High Court · 2012

02. ers and Mr. SP Roy, learned counsel for the respondent. We have heard Mr. KN Choudhury, Senior Advocate for the petition

03. The respondent’s/applicant’s pleaded case before the learned Tri bunal, in short, was that on being appointed as Post Graduate Teacher (History) (for short referred to as the PGT) in the Vidyalaya vide letter No. F.2-7/2001-N VS(SHR/Pers/2522, dated 21.08.2006, he joined the service on 13.09.2006. The app ointment letter in clear terms disclosed that he would be initially on probation for a period of 2 years from the date of his joining, which was extendable furt her at the discretion of the competent authority. Clause 2 of the appointment le tter recited as well that failure to complete the period of probation to the sat isfaction of the competent authority would render him liable to be discharged fr om service. That during the period of probation his service could be dispensed w ith without assigning any reason was also underlined.

04. Though, according to the respondent/applicant, he was dischargin g his duties with utmost sincerity and honesty, he was, by the memorandum dated 02.08.2007, issued by the Commissioner, Navodaya Vidyalaya Samiti, (petitioner N o. 1 herein and respondent No. 4 in the original application) asked to show caus e as to why action would not be initiated against him for poor performance of th e students in Social Studies and History in Class X and Class XII of the Institu tion during the year 2006-2007. The respondent, by his letter dated 02.08.2007 s ubmitted his explanation, inter alia, pointing out that the result of the Instit ution in these subjects in the Board examination were, in fact, better than in t he earlier occasions and that he on his part had taken extra classes for result oriented education and had endeavoured to improve the educational level of the s tudents in History. He also catalogued the reasons for the results not to be at par with that at the national level, including his unfavourable health condition and poor academic level of the students. According to him, though, the winter v acation of the Vidyalaya started from 16.12.2007 up to 15.01.2008, as per the in struction of the Principal he took extra classes w.e.f. 22.12.2007, whereafter, he visited his native village in connection with his marriage to be solemnized o n 18.01.2008. As the Institution was to re-open on 15.01.2008, he telephonically informed the Principal, seeking leave on and from 16.01.2008 to 25.01.2008. He claimed that a registered letter carrying the same request had also been address ed to the Principal of the Vidyalaya. He, thereafter joined the Institution on 2 8.01.2008 and, while he was rendering his services, was served with a memorandum No.NVW-363/PF/HEM/2007-08/1448, dated 06.02.2008, alleging that on the same dat e at about 1.10 p.m. the students of Class XI -Humanities were found outside the classroom and on being inquired, they disclosed that then was the History perio d and that the teacher had not attended the class. The memorandum imputed that w hen the applicant was confronted with this, he had casually replied that he had forgotten about the class while correcting the notebooks. It was, thereafter that the impugned order being No. F. 2- 66 /07 /NVS (SHR)/Per s/4689, dated 11.02.2008 was issued by the respondent No. 4 as above terminating his (respondent/applicant) services under Rule 5 (1) of the Central Civil Servi ces (Temporary Service) Rules, 1965 (for short hereafter also referred to as the Rules). The applicant (respondent herein) after having unsuccessfully pleaded w ith the respondent authorities of the Vidyalaya, eventually, approached the lear ned Tribunal for redress. 05. In their written statement, the petitioners/respondents have, in substance, asseverated that the termination of the respondent/applicant’s servi ces was on the ground of his poor performance during the period of probation and that there was no punitive element therein. According to them, the applicant/re spondent had been alerted time and again about the noticeable lapses on his part in discharging his duties, but he failed to improve. Referring to the memoranda mentioned by the applicant in his original application, the petitioners/respond ents denied his (applicant’s) claim that he had been discharging his duties sinc erely to the fullest devotion and contended that as he failed to upgrade the qua lity of his services suited to the need of the Institution, there was no alterna tive, but to terminate his services under Rule 5 (1) of the Rules. The learned Tribunal, on a consideration of the pleadings of the parties and the arguments advanced entered a finding that the impugned order of termination was devoid of reasons, thus rendering it void on that count alone. It also held the view that the impugned decision suffered from the vice of transgression of the principles of natural justice, as the applicant was neither afforded an opportun ity of hearing nor furnished with materials on which the same was arrived at.

