of Respondent No. 4. The High Court committed an error in ignoring the letters dated 24th July, 2008 and 18th August, 2008 written by the Management to Respondent No. 1 pertaining to his unsatisfactory work. The said letters were issued prior to the representations made by Respondent No. 1 against the appointment of Respondent No. 4. A perusal of the Memorandum dated 23rd December, 2008 would show that there is a prima facie finding recorded in the preliminary inquiry against Respondent No. 1 which cannot be attributed to the representation made by Respondent No. 1 against the appointment of Respondent No. 4. We are constrained to hold that there is no basis for the finding of the High Court that the real reason for the Order dated 31st December, 2008 was to ensure that the manner in which Respondent No. 4 was appointed to the post of Engineer-C (Civil) remained concealed. We are satisfied that the Order dated 31st December, 2008 does not suffer from any infirmity and it is an Order of termination simpliciter. There is sufficient material on record to indicate that Respondent No. 1 was informed about his unsatisfactory performance during the period of his probation12. A plain reading of the Order dated 31st December, 2008 would show that it is an innocuous order terminating the services of Respondent No. 1 at the end of the probation period. As no allegations of misconduct are made in the Order, there is no stigma. Even the High Court is of the opinion that there is no stigma. The fact remains that there was a preliminary inquiry conducted by the Management in which there was a prima facie finding recorded against the Respondent No. 1 of his involvement in an act of misconduct. The Appellants decided not to proceed further and hold a detailed inquiry to prove the misconduct of Respondent No. 1. However, the service of Respondent No. 1 was terminated at the end of the period of probation which cannot be said punitive. Therefore, the Order dated 31st December, 2008 is an order of termination simpliciter. In view of the above it cannot be said that misconduct was the foundation for the order of termination.