H OMKARAPPA Vs. BRIGADIER CHAITANYA PRAKASH

JUDGEMENT

(1.) IN W.P.No.19169 of 1999, the petitioner, who was the erstwhile Executive Director " Marketing on probation in Hindustan Photo Films Manufacturing Company Limited (H.P.F.), seeks for a Certiorari to quash the impugned order dated 29.11.1999, terminating the probationary services of the petitioner. Subsequent to the impugned order, he responded to the circular issued by the Public Enterprises Selection Board for the post of Managing Director of M/s.Spices Trading Corporation Ltd. He was called for the interview. But as a result of the information received by the Public Enterprises Selection Board and Spices Trading Corporation from H.P.F. regarding the termination of probationary services of the petitioner, he was informed not to appear for interview. As a result, in W.P.No.9842 of 2000, the petitioner has prayed for a declaration to declare the exclusion of the petitioner from the selection process for the post of Managing Director of M/s.Spices Trading Corporation Limited as illegal and void and to direct the respondents to hold a fresh selection for the post of Managing Director by also considering the petitioner's claims.

(2.) IN W.P.No.19169 of 1999, the crucial issue being the legality or otherwise of the order of termination of the petitioner's probation and in view of my ultimate conclusion that the impugned order is stigmatic and hence liable to be set aside, I feel that it will not be necessary to deal with the elaborate pleadings by both parties on issues which do not have much relevance to the validity of the impugned order.

(3.) IT is a settled proposition that the issue as to whether an order of termination is stigmatic or not is to be decided on the facts and circumstances of each case and also even if the termination order may be simple and innocuous, if the real intention behind it is to get rid of the employee for any misconduct on ulterior reasons, it would be necessary for the Court to travel beyond the order of termination and find out what in reality is the background to terminate the services of a probationer. In RADHE SHYAM GUPTA V. U.P. STATE AGRO INDUSTRIES CORPN. LTD. (1999) 2 SCC 21, after analysing previous decisions, the Supreme Court referred to the expression of Justice Gajendragadkar in JAGDISH MITTER V. UNION OF INDIA (AIR 1964 SC 449) that "the form in which the order terminating his services is expressed will not be decisive" and proceeded further to hold that the substance was more important than the form. In Paragraphs 33 and 34, the Supreme Court has held as follows: "33. 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 Ram Narayan Das case. 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 enquiry is held because the purpose of a preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. IT has been so decided in Champaklal case. The purpose of the preliminary enquiry 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 enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed " if at that point of time, the enquiry 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. This is what is held in Sukh Raj Bahadur case and in Benjamin case. In the latter case, the departmental enquiry 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 case 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. 4. But in cases where the termination is preceded by an enquiry 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 the principles of natural justice inasmuch as the purpose of the enquiry 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 enquiry. 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 employee's conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry 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. "