BUDDHADEV DAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) IN this writ petition the petitioner prays for quashing the resolution dated the 30th December, 1992 leading to the order of termination of his service as communicated by the letter dated the 1st January, 1993 issued by the Chairman, West bengal Board of Examination for admission to engineering, medical and technological degree colleges, Howrah, annexure- II to the writ petition. The petitioner was appointed to the post of Registrar in the office of the West bengal Board of Examination for admission to engineering, medical and technological degree colleges by letter dated the 17th August, 1992 issued by Officer-in-charge and Member-Secretary of the said Board which is annexure- A to the writ petition. The petitioner accordingly joined the post on 1st September, 1992. Within a span of three to four months the petitioner moved a writ petition before this Court challenging the legality and/or validity of the post of Officer-in-charge and Additional officer-in-charge of the Board with a prayer to abolish the said posts of Officer-in-charge and Additional Officer-in-charge of the Board, as it appears from paragraph 10 of the said application. The said application was moved by the petitioner before Bhagawati Prasad Banerjee, J. sometime in December 1992 and the same was rejected. It is the claim of the petitioner that he is to act as the Member-Secretary of the said Board while the stand of the respondents is that the Officer-in-charge and Member-Secretary of the board is required to be a member of the teaching staff of the B. E. College and the Registrar is not a member of the Board, he being a staff of the board. However as I have mentioned above the petitioner's attempt in this regard failed in the earlier writ petition. It may be mentioned here that the duties and the responsibilities of the Registrar were communicated to the petitioner in a separate chart enclosed to his appointment letter, Annexure-A to the writ petition. The said chart does not show that the petitioner as registrar had to act as the Member-Secretary of the Board. Be that as it may, in a meeting of the Board held on the 30th December, 1992, after considering the report submitted by the Chairman regarding performance, sincerity and reliability of the petitioner as Registrar of the Board and purportingly after carefully scrutinising and judging all facts and circumstances in the matter the Members of the Board unanimously came to the conclusion that the performance, sincerity and reliability of the registrar had not been satisfactory at all and his continuation in the post of the Registrar would be highly detrimental to the interest of the Board and it was accordingly resolved that his service should be terminated giving him one month's salary. Pursuant to the said resolution the chairman of the Board by his letter dated the 1st January, 1993 annexure- II to the writ petition ordered that the service of the petitioner as Registrar was terminated with effect from 1st January, 1993 and that he was entitled to have one month's salary in terms of clause 12 (i) of his appointment letter dated the 17th August, 1992. The petitioner has challenged the said order of termination of his service firstly on the ground that the order communicating the resolution of the Board was on the face of it penal in nature and purportingly casts a stigma on the petitioner and as such summary termination or dismissal was not tenable in law, and secondly the purported termination is had in law as the relevant terms of appointment provides for termination of service with one month's notice during the period of probation and not immediate termination without such notice by offering one month's pay in lieu thereof.

(2.) THE learned Advocate for the petitioner has relied upon the decision of the Supreme Court in P. L. Dhingra v. Union of India, A. I. R. 1958 SC 36. In that decision it has been held inter alia that where a person is appointed to a permanent post of service on probation, the termination of his service during or at the end of the period of probation will not ordinarily and by itself be a punishment for the Government servant, as appointed, as he has no right to continue to hold such a post any more than the servant employed on probation by a private employer is entitled to do. At the same time it has also been hold that even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with. It was also been held in the said decision that in spite of the use of innocuous expressions like 'terminate' or 'discharge' the court has to apply the two tests, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind referred to in the decision. In Madan Gopal v. State of Punjab, a. I. R. 1963 SC 531 the appointment of the wait petitioner was on temporary basis and terminable with one month's notice and he was served with a charge-sheet by the Settlement Officer alleging that he had received and also demanded illegal gratifications from certain persons and he was asked to show cause why disciplinary action should not be taken against him if the allegations in the charge-sheet were proved. The writ petitioner submitted his explanation to the charge-sheet and subsequently the settlement Officer submitted his report to the Deputy Commissioner that the charge relating to receipt of illegal gratification is one case was proved. Thereafter the Deputy Commissioner terminated the services of the writ petitioner forthwith. The Supreme Court held that in that case the enquiry made by the Settlement Officer was made with the object of ascertaining whether disciplinary action should be taken against the writ petitioner for his alleged misdemeanor and that it was clearly enquiry for the purpose of taking punitive action including dismissal or removal from service if he was found to have committed the misdemeanor charged against him and such an enquiry and order consequent upon the report made in the enquiry will not fall within the principles of Ramnarayan Das's case (A. I. R. 1961 SC 