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PETITIONER: GOVERNING COUNCIL  OF KIDWAI MEMORIAL INSTITUTE OF ONCOLOGY,

       Vs.

RESPONDENT: DR PANDURANG GODWALKAR AND ANR.

DATE OF JUDGMENT23/10/1992

BENCH: [S. RANGANATHAN AND N.P SINGH, JJ.]

ACT: Civil Services : Termination  of   service  during  probation  period-Overall performance-Consideration of-Termination  whether amounts to punishment-Finding out  the real  nature of order-Tearing of the   veil-    Applicability   of-Preliminary   inquiry   or examination  of   allegation-Whether   vitiates   order   of termination of service.

HEADNOTE: The respondent  was appointed  as  a  Lecturer  in  the appellant-Institute and  was put  on probation for one year. During the  probation period  his services  were terminated. The respondent  challenged the same before the High Court by way of  a Writ  Petition contending  that actually  order of dismissal has  been passed  in  the  garb  of  an  order  of termination; and  that the Director of the institute instead of initiating a departmental proceeding on the basis of some charges levelled  against him,  placed the matter before the governing council  of the  Institute    termination  of  his services. The High  Court gave its finding that since the service of  the  petitioner  had  been  terminated  because  of  the complaints made  against him,  it  really  amounted  to  his removal for  alleged misconduct  and so the institute should have initiated  a departmental proceeding and only after due enquiry any action should have been taken. Being  aggrieved   by  the   High  Courts   order,  the appellant-Institute has preferred the present appeal. Allowing the appeal, this Court, HELD: 1.1. When an appointment is made on probation, it pre-supposes that  the conduct, performance, ability and the capacity of  the employee  concerned have  to be watched and examined during  the  period  of  probation.  He  is  to  be confirmed after  the  expiry  of  probation  only  when  his service during  the period  of  probation  is  found  to  be satisfactory and  he is  considered suitable  for  the  post against which  he  has  been  appointed.  The  principle  of tearing of  the veil  for finding out the real nature of the order shall  be applicable only in a case where the Court is satisfied that there is a direct nexus between the charge so levelled and  the action  taken. If the decision is taken to terminate the  service of  an employee  during the period of probation,  after  taking  into  consideration  the  overall performance and  some action or inaction on the part of such employee then  it cannot  be said  that it  amounts  to  his removal from service as punishment. The appointing authority

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at the stage of confirmation or while examining the question as to  whether the  service of  such employee  be terminated during the  continuance  of  the  period  of  probation,  is entitled to  look into any complaint made in respect of such employee while  discharging his duties for purpose of making assessment of  the performance  of such  employee. [254-E-H; 255-A] 1.2.  Even  if  such  employee  while  questioning  the validity of  an order  of termination  simpliciter brings on the record  that some  preliminary inquiry or examination of some allegations  had been  made, that  will not vitiate the order of termination. [255-B] Oil and  Natural Gas Commission v. Dr. Mohd S. Iskender Ali [1980]  3 SCR  603; Ravindra  Kumar Misra  v. U.P. State Handloom Corpn.  Ltd., [1987] suppl. SCC 739; State of Uttar Pradesh v.  Kaushal Kishore  Shukla, [1991]  1 SCC  691  and Triveni Shankar  Saxena v. State of U.P., J.T. 1992 (1) S.C. 37, relied on. Anoop Jaiswal v. Government of India, [1984] 2 SCR 453. distinguished.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No 3244 of 1988.      From the  Judgement and  Order dated  8.7.1988  of  the Karnataka High Court in W.A. No.560 of 1983.      K.N. Bhat  S.K. Kulkarni  and Ms.  Kiran Suri  for  the Appellant      S.N  Bhat  M.Veerappa  and  K.H  Nobin  Singh  for  the respondents.      The Judgment of the Court was delivered by      N.P. SINGH,  J. This  appeal has  been filed against an order passed  by the High Court, on a writ application filed by the  petitioner-respondent (hereinafter  referred  to  as "the respondent")  quashing the  order of termination of the service of the respondent.      The respondent  was appointed as a Lecturer in Surgical Oncology on  3rd July, 1981. He was to be on probation for a period of  one year  from the  date of his appointment which period could  have been  extended at  the discretion  of the competent authority. One of the conditions provided is as follows :      "Failure to  complete the period of      probation to  the  satisfaction  of      the competent authority will render      you liable  to be  discharged  from      service."      Before the  expiry of  one year,  the impugned order of termination was issued on 30th January, 1982 saying:      "In accordance with the decision of      the  Governing   Council   at   its      meeting held  on 28th January, 1982      the  services   of  Dr.   Pandurang      Godwalkar,  Lecturer   in  Surgical      Oncology  (on   probation),  Kidwai      Memorial  Institute   of  Oncology,      Bangalore   are   terminated   with      effect from  the  afternoon  of  30      January, 1982, as per Rule 4 of the      Conditions   of    Service    Rules      (Annexure -  2 Chapter  I)  of  the      Institute.      He is  paid one  month’s salary  in

