Decided on January 28,2019

Arup Kumar Bhaumik Appellant


Arindam Sinha,J. - (1.) Mr. Sengupta, learned senior advocate appears on behalf of respondent nos. 5 and 6. He argues by reliance on following cases decided. (i) Supreme Court in Allahabad Bank Officers' Association and Anr. vs. Allahabad Bank and Ors. reported in (1996) 4 SCC 504 , to paragraphs 3 and 19. He submits, this was a case of compulsory retirement on the bank finding the employee to have "want of application to bank's work", "lack of potential" and as "found not dependable". Supreme Court declared that use of such words did not amount to stigma or have stigma attached to them. (ii) Supreme Court in Kunwar Arun Kumar vs. Uttar Pradesh Hill Electronics Corporation Ltd. And others reported in 1997 (1) L.L.N. 570, to paragraph 5. He submits, in this case Division Bench of concerned High Court in adjudication of challenge to the termination had decided in favour of employer saying it had totally lost confidence in the appellant, which was argued to be stigma before Supreme Court. The Supreme Court said that does not amount to any stigma as reasons mentioned in the order may be a motive and not a foundation as a ground for dismissal. (iii) Supreme Court in High Court Judicature of Patna versus PMMP Sinha and others reported in 2000 (III) LLJ (suppl) 318, to paragraphs 5 to 7 and 9. He submits, facts were that a Judicial Officer on probation drew comments on his performance, even touching his integrity. Concerned High Court did not find him fit for confirmation and material on which such decision wasbased, communicated to State Government by letter dated 5th March, 1986 copied to the probationer. He relied on declaration of law as regards probationer, as being well settled that he does not have a right to hold the post during the period of probation and such position cannot be equated with that of an employee who has been substantially appointed and has a right to hold the post. Supreme Court said merely because in the letter dated 5th March, 1986 reference has been made to the complaints touching integrity of terminated probationer with respect to the judicial work and complaints regarding his character and modality .......does not lead to the inference that the order was passed by way of punishment for particular acts of misconduct. (iv) Supreme Court in Abhijit Gupta vs. S.N.B. National Centre, Basic Sciences and others reported in (2006) 4 SCC 469 , to paragraphs 4, 8 and 15. In this case, he submits, terminated probationer had been served with letters stating, inter alia, he lacked drive, imagination and initiative in the performance of his duties. Initially by letter dated 7th April, 1998 he was informed his service was unsatisfactory in the areas of drive, initiative, promptness and leadership. He submits, Dipti Prakash Banerjee (supra) was considered as relied upon by terminated probationer on submissions made that said termination letter dated 7th April, 1998 carried reference to certain earlier references in which he had been called "a person of perverted mind" and "dishonest duffer having no capacity to learn". Reading said letter dated 7th April, 1998 alongwith the references would clearly make out a case of allegations of misconduct. In this context he relies on paragraph 15 which is reproduced below: "The learned counsel for the appellant, however, strongly contends that the "stigma" cast on the employee may not be confined to his personal character but may also affect his capacity to work. The test, learned counsel for the appellant submitted, is that, if what is stated in the order of termination is read by a future employer, it prejudices the future employment of the employee. In the face of the law laid down in the judgment just referred, we are unable to accept this as the correct test." (V) Supreme Court in Mathew P. Thomas vs. Kerala State Civil Supply Corpn Ltd. and Ors. reported in (2003) 3 SCC 263 , to paragraphs 1 to 3 and 6 to 11. He submits, termination of probationer was made pursuant to show cause notice carrying five grounds. Termination was challenged before learned Single Judge of concerned High Court. Adjudication resulted in order for deletion of ground four. On terminated probationer carrying such decision to appeal, ground five in show cause notice was also directed to be deleted. Supreme Court declined to interfere. He submits, this is at best what petitioner can ask for, deletion of that which he says and Court considers not necessary for his client to have said in being dissatisfied on assessing petitioner on probation.
(2.) Mr. Sengupta concludes his submission. On adjourned date respondent no.10 will be heard and then petitioner in reply.
(3.) List on 30th January, 2019.;

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