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Judgment
S.S. Ganguly, J.—This is an appeal from the judgment and order dated 3.4.84 passed by a learned Judge of this Court in Civil Rule No. 3020(W) of 1984, which was initiated by the respondents no. 1, Lt. Col. Dipankar Bhattacharya against the Indian Iron & Steel Company, several of its authorites (Appellants Nos. 1 3 and respondents Nos. 2 and 3), the Steel Authority of India and the Union of India (respondents nos. 4 and 5). Admittedly the respondent no. 1 (respondent henceforward) while serving in the Army resigned his post and joined the Appellant Co. (Appellant henceforward) as a Probationer Deputy Chief Security Officer on or about 1.4.82. As per the terms of his appointment, the period of probation was twelve months which as per the Personnel Policy Circular no. 22 Hated 14/9/81 (vide Rule 7:2) was extendable not more than once by a period not exceeding the initial probatory period. After the expiry of 15 months, by a Memo dated 13.3.83 from the Deputy Chief Personnel Manager (respondent no. 3) the respondent''s period of probation was extended by six months upto 30/9/8 3 with retrospective effect from 1/4/83. The respondent''s service was terminated by an order dated 30/9/83. The respondent appealed to the General Manager and is His appeal proved fruitless, he moved the Court under article 226 of the Constitution of India. As per the writ petition, the case of the respondent appears to be the following:
When the respondent joined: the appellant concern as Deputy Chief Security Officer, Major P.J.N. Rana one of his colleagues (respondent no. 21 did not like his appointment since in the Army, major Rana was lower in rank to him and he feared that the respondent weald supersede him to the promotional post of Additional Chief Security Officer, by virtue of Irs seniority in the Army. From the very start, Major Rama was ironically disposed towards him and he tried to make things as difficult for him as possible and by malicious" mis-representation, vitiated: he attitude of the authorities against him. Several such instances were cited in the writ petition, which have been mentioned by the learned Judge in para 4 of his judgment. The respondent effected various improvements to the working the Security Department during his short stay with the appellant concern and this was not also looked upon favourably by Major Rana and the order of termination was issued by the respondent no. 3 at the instance of respondent no. 2.
In view of the terms of the Personnel Policy Circular, the respondent became confirmed automatically, since his period of probation was not extended within one month of the expiry of the in first year of probation (vide Rule 6.4). While extending his period of probation, he was never informed what were his deficiencies which required to be corrected The order of termination also besides complaining of lis services being unsatisfactory did not spell out wherein he was found wanting. On a representation of the I. I. SCO Officer Association, Kulti Unit to the Managing Director regarding the termination of his services, the latter made for the first time-on 1/10/33 detain allegations which came within the purview of misconduct and subordination. These allegations were not brought to the knowledge of the respondent as required by Rule 5.4 of the appellant''s Company''s Conduct, Discipline and Appeal Rules. 1977. The order of termination which was actually a punitive dismissal with stigma and passed without any enquiry after giving the respondent a reasonable opportunity to defend himself was a colourable exercise of power and in gross violation of the principles of natura justice and hence arbitrary, mala fide and illegal. In the circumstances stated, the respondent prayed for a direction the appellants to cannot the order of termination and retrace all steps taken in consequence thereof.
The affidavit in opposition to the writ petition of the respondent was sworn by C. P. S. Narayanan, the Manager (Personnel) on behalf of the respondent company. The case made out as per affidavit-in-opposition appears to be the following: The respondent held a superior rank in the Army and he could not adjust himself to a civil post. When he joined as Deputy Chef security Officer in 1/4/82, Major Rana was already holding that post since 1/12/77. Thereafter, Major Rana was promoted to the post of Additional Chief Security Officer with effect from 15/4/82 and thereby, he became the superior officer of the respondent. The respondent could not adjust himself to this tune of events, since Major Rana was junior to him in the Army and since the respondent suffered from a misconception that the ranking in the Army would be adhered to in the hierarchy of officer serving the appellant Co. This is the reason why the relation between the respondent and Major Rana could not be cordial. Major Rana had never any reason to be apprehensive of the superior rank of the respondent in the Army, since he was much senior to him in the service of the appellant Co. The allegation brought against him in paras 15 to 28 of the writ petition were not true. The respondent was unmindful of the interest of the appellant Co. and paid no heed to the instructions given to him. Instances of improper implementation of instructions by the respondent and acts of disobeying orders of Major Rana and his non-cooperation with the local police were given in para 31. Advice, counsel and intimations were given to the respondent verbally by the Add tonal Chief Security officer, General Manager, Kulti, Chief Personnel Manager, Kulti and General Manager (P & A). The Additional Chief security Officer gave the respondent general warning in writing and several instructions also in writing as he was not obeying his oral instructions. The respondent, however, did not take any corrective measure in spite of all these instructions and counsel and the note of the Genera'' Manager (P&A).
The respondent wrongly claimed to have been confirmed since he was never confirmed by an order as per the requirement of Rule 6.5 of the Personnel Policy Circular No. 92. Before his period of probation was. extended, the respondent was informed repeatedly that his performance was not satisfactory and he was counselled to take corrective measures. All complaints against him were also discussed with him threadbare by the General Manager (P&A). The respondent did not take all this counselling seriously. Lastly, he was warmed that he was being given a last chance to improve his performance and accordingly, his period of probation was extended by communication dated 307/6/83. During the extended probationary period also the respondent was given warnings and also when, theft of pig iron was going up Major Rana gave him instructions in writing. The respondent''s services have been dispensed with because of his unsatisfactory performance of duties during his probationary period and, this could not be equated with dismissal as a disciplinary measure. The Managing Director was satisfied about the unsatisfactory quality and manner of work of the respondent and he came to the conclusion that no further reliance could be placed on the petitioner and his services were brought to an end as there was complete loss of confidence in him.
