An Office Assistant challenged her discharge during extended probation as stigmatic and imposed without enquiry. The Court upheld the discharge as simpliciter for unsatisfactory performance and dismissed the challenge. The separate petition against the preceding show-cause notice was dismissed as infructuous.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRS Judgment Reserved on : 06.08.2019 Judgment Delivered on : 21.10.2019 CORAM: THE HONOURABLE MR.JUSTICE R.SUBBIAH and THE HONOURABLE MR.JUSTICE C.SARAVANAN Writ Petition Nos. 21566 and 20649 of 2018 --WP No. 21566 of 2018 Tmt. M. Priya .. Petitioner Versus
Versus
(R3 impleaded as per order dated 04.09.2018 passed in WMP No. 25159 of 2018)
.. Respondents
1/23
WP No. 21566 of 2018:- Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the entire records connected with the impugned memo, passed by the second respondent vide ROC No.2703/A/2018 dated 13.08.2018 and quash the same and consequently direct the second respondent to reinstate the petitioner in service, by declaring her probation, with continuity of service and all consequential benefits.
WP No. 20649 of 2018:- Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the entire records connected with the impugned memo, passed by the first respondent vide D.No.5427 dated 19.07.2018 and quash the same and direct the first respondent to declare the probation of the petitioner as Office Assistant in the second respondent as satisfactory and successful with all consequential benefits.
For Petitioner : Mr. N.G.R. Prasad for Mr. S.N. Ravichandran in both the writ petitions For Respondents : Mr. B. Vijay in both the writ petitions
COMMON ORDER
R. SUBBIAH, J
The petitioner has filed WP No. 20649 of 2018 challenging the notice dated 19.07.2018 issued by the first respondent - Principal District Judge, Salem, under Section 31 (1) (ii) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 expressing his intention to discharge the petitioner from service inasmuch as her performance of duties are not satisfactory. When WP No. 20649 of 2018 was pending before this Court, the petitioner was discharged from service from the cadre of Office Assistant by an order dated 13.08.2018 of the Principal District Judge, Salem. Challenging the order dated 13.08.2018, the petitioner has filed the second Writ Petition being WP No. 21566 of 2018.
2/23
3/23
any one, including the petitioner.
4/23
dated 04.05.2017 of the second respondent, the petitioner was called upon to submit her explanation as to why she be not discharged from service owing to her worst performance of work. Aggrieved by the said Memo, dated 04.05.2017 of the Principal District Judge, Salem, the petitioner filed WP No. 13480 of 2017 before this Court. By order dated 24.05.2017, this Court granted an interim order from discharging the petitioner from service. Ultimately, this Court, by order dated 07.12.2017, set aside the show cause notice dated 04.05.2017 issued by the second respondent with an observation that the order dated 07.12.2017 will not come in the way of the respondents in taking recourse to the appropriate provision of law, if they decide to act against the petitioner.
5/23
petition being WP No. 21566 of 2018 has been filed by the petitioner.
6/23
termination. The proper course to be adopted by the second respondent is to frame charges and conduct a full-fledged enquiry in compliance with the principles of natural justice, but it was not done in this case. In this context, the learned counsel for the petitioner relied on the decision of the Honourable Supreme Court in the case of Om Prakash Goel vs. Himachal Pradesh Tourism Development Corporation, Shimla and another reported in (1991) 3 Supreme Court Cases 291 wherein, the Honourable Supreme Court, by placing reliance on the earlier decision in Anoop Jaiswal vs. Government of India (1984) 2 Supreme Court Cases 369 held as follows:-
"3. In Anoop Jaiswal vs. Government of India, it is held as under (SCC p.379, para 12)
(W)here the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment, is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employees.
