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PETITIONER: OIL AND NATURAL GAS COMMISSION AND ORS.

       Vs.

RESPONDENT: DR. MOHD. S. ISKENDER ALI

DATE OF JUDGMENT14/04/1980

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA GUPTA, A.C. KAILASAM, P.S.

CITATION:  1980 AIR 1242            1980 SCR  (3) 603  1980 SCC  (3) 428  CITATOR INFO :  R          1981 SC 957  (5,9)  R          1981 SC 965  (8)  D          1989 SC1431  (6)  D          1992 SC1020  (20)

ACT:      Termination  of     Services-Termination   Simpliciter- Services  of   a  probationer   terminated  without  further proceedings against the departmental enquiry-Whether offends Art. 311(2) of the Constitution and attaches any stigma.

HEADNOTE:      The respondent  was appointed  on  a  purely  temporary basis to  the post  of a  medical Officer  in  the  Oil  and Natural Gas  Commission. Under  the terms  and conditions of service, he  was to  remain on probation for a period of one year which  could be  extended that  the discretion  of  the appointing authority  He was  appointed on October 15, 1965. During the  period of his probation, on a report against him for negligence  and  dereliction  of  duty,  a  departmental enquiry was  held against  him but  that was  not  proceeded with, nor  was any  punishment imposed on him. His period of probation was  extended for  six months  from 15-10-1966 and before his  services were  terminated, there  was no express order either  confirming him  or  extending  the  period  of probation. His  services were  terminated with  effect  from 28th July 1967.      The respondent  filed a writ petition in the High court on the  ground that  the order  terminating his services was malafide and  was in fact passed by way of penalty entailing evil consequences  The plea  taken by  the respondent  found favour with  the High  Court which  allowed the petition and quashed the  order of the appellant terminating the services of the  respondent. Hence the appeal by special leave by the State.      Allowing the appeal the Court ^      HELD: l. A temporary employee is appointed on probation for a  particular period  only in  order to test whether his conduct is good and satisfactory so that he may be retained. The remarks,  the assessment roll merely indicate the nature

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of the  performance put  in by  the officer  for the limited purpose of  determining whether or  not his probation should be extended.  These remarks  were not  intended to  cast any stigma. [607G-H. 608A]      R. L.  Butail v.  Union of  India [1971]  2 S.C.R.  55. followed      2. The  contention that  the  real  motive  behind  the termination of  the service of the respondent was to inflict a punishment  on him  and as  the appellants  did not comply with the  requirements of  Article 311  of the Constitution, the order  impugned was illegal is not correct. In the first place, it  was clearly  pleaded by  the  Government  in  its counter-affidavit that  although an  enquiry was held it was not  continued   and  no   punishment  was  imposed  on  the respondent. As  the respondent  was merely a probationer the appointing, authority  did  not  consider  it  necessary  to continue the  enquiry but  decided to terminate the services of the  respondent as he was not found suitable for the job. In the  case of  n probationer  or a temporary employee. who has no right to the post, such a termina- 604 tion of  his service  is valid  and  does  not  attract  the provisions of  Article 311 of the Constitution [608C-E, G-H, 609A]      Even if misconduct, negligence, inefficiency may be the motive or  the inducing factor which influences the employer to terminate the services of the employee, a power which the appellants undoubtedly possessed, even so as under the terms of appointment  of the respondent such power flowed from the R contract  of service  it could not be termed as penalty or Punishment. [611C-D]      Shamsher Singh and Anr. v. State of Punjab [1975] 1 SCR 814; Purshottam  Lal Dhingra  v. Union  of India  [1958] SCR 828; State  of U.P.  v. Ram  Chand Trivedi [1977] 1 SCR 462; State of Maharashtra v. Veerappa R. Saboji and Anr. [1980] 1 SCR 551, followed.      3. The  order impugned  is  prima  facie  an  order  of termination simpliciter  without involving  any stigma.  The order does  not in any way involve any evil consequences and is an  order of  discharge simpliciter of the respondent who was a  probationer and  had no  right to  the  service.  The respondent has not been able to make out any strong case for this Court  to delve  into the documents, materials in order to determine  a case  of victimisation  or one of punishment The short  history of  the service of the respondent clearly showed that  his work had never been satisfactory and he was not found suitable for being retained in service and that is why even  though some sort of an enquiry was started, it was not proceeded  with and  no punishment was inflicted on him. In  these   circumstances  therefore,   if  the   appointing authority considered  it expedient to terminate the services of the  respondent-a probationer-it  cannot be said that the order of termination attracted the provisions of Art. 311 of the Constitution.  Thus, if  the appellant  found  that  the respondent was  not suitable  for being  retained in service that will not vitiate the order impugned. [611G-H, 612B-D]      State of Bihar v. Gopi Kishore Parsad A.I.R. 1960, 689; distinguished.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1385 of 1979.      Appeal by  Special Leave  from the  judgment and  Order

