2003(1) ALL MR 618
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

S.A. BOBDE, J.

Ku. Usha D/O Ramchandra Mule Vs. The Presiding Officer Additional School Tribunal Nagpur (Chandrapur) & Ors.

Writ Petition No.2819 of 2001

3rd September, 2002

Petitioner Counsel: Mr. A. Z. JIBHKATE
Respondent Counsel: Mr. A. R. PATIL, Mr. DEOPUJARI

Constitution of India, Art.226 - Termination of service of Teacher on probation - Reason for termination given as unsuitability for job - Order also mentioning that explanation given by incumbent found to be unsatisfactory - Order does not cast any stigma.

It would be normal in the course of employment for an employer to put an employee on notice regarding the acts which are found to be unsatisfactory or which the employer prima facie may consider to be irregular or not in accordance with the rules of conduct. It is also normal for an employer to ask an employee for an explanation for the said acts. Merely because the employee gives an explanation which is not found satisfactory and thereupon the employer decides to terminate the services on the ground that the services are found to be unsatisfactory during the period of probation, it would not amount to causing a stigma. Properly speaking, the termination order can be stigmatic if it states that the employee has been found to be guilty of misconduct or dereliction of duty etc. This is something that must be looked into the termination order itself. [Para 5,7]

Cases Cited:
Pavanendra Narayan Verma Vs. Sanjay Gandhi P.G.I. of Medical Sciences, 2002(1) ALL MR 302 (S.C.) [Para 6]


JUDGMENT

JUDGMENT :- Rule is made returnable forthwith. Heard by consent of parties.

2. This petition is directed against an order dated 19-4-2001 passed by the School Tribunal upholding the order terminating petitioner's service during the period of probation.

3. The undisputed facts are that the petitioner was appointed as a teacher with effect from 2-9-1996 to 30-4-1997 on a clear and permanent post. It is also undisputed that by an order dated 10-6-1997 the petitioner was appointed on probation for a period of two years and the period would have ended on 9-6-1999.

4. Petitioner's services came to be terminated by an order dated 3-8-1998. This order states that the petitioner's clarification has been found to be unsatisfactory, the management is of opinion that the petitioner's work is found to be unsatisfactory and, therefore, her services are being terminated.

5. Mr. Jibhkate, learned counsel, for the petitioner submits that the order terminating petitioner's service is punitive and must, therefore, be set aside since it is not preceded by any enquiry into the misconduct because of which the petitioner has been terminated. Admittedly, the order, on the face of it, does not cast any stigma on the petitioner. It merely states that the clarification given by the petitioner is unsatisfactory and the petitioner's functioning as a teacher has been found to be unsatisfactory. There is no doubt that the termination order is preceded by a correspondence in which the management appears to have given a letter to the petitioner stating that it is reported that she has not kept the record properly and her behaviour with the teachers and the students is not proper. The letter also states that during the course of visit it was found that the petitioner has been absent and often remains absent. The letter thereafter states that since the petitioner is not functioning properly she should give an explanation as to why action should not be taken against her. This letter was replied to by the petitioner by her letter dated 31-7-1998 giving certain explanation. It must be noted that the correspondence between the petitioner and her employer was purely between them and no third person was involved. The correspondence cannot be taken to have been published in the sense known to law and cannot be said to have cast a stigma on the petitioner. Therefore, what needs to be considered in such a case is the termination order itself, to see whether the termination is on the ground of misconduct. Expressly, as observed earlier, the termination order states that the clarification given by the petitioner has been found to be not satisfactory and her functioning has been found to be unsatisfactory and, therefore, her services are being terminated. There is no statement in the termination order that the petitioner has been found to be guilty of any misconduct.

6. Mr. Jibhkate, learned counsel, for the petitioner then submits that the order of termination must be read as an order which is stigmatic, since in the affidavit in reply before the School Tribunal the management has pleaded certain acts of the petitioner which amount to misconduct. This submission, even if correct, cannot be countenanced in view of the observations of the Supreme Court in State of Uttar Pradesh Vs. Kuashal Kumar Shukla, as reproduced by the Supreme Court in Pavanendra Narayan Verma Vs. Sanjay Gandhi P.G.I. of Medical Sciences - 2002(1) ALL MR 302. The observations read as under:-

"The allegations made against the respondent contained in the counter-affidavit by way of a defence filed on behalf of the appellants also do not change the nature and character of the order of termination."

Mr. Jibhkate, learned counsel, is right in pointing out the observations of the School Tribunal in paragraph 18, where the School Tribunal has upheld the petitioner's termination "looking into the serious misconduct and unruly behaviour". What is however overlooked is the fact that the School Tribunal has referred to the said misconduct and unruly behaviour as the reasons for forming the opinion that the petitiner's performance during the probation period was unsatisfactory. In the recent judgment in Pavanendra Narayan, cited supra, the Supreme Court in paragraphs 29 and 31 has made the following observations :

"29. Before considering the facts of the case before us one further, seemingly, intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.

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's case 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."

7. Applying the aforesaid observations, the only difference between the termination order before Their Lordships and the termination order in this case is that the termination order in this case contains an additional statement that the petitioner's clarification has not been found to be satisfactory. I am of view that by itself will not cause stigma or cannot be taken to be causing a stigma. It would be normal in the course of employment for an employer to put an employee on notice regarding the acts which are found to be unsatisfactory or which the employer prima facie may consider to be irregular or not in accordance with the rules of conduct. It is also normal for an employer to ask an employee for an explanation for the said acts. Merely because the employee gives an explanation which is not found satisfactory and thereupon the employer decides to terminate the services on the ground that the services are found to be unsatisfactory during the period of probation, I am of view that it would not amount to causing a stigma. Properly speaking, the termination order can be stigmatic if it states that the employee has been found to be guilty of misconduct or dereliction of duty etc. This is something that must be looked into the termination order itself. As observed by the Supreme Court, "a termination order which explicity states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic." Their Lordships have further observed, "in order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job." For this purpose, it is necessary to look to the termination order itself. When the termination order in question, in the present case, is perused it is clear that it does not contain anything which imputes something over and above mere unsuitability for the job. To reiterate the statement in the termination order that the clarification given by the petitioner is not found to be satisfactory, does not cast a stigma.

8. In the result, there is no merit in the petition which is hereby dismissed.

Petition dismissed.