In Nepal Singh vs. State of U.P., (1985) 1 Supreme Court Cases 56, it is held as under (SCC p.61, para 10)
"(W)here allegations of misconduct are levelled against a government servant, and it is a case where the provisions of Article 311 (2) of the Constitution should be applied, it is not open to the competent authority to take the view that holding the enquiry contemplated by that clause would be a bother or a nuisance and that therefore it is entitled to avoid the mandate of that provision and resort to the guise of an ex facie innocuous termination order. The court will view with great disfavour any attempt to circumvent the constitutional provision of Article 311 (2) in a case where that provision comes into play."
In Jarnail Singh vs. State of Punjab, (1986) 3 SCC 277 it is held thus: (SCCp.291, para 32)
7/23
(W)here an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in innocuous terms, it is incumbent on the court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the Court, in such a case, will lift the veil and will see whether the order was made on the ground of misconduct, inefficiency, or not.
8/23
constitutional guarantee enshrined under Article 14 of The Constitution of India. In such circumstance, without exhausting the appeal remedy, the petitioner is entitled to invoke the jurisdiction conferred upon this Honourable Court under Article 226 of The Constitution of India.
9/23
No. 20649 of 2018, submitted a representation seeking time to enable her to file a writ petition before this Court and ultimately, she submitted her explanation on 06.08.2018 to the show cause notice dated 19.07.2018. Taking note of the explanation offered by the petitioner, the appointing authority namely the second respondent concluded that the service rendered by the petitioner in the post to which she was appointed is not satisfactory and she is not eligible for full membership. The second respondent, as an appointing authority, is entitled to form an opinion as regards the performance of discharge of duty by the petitioner. The second respondent, on evaluating the manner in which the petitioner discharged her service has formed a definite opinion that the petitioner is unsuitable to continue in service and such an opinion formed by the second respondent needs no interference by this Court.
10/23
The earlier writ petition No. 8154 of 2015 was filed by the petitioner challenging the proceedings dated 12.03.2015 of the second respondent refusing to furnish her the report of the III Additional District Judge, Salem. The said writ petition was allowed by this Court on 30.03.2015 on the ground that disciplinary proceedings should be conducted strictly in terms of Rule 17 (b). In the subsequent writ petition filed by the petitioner being WP No. 13840 of 2017, challenging the proceedings dated 04.05.2017 of the second respondent, this Court, by order dated 07.12.2017 categorically held that the competent authority is at liberty to terminate the petitioner on the ground of general unsatisfactory work or incapacity by complying with the principles of natural justice and formalities prescribed under Section 32 of the Act. Pursuant to such an order, the second respondent, upon considering the service record of the petitioner and other relevant materials, has formed an opinion that the services rendered by the petitioner during the period of her probation is unsatisfactory and discharged her from service. Thus, the order discharging the petitioner without declaring her probation does not cause any stigma and it is not in violation of Article 311 of The Constitution of India. The discharge of petitioner due to her unsatisfactory service does not attract Article 311 of The Constitution of India and consequently there is no necessity to conduct any disciplinary proceedings under the service Rules. In order to buttress this submission, the learned counsel for the second respondent relied on the decision of the Honourable Supreme Court in the case of Oil and Natural Gas Commission and others vs. Dr. Mu.S. Iskender Ali reported in (1980) 3 Supreme Court Cases 428 wherein it was held as follows:-
"7. ....It is obvious that a temporary employee is appointed on probation for a particular period only in order to test whether his conduct is good and satisfactory so that he may be retained. The remarks in the assessment roll, merely indicate the nature of the performance put in by the officer for the limited purpose of determining whether or not his probation should be extended.
11/23
misconduct and proceeds by way of a punishment, such a course involves a stigma and an order of termination is bad. Such, however, is not the case here. The short history of the service of the respondent clearly shows that his work had never been satisfactory and he was not found suitable for being retained in service and that is why even though some sort of an enquiry was started, it was not proceeded with and no punishment was inflicted on him. In these circumstances, therefore, if the appointing authority considered it expedient to terminate the service of the respondent - a probationer - it cannot be said that the order of termination attracted the provisions of Article 311 of The Constitution. Thus, if the appellant found that the respondent was not suitable for being retained in service that will not vitiate the order impugned as held and observed by this Court in the cases cited above."