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dated 10-7-1969  of the Assam & Nagaland High Court in Civil Rule No. 249 of 1967.      B. Datta for the Appellant.      A. R.  Barthakur, S. K. Nandy and P. Bharthakur for the Respondent.      The Judgment of the Court was delivered by      FAZAL ALI,  J. This appeal by special leave is directed against a  judgment and  order dated  10th JULY  1969 of the High Court  of Assam  and Nagaland. The facts giving rise to the appeal lie within a very narrow compass. The respondent, Dr. Md. S. Iskender Ali, was appointed on a purely temporary basis to  the post  of a  medical officer  in  the  Oil  and Natural Gas  Commission. Under  the terms  and conditions of his service, he was to remain on probation for a period of 605 One year  which could  be extended  at the discretion of the appointing  authority.   The  respondent  was  appointed  on October 15,  1965 and  the order  of his  appointment may be extracted thus:      "No. 52/35/65-ENT          Dated the 15th October 1965                          MEMORANDUM           With reference to his interview on the 18th August      1965 held  at Sibsagar, Shri Dr. Md. S. Iskender Ali is      hereby informed  that he/she  has been  selected for  a      temporary post  of Medical officer in the Oil & Natural      Gas Commission  on an  initial pay of Rs. 325/- p.m. in      the scale  of pay  of Rs. 325-25-500-31-EB-30-800 (plus      non practising  allowance @ 25% of basic pay subject to      minimum of  Rs. 150/-).  He will  be entitled  to  draw      dearness and other allowances at such rates and subject      to such conditions as may be laid down in the rules and      orders governing the grant of such allowances from time      to time."      The order  of appointment was accompanied by conditions regulating his  appointment and two of them may be extracted below, as they appear to be very relevant for the purpose of deciding the question at issue :-          "(ii) The appointment may be terminated at any time                by one  month’s notice  to be given by either                side, viz.,  the appointee  or the appointing                authority, without assigning any reasons. The                appointing authority,  however, reserves  the                right of  terminating  the  services  or  the                appointee without notice or before expiration                of the  stipulated period of notice by making                payment to him of a sum equivalent to the pay                and allowances  for the  period of  notice or                the unexpired portion thereof;            (iii) He will be on probation for a period of one                year  from  the  date  of  appointment.  This                period may  be extended  at the discretion of                the  appointing   authority,  if   necessary.                During the  period of probation, the services                are liable  to  be  terminated  at  any  time                without notice,  and/or assigning any reasons                whatsoever."      It appears  that during  the period  of  his  probation there were  some reports  against the respondent as a result of which  a departmental  enquiry was  held against  him but which does  not appear  to have  been proceeded with nor was any punishment imposed on him. After he 606 had completed  the period  of one  year  on  15-10-1966  his probation was extended for another six months and before his services were  terminated, there was no express order either

