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CASE NO.: Appeal (civil)  4812 of 2007

PETITIONER: Jaswantsingh Pratapsingh Jadeja

RESPONDENT: Rajkot Municipal Corporation & Anr

DATE OF JUDGMENT: 11/10/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T (Arising out of SLP (C) 1981 of  2006)

S.B. Sinha, J.

1.      Leave granted. 2.      Appellant was a major in the Army.  He joined the Respondent  Municipal Corporation (the Corporation) as a Vigilance Officer on or about  21.12.1999.  He was put on probation for a period of six months.  The power  to appoint on a temporary basis is conferred on the Municipal Commissioner  under the 2nd proviso appended to Section 53(3) of the Bombay Provincial  Municipal Corporation Act, 1949 (BPMC Act).  The period of probation  provided for therein is six months.  It reads as under: \023Save as otherwise provided in this Act, the power  of appointing municipal officers and servants  whether permanent or temporary vests in the  Commissioner; Provided that such power in respect of permanent  appointments shall be subject to the statement for  the time being in force prepared and sanctioned  under Section 51: Provided further that no temporary appointment  shall be made by the Commissioner for any period  exceeding six months and no such appointment  carrying a monthly salary exceeding such amount  as may be fixed in this behalf, by a general or  special order, from time to time by the State  Government in the case of each Corporation shall  be renewed by the Commissioner on the expiry of  the said period of six months without the previous  sanction of the Standing Committee.\024

3.      Although there does not exist any statutory provision in this behalf,  the probation period was extended from time to time.  At the first instance, it  was extended by an order dated 4.7.2000 upto 31.12.2000 and yet again upto  31.12.2001 by an order dated 07.01.2001.  The period of probation was yet  again extended till 31.12.2002 by an order dated 31.02.2002.  No further  order of extension of probation was passed.  Appellant continued to function  as a Vigilance Officer.  He, however, allegedly informed his superior officer  that he had been suffering from some illness.  He applied for leave.  He  proceeded on leave on and from 3.2.2003.  The period of leave, however,  expired.  He did not join as allegedly he continued to suffer from the  ailments.  He telephonically informed his officer for extension of leave.  He  was, however, served with a show cause notice on or about 22.03.2003  asking him to show cause as to why his services should not be terminated for  alleged misconduct of remaining absent from duty without prior leave.  The  show cause notice reads as under : \023You were assigned various duties of importance

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requiring expeditious attention.  It is the prenary  responsibility of a vigilance officer to keep vigil  and investigate and report however in your case  you have gone on long leave and your absence has  created stagnation and when such stagnation  cannot be tolerated in public utility services when  work has to be completed in a particular time  frame. You had been on leave from 3.2.2003 to 6.2.2003  for a period of 4 days and you ought to have  reported on 7.2.2003, however till date you have  not reported for duty.  You have not given any oral  or written intimation till date you are absent from  7.2.2003 till today.  Such long absence in such an  important assignment cannot be confessed. There is also breach of condition No.4/6 of the  appointment order dated 22.12.1999.  Also there  has been negligence, carelessness in discharge of  your duties and on evaluation it is found that you  have shown absolute disregards towards your  duties.   Therefore, why should you not be discharged from  service in accordance with Section 56(2) of BPMC  Act, 1949 after office hours on 31.3.2003.  This  final notice is given to you as and the reply within  7 days from require thereof.  If it is not so that it  will be presumed that you do not want to submit  any reply.\024