12/23
(1997) 2 Supreme Court Cases 191 wherein it was held as follows:-
13/23
against the petitioner during her period of probation and therefore, the second respondent is wholly justified in recording unsuitability of the petitioner to continue in the service. Such an evaluation by the second respondent cannot be said to be arbitrary or a stigmatic order calling for interference of this Court . The learned counsel for the respondents therefore prayed for dismissal of the writ petition.
14/23
the report of the III Additional District Judge, Salem cannot be furnished to her and called upon the petitioner to submit her explanation within five days. Challenging the proceedings dated 12.03.2015, the petitioner approached this Court with WP No. 8154 of 2015 in which an order dated 30.03.2015 was passed wherein it was held as follows:-
"5. At the outset, it should be pointed out that no disciplinary proceedings appear to have been initiated against the petitioner in terms of Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The procedure prescribed therein, cannot be by-passed when the first respondent seeks to impose the penalty of removal from service or any other major penalty, on allegations of grave misconduct.
reference was made to the unauthorised leave taken by her for a period of 42 days, which were treated as leave on loss of pay. By referring to the dates on which the petitioner had taken leave, the petitioner was called upon to obtain a certificate of good conduct from the Subordinate Judge, Attur in which court she is working. The petitioner therefore submitted a letter dated 08.11.2016 requesting the Subordinate Judge to issue a certificate of good conduct to her.
"8.1 ....This statement shows predisposition to
'discharge' petitioner from the service on the ground of being unfit for service.
8.2 Quite clearly, giving opportunity to the petitioner to respond to the show cause notice in these circumstances will be a pyrrhic exercise and an empty formality.
8.3 Accordingly, the impugned show cause notice is set aside.
16/23
2017 filed by the petitioner.
17/23
of the temporary service is technically termed as declaration of probation. During the period of probation, the appointing authority is bound to assess, evaluate and adjudge the potentiality of such employee to continue in service, his basic understanding to the work assigned to him, the efficiency with which he could complete the tasks assigned, the manner in which he co-ordinates with other employees to get the work done, the behaviour towards the superiors, punctuality in attending the office etc, The two years probation period from the date of initial appointment will be a testing time for the government servant, within which time, he has to prove his potentiality and capability to discharge his work efficiently and honestly and thereby inspire the confidence of the employer. In the absence of possession of the above qualities during the period of probation, the appointing authority cannot be expected to mechanically declare the probation of a government servant on completion of two years. Therefore, before declaring the probation, the appointing authority will normally get the feed back relating to the employee from his immediate superiors, the conduct of the employee during the discharge of the work and thereafter form an opinion as regards the suitability of the employee to continue in service. The potentiality or suitability of the employee appointed to a government service is an important factor for declaration of probation. For assessing the same, the appointing authority is given a discretionary power. It is sufficient for the appointing authority to merely say that the performance of an employee during the course of his probation is satisfactory or not satisfactory and the appointing authority need not elaborate reasons for coming to such conclusion. On the contrary, if any allegation of misconduct is made, during the period of probation, then the appointing authority, even before declaring the probation, is bound to conduct a disciplinary proceeding to prove the charges levelled against the employee.
18/23
attached with a stigma, as has been contended by the counsel for the petitioner.
19/23
authority to whom such intimation ought to have been given. It is no doubt true that these averments have not been mentioned by the second respondent while passing the order of discharge, but we can infer that these conduct of the petitioner would have definitely weighed the second respondent not to declare the probation of the petitioner. In other words, the past conduct of the petitioner in discharge of duty is the foundation for passing the order of discharge against her. In fact, the learned counsel for the respondent has drawn the attention of this Court to Section 32 (3) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 which empowers the appointing authority to declare the probation of a government servant on assessing his suitability to continue in government service. Section 32 of Tamil Nadu Government Servants (Conditions of Service), Act, 2016 reads as follows:-
"32. Probationer's Suitability for Full Membership:- (1) At the end of the prescribed or extended period of probation, as the case may be, the appointing authority shall consider the probationer's suitability for full membership of the service, class or category for which he was selected.
