JANARDAN SAHAI, J. - (1.) THE petitioner was appointed on probation as Manager of the University Press Aligarh Muslim University by order dated 11 -1 -2000. The probationary period was extended on 11 -1 -2001 for a further period of one year. Before the expiry of the period of probation the services of the petitioner have been terminated by the impugned order dated 4 -12 -2001 of the Vice Chancellor under Section 19(3) of the Aligarh Muslim University Amendment Act, 1981 in terms of Regulation 14 (a) of the Regulations governing the terms and condition of services of non teaching employees. The order makes reference to two reports given by the Member -in -Charge of the Aligarh Muslim University and goes on to state that as the Member -in -Charge are not satisfied with the work, conduct and performance of the petitioner the Vice Chancellor after considering all the facts has ordered that the services of the petitioner shall cease with effect from 4 -1 -2002.
(2.) SRI P.N. Saxena, learned Senior Counsel for the petitioner has described the order on the terms in which it is couched as stigmatic, as it expresses non satisfaction about the conduct work and performance of the petitioner. It is also submitted that if the order is read along with the report of the Member -in -Charge which should be treated virtually as part thereof the stigma is expressed in no uncertain terms. The Member -in -Charge was satisfied regarding the truth of specific allegations of misconduct and the order being founded thereupon is punitive. It may here be stated that although the reports were not appended to the order but on the request of the Counsel for the petitioner, the copy of the reports were supplied by the Counsel of the university to the learned Counsel for the petitioner and have been put on record along with the rejoinder -affidavit. The first report is dated 16 -8 -2001. While the second is dated 22 -11 -2001. It is not in dispute that no regular disciplinary enquiry after giving opportunity to the petitioner was held and therefore, if it is found that the order is punitive it cannot be sustained. Now we shall take up the contentions one by one in the order advanced by the petitioner's Counsel. The expression as the Member -in -Charge are not satisfied with the work conduct and performance of the petitioner have been described as stigmatic. Reliance is placed upon V.P. Ahuja v. State of Punjab and others, in which the words however he failed in the performance of his duties administratively and technically occurring in the order terminating the services of a probationer have been held by the apex Court to be stigmatic. It is well settled that if the services of a probationer are terminated on the ground of inefficiency or incompetence expressed in the order the expression casts a stigma and therefore, a punishment. Failure means the inability to perform an obligation. Failure in performance of duty means either non -performance or performance below the minimum expected standard and therefore, this expression does involve when used in the contest of performance of duty an attribute of inefficiency or incompetence or negligence or some such vice resulting in the failure. On the other hand if the expression is not satisfied with the work or conduct or performance of the employee it does not reflect any opinion of incompetence or inefficiency or negligence. The employer may not be satisfied for many reasons. Even though the employee may not be incompetent, the employer may expect an unusually high degree of efficiency and may therefore, not be satisfied. Non -satisfactions expressed regarding conduct when used in association with work and performance would not mean misconduct or unbecoming conduct or casting an aspiration on character of the person referred to. In State of Orissa v. Ram Narayan Das, AIR 1961 SC 177, a five Judges Bench of the apex Court held that the words unsatisfactory work and conduct in the order discharging a probationer do not cast stigma. In Dipti Prakash Banerjee v. Satvendra Nath Bose, National Central for basic Services Calcutta and others, 1999 JT (1) 396, the apex Court referred to the case of Pan American World Airways, JT 1986 SC 946 and quoted the meaning ascribed to stigma in that case which is as follows : According to Webster's New World Dictionary if (stigma) is something that detracts from the character on reputation of a person a mark, sign etc., indicating that something is not considered normal or standard. The Legal Thesaurus by Burton gives the meaning of the World to be blemish, defect disgrace, disrepute, and imputation mark of disgrace or shame. The Webster's Third New International Dictionary gives the meaning as a mark or label indicating a deviation from a norm. According to yet another dictionary stigma is a matter for moral reproach.
(3.) IT is true that in Dipti Prakash the remark in the termination order that the employee's conduct, performance, ability and capacity during the whole period of probation was not satisfactory and that he was considered unsuitable for the post for which he was appointed was considered stigmatic but that conclusion was arrived at reading the order of termination as a whole and the contents of the three letters referred to therein. Otherwise it would be difficult to reconcile the five judges decision in Ram Narayan with the two judges decision in Dipti Prakash Banerjee. That apart the expression not satisfied with the work, conduct and performance used in this case is of lighter effect than the expression conduct, performance, ability and capacity....was unsatisfactory used in Dipti Prakash. The word unsatisfactory is an adjective, which qualifies the work and conduct of the person referred to and gives a stonger objective impression about the poor quality of the work or conduct. When it is said that the employer is not satisfied with the work or conduct it of course means that employer is not pleased with the quality of the work or conduct of the employer but the emphasis is more upon the mental state of satisfaction of the employer concerned than upon the quality of the work or conduct of the employee. The element of beauty (or ugliness) lies in the eyes of the beholder is more applicable in this expression. Different people may have different perception of the same fact and want of satisfaction of one in the conduct of the employee reflects his individual impression only and therefore, does not mar the prospects of the employee in hunting a job in the open market as another employer would form his own impression. In Kunwar Arun Kumar v. U.P. Hill Electronics Corporation, 1997 (2) SCC 199, the expression unsatisfactory has been held not to cast a stigma. Similarly in Union of India v. R.S. Dhabe, 1969 (3) SCC 603, found unsuitable was held not to cast a stigma.;