4.      Cause was shown by him. The same having been found to be  unsatisfactory was rejected.  No departmental enquiry was conducted.  A  finding of fact was arrived at to the effect that the enquiry proceedings  which were pending against him were not brought to its logical end.  His  period of probation was extended upto 30.4.2003 without assigning any  reason.   There was no such power in the appointing authority.  His services,  however, were discharged stating : \023Major J.P. Jadeja was appointed as Vigilance  Officer (General) in the Vigilance Department of  the Rajkot Municipal Corporation. Thereafter Shri  Jadeja was on leave from 3.2.2003 to 6.2.2003 and  was to have reported for duty on 7.2.2003.   However, as he remained absent till 22.3.2003  without any intimation a final notice referred to at  Serial No.2 above was issued to which a fax report  for additional leave was received as referred. A reply was received to the final notice as above.   The reply after consideration requires to be  rejected.  As a Vigilance Officer, it is expected of  him to complete inquiries within a fixed time  frame and as a result of long absence from such  important duties could result in stagnation which  cannot be tolerated and is in breach of condition  4/6 of the appointment order. Looking to the assessment of work as referred to  hereinabove, the period of probation is extended  from 1.1.2003 to 30.4.2003.  Thereafter the period  is not extended and it is directed that services be  thereafter discharged after payment of one month\022s  notice pay.\024

5.      He filed a writ petition which was dismissed by a learned Single  Judge of the Gujarat High Court by an order dated 9.12.2004.  He preferred  an intra-court appeal thereagainst.  The said appeal has also been dismissed

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by reason of the impugned order.   6.      Mr. Gaurav Agrawal, learned counsel appearing on behalf of the  appellant, would, in support of the appeal, raise the following contentions : (i)     The order of termination is stigmatic.   (ii)    Being punitive in nature, the impugned order is founded upon a  misconduct for absence from duty without prior leave.   (iii)   As a show cause notice was issued by taking recourse to the  provisions for initiation of the disciplinary proceedings in terms of  Section 56 of the BPMC Act, the impugned order cannot be sustained.  7.      Mr. Sunil Gupta, learned senior counsel appearing on behalf of the  respondents, on the other hand, contended that : (i)     as the order discharging the petitioner from service did not result in a  finding of guilt on moral turpitude and  only because the explanation  of the appellant had not been accepted and extension has not been  granted, the same by itself cannot be held to be punitive in nature;   (ii)    The impugned order being not an order of termination of service, it is  sustainable; (iii)   It was a case where the employer had merely recorded its satisfaction  while passing the order of discharge which is not stigmatic in nature.  8.      A disciplinary oriceedubg on allegations of serious misconduct on the  part of the appellant was initiated.  His explanation in this behalf was  rejected. 9.      The tests governing termination of probation is no longer res integra.   When a disciplinary enquiry is initiated on the premise that there are serious  allegations of misconduct on the part of the delinquent officer; his  explanation thereupon had been rejected pursuant whereto a full scale formal  enquiry has been initiated culminating in a finding of guilt, the order  terminating the service would be held to be stigmatic.  There may also be  cases where the allegations involved moral turpitude on the part of the  delinquent officer.  The language used in the order of termination of service  may ex facie be stigmatic.  The language used therein may also show that  there was something over and above the assertion that the officer was found  unsuitable for the job.  The aforementioned tests, however, are not  exhaustive.   10.     We may apply the said tests in the instant case.  In the instant case, the  language used in the impugned order is ex facie stigmatic.  It referred to the  earlier orders containing allegations of misconduct on the part of the  appellant and the fact that he had been found guilty thereof.  Appellant was  said to have been absented from duties.  He had been found guilty of  negligence, carelessness and showing absolute disregard towards his duties.   A disciplinary proceeding was initiated therefor.  His explanation to the  show cause notice was rejected.  He was, therefore, found guilty of the  charges leveled against him.  Only thereafter, he was discharged from  service by reason of the impugned order dated 29.4.2003.  11.     Before, however, we embark upon the legal questions, we must notice  that the appellant had not been confirmed in his services from 1999 to 2003.   The power of Commissioner of Municipality to appoint a person on  temporary basis is governed by the statutory rules.  It has not been shown  before the High Court or before us as to under what provisions of law the  period of probation was extended from time to time.  Applicability of the  provisions of the Act is not in dispute.  It may be true that such a contention  was not raised before the High Court, but if under the statute, the period of  probation could not have been extended, he will be deemed to have been  confirmed on expiry of the period of probation. 12.      We may notice that the respondent had taken into consideration while  passing the impugned order the fact that the appellant did not have the  correct mindset to serve as a Vigilance Officer who, although took long  leave for serving the territorial army, did not join the said post.   13.     Respondents themselves relied upon Rules 17.2 and 17.3 of the  Bombay Civil Services Rules which are said to be applicable in the case of  the appellant which read as under : \02317.2        In the case of direct recruitment, the period  of probation for the posts of Class III should  be for one year and for the posts of Class I  or Class II the period of probation should be

