REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  6226    OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 4314 OF 2018)

WAINGANGA  BAHUUDDESHIYA  VIKAS SANSTHA  THROUGH  PRESIDENT  B.B. KARANJEKAR & ORS.

…..APPELLANT(S)

                                   VERSUS

KU. JAYA & ORS. .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1) Leave granted.

2) Challenge  in  the  present  appeal  is  to  an  order  passed  by  the Division Bench of the High Court of Judicature at Bombay, Nagpur

Bench, whereby an order passed by the learned Single Bench on

November 3, 2009 was set aside.   

3) Respondent No. 1 was appointed as Lecturer of Home Economics on  ad-hoc  basis  till  such  full  time  Lecturer  is  appointed,  vide

appointment letter  dated February 24,  1999.   There was also a

condition in the appointment order that if her performance is found

to be unsatisfactory, services can be terminated without giving any

notice.   The relevant  clauses of  the appointment  order  read as

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under:

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

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

4) The services of respondent No. 1 were terminated on February 20, 2001,  inter alia,  for the reason that her services in the academic

year 1999-2000 and 2000-2001 were found to be unsatisfactory.

Therefore, as per terms and conditions mentioned in the order of

appointment,  the services  of  respondent  No.  1  were  terminated

and salary for one month was paid to her.

5) The respondent No1, aggrieved against the termination order, filed an  appeal  before  the  College  Tribunal  under  Section  59  of  the

Maharashtra Universities Act, 1994.  The said appeal was dismissed

by the Presiding Officer of the College Tribunal.

6) Again,  aggrieved against the said order passed by the Presiding Officer, Respondent No. 1 invoked the jurisdiction of the High Court

of  Judicature  at  Bombay,  Nagpur  Bench.   The  writ  petition  was

dismissed by the learned Single Bench of the High Court.  However,

the  intra-court  appeal  was  allowed  vide  order  impugned  in  the

present appeal.

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7) The  Division  Bench  of  the  High  Court  found  that  the  order  of termination is not innocuous or harmless without casting stigma on

respondent No. 1.  The Management Committee took the decision

of  termination  of  services  of  respondent  No.  1  prior  to  the

completion of period of probation.  Such finding was arrived at for

the reason that the report of the Principal casts stigma which is the

basis of the order of termination.

8) The Division Bench relied upon the service conditions of teachers which  are  governed  by  Statute  53  of  the  University  which

contemplates that a Teacher shall be appointed in a clear vacancy

in the first 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 the controversy  involved  in  the  writ  petition.   The  appointment  of

respondent No. 1 is categorically on ad-hoc basis till such time full

time Lecturer is appointed.  The order of termination of services is

simpliciter  without  any  stigma  noticing  that  the  work  is  not

satisfactory.   The  appointment  of  respondent  No.  1  was  not  on

probation  but,  it  was  purely  ad-hoc  appointment  and  the

Management has kept right to terminate the services during ad-hoc

period on account of unsatisfactory work.

10) Learned  counsel  for  the  appellants  referred  to  the  judgment  in

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Radhey  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  termination  of  the  services  of  a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason  why  they  are  the  motive  is  that  the assessment  is  not  done  with  the  object  of finding out any misconduct on the part of the officer, 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 is done only with a view to decide whether he is to be retained or continued in service. The position is not  different  even  if  a  preliminary  enquiry  is held  because  the  purpose  of  a  preliminary enquiry  is  to  find  out  if  there  is  prima  facie evidence  or  material  to  initiate  a  regular departmental  enquiry.  It  has been so decided in Champaklal case [AIR 1964 SC 1854 : (1964) 1  LLJ  752]  .  The  purpose  of  the  preliminary enquiry  is  not  to  find  out  misconduct  on  the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in  a case where a regular  departmental enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed — if at that point of time, the enquiry is dropped and a simple notice of  termination is  passed, the  same  will  not  be  punitive  because  the enquiry officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur case [AIR 1968 SC 1089 : (1968) 3 SCR 234 : (1970) 1 LLJ 373] and in Benjamin case [(1967) 1 LLJ 718 (SC)] . In the latter  case,  the  departmental  enquiry  was stopped because the employer was not sure of establishing  the  guilt  of  the  employee.  In  all

