{"id":85219,"date":"2006-04-18T00:00:00","date_gmt":"2006-04-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/abhujit-gupta-vs-s-n-b-national-centre-basic-on-18-april-2006"},"modified":"2017-06-03T22:34:23","modified_gmt":"2017-06-03T17:04:23","slug":"abhujit-gupta-vs-s-n-b-national-centre-basic-on-18-april-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/abhujit-gupta-vs-s-n-b-national-centre-basic-on-18-april-2006","title":{"rendered":"Abhujit Gupta vs S.N. B. National Centre, Basic … on 18 April, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Abhujit Gupta vs S.N. B. National Centre, Basic … on 18 April, 2006<\/div>\n
Author: Srikrishna<\/div>\n
Bench: B.N. Srikrishna, Lokeshwar Singh Panta<\/div>\n
           CASE NO.:\nAppeal (civil)  5551 of 2004\n\nPETITIONER:\nAbhujit Gupta\n\nRESPONDENT:\nS.N. B.  National Centre, Basic Sciences & Ors\n\nDATE OF JUDGMENT: 18\/04\/2006\n\nBENCH:\nB.N. Srikrishna & Lokeshwar Singh Panta\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T <\/p>\n
Srikrishna, J.\n<\/p>\n
The core issue in this appeal is whether the discontinuation of
\nthe probationer-appellant was for unsatisfactory services or for a
\nmisconduct.\n<\/p>\n
The respondent  is an institution carrying on research in basic
\nsciences. It is common ground that  the respondent is funded by the
\nCentral Government and, therefore, it is  “State” within the meaning of
\nArticle 12 amenable to the writ jurisdiction under Article 226 of the
\nConstitution of India.\n<\/p>\n
The  appellant  was selected for the post of administrative
\nofficer  and  joined  service under the first respondent on 10th February
\n1995. The letter of appointment issued to the petitioner on 7th October
\n1994 made it clear that the petitioner was being appointed on probation
\nfor a period of one year.\n<\/p>\n
On 20th November 1995 the appellant was served with a letter
\ninforming him that his performance during the probationary period was
\n“far from satisfactory” and that it had been observed that he lacked
\ndrive, imagination and initiative ‘in the performance of his duties’. He
\nwas informed that, despite being told time and again to improve
\nperformance in the said areas, but with no effect.  He was advised to
\nimprove  “in order to enable  us to consider your case for confirmation
\nfavourably”. He was issued several such letters drawing his attention to
\nthe fact that his services left much to be desired.  His probationary
\nservice came to be extended from time to time, the last such extension
\nbeing granted till 9th April 1998.  Finally,  by the letter dated 7.4.1998
\nthe petitioner was informed that his service was “unsatisfactory in the
\nareas of drive, initiative, promptness and leadership” and that despite
\nadvised verbally and through letter, what were deficiencies in his work
\nhe had shown no improvement.   His attendance, office work and
\nattention to the academic work and the affairs of the guest house were
\nalso unsatisfactory.  The first respondent, therefore, said “your
\nperformance, ability and capability during the period of probation has
\nbeen examined  and your service during the period of probation is
\nfound to be unsatisfactory and hence you are considered unsuitable for
\nthe post you have to. The governing body is of the view that your
\nperformance was unsatisfactory and you are  not suitable for
\nconfirmation”. For these  reasons the appellant’s probationary period
\nwas not extended on the expiration of his probation period on 9th April
\n1999 without  further extension.\n<\/p>\n
The appellant challenged the order of termination of his
\nservice on the ground that it was a stigmatic termination by way of
\npunishment for alleged misconducts.   The learned single Judge of the
\nHigh Court allowed the writ petition and quashed the order of
\ntermination and directed re-instatement of the appellant with full back-
\nwages.  The Division Bench of the High Court, however, allowed the
\nletters patent appeal and held that the letter dated 7th April 1998 was not
\nstigmatic and that it was a legitimate exercise of assessment of
\nprobationer’s service by the employer, and, therefore, there was no
\nscope for judicial interference therewith.  In this view of the matter, the
\nDivision Bench allowed the appeal, set aside the judgment of the
\nlearned single Judge and dismissed the writ petition. Hence, this appeal.\n<\/p>\n
The learned counsel for the appellant has reiterated the
\ncontention that the letter of 7.4.1998 does not amount to termination
\nsimpliciter  but amounts to a stigmatic dismissal from service as serious
\nmisconduct under the bye-laws  have  been alleged against the appellant
\nfor which neither  inquiry  was held, nor  any procedure contemplated
\nunder the bye-laws was adopted. The learned counsel drew our
\nattention to the copy of the bye-laws of the respondent under which
\nbye-law no. 12.3 defines Acts of Misconduct or breach of discipline
\npunishable under the Rules.  He particularly drew our attention to  Bye-
\nlaw 12.3 (b) (d) and (h) which read as under:\n<\/p>\n
“12.3 Acts of Misconduct :\n<\/p>\n
Any act of misconduct or breach of discipline shall be
\npunishable to the extent provided under these regulations. A few such
\nacts of misconduct or breach of discipline as listed below are illustrative
\nin nature. The list is not exhaustive :\n<\/p>\n
a)\t.\n<\/p>\n
b)\tNeglect of allotted work and careless or inefficient
\nperformance of duty ;\n<\/p>\n
c)\t.\n<\/p>\n
d)\thabitual unpunctuality and irregular attendance or absence
\nwithout permission;\n<\/p>\n
e)\t.\n<\/p>\n
f)\t.\n<\/p>\n
g)\t.\n<\/p>\n
h)\tconduct detrimental to the interest of the Centre;”\n<\/p>\n
\tThe learned counsel contended that the letter 7.4.1998
\nunmistakably alleges misconducts against the appellant, which would
\nfall within the parameters of these misconducts as defined under above
\nBye-laws and, therefore, the prescribed procedure had to be followed.\n<\/p>\n
\tHeavy reliance was placed on Dipti Prakash Banerjee vs.