The respondent filed an Affidavit-in-Reply, whereby. he termed all the allegations made against him as unfounded and untrue. He denied that his alleged shortcoming were ever brought his notice or that he was counselled with, regard to them. He urged that the causes of termination, especially loss of confidence in him, cast a stigma on his carrer and he should have been given a hearing.
It was argued before the learned Trial Judge on behalf of the respondent, first, that since the respondent was allowed to continue in service of the appellant company after the expiry of his initial probationary period of one year without confirming him or without extending his period of probation, he should be deemed to have been confirmed. Om prakash Maurya v. U.P. Co-operative Sugar Factories federation, Lucknow & Oudh, 1986 SCC (I&S) 421 and State of Punjab Vs. Dharam Singh, were in this connection. It was urged, secondly, that the various allegations against the respondent as detailed in the Affidavit-in-Opposition submitted on behalf of the appellant to the effect that the respondent had been insubordinate all throughout and that the unsatisfactory performance of his duties, caused loss of all confidence in him were stigmas on his carrer and that the innocuous order of termination of service-was in reality a penal order of dismissal and that, since the respondent was not given any opportunity to meet these allegations against him in a full fledged enquiry, the order of termination was bad in law. It was urged that in such a case as the present, the court could and should pierce the veil, find out the truth and pass appropriate order accord ugly.
It was urged from the side of the appellant on the other hand that on a consideration of all the performance of the respondent, the authorities of the appellant company felt that his performance was not satisfactory and it is because of this that they terminated his service on the ground of unsatisfactory performance. This could not be considered to have cast a stigma on the respondent''s career. The facts mentioned in the affidavit-in-opposition could at worst be called: he motive, but not the foundation of the order. The order of termination could not; therefore, be held to be punitive in nature.
On a consideration of the materials on record, the argument of the learned Advocates and the decisions cited by them, the learned Trial Judge fund the arguments of the learned Advocate for the respondent fully acceptable on both the points. Agreeing with him he has held that the respondent become confirmed under the rules, when no order confirming him or terminating his services was passed within one month of the expiry of the initial period of probation. He also held that in view of the allegations made against the respondent in the Affidavit-in-Opposition filed by the appellant, the conclusion was inevitable that the said allegations formed the ground of the order of terminations, that the termination was, therefore, a penal dismissal in reality though dressed up in an innocent way and that it was bad and illegal since the respondent was riot given any opportunity to meet these allegations. In the circumstances stated, the learned trial Judge has allowed the petition, set aside the impugned order of termination, ordered reinstatement of the respondent and granted him all the other consequential reliefs. Hence, this appeal?
The learned Advocate for the appellant has attacked both the findings of the learned Trial Judge on which his final order was based. He urged first that in view of the relevant rules of the Personnel Policy Circular No. 92, the respondent could not be considered to have been confirmed. He urged next that since the impugned order prima facie did not contain any stigma, the learned Judge should not have taken into his consideration the allegations in the Affidavit-in-Opposition, to find that the order in question was, in fact, a penal order of dismissal.
So far as the point of confirmation is concerned, the relevant rules of the Personnel Policy Circular No. 92 are the following:
4.0 Period of probation.
4.1 On Fresh appointment.-
a).....................................
b) All other executives (i.e. besides the management Trainees) appointed in IISCO/SAIL shall be on probation for a period of twelve months.
5.0 Assessment of Performance.
5.1. The performance and conduct of in executive on probation shall.be watched carefully and continually.
5.2 Where it is found that a probationer is not making satisfactory progress and shows himself to be inadequate for the post in any way, the shortcomings shall be brought to his notice during the probationary period itself to enable him to make special effort, or self improvement.
5.3 A special report in the prescribed form (Annexure I or II) shall be prepared on the work and conduct of the executive during the period of probation.
6.0. Confirmation.
6.1 Confirmation shall be based on the report mentioned in para 5.3 above.
6.2 Confirmation shall not be done in case of fresh appointment until and unless procedure of verification through attestation forms prescribed separately with regard to new appointment have been completed satisfactorily.
6.3...........................
6.4 Subject to para 6.2" order of confirmation shall be issued within a period of one month of the expiry of the probationary period.
6.5 An executive shall not benregarded as having been confirmed unless an order of confirmation has been issued.
7.0 Extension of probationary period.
7.1 The period of probation may be extended if work and conduct during the period of probation have not been satisfactory based on report mentioned in para 5.3.
7.2 Probation may be extended not more than once by a period not exceeding the initial probationary period.
7.3 The decision to extend the probation shall be communicated of the executive within one month of the expiry of the initial probationary period. The executive should also be counselled regarding inadequacies/deficiencies observed in his performance and conduct to enable him to improve during the period of extendi probation.
7.4 If the performance of the executive is not found to be satisfactory even during the extended period of probation his services shall be terminated.