06. Whereas, the petitioners/respondents have reiterated their averm ents made in the proceeding before the learned Tribunal, in this writ petition, the applicant/respondent while doing so has additionally imputed racial discrimi nation to be the primary factor spurring his dismissal.

07. Mr. Choudhury, with reference to the stipulation of probation co ntained in the appointment letter and the memoranda/official communications addr essed to the respondent/applicant drawing his attention to his unsatisfactory pe rformance and the immediate need to improve the same, has persuasively argued th at as the impugned decision to discontinue him from service was one of terminati on simpliciter, the learned Tribunal had misdirected itself in interfering there with on the ground of want of reasons and fairness in action. As the materials o n record demonstratively testified that because of the poor performance of the r espondent/applicant the students of his subjects were being prejudiced, the deci sion to terminate his services was taken in the overall interest of the Institut ion and, thus, no interference was called for in law, he urged. The learned Seni or Counsel argued that the termination of the services of the respondent/applica nt obviously was not informed with any punitive consideration and his failure to perform at the desired level was the motive therefor. As this consideration was not the foundation of the decision impugned and no disciplinary measure had bee n comprehended against him, the perception of the learned Tribunal that it was s ans the compliance of the principles of natural justice was apparently flawed, h e maintained. Mr. Choudhury distinguished the authorities referred to in the imp ugned judgment and order to be inconsequential as those did not relate to any pr obationer like the respondent. In order to buttress his submissions, Mr. Choudhu ry has placed reliance on the decisions of the Apex Court in RAM GOPAL CHATURVED I VS. STATE OF MADHYA PRADESH, (1969) 2 SCC 240, KUNWAR ARUN KUMAR VS. UP HILL E LECTRONICS CORPORATION LTD. & ANR., (1997) 2 SCC 191 and RADHEY SHYAM GUPTA VS. U.P. STATE AGRO INDUSTRIES CORPORATION LTD. & ANR., (1999) 2 SCC 21. The learned Senior Counsel has also laid the original records pertaining to the respondent for the court’s perusal.

08. Mr. Roy, as against this, has argued that the respondent/applica nt being a member of the Schedule Caste, he was from the very beginning looked d own with contempt by the Principal of the Institution and, thus, racial prejudic e played a major role in his ultimate ouster from service. Referring to the docu ments adverted to in the original application as aforementioned, the learned cou nsel maintained that as the respondent had joined the Institution only in the mo nth of September, 2006, he could not have been held responsible for the poor res ults in Social Science and History, there being no teacher for those subjects fo r a long period prior to his recruitment. Referring to the advisory note dated 0 3.10.2007, in particular, Mr. Roy, has urged that as it would appear therefrom t hat the impugned decision is by way of a disciplinary measure and as, admittedly , no opportunity of hearing had been afforded to him to represent against the sa me, it is non est in law. Drawing the attention of this Court profusely to the a verments in the respondents/petitioners’ affidavit in the writ proceeding, the l earned counsel has argued that the proximity of the impugned order to the procee dings of the Departmental Promotion Committee recommending the termination of se rvices of the respondent/applicant authenticates that his ouster is by way of a disciplinary action. Reiterating that the period of service of the respondent wa s too short to correctly and realistically evaluate his performance, Mr. Roy str ongly hinted that the impugned decision was actuated by malice. Reliance has bee n placed in support of these pleas on the decisions of the Apex Court in A.P STA TE FEDERATION OF COOP. SPINNING MILLS LTD. & ANR. VS. PV SWAMINATHAN, (2001) 10 SCC 83, VP Ahuja Vs. State of Punjab & Ors., AIR 2000 SC 1018, STATE OF MAHARASH TRA VS. VEERAPPA R. SABOJI & ANR., AIR 1980 SC 42, DK YADAV VS. JMA INDUSTRIES L TD., (1993) 3 SCC 259 and PAVANENDRA NARAYAN VERMA VS. SANJAY GANDHI PGI OF MEDI AL SCIENCES & ANR., (2002) 1 SCC 520.

