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Judgment
@JUDGMENT-JUDGMENT
Tapabrata Chakraborty, J
(i) The present writ petition has been preferred challenging inter alia a resolution adopted by the Syndicate of the University of Calcutta (in short, the
University) on 20th March, 2019 and communicated to the petitioner by a memo dated 20th March, 2019 issued by the Registrar (Acting) of the
University. The operative part of the said resolution runs as follows:
“It is, therefore, unanimously resolved that the probation of Dr. Biswarup Sarkar, Deputy Controller of Examinations which is due to expire on 21st
March 2019 would not be extended any further as he is found unsustainable for the post of Deputy Controller of Examinations of such a reputed and
esteemed organization as this University. The Registrar will inform him accordingly with a copy of this resolution.â€
(ii) Shorn of unnecessary details the facts are that the petitioner was appointed on probation for a period of one year to the post of Deputy Controller
of Examinations in the University by a letter dated 1st September, 2017. He was entrusted to look after examination related matters in the month of
February, 2018. On 15th June, 2018 a show-cause notice was issued to him in terms of Ordinance 74 of Chapter XV of the Calcutta University First
Ordinance, 1979 (in short, the Ordinance) in view of wrong question papers being printed and distributed in the Journalism and Mass Communication
(JORG) Paper II. He replied to the same on 28th June, 2016. By a letter dated 20th July, 2018 he was asked to appear before the Enquiry Officer on
27th July, 2018 and on the said date he was handed over a charge sheet. He replied to the same on 3rd August, 2018. On 6th August, 2018 he
attended a hearing fixed before the Enquiry Officer but no enquiry report was served upon him and the proceeding was kept pending. On 12th
September, 2018 the petitioner submitted a representation to consider his claim towards confirmation. The Syndicate thereafter extended the
petitioner’s probationary period for six months with effect from 22nd September, 2018. One day prior to expiry of the extended period, a memo
dated 20th March, 2019 was issued to the petitioner by the Registrar (Acting) of the University enclosing a copy of the resolution of the Syndicate
dated 20th March, 2019.
Records reveal that the writ petition was admitted on 21st June, 2019 with a direction towards exchange of affidavits and it was also directed that
the petitioner’s claim would abide by the result of the writ petition. Subsequent thereto, the affidavits were exchanged by the parties. The post of
Deputy Controller of Examinations for SC category in which the petitioner was appointed on probation is still vacant.
Dr. Bandyopadhyay, learned advocate appearing for the petitioner submits that after considering the petitioner’s reply to the show-cause notice
dated 15th June, 2018, a charge sheet was issued on 27th July, 2018 to which the petitioner duly replied and also appeared before the Enquiry Officer
on 6th August, 2018. But subsequent thereto, no enquiry report was supplied to the petitioner and no final decision was taken. Prior to conclusion of
the disciplinary proceeding, the Syndicate could not have discontinued the service of the petitioner on the foundation of the charges alleged in said
proceeding and without granting any opportunity of hearing.
He argues that the acts alleged against the petitioner in the impugned resolution dated 20th March, 2019 were within the knowledge of the
authorities on 10th October, 2018 when the petitioner’s probationary period was extended for a period of six months with effect from 22nd
September, 2018. The only reason towards such extension of the period of probation for a period of six months on and from 22nd September, 2018
was to take a final decision in the pending disciplinary proceeding. Having failed to complete the proceeding within the said extended period, the
authorities abruptly took a decision, a day prior to expiry of the extended period of probation, to deny further extension and such action is ex-facie
unreasonable and unjust. Such hot haste speaks of the intent of the authorities to forcibly oust the petitioner from the concerned post.