It is not disputed that the respondent joined the appellant company on 1/4/82. Under Rule 7.3 quoted above, the order of extension of the period of probation should have been communicated to him within 30/4/8 3. The order of extension of the period of probation was, however, communicated to the respondent by a Memo dated 30/6/83. It is because of this, that it was urged from the side of the respondent that he became confirmed, since the order extending his period of probation was not communicated to him within one month of the expiry of the initial probationary period as per Rule 7.3 quoted above. This argument found favour with the learned Trial Judge. We find it very difficult, however, to agree with him. It is true that Rule 7.3 was not complied with in this case; but nowhere in the Rules, has it been provided that non-compliance with Rule 7.3 will earn the executive concerned, confirmation in the post that he has been holding. On the other hand, it has been clearly and specifically provided in Rule 6.5 quoted above that an executive shall not be regarded as having been confirmed unless an order of confirmation has been issued, which by implication extends the period of probation even after the expiry of the probationary period initial as well as extended. Besides, it is also not the law that in such a case as the present, where the probationer continues in service even after the expiry of the initial period of probation, without there being an order extending his period of probation, he becomes confirmed automatically, Sukhbans Singh Vs. State of Punjab, . This may happen only in a very special case where the service Rules or the provisions of the letter of appointment clearly and specifically limit the extent of the probationary period without leaving any option with the appointing authorities to extend it. It is only in such a case where an order has not been issued dispensing with the service of the probationer, on the expiry of his period of probation initial as well as extended that it has been held that it can be presumed that the probationer has been confirmed in his service; State of Punjab Vs. Dharam Singh, , approved and followed in Om Prakash v. The State of U. P., AIR 1986 SC 1944; M. K. Agarwal v. Gurgaon Gramin Bank, AIR 1988 SC 286 and Lakshman Ram v. Committee of (Management, 1987 Lab IC 1170 . These decisions have no application to the facts of this case, since the facts here are not the same as the facts in the reported cases. For in this case, after the expiry of the initial probationary period of twelve months, the authorities could very well have extended the period of probation by twelve months more under Rules 7.1 and 7.2 and they actually extended it by six months, though the order in this regard was brought to the notice of the respondent three months after the expiry of the initial period of probation. The law is well settled that where a person is appointed as a probationer in any post and a period of probation is specified and the rules or the terms of appointment do not clearly indicate that confirmation would automatically follow at the end of the said specified period and an order of confirmation or discharge is not issued after the expiry of the probationary period and yet the probationer goes on holding his probationary job the result clearly is that he continues in his post as probationer; Sukhbans Singh Vs. State of Punjab, ; The Management of the Express Newspapers (Private) Ltd. Madurai Vs. The Presiding Officer,Labour Court, Madurai and Another, ; State of Uttar Pradesh Vs. Akbar Ali Khan, ; Shri Kedar Nath Bahl Vs. The State of Punjab and Others, ; Dhanjibhai Ramjibhai Vs. State of Gujarat, ." This principle was also stated with approval in the State of Punjab Vs. Dharam Singh, . Where the Rules provide that a recruit will be on probation for a particular specified period and the recruit goes on holding the job even alter expiry of the probationary period without any order confirming Ins appointment or discharging him, it will be presumed that his probationary period has been extended and that he is still on probation unless (a) the Rules specifically provide that on expiry of the probationary period the probationer shall become confirmed or (b) the Rules specifically prohibit the extension of the probationary, period: State of Punjab Vs. Dharam Singh, . A candidate, so it has been held in a similar context, does not enjoy any greater right to confirmation if he is allowed to continue beyond the period of probation; Dhanjibhai v- State of Gujarat, AIR 198 5 SC 803. The employer, was in much better position in the present case, for here the Rules (I) actually provided for extension of the probationary period and (2) specifically ruled out confirmation unless, made by an order. It is futile to argue, therefore, that simply because the respondent continued to serve the appellant company even after the expiry of the initial probationary period of one year, he became confirmed in his service thereby, since no order was passed confirming him or dispensing with his services on expiry of the initial period of probation, or since the order extending his period of probation was not brought to his notice within one month of the expiry of the initial period of probation. We cannot agree, therefore, with the decision of the learned Trial Judge on this point and disagreeing with him, we hold that the status of the respondent continued to be that of a probationer when he continued in his service even after the expiry of the initial probationary period of one year without any order from the Appellant Company confirming him or dispensing with his services or continuing his period of probation after the expiry of the initial period of probation.
Now to the question as to how far tenable is the decision of the learned Trial Judge that the order terminating the services of the respondent was a dismissal by way of penalty and that it was bad since the respondent was not given any opportunity of defending himself presumbly as per the provision of Article 311(2) of the Constitution.
The respondent was put on initial probation for one year with effect from 1.4.82 and running upto 31/3/83 vide Annexure ''D''. Thereafter, his period of probation was extended by six months upto 30/9/83 vide order dated 30/6/83. His services were terminated by an order dated 30/3/83, i.e., on the last day of his extended probationary period. The question is, if it was an order of termination of service simpliciter or if it was in reality an order of dismissal from service by way of penalty?
On a consideration of the decisions cited by the learned Advocates on both the sides on this point, the following propositions appear to have been established:
(a) A permanent Government servant has a right to go on holding his job till retirement on superannuation, in terms of the rules and regulations of his service. He can be dismissed or removed from his service or reduced in rank only by way of punishment, which will not be valid unless made after an enquiry as contemplated by Article 311 (2) of the Constitution. A" probationer or a temporary Government servant, on the other hand, has no right, to go on holding his job and, therefore, termination of his service will not be actionable per se. In view of the terms and conditions of his letter of appointment or the relevant service Rules, his services may be terminated during or on expiry of the period of probation or the ex tended/period of probation without showing any cause and/or without service of notice. Such termination being incidental to the services of a temporary Government servant or a probationer, would not by itself be a punishment and, therefore, attract the operation of Article 311(2) of the Constitution. Services of a "probationer or a temporary Government servant can also, however, be terminated by way of punishment, and where such penal termination is contemplated, compliance with the provisions of Article 311(2) will be mandatory. Where, therefore, services of a probationer have been terminated by way of punishment without complying with the provisions of Article 311(2) of the Constitution, such termination will be incurably bad; Parshotam Lal Dhingra Vs. Union of India (UOI), . Samsher Singh Vs. State of Punjab and Another, ; Jagdish Mitter Vs. The Union of India (UOI), .
