SWP No. 1090 / 2000, decided on 19.9.2000.

Constitutions of Jammu and Kashmir, S. 126 - Constitution of India, Art. 311 - Probationer - Appointment on probation - Appointment brought to end by an order on the ground of "adverse work and conduct" order challenged and sought to be quashed on the ground that as it cast stigma - Held order does not cast any stigma - Petition dismissed.

Advocates who appeared in this case :
Mr. D.C. Raina, Advocate for petitioner
Mrs. Neeru Goswami, Advocate for respondents

Cases referred : Chronological
1. Union of India v. R.S. Dhaba (1969) 3 SCC 603
2. Shamsher Singh v. State of Punjab AIR 1974 SC 2192
3. Hari Singh Man v. State of Punjab AIR 1974 SC 2263
4. Allahabad Bank Officers Association v. Allahabad Bank (1996) 4 SCC 504
5. Arun Kumar v. U.P. Hill Electronic’s Corporation (1997) 2 SCC 191
6. Agro Industries Corporation Ltd. and Another AIR 1999 (2) SCC 21
7. Dipti Prakash Banerjee v. Satvendra Nath Bose AIR 1999 SC 983
8.. Ahuja v. State of Punjab AIR 2000 SC 1080
9. Chandra Prakash Shahi v. State of U.P. and others (2000) 4 Supreme Today 510

It is not in dispute that the petitioner came to be appointed as Trained graduate Teacher (S.St). An order to this effect was issued on 19-09-1997.this has been placed on the record as annexure E. This order makes mention of the fact that the petitioner would be on probation for a period of two years. This period of probation could be extended and upon successful completion of probation, the petitioner was to be confirmed. This was however, subject to the availability of a permanent vacancy. The letter of appointment further provided that during the period of probation, the services of the petitioner could be brought to an end by giving one month’s notice. These conditions are incorporated in paras 4 and 5 of the order of appointment. The further fact is that the period of probation of the petitioner was to expire on 19-09-1999. This was extended up to 19-09-2000. The requisite averments are contained in paragraph 7 of the petition. What has led the petitioner to approach this court is that the services of the petitioner have been brought to an end by an order which as per the petitioner is penal in nature. The fact that in the order in question mention is made of the fact that the service relationship is being snapped on account of "adverse work and conduct" of the petitioner is being projected by the petitioner. It is accordingly submitted that the order being panel in nature as it casts stigma on the petitioner, it is liable to be quashed.

The respondents have filed objections. The file indicating the service profile of the petitioner has also been produced. It is submitted that the services of the petitioner were brought to an end during the period of probation and this could be validely done. It is urged that merely because the words "on the basis of this adverse work and conduct" has been mentioned is of no consequence. It is submitted that his probation period was extended and despite repeated advice he did not show any improvement. It is thus submitted that the order under challenge does not cast any stigma on him.

The short question which is required to be gone in this petition is as to whether the recital in the order which is being reproduced below casts a stigma on the petitioner. The exact lines to which objection has been taken are being reproduced below :

"On the basis of his adverse work & conduct report his probation period was extended for a further period of one year i.e. upto 19-09-2000 and during this extended period he was kept under close observation. But inspite of repeated instructions, he has not shown any improvement."

The learned counsel for the petitioner places reliance on a decision of the Supreme Court reported as V. P. Ahuja v. State of Punjab AIR 2000 SC 1080. The order in the above case indicated that the appellant Chief Executive of Co-op. Spg Mills in the above case had failed in the performance of duties administratively and technically. This order was held to be stigmatic. This was concluded one on the basis of the affidavits which were placed on the record. The background in which the order was passed was also taken note of. Reliance has also been placed on a judgement of the Supreme Court reported as Dipti Prakash Banerjee v. Satvendra Nath Bose AIR 1999 SC 983. In the above case a letter was issued to appellant Dipti Parkash Banerjee. In this letter it was stated that he had prepared false bills and misbehaved with women academic staff members. It was found that the order by which the services of the petitioner were brought to an end was not simple in nature. The earlier observation contained in the letter in whch it was indicated that he had prepared false bills and had misbehaved with women academic staff members was held to be the foundation of order of termination. It was in these circumstances, the order in question was held to be bad.

The law on the subject is by now very well crystalized. As to what is motive and as to what is the foundation on which an innocuous order is passed has been discussed in detail in case Shamsher Singh v. State of Punjab AIR 1974 SC 2192. The law on the subject has been discussed in Radhey Shyam Gupta v. State Agro Industries Corporation Ltd. and Anr.(1999) 2 SCC 21. There are Judicial pronouncements to the effect that if a persons future employment prospectus are affected and this is evident from theorder passed then of termination would be penal.

The learned counsel appearing for the petitioner also placed reliance on a decision of the Supreme Court reported as Chandra Prakash Shahi V. State U.P. and others 200(4) Supreme Court Today 51 (supra). In the above case it was observed that if for termination the services of a probationer, a procedure as indicated in the Rules is not followed, then the resultant order would be bad. In the above case it was observed that there was non compliance of para 541 of the U.P. Police Regulations. It was in this situation, the order in question was quashed.

In Hari Singh Man V. State of Punjab AIR 1974 SC 2263 (Para 30), the services of the petitioner were brought to an end and the order indicated that he "unfit". It was held that the order does not cast any stigma., In Kunwar Arun Kumar V. U.P. Hill Electronic’s Corporation 1997(2) SCC 191 the termination order used the word ‘unsatisfactory’. The Supreme Court of India observed that such an order is not penal as it is not stigmatic. In Union of India Vs. R.S.Dhaba (1969)3 SCC 603, the order made mention of the fact that the respondent was found "unsuitable". The Supreme Court of India observed that this order would not be stigmatic in nature. Again in Allahabad Bank Officers Association v. Allahabad Bank (1996) 4 SCC 504 where the concerned officer was described as "not dependable", it was observed that such an order did not cast any aspersion against the conduct and character of the employee concerned. These decisions which have been referred to above have been considered in the case of D.P.Banerjee (supra) and ultimately in para 32 of the judgment it was observed that the question as to whether a particular order casts stigma or not, would depend upon the facts and circumstances of each case. The language or words used in the order of termination are required to be considered. Therefore, each individual order has to be examined and judged on its own merits.

The position in this case hinges upon the determination of the question as to whether the words ‘adverse work and conduct’ casts a stigma. It be seen that four cases which were noticed in Dipti Prakash Banerji’s case and which have been adverted to above, used the expressions which were harsher than the expression which has been used in the present case. Word ‘unfit’ was used in H.S. Man’s case (supra). Word ‘Unsatisfactory’ was used in Kunwar Arun Kumar’s case (supra). In R.S.Dhaba’s case the word used was "found un-suitable" and much more stronger words were used in Allahabad Bank Officers Association case. The words used were ‘not dependable’. All these judgments as indicated above were considered in Dipti Prakash Banerji’s case. These judgments were not in any way dissented from. They do hold the field. As such merely because the words ‘adverse work and conduct’ have been used in the present case, would not amount to casting a stigma on the petitioner.

A perusal of the file indicates that his work was examined. The examination results of the students studying under him were also taken into consideration. Taking into consideration the overall picture, the order in question has been passed.

The above is one aspect of the matter. The other aspect of the matter is that once the services of a probationer are terminated on the ground that his work is not satisfactory and nothing is said about his conduct (apart from his work) then a comment relating to his performance of work in the order of termination would not be punitive in nature. Thus where a comment is made only with regard to his work, then there would be no stigma. If independently of the above, some comments are made to his other conduct that may or may not cast a stigma and this would depend upon the nature of the language so used.