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for two years.  If the Appointing Officer  deems proper, the period may be extended  for one year in case of Class III employees  and for two years in case of Class I or Class  II employees during the period of probation. 17.3.   If the performance of the employee is not up  to the expected level during the period of  probation, then such an officer/employee  shall be discharged upon the expiry of the  period of probation.\024

14.     A bare perusal of the aforementioned provisions clearly shows that the  maximum period of probation provided for there is two years.   15.     Such a jurisdictional fact had not been taken into consideration by the  appropriate authority.  Presumably, keeping in view the aforementioned  provision, his probation period had not been extended after 31.2.2003.  The  nature and character of the order, therefore, must be considered having  regard to the aforementioned statutory provision.   16.     If the satisfaction of the employer rested on the unsatisfactory  performance on the part of the appellant, the matter might have been  different, but in that case, from the impugned order it is evident that it was  not the unsatisfactory nature and character of his performance only which  was taken into consideration but series of his acts as well, misconduct on his  part had also been taken into consideration therefor.  It is one thing to say  that he was found unsuitable for a job but it is another thing to say that he  was said to have committed some misconduct. 17.     Mr. Gupta has placed strong reliance on State of Punjab & Ors. v.  Sukhwinder Singh [(2005) 5 SCC 569] wherein a three Judge Bench of this  Court was considering a case where the appellant, who was a Constable,  before completion of his probation period of three years, absented from  duties without seeking permission.  The order of discharge in that case read  as under : \023Constable Sukhwinder Singh No.644/ASR of this  District is discharged from service w.e.f. 16.3.1990  under the Punjab Police Rules 12.21 as he is not  likely to become an efficient police officer.\024

18.     The Rule which was operating in that case being Rule 12.21 of the  Punjab Police Rules reads as under : \023A constable who is found unlikely to prove an  efficient police officer may be discharged by the  Superintendent at any time within three years of  enrolment.  There shall be no appeal against an  order of discharge under this Rule.\024

       In a situation of that nature, this Court held :

\023In the present case neither any formal  departmental inquiry nor any preliminary fact  finding inquiry had been held and a simple order  of discharge had been passed. The High Court has  built an edifice on the basis of a statement made in  the written statement that the respondent was  habitual absentee during his short period of service  and has concluded therefrom that it was his  absence from duty that weighed in the mind of  Senior Superintendent of Police as absence from  duty is a misconduct. The High Court has further  gone on to hold that there is direct nexus between  the order of discharge of the respondent from  service and his absence from duty and, therefore,  the order discharging him from service will be

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viewed as punitive in nature calling for a regular  inquiry under Rule 16.24 of the Rules. We are of  the opinion that the High Court has gone  completely wrong in drawing the inference that the  order of discharge dated 16.3.1990 was, in fact,  based upon the misconduct and was, therefore,  punitive in nature, which should have been  preceded by a regular departmental inquiry. There  cannot be any doubt that the respondent was on  probation having been appointed about eight  months back. As observed in Ajit Singh and Ors.  etc. v. State of Punjab and Anr. (supra) the period  of probation gives time and opportunity to the  employer to watch the work ability, efficiency,  sincerity and competence of the servant and if he is  found not suitable for the post, the master reserves  a right to dispense with his service without  anything more during or at the end of the  prescribed period, which is styled as period of  probation. The mere holding of preliminary  inquiry where explanation is called from an  employee would not make an otherwise innocuous  order of discharge or termination of service  punitive in nature. Therefore, the High Court was  clearly in error in holding that the respondent’s  absence from duty was the foundation of the order,  which necessitated an inquiry as envisaged under  Rule 16.24(ix) of the Rules.\024