09. Mr. Choudhury, in reply, has argued that the contention of racia l discrimination had not been pleaded before the learned Tribunal and, therefore , the same ought not to be taken note of by this Court. He, however, reiterated the other pleas.

10. The rival pleadings and the arguments advanced have received our due consideration. That the respondent had been appointed as PGT (History) in N avodaya Vidyalaya on probation for a period of two years from the date of his jo ining is a matter of record. Clause 2 of the letter of appointment dated 21.08.2 006 reads as hereunder: - (cid:28)2. You will be initially on probation for a period of two years from the date o f your joining which may further be extended at the discretion of the competent authority. Failure to complete the period of probation to the satisfaction of th e competent authority will render you liable to discharge from service. Further during the period of probation your service can be dispensed with by the Samiti without assigning any reasons. While on probation, you will be required to give one month’s notice of resignation in case you leave the Samiti. (cid:29) That his services were terminated on 11.02.2008 before the expiry of the probati onary period is also apparent. Though, in terms of the appointment letter, the p eriod of probation of two years was extendable at the discretion of the competen t authority, failure to complete the same to its satisfaction entailed the possi bility of his discharge from service. The memoranda dated 02.08.2007 alluded hereinabove and the expla 11. nation submitted by the respondent have already been dealt with to project the c ompeting stands. The Advisory note dated 03.10.2007 of the Principal of the Inst itution discloses that the Joint Commissioner, NVS, HQR, New Delhi had expressed his displeasure on the manner in which the subject, History, was taught thereat . In this connection, the said authority in the staff meeting had indicated at t he respondent’s poor communication skills. The Principal also mentioned about hi s observation that he (respondent) had been found dictating notes in the instruc tional period instead of teaching the subject and that map work was not practice d in the class. Though, the Advisory note indicated some disciplinary action for negligence in future, it is not the case of the parties before us that any form al proceeding to that effect had been at any point of time drawn up against the respondent. The letter dated 16.01.2008 and the memorandum dated 06.02.2008 rela te to the respondent’s alleged failure to report for duty on 15.01.2008 and his absence from the class of History on 06.02.2008 respectively.

12. The original records, on a scrutiny reveal that in the 11th and 22nd Monthly Appraisal Reports, the Principal of the Institution had successivel y recorded as hereunder: - (cid:28)Most of the time he keep on applying leave on medical grounds. He doesn’t atten d any programme in the vacation. Poor in communication and confidence. Good with fellow workers and superiors. Sd/- B. Chakrapani 24/08/07. Principal, Jawahar Navodaya Vidyalaya, Williamnagar (cid:29) &. & & & & & & & & & & & & & & & & & & & & & & & & & & & & &... (cid:28)He is well-mannered & friendly to others. Poor in communication and self-confid ence. Often goes on medical leave. Feels less commitment that’s required for a N avodaya teacher. Sd/- B. Chakrapani, Principal, Jawahar Navodaya Vidyalaya, Williamnagar. (cid:29) The official communications in the File No. 66 endorsed the abov e leading to the conclusion that the respondent’s services were in no way helpin g the students of the Institution. On a perusal of the proceedings of the DPC held on 24.01.2008 pertaining to the teaching staff/non teaching staff of Jawahar Navodaya Vidyalaya of Shillong Regi on on probation, it transpires that it on a consideration of the gradings and pe rformance of four of such employees together with the report of the superiors re commended for the termination of their services. This included the respondent as well.