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confirming  him   or  extending  the  period  of  probation. Ultimately, by an order dated 28th July 1967 the services of the respondent  were terminated  with effect  from 28th July 1967. The order of termination runs thus:-      "No. 57/191/67-ENT             Dated July 28, 1967                         OFFICE ORDER           Under para  2(iii) of  offer  of  appointment  No.      52/35/65-ENT dated  October 16, 1965 the service of Dr.      Md. Iskender Ali, Medical officer (still on probation),      is hereby  terminated with  effect from the date of the      service of this order on him."      The respondent felt aggrieved by the termination of his services and  filed a writ petition in the High Court on the ground that the order terminating his services was mala fide and was  in fact  passed by  way of  penalty entailing  evil consequences. The  plea taken by the respondent found favour with the  High Court  which allowed the petition and quashed the order  of the  appellant terminating the services of the respondent. The  appellant obtained  special leave to appeal from this Court: hence the appeal has now been posted before us for hearing.      The only  point raised  before us by the appellants was that as  the respondent was a mere Probationer and the order terminating  his  services  was  all  order  of  termination simpliciter without  involving any  stigma or  penalty,  the High Court was in error in quashing the order or termination and directing  the  reinstatement  of  the  respondent.  The counsel for  the appellants submitted that reading the order per se  there is  nothing to  indicate that it was passed by way  of  punishment.  As  the  respondent  was  a  temporary employee on  probation, it  was  open  to  the  employer  to terminate his  services at any time before he was confirmed. If the  employer was  satisfied that he was not suitable for being retained  in service.  The counsel for the respondent. On the  other hand,  submitted that the order, though per se innocuous? was  really a  cloak to conceal the real mischief which the  order purported  to perpetuate  as the  order  of termination was  preceded  by  a  full-fledged  departmental inquiry and a regular charge-sheet was submitted against the respondent, it  was because  the respondent was found guilty that he  was punished  by way  of dismissal from service. In other words,  the argument  of the  respondent was  that the order of termination of the 607 services passed by the appellant was an order which amounted to A.  dismissal from  service involving  a clear stigma and would, therefore,  attract the provisions of Art. 311 of the Constitution and was rightly quashed by the High Court      Before examining  the  respective  contentions  of  the parties it may be necessary to mention a few admitted facts           (1)   It is  not disputed  that the respondent was                appointed in  a  temporary  post  of  Medical                Officer and on probation of one year.           (2)   Being a  probationer, the  respondent had no                right to the service.           (3)     Under  the   terms  of   his   appointment                particularly   clauses    (ii)   and   (iii),                extracted  above,  the  appointing  authority                could   terminate    the   services   without                assigning any reasons.           (4)   Under clause  (iii)  of  the  conditions  of                appointment, the  appointing authority  had a                discretion to  extend the period of probation                and  to   terminate  the   services  of   the                respondent without  any  notice  and  without

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              giving any reasons whatsoever.           (5)   After the  respondent had  put in one year’s                probation,  his   period  of   probation  was                extended for  a further  period of six months                which is a clear pointer to the fact that the                appointing authority  was not  convinced that                the respondent  had satisfactorily  completed                the period of his probation.      The confidential  roll reflecting the assessment of the work of  the respondent  during the period 31-12-1965 to 30- 12-1966 clearly  shows that  the officer  was  careless  and lacking in  sense of  responsibility. The  report also shows that the  reporting officer  recommended that  the period of probation  should   be  extended.  In  accordance  with  the recommendation, the period of probation was further extended by six  months.  The  learned  counsel  for  the  respondent submitted that  the remarks made in the assessment roll went to show  that the  intention of the appointing authority was to proceed  against the  respondent by way of punishment. We are, However,  unable to  agree with  this submission. It is obvious that  a temporary employee is appointed on probation for a  particular period  only in  order to test whether his conduct is good and satisfactory so that he may be retained. The remarks,  in the  assessment roll,  merely indicate  the nature of the performance put in by the officer 608 for the  limited purpose  of determining  whether or not his probation  should   be  extended.  These  remarks  were  not intended to  cast any stigma. In the case of R. L. Butail v. Union of  India & Ors this Court while indicating the nature of assessment  made by  the reporting  officer  observed  as follows:-           "These rules  abundantly show  that a confidential      report is  intended to  be a general assessment of work      performed by  a Government  servant subordinate  to the      reporting authority,  that such  reports are maintained      for the purpose of serving as data of comperative merit      when  questions   of  promotion,   confirmation,  etc.,      arise."      It was then vehemently contended by the respondent that as  the   appointing  authority   chose   to   institute   a departmental inquiry  against the respondent for dereliction of duty  and negligence  in not attending to a baby who died due to  his  carelessness,  the  enquiry  should  have  been carried to  its logical  end and  charge-sheet  having  been framed, the  provisions of Art. 311 of the Constitution were clearly attracted  and therefore  it was  not  open  to  the appellants to  have terminated  the services  by giving  the order a  cover of  termination simpliciter.  In other words, the  contention   was  that   the  real  motive  behind  the termination of  the service of the respondent was to inflict a punishment  on him  and as  the appellants  did not comply with the  requirements of  Art. 311 of the Constitution, the order impugned was illegal. We are, however, unable to agree with this  argument. In the first place, it has been clearly pleaded by  the Government  in  its  counter-affidavit  that although an enquiry was held yet it was not continued and no punishment  was   imposed  on   the  respondent.   In   this connection, relevant portion of paragraph 11 of the counter- affidavit before the High Court may be extracted:-           "A preliminary  enquiry was made before the charge      was framed and on the enquiry report a prima facie case      having been found against the petitioner due charge was      framed against  him. No  punishment under Regulation 28      of oil  and Natural Gas Commission (Conduct, Discipline

