BAHUDDESHIYA VIKAS SANSTHA THROUGH PRESIDENT B.B. KARANJEKAR & ORS. versus KU. JAYA & ORS. on 9 August 2019

1. Leave granted.

2. Challenge in the present appeal is to an order passed by theDivision Bench of the High Court of Judicature at Bombay, NagpurCBench, whereby an order passed by the learned Single Bench onNovember 3, 2009 was set aside.

3. Respondent No. 1 was appointed as Lecturer of HomeEconomics on ad-hoc basis till such full time Lecturer is appointed, videappointment letter dated February 24, 1999. There was also a conditionDin the appointment order that if her performance is found to beunsatisfactory, services can be terminated without giving any notice.The relevant clauses of the appointment order read as under:

“1. With reference to your application, this is to inform you thatyou are appointed as a purely temporary full time lecturer in thesubject Home Economics in Rajiv Gandhi Mahavidyalaya, SadakEArjuni, on ad hoc basis.

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5. In case your performance is found to be unsatisfactory, yourservices shall be terminated at any time during the temporaryFservices without any notice.”

4. The services of respondent No. 1 were terminated on February20, 2001, inter alia, for the reason that her services in the academicyear 1999-2000 and 2000-2001 were found to be unsatisfactory.Therefore, as per terms and conditions mentioned in the order ofGappointment, the services of respondent No. 1 were terminated and salaryfor one month was paid to her.

5. The respondent No. 1, aggrieved against the termination order,filed an appeal before the College Tribunal under Section 59 of theMaharashtra Universities Act, 1994. The said appeal was dismissed byHthe Presiding Officer of the College Tribunal.

WAINGANGA BAHUDDESHIYA VIKAS SANSTHA THR. PRESIDENT B.B.KARANJEKAR v. KU. JAYA [HEMANT GUPTA, J.]

6. Again, aggrieved against the said order passed by the PresidingOfficer, Respondent No. 1 invoked the jurisdiction of the High Court ofJudicature at Bombay, Nagpur Bench. The writ petition was dismissedby the learned Single Bench of the High Court. However, the intra-courtappeal was allowed vide order impugned in the present appeal.

7. The Division Bench of the High Court found that the order oftermination is not innocuous or harmless without casting stigma onrespondent No. 1. The Management Committee took the decision oftermination of services of respondent No. 1 prior to the completion ofperiod of probation. Such finding was arrived at for the reason that thereport of the Principal casts stigma which is the basis of the order oftermination.

8. The Division Bench relied upon the service conditions ofteachers which are governed by Statute 53 of the University whichcontemplates that a Teacher shall be appointed in a clear vacancy in thefirst instance on probation for two years from the date of appointment.Therefore, in the absence of confirmation or notice of termination,satisfactory completion of probation is presumed.

9. We find that the Division Bench has travelled much beyond thecontroversy involved in the writ petition. The appointment of respondentNo. 1 is categorically on ad-hoc basis till such time full time Lecturer isappointed. The order of termination of services is simpliciter withoutany stigma noticing that the work is not satisfactory. The appointment ofrespondent No. 1 was not on probation but, it was purely ad-hocappointment and the Management has kept right to terminate the servicesduring ad-hoc period on account of unsatisfactory work.

10. Learned counsel for the appellants referred to the judgment inRadhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd.& Anr.[1] wherein, it was held as under:

“33. It will be noticed from the above decisions that the terminationof the services of a temporary servant or one on probation, on thebasis of adverse entries or on the basis of an assessment that hiswork is not satisfactory will not be punitive inasmuch as the abovefacts are merely the motive and not the foundation. The reasonwhy they are the motive is that the assessment is not done withthe object of finding out any misconduct on the part of the officer, 1 (1999) 2 SCC 21

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as stated by Shah, J. (as he then was) in Ram Narayan Das case[AIR 1961 SC 177 : (1961) 1 SCR 606 : (1961) 1 LLJ 552]. It isdone only with a view to decide whether he is to be retained orcontinued in service. The position is not different even if apreliminary enquiry is held because the purpose of a preliminaryenquiry is to find out if there is prima facie evidence or material toinitiate a regular departmental enquiry. It has been so decided inChampaklal case [AIR 1964 SC 1854 : (1964) 1 LLJ 752] . Thepurpose of the preliminary enquiry is not to find out misconducton the part of the officer and if a termination follows withoutgiving an opportunity, it will not be bad. Even in a case where aregular departmental enquiry is started, a charge-memo issued,reply obtained, and an enquiry officer is appointed — if at thatpoint of time, the enquiry is dropped and a simple notice oftermination is passed, the same will not be punitive because theenquiry officer has not recorded evidence nor given any findingson the charges. That is what is held in Sukh Raj Bahadur case[AIR 1968 SC 1089 : (1968) 3 SCR 234 : (1970) 1 LLJ 373] andin Benjamin case [(1967) 1 LLJ 718 (SC)] . In the latter case,the departmental enquiry was stopped because the employer wasnot sure of establishing the guilt of the employee. In all thesecases, the allegations against the employee merely raised a cloudon his conduct and as pointed by Krishna Iyer, J. in Gujarat SteelTubes case [(1980) 2 SCC 593 : 1980 SCC (L&S) 197] theemployer was entitled to say that he would not continue anemployee against whom allegations were made the truth of whichthe employer was not interested to ascertain. In fact, the employerby opting to pass a simple order of termination as permitted by theterms of appointment or as permitted by the rules was conferringa benefit on the employee by passing a simple order of terminationso that the employee would not suffer from any stigma whichwould attach to the rest of his career if a dismissal or other punitiveorder was passed. The above are all examples where theallegations whose truth has not been found, and were merely themotive.”

11. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI ofMedical Sciences & Anr.[2] wherein, the inquiry conducted to assess the H2 (2002) 1 SCC 520

WAINGANGA BAHUDDESHIYA VIKAS SANSTHA THR. PRESIDENT B.B.KARANJEKAR v. KU. JAYA [HEMANT GUPTA, J.]

fitness of an employee for continuing on probation was not found to bepunitive, the Court held as under:

“21. One of the judicially evolved tests to determine whether insubstance an order of termination is punitive is to see whetherprior to the termination there was (a) a full-scale formal enquiry(b) into allegations involving moral turpitude or misconduct which(c) culminated in a finding of guilt. If all three factors are presentthe termination has been held to be punitive irrespective of theform of the termination order. Conversely if any one of the threefactors is missing, the termination has been upheld.

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31. Returning now to the facts of the case before us. The languageused in the order of termination is that the appellant’s “work andconduct has not been found to be satisfactory”. These words arealmost exactly those which have been quoted in Dipti PrakashBanerjee case[(1999) 3 SCC 60 : 1999 SCC (L&S) 596] as clearlyfalling within the class of non-stigmatic orders of termination. Itis, therefore safe to conclude that the impugned order is not exfacie stigmatic.

32. We are also not prepared to hold that the enquiry held prior tothe order of termination turned this otherwise innocuous orderinto one of punishment. An employer is entitled to satisfy itself asto the competence of a probationer to be confirmed in serviceand for this purpose satisfy itself fairly as to the truth of anyallegation that may have been made about the employee. A charge-sheet merely details the allegations so that the employee maydeal with them effectively. The enquiry report in this case foundnothing more against the appellant than an inability to meet therequirements for the post. None of the three factors cataloguedabove for holding that the termination was in substance punitiveexists here.”

12. In Rajesh Kohli v. High Court of Jammu and Kashmir &Anr.[3], again this Court held that order of termination is a fallout ofunsatisfactory service adjudged on the basis of overall performance.The Court held as under:

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A“28. In the present case, the order of termination is a fallout ofhis unsatisfactory service adjudged on the basis of his overallperformance and the manner in which he conducted himself. Suchsatisfaction even if recorded that his service is unsatisfactory wouldnot make the order stigmatic or punitive as sought to be submittedby the petitioner. On the basis of the aforesaid resolution, theBmatter was referred to the State Government for issuing necessaryorders.”

13. In the present case, respondent No.1 was appointed on ad-hoc basis. Such temporary appointment pending filling up of a vacancyon regular basis does not confer any right at par with the candidateCappointed on regular basis. The appointment of the respondent No.1was not on probation as there is no such condition in the letter ofappointment. The services of an employee can be dispensed with onaccount of unsatisfactory work. The decision to arrive at theunsatisfactory work is motive and not the foundation of termination of Dservices. We have seen the opinion of the Principal, which does notcontain any adverse comments but the comments are in relation to thework of the respondent No. 1, such comments cannot be made basis forsetting aside the termination of an ad-hoc employee.

14. Ms. Mahalaxmi, learned senior counsel for the respondents,Ehas referred to the orders of the High Court of Judicature at Bombay inWainganga Bahu-uddeshiya & Ors. v. Diwakar & Ors.[4]andWainganga Bahu-uddeshiya Vikas Sanstha & Ors. v. Anil & Ors.[5]to contend that the appellant has been taking punitive action against themembers of the teaching faculty. However, we find that both the casespertain to disciplinary action after conduct of regular inquiry which hasFno relevance with the termination of an employee appointed on ad-hocbasis.

15. Consequently, we find that the order passed by the DivisionBench of the High Court is clearly unsustainable in law. The same is setaside. The appeal is allowed. No costs.G

Nidhi Jain

Appeal allowed.

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4 2012 SCC OnLine Bom 1414 : (2013) 2 Mah LJ 804 : (2012) 114 (5) Bom LR 3237

5 2011 SCC OnLine Bom 1233 : (2012) 3 Bom CR 788