He argues that in the letter of appointment dated 1st September, 2017 the period of probation was of a period of one year and it was indicated
therein that such probationary period may be extended for a further period of one year, if necessary. However, the period of probation was extended
for a further period of only six months with effect from 22nd September, 2018. The authorities thus acted in derogation to the conditions stipulated in
the letter of appointment dated 1st September, 2018. Prior to expiry of the extended period of probation, he was stripped of his duties on and from the
month of March, 2019 and the Assistant Controller of Examinations was asked to discharge the duties of the petitioner with retrospective effect from
8th March, 2019 vide memo dated 19th March, 2019 issued by the Deputy Registrar (Acting) being oblivious of the earlier direction towards
distribution of duties of the petitioner vide memo dated 27th February, 2019 issued by the Controller of Examinations.
Drawing the attention of this Court to the documents annexed at pages 79A to 79D of the writ petition, Dr. Bandyopadhyay submits that the senior
clerk in the department of Controller of Examinations, namely, Sri Shibaji Das was responsible for wrong coding of the question papers and such fact
was admitted by Shibaji himself in his reply to the show-cause notice dated 15th June, 2018. Considering such reply the authorities imposed a
punishment by way of censure and withholding of one increment, as would be explicit from the memo dated 26th September, 2018 issued by the
Registrar (Officiating). In view thereof, the charges of misconduct as alleged against the petitioner and the findings in the impugned resolution that
owing to carelessness and lackadaisical attitude of the petitioner the University examination had to be cancelled, do not survive. The finding in the
impugned resolution that the petitioner had admitted his errors is absolutely perverse. The petitioner is thus entitled to reinstatement and back wages.
In support of such arguments reliance has been placed upon the judgments delivered in the case of Samsher Singh â€"vs-State of Punjab and Another,
reported in (1974) 2 SCC 831, in the case of Smt. S.R. Venkataraman â€"vs- Union of India and Another, reported in (1979) 2 SCC 491, in the case
of Comptroller and Auditor-General of India, Gian Prakash, New Delhi and Another â€"vs- K.S. Jagannathan and Another, reported in (1986) 2 SCC
679 and an unreported judgment delivered in the case of Vijay Raj â€"vs- Union of India and Others.
Mr. Datta, learned senior advocate appearing for the University submits that there is no dispute as regards the fact that wrong question papers
were printed and distributed in the Journalism and Mass Communication (JORG) Paper II. In place of Paper ‘2nd’ it was erroneously printed as
Paper ‘3rd’. Similar anomalies and discrepancies were noted for the 3rd paper as well and in view of such anomalies, the examination in
Journalism and Mass Communication had to be cancelled which led to tremendous inconvenience of the examinees and loss of reputation of the
University and as such an innocuous decision was taken not to extend the petitioner’s probationary period as his service was not satisfactory.
Drawing the attention of this Court to Section 33 of the Calcutta University Act of 1979 (in short, the said Act), Mr. Datta submits that the
appropriate authority of the University has been conferred the jurisdiction to exercise discretion and to consider as to whether the probationer’s
work was satisfactory. In view thereof, the decision of the Syndicate adopted on 20th March, 2019 does not suffer from any jurisdictional error. The
suitability perception varies from person to person and according to the competent authority, the petitioner was unsuitable for the post of Deputy
Controller of Examinations and such decision does not cast any aspersion upon the petitioner warranting interference of this Court in exercise of its
discretionary jurisdiction.
Drawing the attention of this Court to the averments made in the affidavit-in-opposition, Mr. Datta submits that the Enquiry Officer submitted a
report on 30th August, 2018 but no steps were taken on the basis of the same. The disciplinary proceeding was initiated on a mistaken legal position
that the said Act and the Statutes and Ordinances framed thereunder would be applicable to even an officer on probation. The departmental
proceeding was commenced but not pursued to the end and instead a decision was taken not to extend the probationary period as the service rendered
by the petitioner was unsatisfactory.
Mr. Datta argues that the petitioner had no right to the post and was liable to be discharged at any time during the period of probation. The
decision towards denial of extension of the probationary period is neither stigmatic nor punitive in nature warranting interference of this Court. In
support of such contention reliance has been placed upon the judgment delivered in the case of Rajesh Kumar Srivastava â€"vs- State of Jharkhand
and Others, reported in (2011) 4 SCC 447 and a judgment delivered in the case of Hukam Chand Khundia â€"vs- Chandigarh Administration and
Another, reported in (1995) 6 SCC 534.