(b) How to find out whether the termination in a particular case is by way of punishment or not? The concept of punishment is inextricably tied up with the concept of crime, misconduct, misdemeanour. Where the Authority concludes whether on an enquiry or not, that the probationer is unworthy or unfit for the probationary post temperamentally or because of his inadequacy for the job or general inefficiency or for any other reason whatsoever or even because he is guilty of misconduct and that his continuance as a probationer or his. confirmation in the service will not be in the interest of his employer and being imbued with that idea bona fide he i.e. the Authority terminates the services of the probationer by an order of discharge simplicities without casting any aspersion and without inflicting any stigma on him in the body of the order, such termination will not be penal. This is because the Authority in this case will be terminating his employment by way of punishment for his misconduct, but because he has been found unsuitable or unlit for the job. Where, on the other hand under similar circumstances, the Authority being of the view that the probationer deserves to be punished for his misconduct and being imbued with that idea, terminates his services by an order of discharge whether simpliciter or stating clearly the misconduct of which he has been found guilty or specifically casting any aspersion or inflicting any stigma on him, such a termination will be penal. The same tact comprising the misconduct may provide the motive of termination in both the cases; but that will not make the termination in the first case bad, since it is settled law that in all such cases presence or absence of motive is absolutely immaterial. What makes a termination penal is the intention to punish which must be at the root of the termination. Where the termination post out from a mere desire of protecting, ensuring or assuring the interest of the employer or same such cause unaccompanied by any intention to punish, such a case of termination will not be penal; Sukhbans Singh Vs. State of Punjab, ; R.L. Arora Vs. State of U.P., , State of Uttar Pradesh Vs. Akbar Ali Khan, ; Jagdish Mitter Vs. The Union of India (UOI), ; State of Bihar v, Gopikrishana, AIR 1966 SC 689 ; The State of Orissa and Another Vs. Ram Narayan Das, Samsher Singh v. State of Punjab, AIR 1978 SC 2192 , 2205; The State of Bihar Vs. Gopi Kishore Prasad, ; The State of U.P. Vs. Ram Chandra Trivedi, ; Oil and Natural Gas Commission and Others Vs. Dr. Md. S. Iskender Ali, .
(c) How to find out, if the termination in a particular case in the result of an intention to punish One must look to the order itself. An order terminating service may be one of three kinds. The first kind is an order of discharge simpliciter, which does not ex-facie disclose any stigma or penal consequences against the Government servant Ordinarily, it is to be assumed that it is what it purports to be and is not, therefore, a penal order. An order of the second kind on the face of it casts a stigma on the government servant or visits him with penal consequences. Such an order is plainly penal and will be bad if not passed consequential to an enquiry under Article 311(2) of the Constitution; Parshotam Lal Dhingra Vs. Union of India (UOI), : R.S. Sial Vs. The State of U.P. and Others, . An order of the third kind is on the face if it an order of discharge simpliciter but is in tact not so but is actually an order of punishment; vide observations of Pathak J. (as His Lordship then was) in the State of Maharashtra v. Veerappa R Saboji, AIR 198C SC 42 , 50. It is about the third kind presumbly that it has been said that the substance of the order and not the form would be decisive; K.H. Phadnis Vs. State of Maharashtra, . Non-committal appearance of such an order will not make it.an order of the first kind and such an order will be bad if not passed after an enquiry under Article 311(2) of the Constitution.
(d) How to find out if an order is an order of the first kind or the third kind since both may be couched in the same language? It has been held that where an order on the face of it is an order of discharge simpliciter, the Court should assume and accept it to be unless a case to the contrary is made out and proved by the Government servant _who challenges the order. If the Government servant fails to establish such a case to the contrary, the Court should stay its hands and not probe into the departmental files and correspondence to discover whether some kind of stigma can be inferred on such research: Champaklal Chimanlal Shah Vs. The Union of India (UOI), : I.N. Saksena Vs. State of Madhya Pradesh, cited with approval and followed in The State of U.P. Vs. Ram Chandra Trivedi, . On the other hand, if the Government servant succeeds in making out a case with, the materials on the record that the order was made by way of punishment, it will be open to the Court only in such a special case, to report to scrutiny of the official records for the purpose of verifying the truth. A mere allegation will not, however, justify such a course; State of Maharashtra v. Veerappa R Saboji, AIR 1980 SC 42, 50.
(e) The long and the short of the matter is, therefore, this The termination of the services of a probationer at the end of his probationary period, initial as well as extended, or even within the period of probation if the Rules so permit, by an order of discharge simpliciter will not a attract Article 311(2) of the Constitution. Where, however, the services have been terminated by way of punishment. Article 311(2) of the Constitution will be attracted The discharged employee may plead and establish, by materials on record that the order of termination simpliciter passed in his case is fact an order of dismissal passed by way of punishment. Where the discharged probationer succeds in establishing that even in a prima facie way, at will be permissible for the Court to look in to the official records and correspondence To satisfy itself as to whether the termination, apparently innocuous, were really made by way of punishment.
What kind of an order was passed in the present case? The sum and substance of the impugned order dated 30th September, 1983 being Annexure T reproduced in the paper book is the following:
The petitioner was appointed as Dy. Chief Security Officer and placed on probation for twelve months with effect from 1st April, 1982 which could be extended. His services were not found satisfactory and for giving him a chance for improvement his probationary period was extended by six months which expired on that day, viz.. 30th September. 1983. The management carefully evaluated his performance during the extended period of probation also but found the same to be not satisfactory. Accordingly the petitioner''s services with the company are terminated with effect from 30.9.83.
On a plain reading, the impugned order appears to be an order of discharge simpliciter. The negative assessment of the quality of the respondent''s services cannot be termed as a stigma or an aspersion since the concept of probation implies, discharge in case of unsatisfactory service; Samsher Singh Vs. State of Punjab and Another, . The burden lay upon the respondents, there-fore, to establish with the materials on record that the impugned order which prima facie was not a penal order was, in fact, and in reality a penal order requiring observance of the requirements of article 311(2) of the Constitution.
Of the materials annexed by the respondent to his petition under Article 226 of the Constitution Annexure ''A'' & ''B'' are a Central Government Circular and a departmental letter to do with taking over of the Indian Iron & Steel Co. Ltd. Annexure ''C is the respondent''s application for premature retirement from the Army. Annexure ''D'' is the Appointment Offer, containing terms of appointment. Annexure ''E'' is the Personnel Policy Circular No. 92, subject matter of which is the system of probation and confirmation of Executives. Annexure ''F'' is a letter of the respondent to Major Rana with regard to incidents that had occurred at Kulti on 10.3.83 and 12.3.83 Annexure ''G'' is an office order placing the respondent in place of Major Rana during his leave of absence. Annexure ''H'' is the order by which the respondent''s probationary period was extended by six months with effect from 1.4.83. Annexure T is the letter terminating the services of the respondent. Annexures J, ''M'' and ''N'' are letters from the Officers Association and its Kulti Unit, demanding revocation of the order of termination of the services of the respondent. Annexure ''K'' is a petition of the respondent to the Managing Director I.I.S.C.O. to reconsider his discharge. None of these materials help the respondent in any way to discharge his burden of establishing that the impugned order in fact and in reality was a penal order of dismissal.