1  (1999) 2 SCC 21

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these  cases,  the  allegations  against  the employee merely raised a cloud on his conduct and  as  pointed  by  Krishna  Iyer,  J.  in Gujarat Steel Tubes case [(1980) 2 SCC 593 : 1980 SCC (L&S)  197]  the  employer  was  entitled  to  say that  he  would  not  continue  an  employee against whom allegations were made the truth of  which  the  employer  was  not  interested  to ascertain.  In  fact,  the  employer  by  opting  to pass a simple order of termination as permitted by the terms of appointment or as permitted by the  rules  was  conferring  a  benefit  on  the employee  by  passing  a  simple  order  of termination  so  that  the  employee  would  not suffer from any stigma which would attach to the  rest  of  his  career  if  a  dismissal  or  other punitive order was passed.  The above are all examples  where  the  allegations  whose  truth has  not  been  found,  and  were  merely the motive.”

11) In  Pavanendra  Narayan  Verma  v.  Sanjay  Gandhi  PGI  of Medical  Sciences  &  Anr.2 wherein,  the  inquiry  conducted  to

assess the fitness of an employee for continuing on probation was

not found to be punitive, the Court held as under:

“21.   One  of  the  judicially  evolved  tests  to determine  whether  in  substance  an  order  of termination is punitive is to see whether prior 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  present  the  termination  has  been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld.

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2  (2002) 1 SCC 520

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31.   Returning  now  to  the  facts  of  the  case before us.  The language used in the order of termination  is  that  the  appellant's  “work  and conduct has not been found to be satisfactory”. These  words  are  almost  exactly  those  which have  been  quoted  in Dipti  Prakash  Banerjee case[(1999) 3 SCC 60 : 1999 SCC (L&S) 596] as clearly falling within the class of non-stigmatic orders  of  termination.  It  is,  therefore  safe  to conclude  that  the  impugned  order  is  not  ex facie stigmatic.

32.  We are also not prepared to hold that the enquiry held prior to the order of  termination turned this otherwise innocuous order into one of  punishment.  An  employer  is  entitled  to satisfy  itself  as  to  the  competence  of  a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the  employee.  A  charge-sheet  merely  details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. None of the three factors catalogued above for holding that the termination was in substance punitive exists 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  of

unsatisfactory  service  adjudged  on  the  basis  of  overall

performance.  The Court held as under:

“28.  In the present case, the order of termination is a fallout of his unsatisfactory service adjudged on the basis of his overall performance and the manner in  which  he  conducted  himself.  Such  satisfaction even if  recorded that  his service is  unsatisfactory would not make the order stigmatic or punitive as

3  (2010) 12 SCC 783

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sought  to  be submitted by the petitioner.  On the basis  of  the  aforesaid  resolution,  the  matter  was referred  to  the  State  Government  for  issuing necessary orders.”

13) In  the  present  case,  respondent  No.1  was  appointed  on  ad-hoc basis.  Such temporary appointment pending filling up of a vacancy

on regular basis does not confer any right at par with the candidate

appointed on regular basis.   The appointment of the respondent

No.1 was not on probation as there is no such condition in the letter

of appointment.  The services of an employee can be dispensed

with on account of unsatisfactory work.  The decision to arrive at

the  unsatisfactory  work  is  motive  and  not  the  foundation  of

termination of services.  We have seen the opinion of the Principal,

which does not contain any adverse comments but the comments

are in relation to the work of the respondent No. 1, such comments

cannot be made basis for setting aside the termination of an ad-

hoc employee.  

14) Ms.  Mahalaxmi,  learned senior  counsel  for  the  respondents,  has referred to the orders of the High Court of Judicature at Bombay in

Wainganga Bahu-uddeshiya & Ors. v.  Diwakar & Ors.4 and

Wainganga Bahu-uddeshiya Vikas Sanstha & Ors.  v.  Anil &

Ors.5 to contend that the appellant has been taking punitive action

against the members of  the teaching faculty.   However,  we find

that both the cases pertain to disciplinary action after conduct of

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

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regular inquiry which has no relevance with the termination of an

employee appointed on ad-hoc basis.   

15) Consequently, we find that the order passed by the Division Bench of the High Court is clearly unsustainable in law.  The same is set

aside.  The appeal is allowed. No costs.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; AUGUST 09, 2019.

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