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    and   Appeal)   Regulation   was   inflicted   on   the      petitioner."      In these  circumstances, therefore,  it is obvious that as the  respondent was  merely a probationer, the appointing authority did  not consider  it necessary  to  continue  the enquiry  but  decided  to  terminate  the  services  of  the respondent as  he was  not found suitable for the job. It is well settled  by a  long course  of decisions  of this Court that 609 in the  case of  a probationer  or a temporary employee, who has no right to the post, such a termination of his services is valid  and does not attract the provisions of Art. 311 of the Constitution.  In the  case of  Shamsher Singh & Anr. v. State of  Punjab, the  matter  was  considered  in  all  its aspects by  a Constitution  Bench comprising seven Judges of this Court  and the  Court  adumbrated  the  following  pro- positions:-           "Before a  probationer is  confirmed the authority      concerned is  under an  obligation to  consider whether      the work  of the probationer is satisfactory or whether      he is  suitable for  the post.  In the  absence of  any      Rules governing  a  probationer  in  this  respect  the      authority may come to the conclusion that on account of      inadequacy for  the job  or for  any  temperamental  or      other  object   not  involving   moral  turpitude   the      probationer is unsuitable for the job and hence must be      discharged. No punishment is involved in this. The fact      of holding an inquiry is not always conclusive. What is      decisive is  whether the  order is  really  by  way  of      punishment.  A   probationer  whose  terms  of  service      provided that it could be terminated without any notice      and without  any cause  being assigned  could hot claim      the protection of Article 311 (2) ....           An order  terminating the  services of a temporary      servant or  probationer under  the Rules  of Employment      and without anything more will not attract Article 311.      Where a  departmental enquiry is contemplated and if an      enquiry is  not in  Act proceeded with Article 311 will      not be  attracted unless it can he shown that the order      though unexceptionable  in form  is  made  following  a      report based on misconduct."      Similarly, the  matter  was  previously  considered  in Parshotam Lal  Dhingra v. Union of India where the following observations were           "Shortly put, the principle is that when a servant      has right to a post or to a rank either under the terms      of the  contract of  employment, express or implied, or      under  the   rules  governing  the  conditions  of  his      service, the  termination of  the  service  of  such  a      servant or  his reduction  to a lower post is by itself      and prima  facie a  punishment, for  it operates  as  a      forfeiture of  his right to hold that post or that rank      and to 610      get the emoluments and other benefits attached thereto.      But if  the servant  has no right to the post, as where      he is  appointed to  a  post,  permanent  or  temporary      either on  probation or  on an  officiating  basis  and      whose temporary  service has  not ripened  into a quasi      permanent service  as defined  in the Temporary Service      Rules, the  termination  of  his  employment  does  not      deprive him  of any  right and  can not,  therefore, by      itself be  a punishment.  One  test  for  deter  mining      whether the  termination of the service of a Govern men