Reliance, however, has been placed on certain statements made in the Affidavit-in-Opoposition filed by the Indian Iron Steel Co. Ltd. We have already stated what these statements are, while taking note of the contents of the Affidavit-in-Opposition. All of these need not be repeated. The statements relied upon from the side of the respondent were (1) that though the respondent was informed repeatedly that his performance was not satisfactory and was counselled to take corrective measures, he did not take all this counseling seriously and was disobedient all through out and that (2) because the unsatisfactory quality and manner of work of the respondent, the Managing Director concluded that no further reliance could be placed on the petitioner and his services were brought to an end as there was complete loss of faith in him. The Id. trial Judge, it may be recalled, held that the said allegations in the Affidavit-in-Opposition provided the ground of the order of termination and that the termination, therefore, was a penal dismissal. The same view has also been reiterated before us from the side of the respondent. The learned Advocate for the appellant has also repeated his argument that the said allegations provided the motive of the order and not its ground.
A it has been stated above, in view of the same set facts, the Authority may discharge a probationer (1) because he unfit or unsuitable for the job or (2) by way of punishment; Jagdish Mitter Vs. The Union of India (UOI), . Where his services an dispensed with because he is held to be unfit or unsuitable for the service, the termination cannot be considered as penal. Disobedient and loss of confidence are certainly stigmas; Kamal Kishore v. Management, (1937)1 SCC 146. But from the: it does not follow that the order of termination passed in this case was penal. The Authority herein felt, rightly or wrongly, that it would not be conducive in interests of the appellant Company, if the services of the respondent were retried or if he was confirmed in his service and that on the contrary the interests of the respondent Company would be served by d discharging him. The Authority in this case was perfectly within his rights to terminate the services of the respondent, being of the view that the respondent was not the right kind of person for the job. Such a termination cannot certainly be considered as penal, since the termination was ordered in this case not by way of punishment of any offence that the respondent had committed, but Because he was found not suitable for the job.
It cannot be said that the so-called disobedience or I of confidence formed the ground of the order of termination in this case. The terms ''ground'' and motive are not interchangeable. They may in a particular case after to the same misconduct or deficit with this difference that the motive, it will not make the order penal put as ground it will. When a misconduct will be a mere motive and where it will be the ground of the order? From the decisions cited above it becomes quite clear that so long as the termination is not ordered by way, of punishment for the misconduct and nor does it as a stigma finds any mention in the body of the order, the misconduct even a very serious one provides merely the motive of passing the order; Parshotam Lal Dhingra Vs. Union of India (UOI), ; Champaklal Chimanlal Shah Vs. The Union of India (UOI), . Thus where on an overall assessment of the performance of the probationer including his misconduct and other faults if any - the Authority concludes that the probationer will not be a fit or a suitable person for the job and terminates his services by an order of discharge simpliciter, such an order cannot be said to have been passed by way of punishment. This is because, the misconduct is taken into consideration in this case not with a view to punish the probationer but solely for the purpose of deciding as to whether the probationer was a fit person to be confirmed and retailed in service. The authority is under a duty to assess the merits and: he demerits of a probationer before he passes his order confirming him or discharging- him. While perfoprming his duty in this regard, if the Authority takes into his consideration the misconduct of the probationer if any and discharges him, being of the that the probationer will not he the right person for the job, it will not be proper to say that he terminated the services of the probationer by way. of punishment for the misconduct. The misconduct, in such a case will be a mere motive for the termination but not the ground of the order Jagdish Mitter Vs. The Union of India (UOI), : R.S. Sial Vs. The State of U.P. and Others, ; State of Bihar v. Gopi Krishore, AIR I960 SC 689, 692; State of U. P. v. Ram-chandra, AIR 1960 SC 2547 ; Oil and Natural Gas Commission and Others Vs. Dr. Md. S. Iskender Ali, ; Champaklal Chimanlal Shah Vs. The Union of India (UOI), . Where;on the there hand, the order itself contains a stigma arising out of a misconduct arrived at whether on an enquiry or not; Jagadish Mitter v. Union of India iibid; State of Punjab and Another Vs. Shri Sukh Raj Bahadur, ; R.S. Sial Vs. The State of U.P. and Others, ; or, where on a formal departmental enquiry held with the object of punishing the probationer on a charge of misconduct, the probationer is found guilty and his services are terminated on that finding, even though by an order of discharge simpliciter; Madan Gopal Vs. State of Punjab, ; Jagdish Mitter Vs. The Union of India (UOI), ; State of Punjab and Another Vs. Shri Sukh Raj Bahadur, ; Samsher Singh Vs. State of Punjab and Another, ; or, where on allegation of misconduct no enquiry or at any rate no formal departmental enwuiry is held and an order of termination is passed simpliciter but in reality by way of. punishment in view of that misconduct; Sukhbans Singh Vs. State of Punjab, ; K.H. Phadnis Vs. State of Maharashtra, and A. P. Singh v. State of Punjab, 1971 Lab.I.C. 13 (Notes) I(S.C.) referred to in para 13 of K.H. Phadnis Vs. State of Maharashtra, ; The State of Bihar and Others Vs. Shiva Bhikshuk Mishra, ; S.R. Tewari Vs. District Board Agra and Another, and Anop Jaiswal v. Government of India, (1948)2 SCC 69 , 379 in para 12; or whereon allegations of misconduct the Authority purports to take action under Article 311(2) out instead passes an order of termination; The State of Bihar Vs. Gopi Kishore Prasad, in all such cases the misconduct may be said to be the foundation of the order of termination.
