- (1.) The writ petition challenges the order of termination of service by the 2 nd respondent, which is the Haryana Welfare Society for Hearing and Speech Handicapped, a Society registered under the Society Registration Act. It is an admitted case that the termination order was issued on 12.01.1988 during the time when the petitioner was still undergoing a period of probation in terms of the order of appointment dated 17.07.1987. The order insofar as it is stated relevant, as follows: "Your services are hereby terminated with immediate effect as your work and conduct has not been found satisfactory during the probation period. You should hand over the charge of your duties to P.R.O. of the Institute alongwith the cash in hand with you."
(2.) The learned counsel appearing for the petitioner states that although the order of termination reads as a termination simpliciter, it really constituted a stigma against him. He would read the stigma in the order of termination through the contentions raised in the written statement. The initial cause of action for the writ petition must be on the facts and documents brought prior to the incident and cannot be picked up from the counter itself. There is, however, case law to the effect that motivation of employer could be relevant and even a reply filed in Court could be taken as expression of what was intended by the respondent. The reply brings out three facts: (i) his work and conduct was not good; (ii) deaf and dumb children studying in the school which the Society was running got lost during the relevant time and the petitioner along with two other persons were suspected of being guilty of dereliction of duty and (iii) the petitioner did not know how to keep accounts regularly. As regards the contention that the two children went missing, there is no denial of the incident itself but the learned counsel wants to contend that it was a Chowkidar, who was responsible and the petitioner had no role to play and it was the petitioner, who brought the episode of the missing children to the Management's knowledge. A termination order of probation is invariably on some satisfaction that the work and conduct is not good; if it were to be merely whimsical, it cannot stand the test of validity itself. Therefore, it would defy logic for anyone to contend that the respondents could not have any reason to terminate the services of a probationer. So long as the action was not motivated and was not a biased action, the termination on an observation that the person was not found to be fit cannot be taken as a stigmatic.
(3.) Learned counsel appearing for the petitioner refers to three decisions of Hon'ble the Supreme Court relating to termination of service of probationers. In "Smt. Rajinder Kaur v. Punjab State and another, 1986 AIR(SC) 1790", the issue was of termination of services of a lady constable during the period of probation. The Court found that the constable's services was civil service under Article 311(2) of the Constitution and the rule contemplated under law, which applied to such a person was the Punjab Police Rules. 1934. The termination was effected without reference to the manner prescribed under the statutory rules. It was, therefore, held to be bad. In "V.P. Ahuja v. State of Punjab and others, 2000 AIR(SC) 1080", the termination of service was on the following expressions: "if he failed in the performance of his duties administratively and technically, therefore, as per Clause (i) of the appointment order, the services are hereby terminated with immediate effect." The Court held that the probationer like a temporary servant is also entitled to certain protection and his services cannot be terminated arbitrarily and arbitrary exercise of power that falls foul of Article 14 shall be definitely a matter for intervention by Court. In this case, the respondent, who was issuing an order of termination had even without casting any aspersion had observed that the petitioner was perceived to be in someway responsible for missing of the children. I cannot take the termination as, therefore, an arbitrary exercise. Yet another judgment of Hon'ble the Supreme Court in "Dipti Prakash Banerjee v. Satendra Nath Bose National Centre for Basic Sciences, Calcutta and others, 1999 AIR(SC) 983" dealt with the case of termination for probationer where there were definite allegations made against him that he had prepared false bills and misbehaved with women academic staff members. There were serious allegations against him and the termination, the Court held could not be taken as mere simpliciter termination. The manner in which the termination came about after branding him as a person that had fabricated false bills and having misbehaved with women, was serious and the Court was under such circumstances stating that the termination was stigmatic. ;