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CASE NO.: Appeal (civil)  1123 of 2006

PETITIONER: Nehru Yuva Kendra Sangathan

RESPONDENT: Mehbub Alam Laskar

DATE OF JUDGMENT: 22/01/2008

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T WITH

CIVIL APPEAL NO. 1125 OF 2006

S.B. SINHA,  J :

1.      These two appeals involving common questions of fact and law were  taken up for hearing together and are being disposed of by this common  judgment.        Appellant is an autonomous body operating under the Department of  Youth Affairs and Sports, Ministry of Human Resource Development,  Government of India.   It is a \023State\024 within the meaning of Article 12 of the  Constitution of India.         Respondent herein was appointed as a Youth Co-ordinator in terms of  an offer of appointment dated 28.9.1994; paragraph 5 whereof reads as  under:-  \0235.  You will be on probation for a period of one  year from date of joining.  Your probation period  may be extended if considered necessary by the  Sangathan. During the probation period, you will  have the option of resigning, if you so desire,  without any notice.  Likewise, the Sangathan will be  at liberty to terminate your services without any  notice and without assigning any reasons  whatsoever, during the probation period.   Upon  successful completion of this period you will be  advised in writing of the fresh terms and conditions  of your employment.\024

2.      He allegedly withdrew some amount from the Government Fund (to  which he was entitled to) and deposited it in his personal bank account.  An  enquiry in that behalf was conducted behind his back and on the basis of the  result thereof, his probation was terminated, stating: \023Services of Sh. Mehboob Alam Laskar S/o Late  Latif Ahmed Laskar working as Youth  Coordinator in NYK-North Tripura, are terminated  forthwith. He shall handover the charge to Sh. Topan Nag,  Youth Coordinator, NYK-Karimganj immediately  after receipt of this order.  Sh. Nag will hold the  additional charge of the Kendra till further orders.                                                                                                          Sd/- S.Y. Quraiahi                                               Director General\024     

3.      He filed a representation before the appropriate authority for

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reconsideration of his case.   He also filed another representation/appeal  seeking review of the order of termination dated 24.5.1995 on or about  20.2.1999.       As the said representation was not being responded to within a  reasonable time by the respondents, he filed a writ petition before the High  Court which was marked as Writ Petition (C) No. 3136 of 1999.   The said  Writ Petition was disposed of by the High Court directing the appellant to  consider his representation keeping in mind the decision of the High Court  in the case of Ajay Gupta being Civil Rule No. 5582 of 1995 wherein an  order of reinstatement had been passed.

4.      The said representation of the appellant was rejected by an Order  dated 13.10.1999 stating that the case of Ajay Gupta which was the subject  matter of above-mentioned Civil Rule, was not similar, stating; \0237.  In view of the above explained facts, it is  submitted that your case cannot be treated as  similar with that of Shri Ajay Kumar Gupta, his  services were terminated during the probation  period after conducting preliminary inquiry.    Later, he refuted the allegations against him and  appealed to the disciplinary authority.   Though  his termination was well within the rules of the  Sangathan and also as per the conditions  mentioned in the appointment letter, it was  decided to give him a chance as per principles of  natural justice.   However, on further inquiry, he  was found to be guilty of misappropriation and  the termination of his services was found  justified.

On the other hand, your services were terminated  during the probation period on the basis of  certain prima facie allegations of financial  irregularities.   The same charges were also  admitted by you in your letter dated 14th June,  1995.   Therefore, no other inquiry was  considered necessary by the competent authority  since the charges were already proved/admitted  by you.\024

5.      The legality/validity of the said Order was questioned by the  respondent by filing another writ petition before the High Court which was  registered as Writ Petition (Civil) No. 480 of 2001.   By reason of a  judgment and order dated 9.4.2003, the said order was set aside and the writ  petition was allowed, holding :

\023The law is well settled that if a probationer does  not satisfy the requirements of the employer, his  services can be dispensed with by an order of  discharge; but if in the order of discharge there is  any imputation of misconduct, which may have a  bearing on the future employment of the  probationer an enquiry in the matter should be  conducted and the probationer ought to be given  an opportunity to defend himself.  Though in the  initial order of termination, there is no imputation  or any misconduct against the petitioner, in the  subsequent order, it has been elaborately recited  that the foundation of the order of discharge is on  account of financial irregularities committed by  the petitioner.   The subsequent order which is  now challenged, has the effect of casting a stigma  on the petitioner and, therefore, not much  persuasion is required for this Court to hold that  the authority should not have passed the order

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without affording a reasonable opportunity to the  writ petitioner to defend himself of the charges  leveled.   Admittedly no enquiry was held.  That  being the position, this Court has no Option but  allow the writ petitioner and to interfere with the  order dated 18-10-99.  The writ petitioner shall  now be reinstated in service and the Authority  will be at liberty to initiate a fresh proceeding  against him in accordance with law, if is so  advised.  The question of the entitlement of the  writ petitioner to any back wages will be  considered by the authority in accordance such  norms as may be in force.\024

6.      The Order dated 24.5.1995 was, indisputably based on the findings  that an enquiry had been made  behind the back of the respondent.  Had the  result of the preliminary enquiry been taken into consideration only for the  purpose of judging the suitability of the respondent to continue in service,  the same could not have been said to be a foundation for terminating the  probation.           There exists a distinction between motive and foundation.  If  misconduct is the foundation of such an order, the same would be bad in law  even if it appears to an innocuous one.  