19.     Even in Abhijit Gupta v. S.N.B. National Centre, Basic Sciences &  Ors. [(2006 (4) SCC 469], the order of termination, on which decision also  reliance was placed by Mr. Gupta, reads as under : \023Your performance, ability and capability during  the period of probation has been examined and  your service during the period of probation is  found to be unsatisfactory and hence you are  considered unsuitable for the post you have to. The  governing body is of the view that your  performance was unsatisfactory and you are not  suitable for confirmation.\024

20.     Yet again, in State of Punjab & Ors. v. Bhagwan Singh [(2002) 9 SCC  636], whereupon also Mr. Gupta relied, the order of termination read as  under : \023It has been reported to me by In-charge of PTC,  Ladha Kofthi, Sangrur, Inspector Joginder Singh,  RI Police Lines, Faridkot and Inspector Sadhu  Ram, PS City Kot Kapura that the act and conduct  of Const. Bhagwan Singh, No.1819/Fdkt. On the  whole is not satisfactory and he is unlikely to  become a good police officer.  I am also satisfied  with their reports.  I, Jasminder Singh, IPS,  SSP/Faridkot being competent authority do hereby  discharge Const. Bhagwan Singh, No.1819/Fdk.  From service w.e.f. today i.e. 4-9-1992 A.N. under  PPR 12.21 as he is found to be unlikely to prove a  good police officer.\024

21.     This line of cases amongst others clearly goes to show that taking into  consideration the factor as to whether the employee had satisfactorily  performed his duties during the period of probation is a relevant factor and  the same can form foundation for passing an order of discharge.  

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22.     In Kunwar Arun Kumar v. U.P. Hill Electronics Corporation Ltd. &  Ors. [(1997) 2 SCC 191], the order of discharge was as under : \023You will be on probation for a period of 12  months from the date of your joining, which period  may be extended from time to time at the  discretion of the Management. During the period  of probation, your services may be terminated  without assigning any reason therefor. During the period of probation your work  performance was found unsatisfactory. Therefore,  your services are hereby terminated with effect  from 16 Jan. 91 as per Clause (2) of your  appointment letter referred to above.\024

23.     In this case, however, the period of probation as provided for under  the statute had expired and his misconduct had been taken note of.  Such  misconduct was not founded only upon absence from duty, but also upon  carelessness, negligence on the part of the appellant and lack of devotion  amongst others.  24.     In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for  Basic Sciences, Calcutta & Ors. [(1999) 3 SCC 60], Jagannadha Rao, J (as  His Lordship then was) opined that material which amounts to sigma need  not be contained in termination order but may also be contained in an order  or proceeding referred to in termination order or in an annexure thereto.  We  have noticed various orders passed by the respondent heretobefore.  When a  report in a disciplinary proceeding form the foundation for the order, it  would be stigmatic in nature.  It would have civil consequences.     25.     V.P. Ahuja v. State of Punjab & Ors. [(2000) 3 SCC 239] is a case  where the order impugned in the writ petition was as under :  \023Shri V.P. Ahuja, s/o late Shri H.N. Ahuja was  appointed on probation for 2 years as Chief  Executive of the Coop. Spg. Mills Ltd., vide orders  Endst. No. Spinfed/CCA/7844-45 dated 29.9.1998  and posted at Bacospin.  However, he failed in the  performance of his duties administratively and  technically.  Therefore, as per clause I of the said  appointment order, the services of Shri V.P. Ahuja  are hereby terminated with immediate effect.\024

