Case: WAINGANGA BAHUDDESHIYA VIKAS SANSTHA THR. PRESIDENT B.B. KARANJEKAR Vs. KU. JAYA

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 [AIR 1968 SC 1089 : (1968) 3 SCR 234 : (1970) 1 LLJ 373 ] and in Benjamin case [(1967) 1 LLJ 718 (SC)] . 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 [(1980) 2 SCC 593 : 1980 SCC (L&S) 197] 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.?11) In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences & Anr. (2002) 1 SCC 520 wherein, the inquiry conducted to assess the fitness of an employee for continuing on probation was not found to be punitive, the Court held as under:"21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld. xx xx xx 31. Returning now to the facts of the case before us. The language used in the order of termination is that the appellants ?work and conduct has not been found to be satisfactory?. These words are almost exactly those which have been quoted in Dipti Prakash Banerjee case[(1999) 3 SCC 60 : 1999 SCC (L&S) 596] as clearly falling within the class of non-stigmatic orders of termination. It is, therefore safe to conclude that the impugned order is not ex facie stigmatic. 32. We are also not prepared to hold that the enquiry held prior to the order of termination turned this otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A charge-sheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. None of the three factors catalogued above for holding that the termination was in substance punitive exists here.?12) In Rajesh Kohli v. High Court of Jammu and Kashmir & Anr. (2010) 12 SCC 783 , again this Court held that order of termination is a fallout of unsatisfactory service adjudged on the basis of overall performance. The Court held as under:?28. In the present case, the order of termination is a fallout of his unsatisfactory service adjudged on the basis of his overall performance and the manner in which he conducted himself. Such satisfaction even if recorded that his service is unsatisfactory would not make the order stigmatic or punitive as sought to be submitted by the petitioner. On the basis of the aforesaid resolution, the matter was referred to the State Government for issuing necessary orders.?13) In the present case, respondent No.1 was appointed on ad-hoc basis. Such temporary appointment pending filling up of a vacancy on regular basis does not confer any right at par with the candidate appointed on regular basis. The appointment of the respondent No.1 was not on probation as there is no such condition in the letter of appointment. The services of an employee can be dispensed with on account of unsatisfactory work. The decision to arrive at the unsatisfactory work is motive and not the foundation of termination of services. We have seen the opinion of the Principal, which does not contain any adverse comments but the comments are in relation to the work of the respondent No. 1, such comments cannot be made basis for setting aside the termination of an ad- hoc employee. 14) Ms. Mahalaxmi, learned senior counsel for the respondents, has referred to the orders of the High Court of Judicature at Bombay in Wainganga Bahu-uddeshiya & Ors. v. Diwakar & Ors. and Wainganga Bahu-uddeshiya Vikas Sanstha & Ors. v. Anil & Ors. to contend that the appellant has been taking punitive action against the members of the teaching faculty. However, we find that both the cases pertain to disciplinary action after conduct of regular inquiry which has no relevance with the termination of an employee appointed on ad-hoc basis. 15) Consequently, we find that the order passed by the Division Bench of the High Court is clearly unsustainable in law. The same is set aside.

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

Explanation:
1[ds]9) We find that the Division Bench has travelled much beyond the controversy involved in the writ petition. The appointment of respondent No. 1 is categorically on ad-hoc basis till such time full time Lecturer is appointed. The order of termination of services is simpliciter without any stigma noticing that the work is not satisfactory. The appointment of respondent No. 1 was not on probation but, it was purely ad-hoc appointment and the Management has kept right to terminate the services during ad-hoc period on account of unsatisfactoryIn the present case, respondent No.1 was appointed on ad-hoc basis. Such temporary appointment pending filling up of a vacancy on regular basis does not confer any right at par with the candidate appointed on regular basis. The appointment of the respondent No.1 was not on probation as there is no such condition in the letter of appointment. The services of an employee can be dispensed with on account of unsatisfactory work. The decision to arrive at the unsatisfactory work is motive and not the foundation of termination of services. We have seen the opinion of the Principal, which does not contain any adverse comments but the comments are in relation to the work of the respondent No. 1, such comments cannot be made basis for setting aside the termination of an ad- hocMs. Mahalaxmi, learned senior counsel for the respondents, has referred to the orders of the High Court of Judicature at Bombay in Wainganga Bahu-uddeshiya & Ors. v. Diwakar & Ors. and Wainganga Bahu-uddeshiya Vikas Sanstha & Ors. v. Anil & Ors. to contend that the appellant has been taking punitive action against the members of the teaching faculty. However, we find that both the cases pertain to disciplinary action after conduct of regular inquiry which has no relevance with the termination of an employee appointed on ad-hocConsequently, we find that the order passed by the Division Bench of the High Court is clearly unsustainable in law. The same is set aside.