7.      As the said Order was not complied with, a contempt petition was also  filed wherein by an Order dated 11.5.2004, the Contemnor was directed to  comply with the Orders of the Court without delay.  A Writ Appeal was also  preferred against the Order dated 9.4.2003 which by reason of the impugned  judgment dated 11.05.2004 has been dismissed.    

       These appeals are directed against the aforementioned Orders dated  25.3.2004 and 11.5.2004.   8.      Mr. Rana Ranjit Singh, learned counsel appearing on behalf of the  petitioner submitted that a subsequent order which was passed on the  representation of the respondent himself could not have been taken into  consideration by the High Court for the purpose of arriving at a finding that  the initial order of termination of his probation was not valid.   It was  furthermore urged that, in any event, the representation having been filed by  the respondent in the year 1999, the writ petition ought not to have been  entertained.

9.      Mr. P.K. Goswami, learned senior counsel appearing on behalf of the  respondent, on the other hand, submitted that the learned Single Judge, as  also the Division Bench of the High Court rightly opined that the foundation  of the order being a misconduct, the Order dated 24.5.1995 was wholly  unsustainable.  It was pointed out that this Court by an order dated 14.6.2004  stayed the operation of the order subject to the condition that until further  orders, the appellant would pay to the respondent, every month the last  drawn salary but the said order was vacated by an order dated 13.2.2006 and  pursuant thereto the respondent had been taken in service and in that view of  the matter, this Court, may not exercise its discretionary jurisdiction under  Article 136 of the Constitution of India.

10.     The Office Order dated 24.5.1995 was not a speaking one.   Respondent was given a notice.   He accepted that he had put the money  withdrawn from the banks in his own accounts.  He justified his action in his  letter dated 14.6.1995.  It, however, does not transpire that any further  enquiry was made.  Respondent was found to be guilty of misappropriation  of the Appellant\022s fund.   Evidently, the said explanation was not considered.   Had an enquiry been held, the said explanation of the respondent might have  been found to be acceptable by the appellant.   

11.     Respondent was appointed on a temporary basis. He was put on  probation.  Indisputably, the period of probation was required to be  completed upon rendition of satisfactory service.  Only in the event of

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unsatisfactory performance by the employee, the termination of probation  would have been held to be justified.  It is, however, well-known that when  the foundation for such an order is not the unsatisfactory performance on the  part of the employee but overt acts amounting to misconduct, an opportunity  of hearing to the concerned employee is imperative.  In other words, if the  employee is found to have committed a misconduct, although an order  terminating probation would appear to be innocuous on its face, the same  would be vitiated, if in effect and substance it is found to be stigmatic in  nature.  

12.     Mere holding of a preliminary enquiry where explanation is called for  from the employee, if followed by an innocuous order of discharge, may not  be held to be punitive in nature but not when it is founded on a finding of  misconduct.   13.     In Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre  for Basic Sciences, Calcutta and Others [(1999) 3 SCC 60], this Court held  that the material which amounts to stigma need not be contained only in the  termination order, but may also be contained in an Order or proceeding  referred to in the order of termination or annexure thereto.        When the report submitted by a competent authority in a disciplinary  proceeding forms the foundation therefor, it would be stigmatic in nature as  such an order will have civil consequences.   14.     It is not necessary for us to consider a large number of decisions  operating in the field as this Court recently in Jaswantsingh Pratapsingh  Jadeja Vs. Rajkot Municipal Corporation & Anr. [(2007) 12 SCALE 115]  has considered the question at some length.        Reliance, however, is placed by Mr. Rana Ranjit Singh on Abhijit  Gupta Vs. S.N.B. National Centre, Basic Sciences and Others [(2006) 4 SCC  469].   The said decision has been taken into consideration in Jadeja (supra),  stating : \023If 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.\024

       As in the instant case, it now stands admitted that the services of the  respondent had been terminated on a finding of misconduct, the said  decision of this Court in Abhijit Gupta (supra) has no application.

15.     Reliance has also been placed on Jai Singh Vs. Union of India and  Others [(2006) 9 SCC 717].  In that case, the appellant\022s conduct was shown  in the records as \023Unsatisfactory\024.