(2) If the appointing authority decides that a probationer is suitable for such full membership, it shall, as soon as possible, issue an order declaring the probationer to have satisfactorily completed his probation. If no such order is issued within six months from the date on which he is eligible for such declaration, the probationer shall be deemed to have satisfactorily completed his probation on the date of expiry of the prescribed or extended period of probation. A formal order declaring the completion of probation shall, however, be issued by the competent authority. In all cases in which serious charges are pending and therefore probation cannot be declared, an order to that effect that the question of declaration of probation cannot be considered till the charges are disposed of shall be issued by the competent authority within six months from the due date for completion of probation and the final order on probation shall be passed as early as possible and in any case within one month after the disposal of the charges or six months after the due date for completion of probation, whichever is later.
Explanation:- For the purpose of calculating
20/23
the period of probation of a probationer, complete calendar months, irrespective of the number of days in each month, shall first be calculated and then the odd number of days calculated subsequently. Periods of leave, if any, taken during the period of probation shall be excluded while calculating the period of probation.
(3) If the appointing authority decides that the probationer is not suitable for such membership, it shall, unless the period of probation is extended under Section 33, by order, discharge him from the service after giving him a reasonable opportunity of showing cause against the action proposed to be taken in regard to him;
Provided that where a Probationer has been given a reasonable opportunity of showing cause against the imposition on him of any of the penalties specified in clauses (iv), (vi), (vii) and (viii) of Rule 8 of Tamil Nadu Civil Services (Discipline and Appeal) Rules and t the conclusion of the disciplinary proceedings, a tentative conclusion is arrived as to discharge him from the service, a further opportunity of showing cause specifically against such charge need not be given to him.
Explanation I:The decision of the appointing authority that the probationer is not suitable for full membership may be based also on his work and conduct till the date of the decision, inclusive of the period subsequent to the prescribed or extended period of probation
Explanation II: Where the competent authority proposes to terminate the probation of a member of a service for general unsatisfactory work or incapacity without the need for enquiry into specific charges, he shall do so under Section 31 or under this section as the case may be. In cases where he proposes to terminate the probationer of such a member for specific charges in addition to, or distinct from general inefficiency or incapacity, he shall frame specific charges and follow the detailed procedure laid down in Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, as such termination of probation by way of penalty will attract the provisions of Article 311 (2) of the Constitution.
21/23
22/23
Sd/-
Assistant Registrar(CS IV)
//True Copy//
Sub Assistant Registrar
To
Sankari, Salem
The High Court of Judicature at Madras High Court Buildings
Chennai - 600 104.
+1cc to Mr. S.N. Ravichandran, Advocate sr.87806
WP.NO.21566 & 20649/2018
rsk(co) nr 30/10/2019
23/23
2 issues framed by the court
Was the probationer's discharge for unsatisfactory performance simpliciter or stigmatic?
Was the discharge liable to be set aside for failure to frame charges and conduct a disciplinary enquiry?
Colour shows how this judgement treated each authority
Om Prakash Goel vs. Himachal Pradesh Tourism Development Corporation, Shimla and anotherReferred¶32
(1991) 3 Supreme Court Cases 291
Oil and Natural Gas Commission and others vs. Dr. Mu.S. Iskender AliReferred¶53
(1980) 3 Supreme Court Cases 428
Director, Aryabhatta Research Institute of Observational Sciences (ARIES) and another vs. Devendra Joshi and othersReferred¶58
(2018) 15 Supreme Court Cases 73
Kunwar Arun Kumar vs. U.P. Hill Electronics Corporation Limited and othersReferred¶60
(1997) 2 Supreme Court Cases 191
3 provisions across 1 enactments
M. Priya
The Registrar General, The High Court of Judicature at Madras
The Principal District Judge, Salem
The District Munsif, Sankakiri, Salem
R.SUBBIAH
C.SARAVANAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
