R.N. Gupta vs State of Madhya Pradesh

Sanjay Yadav, J.—Common issue which arises for consideration in these batch of writ petitions is whether the impugned order (dated 10.12.2007 in W.P. : 17566/07, 14774/08, 14776/08) and (dated 13.12.2007 in W.P. : 14777/08); whereby, the services of the petitioners, Chief Executive Officers, on probation, have been dispensed with, are stigmatic as would warrant a departmental enquiry or termination simpliciter.

Appointed on probation as Chief Executive Officers in pursuance to selection through examination held in the year 1997 by M.P. Public Service Commission, petitioners were posted in various Janpad Panchayat/Block. The period of probation was extended from time to time. That, in the year 2007, instead of extending the period of probation or regularizing their services, petitioners'' services were dispensed with by the Authorities concerned purportedly in exercise of powers under sub-rule (4) of Rule 8 of M.P. Civil Services (General Condition of Service) Rule, 1961, which provides for that "the services of a probationer may be terminated during the period of probation if in the opinion of the appointing authority he is not likely to shape into a suitable Government servant".

The order dispensing with the petitioner''s service (in Writ Petition No. 17566/2007) is worded in the following terms -

That, paragraph 4 of the orders dispensing with the services of the petitioners in respective petition contains similar reasons -

In Writ Petition No. 14774/2008 -

In Writ Petition No. 14776/2008 -

In Writ Petition No. 14777/2008 -

The question is whether the termination of service is simpliciter as contended by learned counsel for the State of M.P. or stigmatic as alleged by respective petitioners. Because if simpliciter, the termination has to be upheld even if no enquiry is conducted. But if the order casts stigma then unless preceded by a departmental enquiry, the order cannot be upheld -

The law on the issue is trite.

In Radhey Shyam Gupta Vs. U.P State Agro Industries Corporation Ltd. and Another, , it is held -

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 The State of Orissa and Another Vs. Ram Narayan Das, . 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 inquiry is held because the purpose of a preliminary inquiry is to find out if there is prima facie evidence or material to initiate a regular departmental inquiry. It has been so decided in Champaklal Chimanlal Shah Vs. The Union of India (UOI), . The purpose of the preliminary inquiry 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 inquiry is started, a charge-memo issued, reply obtained, and an enquiry Officer is appointed - if at that point of time, the inquiry 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 State of Punjab and Another Vs. Shri Sukh Raj Bahadur, and in Benjamin''s case (1967 Lab LJ 718) (SC). In the latter case, the departmental inquiry 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 Ltd. and Others Vs. Gujarat Steel Tubes Mazdoor Sabha and Others, , 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.

But in cases where the termination is preceded by an inquiry 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 principles of natural justice inasmuch as the purpose of the inquiry 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 inquiry. 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 Inquiry 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.

In Pavanendra Narayan Verma Vs. Sanjay Gandhi P.G.I. of Medical Sciences and anr, , their Lordships were please to observe -

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 (c) 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.

Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma ? Generally speaking when a probationer''s appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer''s appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job."

In State of U.P. and Another Vs. Ram Vinai Sinha--> , it is held -

"As per the order of termination, the services of the respondent were terminated on the ground that his services were not required. At the same time, it is not disputed that his juniors were retained in service. Termination of the services of the respondent while retaining his juniors in service was sought to be justified on the ground that he was found unsuitable in view of the criminal case registered against him. Hence, it was not a termination simpliciter. But before holding that he was unsuitable and terminating his services, no notice was issued to the respondent and no enquiry was conducted and he was not given any opportunity of being heard. Therefore, the impugned termination of service was in violation of the principles of natural justice, illegal and arbitrary. It also offended the provisions in Art. 311(2) of the Constitution of India. Hence, the Tribunal was justified in quashing the order of termination of service of the respondent and the High Court rightly refused to interfere with the order of the Tribunal. The fact that the respondent was subsequently convicted by the criminal court and the matter is pending in appeal will not change the legal position regarding the illegality of the impugned order of termination of service." 10. When these tests are applied in the case at hand, it is clear from paragraph 4 of each of the order under challenge that the events in the past wherein the petitioners were visited with the show cause notice or even punished has been prime consideration (and non-passing of examination is secondary) while adjudging the suitability of these officers which cast the stigma affecting the future prospects. The termination of service of probationer in such cases is permissible only when departmental enquiry is held in the allegation and decision is taken after affording an opportunity of hearing.

Since the impugned orders do not satisfy these parameters, they cannot be given the stamp of approval and therefore, are quashed. The respondents, however, would be at liberty to hold an enquiry if they are of the opinion that each of the petitioners will not shape into a suitable Government servant and after affording an opportunity of hearing which will include of recording the evidence, can pass order in accordance with law.

In the result, the petitions are allowed to the extent above. No costs.

Let a copy of this order be retained in connected writ petitions.