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    lieu of one month’s notice required      as per rules."      Although  the   order  under  challenge  was  order  of termination simpliciter, the validity thereof was questioned by the  respondent on  the ground that an order of dismissal had been  passed in  the garb  of an  order of  termination. According to  the respondent,  some complaints had been made against him  to the Director of the Institute who instead of initiating a  departmental proceeding  on basis  of  charges levelled against  the respondent,  put up  the matter before the Governing  Council of  the Institute  for termination of the  service   of  the   respondent  during  the  period  of probation.      The learned  Judge in  view of  the assertions  made on behalf of  the respondent  directed the institute to produce the original  records including certain documents and papers which had  been marked as confidential. From the note of the Director it  appeared  that  complaints  had  been  made  in respect of  performance of  the duties by the respondent. In that note  it was  also mentioned  that the  respondent  was unsympathetic towards  the patients.  It had also brought to the notice  of the Governing Council that the respondent had attempted to  obtain the signatures. of some of the patients on the  petitions stating  that he was a good doctor. On one occasion it  was reported that the respondent had taken away a girl  on his  scooter and  brought her  back late  in  the night. The  said girl  was an  attendant to a patient in the hospital. The  learned Judge  came to the conclusion that as the service of the petitioner had been terminated because of the complaints  made against  him it  really amounted to his removal for  the misconduct  alleged  in  the  note  of  the Director. According  to  the  learned  Judge  the  Institute should have  initiated a  departmental proceeding in respect of the alleged charges and only after due enquiry any action should have been taken.      There is  no dispute that the service of the respondent had been  terminated during  the  period  of  probation  The appointment of  the respondent  was with  a clear  condition that failure  to complete  the period  of probation  to  the satisfaction of  the competent  authority shall  render  him liable to  be discharged  from the service. Relevant part of Rule 4 of the Conditions of Service Rules is as follows :      "4. TERMlNATION :-      1.  All   appointments   shall   be      terminable on a notice in   writing      either by  the appointing authority      or the  employee  without assigning      any reason as set below :      a) During the period ..one month of      probation.      b) After completion of the period 1      of probation...... months.      c) The  notice referred  to in rule      (1) above shall not be necessary if      in lieu  thereof an amount equal to      the  pay   and  allowance  for  the      period of notice is paid. ......................."      Generally in connection with an order of termination, a question is raised before the court as to what is the motive behind the  termination  of  the  service  of  the  employee concerned -  whether the  reason mentioned  in the  order of termination has  to be  accepted on  its face  value or  the background in  which such  order of  termination simpliciter has been passed should be examined to find out as to whether