177 ). In Ramnarayan Das's case enquiry was made pursuant to rules governing the conduct of public servants for ascertaining whether the probation of the public servant concerned should be continued and a notice to show cause in that behalf was served upon him and on the report of the enquiry officer that the work and conduct of the public servant was unsatisfactory and order of termination of employment was passed without affording him an opportunity of showing cause against the action proposed to be taken in regard to him. The Supreme Court pointed out in that case that the public servant had no right to the post he occupied and under the terms of his appointment he was liable to be discharged at any time during the period of probation and that mere termination of employment does not carry with it any evil consequences such as forfeiture of his pay and allowances, loss of seniority, stoppage or postponement of future chances of promotion etc. and therefore there was no stigma affecting the future career of the public servant by the order terminating his employment for unsatisfactory work and conduct. It was further hold in the decision in ramnarayan Das that the enquiry against the respondent was for ascertaining whether he was fit to be confirmed and that an order discharging a public servant, even if a probationer, in an enquiry on charges of misconduct, negligence, inefficiency or other disqualification, may appropriately be regarded as one by punishment, but an order discharging a probationary following upon an enquiry to ascertain whether he should be confirmed is not of that nature. The fact of holding of an enquiry is therefore not decisive of the question and what is decisive is whether the order is by way of punishment, in the light of the tests laid down in P. L. Dhingra v. Union of India (supra ).

(3.) IN the State of Bihar v. Gopi Kishore, A. I. R. 1960 SC 689 it has been held that if the employer simply terminated the service of a probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service, the probationary civil servant can have no cause of action, even though the real motive behind the removal from service might have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct or inefficiency or some such cause. But in the case under consideration before the Supreme Court, though the respondent was only probationer, he was discharged from service really because the government had, on enquiry, came to the conclusion, rightly or wrongly, that he was unsuitable for the post he held on probation and that was clearly any way of punishment and, therefore, he was found entitled to the protection or Article 311 (2) of the Constitution. There the order of discharge from service itself recited the charge of corruption against the concerned officer and the result of enquiry. In D. P. Chattopadhya v. DIR C and S. C. I. Cal. L. T. 1991 (I) HC 433 the service of the writ petitioner had been terminated as he was considered unsuitable for the employment under the government. It was held by a learned single Judge of this court that the termination of service on the ground of 'unsuitability' casts a stigma and as such the impugned order was set aside even though the appointment was as a probationer. It was further observed therein that in view of Supreme court decisions if the order of termination of service had been passed without quoting the remark "unsuitability" the court could not have interfered with the same. In Sumati P. Shere v. Union of India, A. I. R. 1989 sc 1431 the appellant writ petitioner was appointed on ad-hoc basis initially for six months and was then given successive extensions from time to time. During the period of last extension the petitioner was however informed that her services would stand terminated with effect from the date on which the period of extension would expire. In the confidential file it has been recorded that the authorities were not satisfied with the performance of the petitioner and so her reappointment after the expiry of the term was not recommended. Now, it was observed in that case that if the petitioner were to be discontinued it was proper and necessary that she should have been told in advance that her work and performance were not upto the mark. That was of course a case where the petitioner was appointed on ad-hoc basis for a particular period or till a regular candidate from the Union Public Service commission became available, whichever was earlier. That was not an appointment on probation. The decision of the said case was rendered, it seems, in the background of the facts and circumstances of the case and therefore the said decision should be taken to be confirmed to the facts of that case. In B. S. R. F. Corporation v. State of bihar. 1970 Lab. I. C. 104o it has been held that even though the order of termination may be couched in terms of an order of termination simpliciter a labour court to which an industrial dispute is referred for adjudication is entitled to go behind the apparent language of the order in question and consider whether the order is termination simpliciter or is imposed by way of punishment In Indropal Gupta v. Model Inter College (1984) 3 SCC 384 the service of the writ petitioner who was appointed on probation was terminated by an order which was accompanied by the resolution by which his service was deckled to be terminated. Since the resolution formed a part of the order of termination and since the resolution carried a stigma of disgrace or infamy for the petitioner but the termination was not preceded by compliance of the due procedural requirements, the same was found to be not sustainable. In Kamal Kishore v. Management M/s. P. A. W. Airways inc, A. I. R 1987 SC 229 it has been observed by the Supreme Court that loss of confidence of the employer in the employee is a feature which certainly affects the character or reputation of the employee and therefore the court correctly held in Chandulal's case (A. I. R. 1985 SC 1128) that the allegation of loss of confidence amounted to a stigma.