\nSatyendra Nath Bose National Centre<\/a> for Basic Sciences, Calcutta
\nand ors.  (1999) 3 SCC 60,where this Court held that the termination of
\nservice of the employee in similar circumstances amounted to
\nmisconduct.  We may mention here that it is common ground that while
\nthe matter was pending before the learned single Judge, sometime in the
\nyear 2005, the appellant attained the age of superannuation.   The
\nlearned counsel for the appellant contended that in the letter dated
\n7.4.1998 there is reference to certain earlier letters in which the
\nappellant had been called a person of “perverted mind” and “dishonest,
\nduffer having no capacity to learn”. A reading of all the letters referred
\nto in the letter of 7.4.1998 would clearly make out a case of allegations
\nof misconduct against the appellant, in the submission of the learned
\ncounsel.\n<\/p>\n
\tIn Dr. Mrs. Sumati P. Shere vs. Union of India and others<\/a>
\n(1989) 3 SCC 311  this Court pointed out that an employee on
\nprobation should be subjected to assessment of work and should be
\nmade aware of the defects in his work and deficiencies in his
\nperformance. The Court observed , “Defects  or deficiencies,
\nindifference or indiscretion may be with the employee by the
\ninadvertence and not by incapacity to work. Timely communication of
\nthe assessment of work in such cases may put the employee on the right
\ntrack. Without any such communication, it would be arbitrary to give a
\nmovement order to the employee on the ground of unsuitability”.  It is
\nthe duty of the employer to inform the employee about his deficiencies
\nfrom time to time so that the employee may improve himself.\n<\/p>\n
\tIn Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of
\nMedical Sciences and<\/a> another (2002) 1 SCC 520 this Court considered
\nwhat should be the best to determine whether a letter of termination of
\nservice was termination simpliciter  or stigmatic termination. After
\nreferring to a number of authorities  including the judgment in
\nParshotam Lal Dhingra vs. Union of India, AIR<\/a> 1958 SC 36 and Dipti
\nPrakash Banerjee (supra) the Court observed (vide para 19):\n<\/p>\n
“..Courts continue to struggle with semantically
\nindistinguishable concepts like motive” and
\n“foundation”; and terminations founded on a
\nprobationer’s misconduct  have  been held to be
\nillegal while terminations motivated by the
\nprobationer’s misconduct have been upheld.  The
\ndecisions are legion and it is an impossible task to
\nfind a clear path through the jungle of precedents.”\n<\/p>\n
\tHaving observed thus, the Court formulated the judicial  test to
\ndetermine  as to on which side of the fence the case lay, in the
\nfollowing words (vide para 21):\n<\/p>\n
“One of the judicially evolved tests to determine
\nwhether in substance an order of termination is
\npunitive is to see whether prior to the termination
\nthere was (a) a full scale formal enquiry (b) into
\nallegations involving moral turpitude or
\nmisconduct (c) which (c) culminated in a finding
\nof guilt. If all three factors are present the
\ntermination has been held to be punitive
\nirrespective of the form of the termination order.
\nConversely if any one of the three factors is
\nmissing, the termination has been upheld.”\n<\/p>\n
\tIt referred to Dipti Prakash Banerjee (supra) and pointed out
\nthat in Dipti Prakash Banerjee (supra) the termination  letter
\nexpressly made reference to  an earlier letter which had explicitly
\nreferred to all the misconducts of the employee  and a report of an
\ninquiry committee which had  found that  the employee   was  guilty
\nof misconduct  and so the termination was held to be stigmatic and set
\naside.   Finally, this Court said that  whenever  a  probationer
\nchallenges   his termination the court’s first task will be to apply the
\ntest of stigma or the ‘form’ test.  If the order survives this examination
\nthe “substance” of the termination will have to be found out.  What
\nthis Court further observed in para 29 is crucial and of great
\nrelevance:\n<\/p>\n
“Before considering the facts of the case before us
\none further, seemingly intractable, area relating to
\nthe first test needs to be cleared viz. what language
\nin a termination order would amount to a stigma?