       It was held to be stigmatic in nature stating :   \0237.  A probationer, like a temporary servant, is  also entitled to certain protection and his services  cannot be terminated arbitrarily, nor can those  services be terminated in a punitive manner  without complying with the principles of natural  justice. 8.      The affidavits filed by the parties before the  High Court as also in this Court indicate the  background in which order, terminating the  services of the appellant, came to be passed.  Such  an order which, on the face of it, is stigmatic,  could not have been passed without holding a  regular inquiry and giving an opportunity of  hearing to the appellant.\024 26.     Yet again, in Radhey Shyam Gupta v. U.P. State Agro Industries  Corporation Ltd. & Anr. [(1999) 2 SCC 21], a case on which counsel for  both the parties relied upon, this Court held : \023The theory of ’object of the inquiry’ was further  emphasised by the Constitution Bench in Jagdish  Mitter v. Union of India, That was a case of a  temporary employee. The discharge from service  was by way of an order ’simpliciter’. But there, an  inquiry was held and the termination order was  based on it as it stated on its face that it was ’found

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undesirable’ to retain the employee and hence his  services were being terminated. The order was  held to be punitive on its face and was quashed.  Gajendragadkar, J. (as he then was) discussed the  earlier cases and held that in every case the  purpose of the inquiry was crucial. If the inquiry  was held ’only for the purpose of deciding whether  the temporary servant should be continued or not’,  it could not be treated as punitive and that the  motive operating in the mind of the authority was  not relevant. But "the form in which the order  terminating the service is expressed will not be  decisive." It was held          "what the Court will have to examine in  each case would be, having regard to the material  facts existing upto the time of discharge, is the  order of discharge in substance one of dismissal?"

Therefore, the ’form’ was not of importance but the  ’substance’ was.\024

       It was further held :

\023We shall now refer to a different type of cases  where a departmental inquiry was started, then  dropped and a simple order of termination was  passed. In State of Punjab v. Sukh Raj Bahadur,  the charge memo was served, reply given and at  that stage itself, the proceedings were dropped and  a termination order was passed. The High Court  felt that the object of departmental inquiry, being  to punish the employee, the order of termination  must he treated as punitive. This was not accepted  by a three Judge Bench consisting of Justice Shah  (as he then was) who had laid down in Madan  Gopal’s case the principle of ’object of the inquiry’.  This Court reversed the High Court judgment and  held that neither Madan Gopal’s case nor Jagdish  Mitter’s case applied. This was because in the case  before them the inquiry did not go beyond the  stage of the explanation. No findings were given  and no inquiry report was submitted as in the  above two cases. In that case (i.e. Sukh Raj  Bahadur) this Court felt that the decision in A.G.  Benjamin v. Union of India (Civil Appeal No.  1341 of 1966 dated 13-12-1966) (SC) Reported in  (1967) 1 Lab LJ 718 was more direct. In  Benjamin’s case, a charge memo was issued,  explanation was received and an Enquiry Officer  was also appointed but before the inquiry could he  completed, the proceedings were dropped stating  that : \021departmental proceedings will take a much  longer time and we are not sure whether after  going through all the formalities, we will be able to  deal with the accused in the way he deserves.\022  There also the order was held not to be punitive.  Following the above case, this Court in Sukh Raj  Bahadur’s case stated that the position before them  was similar to what happened in Benjamin’s case  and concluded as follows : \021the departmental inquiry did not proceed beyond  the stage of submission of a charge-sheet followed  by the respondent’s explanation thereto. The  inquiry was not preceded with, there were no

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sittings of any inquiry officer, no evidence  recorded and no conclusion arrived at in the  inquiry\022.\024  

27.     From the discussions made hereinbefore, it is evident that termination  of services of the appellant purporting to discharge him simplicitor cannot be  accepted, being stigmatic in nature.  The form of the order terminating the  services coupled with the background facts clearly leads to the conclusion  that the order impugned in the writ petition by the appellant was punitive.

28.     For reasons aforementioned, the impugned order is set aside.  The  appeal is allowed.  There shall, however, be no orders as to costs.