The above, however, will not hold, where an enquiry has been held with the object of ascertaining as to whether the probationer should be retained in service or not or where the enquiry is a mere preliminary or fact finding enquiry with or without notice to the officer concerned, held with the object of determinating whether a prima facie case for a formal departmental enquiry is madeout: Champaklal v. Union of India, AIR 196 SC 1854 ; Shyam Lal Vs. The State of Uttar Pradesh and The Union of India (UOI),
From the above, it appears that the same misconduct may be either the motive or the ground of an order of termination and that the differentiating element between the two is the manner of its user. Where it is taken into consideration merely for assessing whether on a preliminary or a fact finding enquiry or not as to whether the probationer should be retained in service or not the misconduct will be a mere motive. Where on the other hand, the misconduct is established whether on a full fledged departmental enquiry or not and the order of termination is passed on the misconduct so established and by way of punishment in that case the misconduct will be the ground of the order.
In the case at hand, the order of termination docs not contain any stigma against the respondent. There is also nothing to show that "disobedience", "loss of confidence" and such other terms used for describing the personality or the performance of the respondent were treated by the Authority here as misconduct or that the order of termination was passed because of them by way of punishment. On the other hand, it appears that these were taken into consideration by the Authority along with the performance of the respondent being retained in the job and further that the Authority passed the order of termination being of the view that his performance was not satisfactory. It cannot be said, therefore, that in this case, the terms used in the Affidavit-in-Opposition formed the ground of the order of termination.
It is also very much doubtful if it wall be per miscible to use the statements made in an Affidavit-in-Opposition for establishing the defence of a d scharged probationer in the way it has been sought to be done, in this case. It is true that it has been laid down that to find out as to whether the misconduct in a particular case is a mere motive or is the very foundation of the order, the entirely of circumstances preceding or attendant on the impugned order must be examined; The State of Bihar and Others Vs. Shiva Bhikshuk Mishra, from that, it does not follow that statements made in an Affidavit-in-Oppsition may be used for establishing such circumstances. Reference may in this connection be made to the following few lines in. Jagdish Mitter Vs. The Union of India (UOI),
In dealing with this aspect of the matter we must, bear in mind that the real character the termination of services must be determined by reference to the material facts that existed prior to the order. Take a case where a temporary servant attacks the validity of his discharge on the ground of mala fides on the part of the authority. If in resisting the plea of malafides the authority refers to certain facts justifying the order of discharge and these.facts relate to the misconduct, negligence or inefficiency of the said servant it cannot logically be said mat in view of the plea thus made by the authority long after the order of discharge, it should be held that the order of discharge was the result of the considerations set out in the said plea. What the Court will have to examine in each case would be having regard to the material facts existing upto the time of discharge, is the order of discharge in substance one of dismissal? If the answer is that notwithstanding the form which the order took, the appointing authority, in substance, really dismissed the temporary public servant. Article 311 would be attracted.
It cannot be said, therefore, that the respondent has discharged his burden of establishing his own case by merely referring to the statements in the Affidavit-in-Opposition.
There is another aspect of the matter and this is about application of Articles 14, 15(1) and 16(1) of the Constitution, to the cases of temporary Government employees. The decision in The Union of India (UOI) Vs. Pandurang Kashinath More, proceeded on the assumption that Article 16 might be violated by an arbitrary and discriminatory termination of service. The theme was developed in The Manager, Government Branch Press and Another Vs. D.B. Belliappa, , where it was laid down that bereft of rationality and fairness, discretion degenerates into arbitrariness and that, therefore, even where the competent authority has the discretion to terminate the services of even a temporary Government servant without notice under the terms of the contract of his employment, such discretion has to be exercised in accordance with reason and fairplay and not capriciously and that arbitraty invocation or enforcement of a service condition terminating the service of a temporary employee may itself constitute denial of equal protection and offend the equality clause in Arts, 14 and 16(1), Services of Belliappa, a temporary Government servant, were terminated without showing any reason and the Government justified it on the terms; of the Contract of Service, which per nitted the competent authority to do that. The Supreme Court observed that if the services of a temporary Government servant are terminated in accordance with the conditions of his service on the ground of unsatisfactory conduct or his unsuitability for the job and/or for his work being unsatisfactory or for a like reason which marks him off as a class apart from other temporary servants who have been retained in service, there would have been no question of the applicability of Article 16. Conversely, so observed the Supreme Court, if the services of a temporary Government Servant are terminated arbitrarily, i.e., without any reason or ground which would put him in a class apart from his fellow employees similarly placed, a question of unfair discrimination might arise, no twithstanding that in termioating his service, the appointing authority was purporting to act in accordance with the terms of the employment. It was also observed that where a charge of unfair discrimination is levelled with specificity, or impugned motives are imputed to the authority making the impugned order or termination of the service, it is the duty of the authority to dispel that charge by disclosing to the Court excepting perhaps; in cases analogous to those covered by Article 311(2), Pioviso(c) the reason or motive which impelled it to take the impugned action. In the absence of any information from the appellant indicating that the respondent-Government servant was.marked off for discharge on the basis of an intelligible different having a reasonable nexus with the object of maintaining the efficiency and integrity of public-service, the impugned order suffered from the vice of unfair discrimination and was violative of Arts. 14, and 16(l) of the Constitution. These principles were reiterated in Nepal Singh Vs. State of U.P. and Others, where the law on this pint was laid down in the following way:
It is well settled that in dealing with a Government servant the State must conform to the constitutional requirements of Arts, 14 and 16 of the Constitution. An arbitrary exercise of power by the State violates those constitutional guarantees, for a fundamental. implication in the guarantee of equality and of protection against discrimination is that fair and just treatment will be accorded to all, whether individually or jointly as a class. When a Government servant satisfies the Court prima facie that an. order terminating his service violated Arts. 14 and 16, the competent authority must discharge the burden of showing that the power to terminate the service was exercised honestly and in good faith, on valid considerations, fairly and without discrimination.