\nGenerally speaking when a probationer’s
\nappointment is terminated it means that the
\nprobationer is unfit for the job, whether by reason of
\nmisconduct or ineptitude, whatever the language
\nused in the termination order may be. Although
\nstrictly speaking the stigma is implicit in the
\ntermination, a simple termination is not stigmatic. A
\ntermination order which explicitly states what is
\nimplicit in every order of termination of a
\nprobationer’s appointment, is also not stigmatic. The
\ndecisions cited by the parties and noted by us earlier,
\nalso do not hold so. In order to amount to a stigma,
\nthe order must be in a language which imputes
\nsomething over and above meter unsuitability for the
\njob.”\n<\/p>\n
\tIn the case of the appellant before us, the record in uncertain
\nterms makes it clear that every time the appellants attention was drawn
\nto his deficiencies  and he was repeatedly advised to improve his
\nbehaviour, conduct and discharge of work.  True, that  in some of the
\nletters there was intemperate language used (the appellant was also
\nequally guilty of doing that).  Notwithstanding the  intemperate
\nlanguage, we are unable to accept the contention of the appellant’s
\ncounsel that the letter dated 7.4.1998 indicates that the appellant was
\nbeing charged with the misconduct and, therefore, being removed from
\nservice.  Read as a whole, the letter gives the impression that the
\nremoval  of the appellant from service was only because the
\nrespondents, after giving a long rope to the appellant, had come to the
\nconclusion that the appellant’s service was unsatisfactory and there was
\nno hope of his improvement.\n<\/p>\n
\tThe real test to be applied in a situation where an employee is
\nremoved by an innocuous order of termination is: Is he discharged as
\nunsuitable or is he punished for his misconduct?  In  Allahabad Bank
\nOfficers’ Association and another vs. Allahabad Bank and others
\n(1996) 4 SCC 504, this Court was considering  a challenge to a
\ncompulsory retirement and formulated a practical test to answer the
\nquestion posed above.  This Court  (vide para 17) observed that if the
\norder of compulsory removal form the service casts a stigma in the
\nsense that it contains a statement casting aspersion on his conduct or his
\ncharacter, then it can be treated as an order of punishment but not if it
\nmerely amounts to highlighting the unsuitability of the employee.  As
\npointed out in this judgment, expressions like “want of application”,
\n“lack of potential” and  “found not dependable” when made in relation
\nto the work of the employee would not be sufficient to attract the charge
\nthat they are stigmatic  and intended to dismiss the employee from
\nservice.\n<\/p>\n
\tThe  learned  counsel  for  the appellant,  however, strongly
\ncontends that the “stigma” cast on the employee may not be confined to
\nhis personal character but may also affect his capacity to work. The test,
\nlearned counsel for the appellant submitted, is that, if what is stated in
\nthe order of termination is read by a future employer, it prejudices  the
\nfuture employment of the employee. In the face of the law laid down in
\nthe judgment just referred,  we are unable to accept this as the correct
\ntest.\n<\/p>\n
\tIn Ravindra Kumar Misra vs. U.P. State Handloom
\nCorporation Ltd. and<\/a> another   AIR 1987 SC 2408   this Court pointed
\nout that in a large corporation administration is bound to be impersonal
\nand in regard to public officers assessment of service has got to be in
\nwriting for purposes of record, though it cannot be assumed that such an
\nassessment recorded and the order of termination made with reference
\nto that record would automatically take a punitive character.\n<\/p>\n
\tThe High Court has carefully considered all the circumstances
\nplaced before it and arrived at the conclusion that the respondent’s work
\nwas under observation during the probationary period and that he was
\ngiven repeated opportunities to improve his performance for which
\npurpose his probation was  extended  from  time  to  time.  The  fact
\nthat  the  authority  did not find him  fit for confirmation was also
\nbrought to his notice several times and yet he was given opportunities
\nof improving by extending his probationary service.  The High Court
\nhas correctly found that the letter dated 7.4.1998 was not punitive in
\nnature and stated, albeit in prolix fashion, that the service of the
\nappellant were unsatisfactory.  The High Court points out, and we
\nagree, that detailed reference to all other correspondence was not
\nnecessary, but it did not reflect any malice or bias.  Finally, as this
\nCourt pointed out in P.N. Verma’s case (supra) “a termination order
\nwhich explicitly states what is implicit in every order of termination of
\na probationer’s appointment, does not ipso facto become stigmatic”.\n<\/p>\n
\tFor the aforesaid reasons we are of the view that there is no
\nsubstance in this appeal.  The impugned judgment of the High Court
\nrequires no interference. The appeal is hereby dismissed without any
\norder as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Abhujit Gupta vs S.N. B. National Centre, Basic … on 18 April, 2006 Author: Srikrishna Bench: B.N. Srikrishna, Lokeshwar Singh Panta CASE NO.: Appeal (civil) 5551 of 2004 PETITIONER: Abhujit Gupta RESPONDENT: S.N. B. National Centre, Basic Sciences & Ors DATE OF JUDGMENT: 18\/04\/2006 BENCH: B.N. Srikrishna & Lokeshwar Singh Panta […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-85219","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAbhujit Gupta vs S.N. B. 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