Judgment · High Court · 2012

#4. The respondents have filed their counter affidavit justifying their acti on in terminating the service of the petitioner. It has been stated that the pet itioner after his joining the post, frequently went on leave and on several occa sions he was found violating the School’s norms. Referring to the particular inc ident of 12.08.2009, it is the stand of the respondents that the petitioner misb ehaved with the Registrar with threatening language. It has further been stated that a court of enquiry was ordered to investigate the matter and the said enqui ry found the petitioner guilty of violation of school’s order and discipline. A ccordingly his service was terminated by the impugned order dated 24.08.2009.

#5. The petitioner has filed an affidavit in reply to the said affidavit in opposition reiterating the stand in the writ petition. It has further been state d that the respondents having attributed the misconduct on the part of the petit ioner towards dispensing his service, it cannot be said to be a case of terminat ion simplicitor without requiring to provide the petitioner a reasonable opport unity of being heard. Ms. Borah, learned counsel for the respondents placing reliance on the d 6. ecisions reported in AIR 2005 SC 2960 (State of Punjab and ors. vs. Sukhwinder S ingh) ; (2010) 12 SCC 783 (Rajesh Kohli vs. High Court jammu and Kashmir and anr .) and on an unreported judgment and order dated 24.11.2011 passed by the Madhya Pradesh High Court in W.P.(C) No. 14511/2011 (Nithesh Singh Pawar vs. Sainik Sc hools Society and anr.), submits that the petitioner having conducted in a manne r unbecoming of an employee of Sainik School, there is nothing wrong in termina ting his service taking recourse to the aforesaid Rules. On the other hand it is the stand of the learned counsel for the petitioner that the whole basis of ter mination of the service of the petitioner being the alleged misconduct, the impu gned order is not sustainable in law and liable to set aside and quashed.

#7. rties and have also gone through the entire material on record. I have considered the submissions made by the learned counsel for the pa

#8. The petitioner was appointed by order dated 12.01.2009 pursuant to regul ar selection. In the order it was specifically stated that he would be on probat ion for period of one year extendable to two years as per the Rules and Regulati ons applicable to Sainik Schools Society. It was further stipulated that his ser vice would be liable to be terminated without notice. As stated in the writ peti tion, the petitioner had joined the post and while was continuing as such, the particular incident took place on 12.08.2009 in the matter of leave taken by him . While it is the version of the petitioner that he was rudely behaved by the Re gistrar, it is the case of the respondents that it was the petitioner who had mi sbehaved with the Registrar.

#9. After the aforesaid developments, the court of enquiry was ordered. Mrs. R. Borah, learned counsel for the respondents has produced the proceedings of t he court of enquiry which reveals that the Principal of the School nominated the enquiry officer and two members to conduct the enquiry relating to the incident of 12.08.2009. The said court of enquiry conducted the enquiry examining four w itnesses including the petitioner. No charge as such was framed. Admittedly the petitioner was not associated in examining the witnesses. The petitioner in his statement denied the allegation made against him in respect of the incident that has occurred on 12.08.2009.

#10. On the basis of the statements of the aforesaid four witnesses, the cour t of enquiry formed an opinion that misconduct attributed to the petitioner stoo d established and that such misconduct was of grave nature and detrimental to th e interest of the school. On the basis of the said opinion, the court of enquiry recommended that the petitioner be terminated from service under Rule 7.08 read with Rule 7.09 of the aforesaid Rules and Regulations, 1997.

#11. It is on the above basis and the recommendation made by the court of enq uiry, the service of the petitioner was terminated. Rule 7.08 provides that duri ng the period of probation, the Principal may terminate the services of any memb er of staff, appointed by him under his own powers, after giving him one month’s notice in writing and without assigning any reason. Rule 7.09 also empowers the Principal as the appointment authority to dismiss any member of the staff from service without notice or compensation on proven grounds of misconduct which is considered so grave as to render his continuance in service seriously detrimenta l to the interests of the school.

#12. The impugned order of termination quoted above itself will go to show th at the service of the petitioner was terminated in reference to the provisions o f the aforesaid Rules recording the views that during the period of probation th e performance of the petitioner was far from satisfactory and that his conduct a nd continuance as Office Superintendent were considered to be seriously detrimen tal to the interest of the school. The impugned order dated 24.08.2009 was passe d on the basis of the recommendation made by the court of enquiry and its opinio n rendered on the same date, i.e. 24.08.2009.

#13. In Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Ba sic Sciences, Calcutta and ors. reported in (1999) 3 SCC 60, making a distinctio n between termination of service by way of punitive termination and termination simpliciter, the Apex Court also dealt with the distinction between the criterio n of (cid:28)foundation (cid:29) and (cid:28)motive (cid:29). In that case, it was found that the allegations against the appellant were the foundation and not the motive for termination of service. It was noticed that a stigma was attached to the order of termination. It was found that the said stigma was also inferable from the references quoted in termination order though the order itself may not contain anything offensive. In the said case when it was found that termination of service was stigmatic an d not termination simpliciter, the order was set aside and quashed.