The decisions have no application to the facts of the case at hand since here the authority'' clearly stated in the letter of termination of service (Annexure T) that the respondent''s services were being terminated as his performance both during the initial and extended periods of probation were not found satisfactory. In the Affidavit-in-Opposition also it was stated clearly, citing instances what led the Authority to conclude that the respondent was unsuitable for the post. All this put the respondent as a class apart from his colleagues and the impugned order, therefore, was not arbitrary or unfairly discriminatory in character.
In his writ petition the respondent made many allegations against Major Rana, Additional Chief Security Officer (respondent No. 2), mention of whose name has already been made before. It was alleged that since in the Army Major Rana was junior to the respondent, he did not like it at all when the respondent became his colleague in the appellant Company, since he feared that this would hamper Irs promotional prospects and from the very beginning he poisoned the ears of the Authority, by making various allegations against him. Several instance were cited. On a reference to the Office Records it was pointed out that the respondent was discharged on the recommendation of Major Rana and it was argued that the authority blind by dittoed Major Rana without considering independently the case of the respondent on merits. The allegations made by the respondent were all denied in the Affidavit-in-Opposition filed from the side of the appellant. It was pointed out that Major Rana''s promotional prospects were not likely to be imparied, since he was already a senior officer when the respondent joined the appellant company and since promotions in the service of the appellant company depended upon seniority earned in the service of the company and not in the Army. The other allegations were also refuted. It was urged that this was not sufficient and that denial of the allegations should have come from Major Rana himself through an affidavit. It would have, certainty, been better, had Major Rana sworn an affidavit denying all the allegations made against him. We do not think, however, that it was absolutely necessary on the part of Major Rana to swear an affidavit or for that matter that the absence of an affidavit from him amounts to acceptance of the allegations by the appellant. Major Rana had no separate personal entity so far as the present controversy was concerned. Whatever he did, he did as an employee of the appellant. Since the appellant had already denied the allegations made against Major Rana any further denial from Major Rana would have been merely ritualistic and redudant, since Major Rana was a mere part of the appellant company. Besides granting that Major Rana was prejudiced against the respondent, from that it does not follow automatically that he succeeded in infecting the Authority with his own prejudice to such an extent as to lead to the termination of the services of the respondent mala fide and without consideration of the merits of his case. That is the case of the respondent, no doubt, but there is nothing, no satisfactory material to show it. Referring to the official records the learned Advocate for the respondent prints out to the fact that termination of the respondent''s service was recommended by Major Rana and that his recommendation was accepted by the Authority. The imputation was that the Authority did not exercise his independent volition in this regard at all and that being under the influence of Major Rata, he accepted his recommendation machanically. We do not find any particular reason for accepting this view. Being the highest administrate body, the Authority was obliged to take into his consideration the views of Major Rana who happened to be the Reporting Officer of the respondent. He could either accept Major Rana''s recommendation or reject it. From the mere tact that he accepted the recommendation it cannot be assumed that he did that being totally under the influence &i Major Rana. Besides, it appears that Major Rana''s recommendation did not go to the Authority (Managing Director) directly. From the office files produced it appears that the recommendation went to him through Mr. S. N. Das, General Manager (P&A) who fully endorsed the views of Major Rana vide his note addressed to the Managing Director dated 20/9/83. The suggestions made from the side of the respondent in this regard cannot, therefore, be accepted. The mala fide of Major Rana if there was any at all cannot, therefore, be imputed to the Authority and we do not see why it should not be held that the Authority exercised his discretion in this case independently and without being influenced by major Rana. In Shri Kedar Nath Bahl Vs. The State of Punjab and Others, , the appellant alleged that the Administration maliciously abolished the post, which he was holding merely to get rid of him. Repelling this argument the Supreme Court observed:
But here we are concerned not with the action of his immediate superiors but the action of rive Government. The decision to discontinue the post was the derision of the Government and it is not alleged in the writ petition that in taking the decision the Government acted mala fide. We therefore, agree with the High Court that there is substance in the allegation that the post was discontinued or abolished in order to punish the appellant.
The substance of these observations may also be applied in this rase, since here allegations of mala fide were made against the superior officer of the respondent and no reason was shown as to why the Authority should have been prejudiced and acted mala fide against him.
Reference was made lastly to Rules 5.2 and 7.3 of the Personnel Policy Circular No. 92 (quoted in pages 8 and 9 of this judgment) which required the shortcomings in his performance to be brought to the notice of the probationer adoring the probationer) as well as the extended probationary period and it was urged that this was not done in the case of the respondent. Reliance was placed in this connection to the decision of the Supreme Court in Dr. Mrs. Sumati P. Shere Vs. Union of India (UOI) and Others, . Specific complain in this regard was made in para 33 of the writ petition. Denials and supporting instances were given from me side of the appellant in paras 23, 24, 31, 33, 35. 36 and 44 of the Affidavit-in-Opposition where it was asserted that the respondent was counselled and instructed as to his deficiencies during the period of probation and extended period of probation.
Rule 5.2 of the Personnel Policy Circular No. 92 provides that the shortcomings to the probationer should be boroughs to his notice where it is found that he is not making satisfactory progress or shows himself to be inadequate for the post in any way, Rule 7.3 provides that the probationer executive should be counselled regarding his in adequancies/deficiencies observed in his performance and conduct during his extended probationery period.
