Order Of Termination Of Probationer Neither Dismissal Nor Removal Unless It Is Against Employee's Character Or Integrity: Allahabad High Court

The Allahabad High Court has held that an order of termination of a probationer is neither an order of dismissal nor removal unless there is something against his character or integrity, which would make it an order of punishment.Justice Saurabh Shyam Shamshery held“It is well settled that termination of services of a probationer under the Rules of the Employment or in exercise of Contractual Right is neither per se dismissal nor removal. However, if the order visits the employee against his character or integrity, it would be an order by way of punishment irrespective of whether the employee was a mere probationer or temporary.”Factual BackgroundIn 2006, petitioner was appointed as Assistant Teacher, Vyayam in the respondent institution on probation. His probation as extended for one year, till 2008. In 2007, when petitioner was not being paid his salary, he approached the High Court. However, the writ petition was dismissed as infructuous.Meanwhile, a chargesheet was issued to him, alleging that he had taken part in activities detrimental to the institution and despite repeated request, had not corrected his actions. Petitioner submitted his reply which was rejected as being unsatisfactory. Subsequently, the Manager of the Institution submitted a charge sheet dated 08.10.2007 levelling 8 charges against the petitioner. After submitting the reply, petitioner was required to appear before the Inquiry Committee.The Inquiry Committee found the charges levelled against the petitioner to be true, and proposed termination of his services. Thereafter, a show cause notice was issued to the petitioner along with a copy of the Inquiry report on 20.11.2007. On 26.11.2007, petitioner's services were terminated w.e.f. 03.01.2008 (end of his probation). This termination order was challenged by the petitioner under Article 226 of the Constitution of India.An advertisement to fill up the post on which the petitioner was serving was also challenged by him. Subsequently, one Waliuzzaman Khan was appointed to the said post, who upon not being paid salary approached the High Court through the Committee of Management. Both writ petitions were heard together. High Court VerdictThe Court observed that though the extension of services of a probationer is based on satisfactory service, departmental inquiry was initiated against the petitioner since there were certain allegations against him. “An appointment of probationary can be set aside without even conducting an inquiry if his services were found unsatisfactory,” held the Court.It observed that the counsel for petitioner had shown anything to show that the quality of sports had improved during the petitioner's tenure as Assistant Teacher Vyayam. It was held that principles of natural justice were complied with during the stage of submission of chargesheet. However, the petitioner contended that the inquiry report was not issued to him and he was not given the time for filing a reply to the same. The Court took note of the averments made by the Committee of Management is its counter affidavit, where it stated that the petitioner was served a copy of the inquiry report and his reply was called for. It was stated that the petitioner was given an opportunity of personal hearing, which he had availed, proof of his presence was noted by the Court. Observing that a probationer's services could be terminated without giving an opportunity of hearing, the Court held that in this case the principles of natural justice were duly complied with and the petitioner was given ample opportunity to state his defence. “In above referred circumstances and taking note of allegations, which are substantive that the petitioner was not discharging his duties diligently and standard of games were neither improved nor students of college were encourgaged to participate in competetion, the Court is of view that impugned order whereby probation period was not extended and service was terminated does not require any interference.”The Court held that there was no bar to appointment of Waliuzzaman Khan as Assistant Teacher Vyayam and, accordingly, his interim appointment was made absolute. Case Title: Sanjay Kumar Sengar v. State of U.P. and Others [WRIT - A No. - 63857 of 2007]Click Here To Read/Download Order

Order Of Termination Of Probationer Neither Dismissal Nor Removal Unless It Is Against Employee's Character Or Integrity: Allahabad High Court

Upasna Agrawal

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