BAHUDDESHIYA VIKAS SANSTHA THROUGH PRESIDENT B.B. KARANJEKAR & ORS.versusKU. JAYA & ORS.

718                       [2019]
               SUPREME COURT     11 S.C.R. 718
                              REPORTS                     [2019] 11 S.C.R.


A     WAINGANGA BAHUDDESHIYA VIKAS SANSTHA THROUGH
             PRESIDENT B.B. KARANJEKAR & ORS.
                                       v.
                              KU. JAYA & ORS.
B                       (Civil Appeal No. 6226 of 2019)
                               AUGUST 09, 2019
           [L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
            Service law: Termination – Appointment of respondent No. 1
      as temporary full time Lecturer on ad-hoc basis – Termination of
C
      services since performance was unsatisfactory – Challenge to –
      Tribunal and the Single Judge of the High Court upheld the
      termination, however the Division Bench set aside the same – On
      appeal, held: Order of termination of services is simpliciter without
      any stigma noticing that the work is not satisfactory – Appointment
D     of respondent No. 1 was not on probation but, was 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 – Management had right to terminate
      the services during ad-hoc period on account of unsatisfactory work
      – Decision to arrive at the unsatisfactory work is motive and not
E
      the foundation of termination of services – Furthermore, the opinion
      of the Principal, does not contain any adverse comments but the
      comments in relation to the work of respondent No. 1 which cannot
      be made basis for setting aside the termination – Thus, the order by
      the Division Bench of the High Court not sustainable and is set
F     aside – Maharashtra Universities Act, 1994 – s. 59.
            Allowing the appeal, the Court
             HELD: It is found 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
G     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
H
                                      718
WAINGANGA BAHUDDESHIYA VIKAS SANSTHA THR. PRESIDENT B.B.               719
               KARANJEKAR v. KU. JAYA


during ad-hoc period on account of unsatisfactory work. The            A
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       B
unsatisfactory work is motive and not the foundation of
termination of services. 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
adhoc employee. The order passed by the Division Bench of the          C
High Court is clearly unsustainable in law. The same is set aside.
[Para 9, 13, 15][721-E; 724-C-D, G]
        Radhey Shyam Gupta v. U.P. State Agro Industries
        Corporation Ltd. & Anr. (1999) 2 SCC 21 : [1998] 3
        Suppl. SCR 558; Pavanendra Narayan Verma v. Sanjay             D
        Gandhi PGI of Medical Sciences & Anr. (2002) 1 SCC
        520 : [2001] 5 Suppl. SCR 41; Rajesh Kohli v. High
        Court of Jammu and Kashmir & Anr. (2010) 12 SCC
        783 : [2010] 11 SCR 699; Wainganga Bahu-uddeshiya
        & Ors. v. Diwakar & Ors. Wainganga 2012 SCC
        OnLine Bom 1414; Bahu-uddeshiya Vikas Sanstha &                E
        Ors. v. Anil & Ors. 2011 SCC OnLine Bom 1233 –
        referred to.
                      Case Law Reference
[1998] 3 Suppl. SCR 558              referred to      Para 10
                                                                       F
[2001] 5 Suppl. SCR 41               referred to      Para 11
[2010] 11 SCR 699                    referred to      Para 12
        CIVIL APPELLATE JURISDICTION: Civil Appeal No.6226 of
2019.
      From the final Judgment and Order dated 21.12.2017 of the High   G
Court of Judicature at Bombay, Bench at Nagpur, Nagpur in L.P.A.
No.235 of 2010.
      Dhruv Mehta, Sr. Adv., Gagan Sanghi, Rameshwar Prasad Goyal,
Advs. for the Appellants.
                                                                       H
720            SUPREME COURT REPORTS                         [2019] 11 S.C.R.


A           Pavani Mahalaxmi, Sr. Adv., Satyajit A. Desai, Ms. Anagha S.
      Desai, Anshuman Singh, Kishor Ram Lambat, Sachin Pahwa,
      M/s Lambat And Associates, Amol Chitale, Nishant R. Katneshwarkar,
      Advs. for the Respondents.
            The Judgment of the Court was delivered by
B           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
C     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
D     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 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
E
            Arjuni, on ad hoc basis.
                      xx               xx               xx
            5. In case your performance is found to be unsatisfactory, your
            services shall be terminated at any time during the temporary
F           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
G     appointment, the services of respondent No. 1 were terminated and salary
      for one month was paid to her.
             5. The respondent No. 1, 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
H     the Presiding Officer of the College Tribunal.
WAINGANGA BAHUDDESHIYA VIKAS SANSTHA THR. PRESIDENT B.B.                         721
       KARANJEKAR v. KU. JAYA [HEMANT GUPTA, J.]


       6. Again, aggrieved against the said order passed by the Presiding        A
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.
      7. The Division Bench of the High Court found that the order of            B
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.                                                                     C

        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,              D
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           E
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          F
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      G
         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,
1
    (1999) 2 SCC 21                                                              H
722               SUPREME COURT REPORTS                           [2019] 11 S.C.R.


A              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
B
               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
C              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
D
               [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 these
               cases, the allegations against the employee merely raised a cloud
E              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
F
               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
G              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

      2
H         (2002) 1 SCC 520
WAINGANGA BAHUDDESHIYA VIKAS SANSTHA THR. PRESIDENT B.B.                          723
       KARANJEKAR v. KU. JAYA [HEMANT GUPTA, J.]


fitness of an employee for continuing on probation was not found to be            A
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       B
         (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.
                   xx                xx                xx                         C
         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           D
         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           E
         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        F
         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 &                   G
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:

3
    (2010) 12 SCC 783                                                             H
724                SUPREME COURT REPORTS                          [2019] 11 S.C.R.


A              “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 sought to be submitted
               by the petitioner. On the basis of the aforesaid resolution, the
B
               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
C     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
D     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,
E     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 regular inquiry which has
F     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.
G
      Nidhi Jain                                                       Appeal allowed.




      4
          2012 SCC OnLine Bom 1414 : (2013) 2 Mah LJ 804 : (2012) 114 (5) Bom LR 3237
      5
H         2011 SCC OnLine Bom 1233 : (2012) 3 Bom CR 788