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    servant is by way of punishment is to ascertain whether      the servant, but for such termination, had the right to      hold the  post. If he had a right to the post as in the      three cases  hereinbefore mentioned, the termination of      his service  will by itself be a punishment and he will      be entitled  to the protection of Article 311. In other      words and  broadly speaking  Art. 311(2)  will apply to      those cases  where the  Government servant, had he been      employed by  a private  employer, will  be entitled  to      maintain an  action for  wrongful dismissal, removal or      reduction in  rank. To  put it  in another  way, if the      Government has,  by contract,  express or  implied, or,      under the  rules, the right to terminate the employment      at any  time,  then  such  termination  in  the  manner      provided by  the contract or the rules, is, prima facie      and per  se, not  a punishment and does not attract the      provisions of Art. 311."      All these  decisions were reviewed in the case of State of U.P.  v. Ram Chandra Trivedi where this Court observed as follows:-           "Keeping in  view the  principles extracted above,      the respondent’s  suit could  not  be  decreed  in  his      favour. He  was a  temporary hand  and had  no right to      post. It  is  also  not  denied  that  both  under  the      contract of service and the service rules governing the      respondent, the  State had  a right  to  terminate  his      services by giving him one month’s notice. The order to      which exception  is taken  is  ex  facie  an  order  of      termination of  service simpliciter.  It does  not cast      any stigma on the respondent nor does it visit him with      evil consequences,  nor is it founded on misconduct. In      the circumstances,  the respondent could not invite the      Court to  go into the motive behind the order and claim      the protection of Article 311(2) of the Constitution.           We, therefore,  agree with  the submission made on      be half  of the  appellant that  the High  Court was in      error in arriv- 611      ing at  the finding  that the impugned order was passed      by way  of punishment  by probing into the departmental      correspondence that passed between the superiors of the      respondent overlooking  the observations  made by  this      Court in I. N. Saksena v. State of Madhya Pradesh [1967      (2) S.C.R. 496] that when there are no express words in      the impugned  order itself  which throw a stigma on the      Government servant,  the Court  would  not  delve  into      Secretariat files  to discover  whether  some  kind  of      stigma could be inferred on such research."      The facts of the present case appear to be on all fours with those  of the  aforesaid decision.  From the undisputed facts detailed  by us in an earlier part of the judgment, it is   manifest   that   even   if   misconduct,   negligence, inefficiency may  be the motive or the inducing factor which influences the  employer to  terminate the  services of  the employee,  a   power  which   the   appellants   undoubtedly possessed, even  so as under the terms of appointment of the respondent such  a power flowed from the contract of service it could not be termed as penalty or punishment.      The matter  was again  considered at  great length by a recent decision  of this  Court in  the  case  of  State  of Maharashtra v.  Veerappa R.  Saboji &  Anr., where Untwalia, J., observed thus:      "Ordinarily and generally the rule laid down in most of      the cases by this Court is that you have to look to the      order on  the face  of it and find whether it casts any

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    stigma on  the Government servant. In such a case there      is no  presumption that  the order is arbitrary or mala      fide unless  a very  strong case is made out and proved      by  the  Government  servant  who  challenges  such  an      order."      Applying the  principles enunciated  by this  Court  in various cases to the facts of the present case, the position is that  the order  impugned is  prima  facie  an  order  of termination simpliciter  without involving  any stigma.  The order does  not in any way involve any evil consequences and is an  order of  discharge simpliciter of the respondent who was a  probationer and  had no  right to  the  service.  The respondent has not been able to make out any strong case for this Court  to delve  into the documents, materials in order to determine a case of victimisation or one of punishment. 612      Reliance was,  however, placed  by the  respondent on a decision of  this Court in the case of The State of Bihar v. Gopi  Kishore  Prasad,  where  it  was  held  that  although termination of  the service  of a person holding the post on probation cannot  be said to deprive him of any right to the post and is no punishment but where instead of terminating a person’s service the employer choose to hold an enquiry into his alleged  misconduct and proceeds by way of a punishment, such a  course involves a stigma and an order of termination is bad.  Such, however,  is not  the case  here.  The  short history of  the service of the respondent clearly shows that his work  had never  been satisfactory  and he was not found suitable for  being retained in service and that is why even e though  some sort  of an  enquiry was  started, it was not proceeded with  and no  punishment was  inflicted on him. In these circumstances,  therefore, if the appointing authority considered it  expedient to  terminate the  services of  the respondent-a probationer-it cannot be said that the order of termination attracted  the provisions  of Art.  311  of  the Constitution.  Thus,   if  the   appellant  found  that  the respondent was  not suitable  for being  retained in service that will  not  vitiate  the  order  impugned  as  held  and observed by this Court in the cases cited above.      For these reasons, therefore, we are satisfied that the order terminating  the services  of the respondent was valid and did  not involve  any stigma  and was fully justified in the facts  and circumstances  of the  present case. The High Court, therefore,  erred in  law in  quashing the.  impugned order. For  these reasons,  we allow  this appeal, set aside the. judgment and decree of the High Court and hold that the order terminating  the services  of the respondent was valid in law.  In the  circumstances of the case, there will be no order as to costs. S.R.                                         Appeal allowed. 613