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an officer  on probation  or holding a temporary appointment has been,  in  fact,  dismissed  from  the  service  without initiating any  departmental enquiry.  If an employee who is on probation or holding an appointment on temporary basis is removed  from  the  service  with  stigma  because  of  some specific charge,  then a  plea cannot  be taken  that as his service was  temporary or  his appointment was on probation, there was no requirement of holding any enquiry, affording such an  employee an  opportunity to  show that  the  charge levelled against him is either not true or it is without any basis. But whenever the service of an employee is terminated during the  period of probation or while his  appointment is on temporary basis, by an order of termination simpliciter alter some  preliminary enquiry  it cannot  he held  that as some enquiry  had been  made against him before the issuance of order  of the  termination  it  really  amounted  to  his removal from service on a charge as such penal in nature      When  an   appointment  is   made  on   probation,   it presupposes that  the conduct,  performance, ability and the capacity of  the employee  concerned have  to be watched and examined during  the  period  of  probation.  He  is  to  be confirmed after  the  expiry  of  probation  only  when  his service during  the period  of  probation  is  found  to  be satisfactory and  he is  considered suitable  for  the  post against which  he  has  been  appointed.  The  principle  of tearing of  the veil  for finding out the real nature of the order shall  be applicable only in a case where the Court is satisfied that there is a direct nexus between the charge so levelled and  the action taken. If the decision is taken, to terminate the  service of  an employee  during the period of probation,  after  taking  into  consideration  the  overall performance and  some action or inaction on the part of such employee then  it cannot  be said  that it  amounts  to  his removal from service as punishment. It need not be said that the appointing  authority at  the stage  of confirmation  or while examining  the question  as to  whether the service of such employee  be terminated  during the  continuance of the period of  probation is entitled  to look into any complaint made in  respect of  such  employee  while  discharging  his duties for  purpose of  making assessment of the performance of such employee.      Even it such employee while questioning the validity of an order  of termination  simpliciter brings  on the  record that  some   preliminary  enquiry  or  examination  of  some allegations had been made that will not vitiate the order of termination. Reference in this connection may be made to the case of  Oil and  Natural Gas  Commission v.  Dr.  Mohd.  S. Iskender Ali, [1980] 3 SCR 603 where it was pointed out 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" . It was  also   said  that   even   if   misconduct   negligence inefficiency may  be the  motive or  the influencing  factor which induced  the employer  to terminate the service of the employee which  such employe  admittedly had under the terms of the  appointment such  termination cannot  be held  to be penalty or  punishment. Same  view has  been  reiterated  in connection with  appointment on temporary or ad hoc basis in the cases  of Ravindra  Kumar Misra  v. U.P.  State Handloom Corpn. Ltd, [1987] Suppl. SCC 739; State of Uttar Pradesh v. Kaushal Kishore Shukla, [1991] 1 SCC 691 and Triveni Shankar Saxena v. State of U.P., Judgements Today (1992) 1 S.C. 37.      On behalf  of the respondent reliance was placed on the case of  Anoop Jaiswal  v. Government of India, [1984] 2 SCR 453. In  that case  the service  of the  appellant had  been

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terminated during  the period of probation. On the materials on record  it was  held by  this Court  that  the  order  of termination really  amounted to  punishment because the real foundation of  the action  against the appellant was the act of misconduct on June 22, 1981. The aforesaid judgment is of no help  to who  respondent because  in that  case  a  clear finding was  recorded by  this Court that the service of the appellant  had  been  terminated  because  of  a  particular misconduct alleged against him which had never been enquired into. So far the facts of the present case are concerned the Governing Council  examined the different reports in respect of  the  respondent  during  the  period  of  probation  and considered the  question as  to whether he should be allowed to continue  in the  service of  the Institute. The decision appears to  have been  taken by the Governing Council on the total and  overall assessment  of  the  performance  of  the respondent, in terms of the condition of the appointment and Rule aforesaid.      Accordingly the  appeal is  allowed and the judgment of the High  Court is  set aside. However, in the circumstances of the case, there will be no order as to costs. G.N                                     Appeal allowed.