       Therein, this Court noticed that the order of termination was the only  motive and not the foundation therefor stating : \0239 . The question whether the termination of service  is simpliciter or punitive has been examined in several  cases e.g. Dhananjay v. Chief Executive Officer, Zilla  Parishad and Mathew P. Thomas v. Kerala State Civil  Supply Corpn. Ltd. An order of termination  simpliciter passed during the period of probation has  been generating undying debate. The recent two  decisions of this Court in Dipti Prakash Banerjee v.  Satyendra Nath Bose National Centre for Basic  Sciences and Pavanendra Narayan Verma v. Sanjay  Gandhi PGI of Medical Sciences after survey of most  of the earlier decisions touching the question observed

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as to when an order of termination can be treated as  simpliciter and when it can be treated as punitive and  when a stigma is said to be attached to an employee  discharged during the period of probation. The  learned counsel on either side referred to and relied on  these decisions either in support of their respective  contentions or to distinguish them for the purpose of  application of the principles stated therein to the facts  of the present case. In Dipti Prakash Banerjee after  referring to various decisions it was indicated as to  when a simple order of termination is to be treated as    \021founded\022 on the allegations of misconduct and when  complaints could be only as a motive for passing such  a simple order of termination. In para 21 of the said  judgment a distinction is explained thus: (SCC pp.    71-72)  \021 21 . If findings were arrived at in an enquiry as to  misconduct, behind the back of the officer or without  a regular departmental enquiry, the simple order of  termination is to be treated as \021 founded \022 on the  allegations and will be bad. But if the enquiry was not  held, no findings were arrived at and the employer  was not inclined to conduct an enquiry but, at the  same time, he did not want to continue the employee  against whom there were complaints, it would only be  a case of motive and the order would not be bad.  Similar is the position if the employer did not want to  enquire into the truth of the allegations because of  delay in regular departmental proceedings or he was  doubtful about securing adequate evidence. In such a  circumstance, the allegations would be a motive and  not the foundation and the simple order of termination  would be valid.\022  From a long line of decisions it appears to us that  whether an order of termination is simpliciter or  punitive has ultimately to be decided having due  regard to the facts and circumstances of each case.  Many a times the distinction between the foundation  and motive in relation to an order of termination either  is thin or overlapping. It may be difficult either to  categorise or classify strictly orders of termination  simpliciter falling in one or the other category, based  on misconduct as foundation for passing the order of  termination simpliciter or on motive on the ground of  unsuitability to continue in service.\024                  (emphasis in original)

16.     The respondent evidently, was not aware that his services had been  terminated on a finding of misconduct or the fact that an enquiry had been  conducted by the appellant behind his back.  He pleaded bona fide in his  action.   It was not an admission on his part in regard to the imputation of  misconduct.        He filed representations after representations.  He also moved the  High Court.  If the appellant had come to know at a later stage, the real  object and purport for which the order dated 24.5.1995 was issued, he could  challenge the same thereafter.  The foundation of the order having been  disclosed by the appellant, at a later stage, the original order must be held to  be vitiated in law.         In the earlier round of the writ petition, the High Court did not go into  the question as to whether the order dated 24.5.1995 was legal or not.  The  High Court merely asked the officers of the appellant to consider his  representation.   His representation was also to be considered keeping in  view the case of Ajay Kumar Gupta.   Ajay Kumar Gupta\022s case was  distinguished by the appellant on the premise that whereas the services of  Ajay Kumar Gupta were terminated upon holding a disciplinary proceeding

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the services of the respondent had been terminated on the basis of an  enquiry.         A \021State\022 within the meaning of Article 12 of the Constitution of India  should have placed full facts before the High Court.  Only in its anxiety to  show that the case of Ajay Kumar Gupta was different from that of the  respondent, it came out with the truth that the respondent was guilty of a  serious misconduct.   We, therefore, do not find any legal infirmity in the  judgment of the High Court.      In any event, the respondent is in service now.  Appellant even in  terms of the direction of the learned Single Judge is entitled to initiate a  departmental proceeding against the respondent.  If such a proceeding is  initiated, explanation offered by the respondent may be accepted or may not  be accepted, but in the facts and circumstances of this case, we are of the  opinion that services of the respondent could not have been terminated.

17.     We, however, are of the opinion that the respondent should not be  granted the entire backwages.  He will be entitled to back wages only from  the date of the order of the learned Single Judge of the High Court, namely  9.4.2003.   In view of the aforementioned directions, we are of the opinion  that no further order is necessary to be passed in the contempt matter.

18.     Civil Appeal No. 1125 of 2006 is, therefore, allowed and Civil Appeal  No. 1123 of 2006 is dismissed.   No order as to costs.