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

2. Respondent No. 1 was offered appointment to the post of Engineer-B (Civil) on 1st November, 2007 after he was selected pursuant to advertisement dated 10th August, 2007. He had joined on 1st January, 2008. Respondent No. 1 was placed on probation for a period of two years from the date of joining. Appellant No. 2 was informed by the Competent Authority on 22nd May, 2008 that the period of probation for Group A officers had been reduced from two years to one year. By a letter dated 15th October, 2008, Respondent No. 1 was informed that his period of probation had been reduced from two years to one year pursuant to an amendment to the bye-laws3. An internal Office Note dated 24th July, 2008 was issued directing Respondent No. 1 to submit a detailed report regarding certain irregularities in improvements that were suggested in road infrastructure required for transportation of equipments. By Office Memorandum dated 18th August, 2008, the Registrar communicated certain shortcomings in the discharge of duty by the Respondent No. 1. The Respondent No. 1 was directed to discharge his duties diligently and complete the allotted tasks within a given time frame. Respondent No. 1 was also asked to submit his explanation regarding initiation and completion of the work relating to providing tanks for water supply for a building without prior intimation and without getting formal approval of the proposal/estimates for the construction of the same4. An Office Memorandum dated 23rd December, 2008 was issued calling for an explanation from Respondent No. 1 for an alleged misconduct. Reference was made to a preliminary inquiry which revealed that the Respondent No. 1 was responsible for removal of a pen-drive and copying the files available in the said pen-drive to his personal computer without permission. By Office Memorandum dated 31st December, 2008, the Appellant No. 2 terminated the services of Respondent No. 1. It was mentioned in the said order that the services of Respondent No. 1 were discontinued beyond the period of probation of one year. Respondent No. 1 submitted a representation to the Appellant for re-instatement which was rejected by an Order dated 2nd April, 20095. Respondent No. 1 filed a Writ Petition before the High Court of Uttarakhand at Nainital challenging orders dated 31st December, 2008 and 2nd April, 2009. It was averred in the said Writ Petition that the Respondent No. 4, who was selected for appointment to the post of Engineer Group B pursuant to an advertisement issued on 18th April, 2008, was appointed as Engineer-C (Civil). Respondent No. 1 was aggrieved by the appointment of Respondent No. 4 to Group C, which was a post higher than what he was holding for which reason he made a representation on 8th October, 2008. Respondent No. 1 sought for the benefits that were given to Respondent No. 4 and made a request for appointment as In-Charge/Project Engineer of the construction projects at Monora Peak and Devasthal. It was alleged by Respondent No. 1 that Respondent No. 4 was inimically disposed towards him in view of the representations made against his appointment to Group C post. According to the Respondent No. 1, the Office Memorandum dated 23rd December, 2008 was at the behest of Respondent No. 4 which formed the foundation of the Order dated 31st December, 2008 by which his services were terminated6. The Appellant filed a reply in which the Order dated 31st December, 2008 was justified on the ground that the termination of the services of Respondent No. 1 at the end of the period of probation was due to unsatisfactory work and not for any misconduct. The Appellant contended that there was no stigma attached to the Order of termination as the discontinuance of the services of Respondent No. 1 was not due to misconduct. The Appellant further alleged that it was decided not to proceed against Respondent No. 1 to prove misconduct though a prima facie finding of misconduct was recorded in the preliminary inquiry. Finally, it was submitted that the Order dated 31st December, 2008 was an order of termination simpliciter, not warranting any opportunity to be given to the delinquent employee7. The High Court held that the Order dated 31st December, 2008 being an innocuous order of termination did not cast any stigma against Respondent No. 1. The High Court further held that the Order dated 31st December, 2008 was challenged on the ground that it was vitiated by mala fide. The High Court found that Respondent No. 4 could not have been appointed to Group C post when he was selected for appointment to Group B Engineer post. The fact that there was no advertisement to Group C post was also highlighted. It was also held that the services of the Respondent No. 1 were terminated because of his objection to the appointment of Respondent No. 4 to a Group C post. The Memorandum dated 23rd December, 2008 was issued at the behest of Respondent No. 4 who was holding a higher post than Respondent No. 1. On the said finding, the High Court set aside the Order dated 31st December, 2008 and extended the probationary period of Respondent No. 1 by one more year. There was a further direction to the Appellant to consider the representation dated 8th October, 2008 of Respondent No. 1 either by giving the post of Engineer-B (Civil) to Respondent No. 1 or by reverting Respondent No. 4 to the post of Engineer -C (Civil).

Reasoning:
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.