In reply, Dr. Bandopadhyay submits that the impugned resolution is absolutely perverse. The same was adopted on the basis of a finding that the
petitioner had admitted his errors in reply to a show cause notice issued in contemplation of a disciplinary proceeding though there had been no such
admission on the part of the petitioner. Prior to conclusion of such proceeding, the petitioner has been penalised without arriving at any finding as
regards his purported guilt.
The post of Deputy Controller of Examination in which the petitioner was appointed on probation is still vacant. On the basis of the facts which led
to issuance of the impugned resolution, a disciplinary proceeding was initiated in terms of Ordinance 74. Upon considering the petitioner's reply to the
show cause notice dated 15th June, 2018, a charge sheet was served upon the petitioner on 27th July, 2018 containing three charges. The first charge
was that the petitioner had neglected his duties, the second charge was that he had not been diligent in the performance of his duties and the third
charge was that the petitioner had not supervised and managed his department, due to which wrong question papers were printed and distributed. A
disciplinary proceeding was also initiated contemporaneously against Sri Shibaji Das, the Senior Assistant. In reply to the show cause, Sri Das
categorically stated that “I have done wrong coding (in J.O.R.G) Paper two and three) which is absolutely unintentional, I have not done this with
any malafide intention. I shall remain always alert absent such mistake in futureâ€. In reply to the charge sheet also, he admitted such error on his
part. Upon considering such reply punishment was imposed upon Sri. Das by a memo dated 26th September, 2018. In view thereof and as there was
no misconduct on the part of the petitioner, the authorities abandoned the proceeding as initiated against the petitioner and extended the period of
probation for six months with effect from 22nd September, 2018. In the midst thereof, the petitioner was also stripped of his duties on and from the
month of March, 2019 and the impugned resolution was adopted only a day prior to expiry of the period of probation. From such sequence it is explicit
that the authorities have proceeded to remove the petitioner in an arbitrary and unreasonable manner.
The impugned resolution adopted by the Syndicate on 20th March, 2019 appears to have been adopted since according to the Syndicate the
petitioner had “admitted such errors by his letter issued in reply to notice dated 15th June, 2018 issued on to him to explain these lachesâ€.
However, the records do not reveal that there was any such admission on the part of the petitioner. The Syndicate was of the considered opinion that
“the Deputy Controller of Examinations (who alongwith the Controller of Examinations are responsible in this regard) should have taken utmost
care in the matter of finalization of question papers and should have ensured that no discrepancy creeps into such question papers†and that the
petitioner “was responsible to know the working of his department and take responsibility for the actions of his subordinate staffâ€. It was also
observed and that the petitioner’s conduct and attitude does not do justice to the post of Deputy Controller of Examinations of the University and
that “as a matter of fact such responsibility and culpability is to be shared with his superior and reporting officerâ€. Question of sharing of such
culpability would have occasioned had the petitioner been found guilty in the disciplinary proceeding. The authorities, themselves, abandoned the said
proceeding and issued the impugned resolution founded on alleged misconduct which renders the same to be punitive and stigmatic and the same
cannot be construed to be an order of simple discharge. The desirability towards issuance of the order of discharge is based on an allegation of
misconduct. The same visits the petitioner with evil consequences.
Going by the tenor of the impugned resolution it is incomprehensible as to how the same can be construed as termination simpliciter. The form and
language of the impugned resolution clearly indicates that it is punitive in nature. In the said resolution it has categorically been stated that ""owing to his
carelessness and lackadaisical attitude, grave confusion and anomalies crept in the second and third papers which resulted in cancellation of the
examinations"". The words ""carelessness and lackadaisical attitude"" cast aspersions upon the petitioner and are stigmatic and as such the impugned
resolution cannot be construed to be an order of simple discharge.