13. On a cumulative consideration of the materials on record, we do not feel persuaded to conclude that the impugned decision of termination of the respondent’s services had been prompted by any extraneous or co-lateral consider ation. Though, in the comprehension of the respondent, he had been discharging h is duties commensurate to the institutional exigencies, in the assessment of the competing authorities, it was not up to the desired standard, thus, adversely a ffecting the students in general as well as reputation of the Vidyalaya. This Co urt in the exercise of its power of judicial review is illequipped to substitute this evaluation by it own appraisal. It is impermissible as well. The disclosur es from the records do not render the view entertained by the authorities wholly unfounded. The respondent/applicant, as the records reveal had been alerted tim e and again to improve his performance but to no avail. As noticed hereinabove, the respondent at all times, was a probationer and in terms of Clause 2 of his a ppointment letter dated 21.08.2006, he could permissibly be discharged from serv ice, in case his performance was adjudged to be unsatisfactory by the Vidyalaya authorities. Not only, the respondent has failed to bring on record any overwhel ming fact or testimony to even suggest that the termination of his services was by way of a disciplinary step, there is no semblance of proof of bias or mala fi de of the respondent authorities against him having a bearing on his ouster. The impugned decision does not cast any stigma on the respondent/applicant’s charac ter or integrity. Having regard to the stipulation of probation, subject to whic h the respondent/applicant had been appointed and the contemporaneous materials bearing on his performance and the insistence on the part of the respondent auth orities for improvement of his quality of service, we are constrained to hold th at the impugned order dated 11.02.2008 ought not to have been, in the face of th e state of law dealing with the right of a probationer, interfered with by the l earned Tribunal. In view of the materials available on record, we are inclined t o sustain the plea of the respondent authorities that the impugned decision was not by way of a disciplinary measure and but for effecting the termination of th e respondent’s services simpliciter in accord with Clause 2 of his appointment l etter dated 21.08.2006.

14. The Apex Court in RADHEY SHYAM GUPTA (Supra), while dwelling on the subtle yet a real distinction between the notions of (cid:28)motive (cid:29) and (cid:28)foundatio n (cid:29) and the consequence ensuing therefrom qua dismissal from or termination of se rvice quoted with approval the following observations made by it in GUJARAT STEE L LTD. VS. GUJARAT STEEL TUBES MAZDOOR SABHA, (1980) 2 SCC 593. (cid:28)53. Masters and servants cannot be permitted to pay hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by ter minological cover-ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Cour t will find out from other proceedings or documents connected with the formal or der of termination what the true ground for the termination is. If, thus scrutin ised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. To put it sli ghtly differently, a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminat e with an innocent order under the standing order or otherwise. Whether, in such case the grounds are recorded in a different proceeding from the formal order d oes not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alle ged misconduct and a live nexus between it and the termination of service the co nclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used.

54. On the contrary, even if there is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or punitive pecuniar y cut-back on his full terminal benefits is found. For, in fact, misconduct is n ot then the moving factor in the discharge. We need not chase other hypothetical situations here. (cid:29) It was held, as a corollary that if the employer after gathering some prima fac ie facts does not really wish to ascertain the truth thereof but decides merely not to continue a dubious employee, it would be a case of motive, but, if he con ducts an inquiry only for the purpose of proving the misconduct and the employee is not heard, the inquiry, then, would be the foundation of the eventual action rendering the termination bad. The authorities cited on behalf of the respondent/applicant havi 15. ng regard to the propositions laid down are of no avail to him in the contextual facts in absence to any discernible material to suggests that the impugned deci sion of termination of his services was by way of an disciplinary measure or was prompted by considerations impertinent and extraneous. In the above view of the matter, we are of the unhesitant opinion that the groun ds on which the learned Tribunal had invalidated the petitioners/respondents’ de cision to terminate the respondent/applicant’s services cannot be sustained in l aw and on facts. The impugned judgment and order is, thus, set aside. The petiti on is allowed. No costs.