#14. In V.P. Ahuja vs. State of Punjab and ors. reported in (2000) 3 SCC 239, the Apex Court dealing with termination of service of a probationer, held that a probationer like a temporary servant is also entitled to certain protection. His service cannot be dispensed with arbitrarily or punitively without complying with the principles of natural justice. As in the instant case, in the said cas e also the service of the appellant was terminated during probation period invok ing the terms and conditions of his appointment which permitted termination with out notice. In the order of termination, it was stated that appellant (cid:28)failed in the performance of his duties administratively and technically (cid:29). Besides, the a ffidavits filed in High Court and in the Supreme Court also indicated the backgr ound in which the appellant was terminated. In such a situation, it was held tha t the order of termination was stigmatic and punitive and not termination simpli citer. It was further held that in such a situation, it was obligatory on the pa rt of the respondents to hold regular enquiry. In the instant case, the court of enquiry was ordered in reference to th 15. e particular incident which took place on 12.08.2009. The said court of enquiry examined witnesses including the petitioner and on the basis of their statements , recommended termination of service of the petitioner in reference to the afore said provision of Rules. Admittedly the petitioner was not apprised of any defin ite and distinct article of charge. It was also not a regular enquiry.

#16. Mrs. R. Borah, learned counsel for the respondents submits that the said enquiry was only in the form of fact finding enquiry which was the basis of ter mination of service of the petitioner. On the other hand, learned counsel for th e petitioner submits that the whole basis of the termination of service of the p etitioner being the attributed misconduct on the part of the petitioner, the aut hority ought to have held a regular enquiry instead of dispensing with the servi ce of the petitioner on the ground being probationer at the time of attributing the misconduct on his part.

#17. While it is true that as per provision of Rule 7.08, the appointing auth ority is empowered to dispense with the service of any staff appointed by him af ter giving one month’s notice in writing, but the said power is not unfettered so as to empower him to terminate the service of the probationer on the ground o f misconduct. It is in this context, the Apex Court has made the distinction bet ween termination simpliciter and punitive termination applying the test of motiv e and foundation.

#18. Rule 7.09 empowers the Principal as appointing authority to dispense wit h any member of staff on proven grounds of misconduct. Applying the said provisi on, the said authority cannot dispense the permanent employee without holding th e enquiry. If the authority had applied the provision of the said Rule 7.09 to d ispense the service of the petitioner, it was incumbent on the part of the said authority to hold a regular enquiry providing all the reasonable opportunity of being heard to the petitioner.

#19. In Sukhwinder Singh (supra), the Apex Court held that the police constab le in question who was appointed on probation and was discharged from service on the ground of absence from duty, the order dispensing with his service was puni tive in nature and accordingly should have been preceded by a regular departme ntal enquiry.

#20. In Rajesh Kohli (supra), relates to a District Judge whose service was t erminated during the period of probation. His service was dispensed with on the ground of unsatisfactory service. It was found that there was a criminal complai nt against him and so also the complaint of misbehaviour coupled with the fact t hat he did not join his place of joining for certain period for which the explan ation had been sought from him. It was in such a situation, the Apex Court held that it was not a case of punitive termination, but a case of termination simpl iciter and that his service was not dispensed with showing any misconduct on his part. The third case on which Ms. R. Borah, learned counsel for the respondent 21. s has placed reliance is Nitesh Singh Pawar (supra). The Madhya Pradesh High Cou rt dismissing the writ petition held that it was not a case of punitive terminat ion, but a case of termination simpliciter. It was found that the petitioner inv olved in the said case was deficient in performance.

#22. None of the aforesaid cases is applicable to the present case. It is not the case of the respondents that the performance of the petitioner was assessed and when it was found that his performance was unsatisfactory, his service was dispensed with. Per contra, the court of enquiry was ordered to enquire the inci dent of 12.08.2009. It is solely on the basis of the enquiry report alongwith th e recommendation made by the court of enquiry, the authority in the Sainik Schoo l Society decided to terminate the service of the petitioner with the above quot ed order. On the face of it, the order is stigmatic and not an order of terminat ion simpliciter. In the counter affidavit filed by the respondents, misconduct has been 23. attributed to the petitioner. As has been held by the Apex Court in Dipti Prakas h Banerjee (supra), the order of termination itself may not contain any stigmati c word, but if in the related documents including the affidavit filed in the pro ceedings reflect stigma and/or misconduct on the part of the petitioner towards termination of service, it will not be the case of termination simpliciter, but punitive termination attached with stigma.

#24. The petitioner having been appointed by the Principal of the school, it was incumbent on his part to assess the performance of the petitioner and to act upon it instead of terminating his service on the basis of the enquiry conducte d behind the back of the petitioner relating to the incident which occurred on 12.08.2009. Even in the said enquiry except taking the statement of the petition er, he was not allowed to associate in respect of the statements obtained from o ther witnesses of the Society.

#25. For all the aforesaid reasons, I am of the considered opinion that the i mpugned order dated 24.08.2009 (Anenxure-4) is not sustainable in law and accord ingly the said order stands set aside and quashed. The petitioner shall be reins tated in service, without, however, any back wages. It will be open for the resp ondents to hold regular enquiry in respect of the allegations made against the p etitioner.

#26. Writ petition is allowed to the extent indicated above. There shall be n o order as to costs.