JUDGMENT
Jawahar Lal Gupta, J.
1. Was the action of the appellant in terminating the services of respondent Shri S. N. Pasricha in conformity with the provisions of the Haryana Affiliated Colleges (Security of Service) Act, 1979 ? This is the primary question that arises for consideration in these two letters Patent Appeals. The facts may be briefly noticed.
2. Respondent Shri S. N. Pasricha was selected and appointed as Lecturer at the Markanda National College, Shahabad, on November 22, 1984. He was placed on probation for a period of one year. Vice order dated October 12, 1985 his period of probation was extended by a year. On June 17, 1986 his services were terminated. Aggrieved by the order, respondent Shri S. N. Pasricha approached the Director of Higher Education, Haryana. It was found that the services of the respondent had been terminated only on the ground that he was busy in talking “with Shri S. K. Budhiraja (under suspension) which is in defiance of the staff circular dated 6.7.1985. “The Director observed that the action of the Management was “very strange to say the least.” Thus vide his order dated November 30, 1987 he ordered the reinstatement of the teacher. Aggrieved by the order, the Management filed an appeal before the Commissioner and Secretary to Government of Haryana, Department of Education. The appeal was dismissed vide order dated July 26, 1988.
3. It is alleged that the respondent was not reinstated despite the directions given by the Director. Consequently, he filed Civil Writ Petition No. 11528 of 1988 with the prayer that a writ of mandamus be issued directing the Management to comply with the orders of the competent authority. Thereafter, as a counter blast, the Management filed Civil Writ Petition No. 760 of 1989 to challenge the orders passed by the Director and the Commissioner. Both these petitions were heard together. Learned Single Judge affirmed the findings recorded by the authorities under the Act and held that the teacher was entitled to be reinstated. Besides affirming the findings it was also observed that the order of termination “was punitive in nature and not a simple order of discharge from service …..,” which amounted to “removal from service ….” Thus the writ petition filed by respondent Shri S. N. Pasricha was allowed while that of the Management was dismissed.
4. Now these two appeals viz. L.P.A. Nos. 700 and 701 of 1989 have been filed to challenge the decision of the learned Single Judge.
5. The short contention raised by the learned Counsel for the appellant is that the teacher had been appointed on probation. His services were terminated by a simple order while he was still on probation. In such a situation, the action could not have been challenged as being punitive. Learned Counsel for the appellant has placed reliance on the decision of Full Bench of this Court in Guru Nanak Dev University. Amritsar v. Dr. Iqbal Kaur Sandhu. 1975 (2) S.L.R. 483.
6. On the other hand it has been contended that the findings recorded by the learned Single Judge, as also the authorities under the statute are in strict conformity with the material on record. Thus, these call for no interference.
7. It is undoubtedly correct that the Management has a right to appoint a person on probation. During the period of probation the employee is on trial. His work and conduct are watched. If he measures upto the requirements of the job, he may be confirmed. However, if he is unable to perform the duties of the post, his services can be terminated. It is also indisputable that the Management has a right to form an opinion on the basis of the performance of the employee. However, the formation of opinion cannot be arbitrary. It must be based on some material on the record, if on the basis of the material on record the competent authority forms an opinion, it may not be possible for the Court to substitute its own opinion for that of the employer. But the existence of some material is an essential pro-condition. What is the position in the present case ?
8. Despite being repeatedly asked, learned Counsel for the appellant has not been able to refer to anything on the record, which may even remotely suggest that the respondent-teacher was not able to perform his duties satisfactorily. It has neither been alleged nor has it been shown that he has not been able to teach well. No complaint from any quarter in that behalf is shown to have been received by the Management. Still further it has not been suggested that his results were not upto the mark. Equally, it has not even been indicated that his conduct was not proper. All that the learned Counsel was able to show was that there were two spelling mistakes in a communication which had been sent by the respondent-teacher to the Principal. It was submitted that the mistakes were atrocious. Assuming it to be so, mere spelling mistake could not have justified the extreme act of termination, especially when there was nothing adverse against the respondent (Mr. Pasricha) in so far as his work and conduct concerned. After all, English is not our mother tongue. Dictionary is not always readily available. More than that, the respondent is present in Court. He has regretted the mistakes and assured the Court that he would be more careful in future.
9. Besides the above, it also deserves notice that in pursuance to the directions given by the learned Single Judge, the respondent had been permitted to join duty in March 1990. He has been in continuous service since then. Now a period of more than 8 years has already elapsed. Throwing him out of service would cause an irreparable loss and extreme hardship. He would be overage for a job in any other institution. He would not even be eligible to be considered for appointment in a Government School or College. This would place undeserved burden on the respondent.
Taking the facts cumulatively, we find no ground to interfere with the view taken by the learned Single Judge.
Resultantly, the appeals are dismissed. However, the parties are left to bear their own costs.
10. Appeal dismissed.