NIRMALA SAXENA Vs. STATE OF RAJASTHAN & ANOTHER

JUDGEMENT

(1.) This appeal is directed against the order of the learned Single Judge dated 26.5.1997 passed in S.B. Civil Writ Petition No 6119 of 1991. The appellant was appointed as Constable on 16.10.1989. It is not in dispute that the services of the appellant were dispensed with during the period of probation since it was found that her work was not satisfactory. Since the appellant was a probationer her services could be dispensed with in case it was found that her work was unsatisfactory. From the reading of the order it is clear that the order of discharge of the appellant was not stigmatic in nature.

(2.) Learned counsel for the appellant submitted that the order terminating the services of the appellant was founded on false allegations contained in an FIR which was lodged against her and her entire family. The learned counsel submitted that since the allegations in the FIR were the foundation of the order dispensing with her services, the same was violative of Art. 311 of the Constitution.

(3.) We have considered the submission of the learned counsel for the appellant. However, we regret our inability to accept the same. In Dipti Prakash Banerjee Vs. Satyendra Nath Bose Centre for Basic Sciences, 1999 (3) SCC 60 , it was held by the Supreme Court that in case findings as to misconduct of an employee were arrived at after holding in enquiry behind his/her back or without a regular departmental enquiry, an ostensibly innocuous order of termination is to he treated as founded on the allegation of misconduct and is bad in law. However, if no enquiry was held against a probationer, no finding was arrived at as to his misconduct and the employer was not inclined to conduct a departmental enquiry in respect of the complaint against a probationer, but. at the same time the employer did not wish to continue him/her on account of his/her work not being satisfactory, it would be a case of motive and the order of discharge of a probationer would not fall foul of Art. 311 or the principles of natural justice. The learned counsel relied on the decision in V.P. Ahuja Vs. State of Punjab and Ors., 2000 (3) SCC 238 which was based on the decision of the Supreme Court in Dipti Prakash's case (supra). In that case the Supreme Court found the order of termination of a probationer to be stigmatic and punitive on face of it.