From the service files of the respondent, produced before US and which were also made available to the respondent learned Advocate, it appears that the case as made out by the appellant is not unfounded. The files reveal several instances which show that when the occasion arose the respondent was duly criticised, cautioned or counselled.
a) By his letter No. ACSO/WW/G/5275 dated 16/3/82, Magor Rana informed the respondent that the Sitrep of Kulti (whatsoever that may be) was not reaching him as well as the Managing Director''s office in time and he requested the respondent to rectify the lapse at once. The respondent was also informed about reports from Kulti stating grievances within the Department and tremedous thefts everywhere in Kulti works and township and requested to see what could be done at his end.
b) It also appears that by another confidential letter being No. ACSO/W-V/G/5279 dated 17/8/82 Major Rana brought to the notice of the respondent and the Security officer (Kulti) their alleged misuse of the official vehicles. The direction in this regard were complied With vide the letter of the respondent dated 18/11/82 and addressed to the Chief Finance Manager (Kulti).
c) Then there is the confidential letter being No. ASCO/WW/ K/5345 dated 13/9/82 addressed by Major Rana to the respondent. Major Rana mentioned that he had been receiving reports containing grievances from many quarters and wanted that the respondent would keep him appraised of the situation.
d) It appears that there developed a very serious labour trouble at Kulti on 10/3/83. Major Rana, the respondent No. 6 as the Additional Chief Security Officer addressed a confidential letter to the respondent being No. ASCO/Kul/Con 56 dated 12/3/83 whereby he drew his attention to two incidents which according to major Rana reflected the respondent''s neglect of duties. It appears further that in connection with this very incident on officer of the Subsidiary Intelligence Bureau called upon the respondent to discuss certain points pertaining to the incident it was compalined that the respondent instead of co-operating behaved in a most intemperate manner. The Managing Director directed that the fetter being No. 300 addressed by Mr. S. K. Gupta, Assistant Central Intelligence Officer, Subsidiary Intelligence Bureau, Burnpur dated 17/3/83 to the Managing Director complaining about the behaviour of the respondent be shown to him and that he be directed to be more co-operative and courteous. The direction of the Managing Director were carried out and the General Manager, Kulti showed the letter to the respondent and advised him to be courteous and co-operative in his dealings.
e) There is another letter from Major Rana being No. ACSO/Con/Kul/73 dated 3M/83 bringing to the respondent''s notice about the complaint from one Gupta "for which General Manager (K) already spoken to you". The respondent was informed that the Gupta belonged to outside agencies with whom they were expected to co-operate. By the same letter the respondent was informed that there were various complaints as regards maladministration in the department.
f) The office note in the hand of Mr. S. N. Das, General Manager (P&A) as appearing in page No. 5 of the file Opened in the name of the respondent shows that Mr. Das gave a hearing to the respondent and spoke to him on 27/6/83.. Mr. Das told him that his file was full of complaints from various sources and he discussed each complain with him. The respondent''s response to the counselling was not positive. Finally Mr. Das told him that he would be given another chance to improve himself. From this point of view Mr. Dos recommended extension of the probationary period of the respondent by six months.
From these instances it becomes quite clear that Rules 5.2 and 7.3 were completed with and the respondent was advised and counselled and his shortcomings were pointed out as and when the occasion arose. The submissions made on this score cannot, therefore, be entertained.
In Dr. Mrs. Sumati P. Shere Vs. Union of India (UOI) and Others, , the appellant was appointed on an ad-hoc basis against a substantive vacancy. Her service were continued from time to time and she was terminated without showing any reason. A writ petition having been filed the respondents pleaded that they were not satisfied with the performance of the appellant. The Supreme Court observed that since defect or deficiencies, indifference or indiscretion may be with the employee by inadvertence and not by incapacity to work, timely communication of the assessment of the work in such cases may put the employee on the right track and that without any such communication, it would be arbitrary to terminate the services of Such an employee. Since in that case the appellant was not told in advance that work and performance were not satisfactory, the Supreme Court set.aside the order of termination. The facts are very different, in the case at hand. Here the employee was aerially informed about his deficiencies or defects in performance from time & time. Before expiration of his period of probation, he was told in unequivocal terms that his performance failed to satisfy his superiors. This certainly was not a case where the employee was kept in the dark about his deficiencies or defects and then suddenly ordered to quit. It also may be pointed out that Champaklal Chimanlal Shah Vs. The Union of India (UOI), and O.N.G.C. v. M.D.S. Iskander Ali (1980) 3 SCC 1980 SCC (I & S) 466 were cited from the side of, the respondents in Dr. Sumati P. Shere''s case (supra). The Supreme Court observed a follows:
Both the cases pertain to the termination of a temporary Government servant who was on probation. The termination was on the ground that his work had never been satisfactory and he was not found suitable for being retained in the service. This Court held that the termination of service in such cases on the ground of unsuitability for the post does not attract Article 311(2) of the Constitution.
These observations certainly apply to the facts and circumstances of the case at hand. For, this is also a case where the services of a temporary employee placed on probation were terminated as his performance was not found satisfactory and as he was not found suitable for being retained in the service.
In view of all that has been stated above we are inclined, therefore, to conclude in the following way:
i) The respondent who was appointed as a temporary probationary officer under the appellant-company continued to remain so even the day his services under the appellant company were terminated.
ii) The termination of the services of the respondent was not a dismissal or removal from service by way of punishment. His services were not found satisfactory and he was not found suitable for being retained in service of the appellant company and that is why his services were terminated. In the result, the present appeal must succeed and the judgment and order appealed from must be set aside. Hence, ordered, that the appeal is hereby allowed. The judgment and order passed by the learned Trial Judge and hereby set aside and the Civil Rule being C R.3020(W) of 1934 is hereby discharged. The appellant company will be at liberty to take back the amount comprising the arrears of pay of the respondent which stands deposited through Mr. Naren Deboath, Advocate, why was appointed as Receiver for that purpose (vide orders dared 11/1/38 and 6/5/33) subject to the payment of the dues of the Id. Receiver The Id. Receiver is hereby requested to cooperate. In view of the unconditional order passed by this Court on 11/1/88 the amounts received by the respondent as current salary and interest on the amount lying in deposit shall not be recovered from him. Subject to the above interim orders passed are hereby vacated. The appellant company is also hereby authorised to take back its office records and files. The parties shall bear their costs all through. The operation of this judgment shall remain stayed for four weeks.
M. N. Roy, J.
I agree.