In terms of Ordinance 74, an employee can be removed or dismissed from service for offences number (f) to (h). The charges alleged against the
petitioner do not fall under clauses (f) to (h) but still he had been terminated on the foundation of the misconduct alleged in the charge sheet and such
action is arbitrary and unreasonable. Furthermore, Section 33 of the said Act provides inter alia that an employee appointed against a permanent
vacancy shall be on probation, ordinarily for a period of one year from the date of such appointment and that period of probation may, at the discretion
of the appropriate authority, be extended for a further period not exceeding one year and that on satisfactory completion of the period of probation, the
employee shall be confirmed by an order in writing. The proviso to Section 33(4) specifically states that if, on completion of period of probation, no
such order of confirmation is made and communicated within a period of two months of the completion of the period of probation, the employee shall
be deemed to have been confirmed with effect from the date of his appointment on probation. Section 34 of the said Act, provides that the services of
an employee shall not be terminated before the expiration of the period for which he is appointed except after serving one month’s notice or
paying him one month’s salary in lieu thereof. As per the memo dated 1st September, 2017, the maximum period of probation was of a period of
two years. The petitioner joined on 22nd September, 2017 and thus, in terms of the said memo, the period of one year expired on 21st September, 2018
and the period of two years was due to expire on 21st September, 2019. After the expiry of the first period of one year, the petitioner was granted
extension for only six months which expired on 21st March, 2019. Such extension of six months is neither provided under the service rules nor in the
letter of appointment.
It is well settled that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is also well-known that even
a slight distinction on fact or an additional fact may make a lot of differences in the decision making process. In the case of Rajesh Kumar Srivastava
(Supra), the order impugned was found to have been issued considering the employee’s overall performance, conduct and suitability for the job. In
the case of Hukum Chand Khundia (Supra), the employee’s integrity was questionable and the impugned order was found to have been passed
without attaching any stigma. The said judgments, upon which reliance has been placed by the respondents, are distinguishable on facts.
There is no dispute as regards the proposition of law that the termination of services of a probationer under the rules of his employment or in
exercise of contractual right is neither per se dismissal nor removal. However, if the order visits the employee with evil consequences or casts
aspersions against his character or integrity, it would be an order by way of punishment and the Court can certainly interfere. The scope and ambit of
the disciplinary proceeding initiated was pertaining to an alleged misconduct and not for determination of suitability of the probationer. The desirability
towards issuance of the order of discharge is based on an allegation of misconduct. The intemperate language used in the impugned resolution gives
the impression that the petitioner had been discharged by the employer being satisfied about his misconduct without concluding the regular inquiry. On
this conclusion, the petitioner would stand reinstated.
It is true that reinstatement does not automatically entitle the petitioner to back wages. Such issue is usually left to be decided in the pending
disciplinary proceeding [See the judgment delivered in the case of Managing Director, ECIL, Hyderabad & Others versus R. Karunakar, reported in
(1993) 4 SCC 727]. But in this case, the disciplinary proceeding initiated against the petitioner has been abandoned. With the passing of an order
which has the effect of severing the employer-employee relationship, the latter’s source of income gets dried up. Having illegally restrained the
petitioner from rendering his services, the respondents cannot shirk their responsibility of paying him the back wages during the period of enforced
idleness. The petitioner is, therefore, entitled to reinstatement, back wages and continuity of service.
For the aforesaid reasons, the impugned resolution dated 20th March, 2019 passed by the Syndicate of the University is set aside and quashed.
The petitioner is declared to be confirmed in the post of Deputy Controller of Examinations and he will also be entitled to receive full back wages for
the period he was not paid the salaries in view of issuance of the impugned resolution dated 20th March, 2019, which has been quashed. The
University authorities are, accordingly, directed to allow the petitioner to join the post of Deputy Controller of Examinations and to calculate the back
wages payable in terms of this order and to disburse the same within a period of four weeks from the date of communication of this order.
With the above observations and directions, the writ petition is disposed of.
There shall, however, be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the
necessary formalities in this regard.
Later
After delivery of the judgment, Mr. Chowdhury, learned advocate appearing for the respondents prays for stay of operation of the same.
Such prayer is considered and rejected.