GOVERNING COUNCIL OF KIDWAI MEMORIAL INSTITUTE OF ONCOLOGY, BANGALOREversusDR. PANDURANG GODWALKAR AND ANR.

A     GOVERNING COUNCIL OF KIDWAI MEMORIAL INSTITUTE
                 OF ONCOLOGY, BANGALORE
                            v.
           DR. PANDURAN(; GODWALKAR AND ANR.

                                OCTOBER 23, 1992
B
                  rs. RANGANATHAN AND N.P. SINGH, JJ.]
          Civil Services :

       Tennination of service during probation perioc}--()vera/l peifonnanc~
c Consideration of-Tennination whether amounts to punishment-Finding out
    the real nature of order-Tearing of the veil-Applicability of-Preliminary
    inquiry or exa1nination of al/egation-W1iether vitiates order of tennination of
    service.

D          The respondent was appointed as a Lecturer in the appellant-In-
    stitute •nd was put on probation for one year. During the probation
    period his services were terminated. The respondent challenged the same
    before the High Court by way of' a Writ Petition contending that actually
    order of dismissal has been passed in the garb of an order of termination;
    and that the Director of the appellant-Institute instead of initiating a
E   departmental proceeding on the basis of some charges levelled against
    him, placed the matter before the governing council of the Institute for
    termination of his sen-ices.

          The High Court gave its finding that since the service of the
    petitioner had been terminated because of the complaints made against
F
    him, it really amounted to his removal for alleged misconduct and so the \
    appellant-Institute should have initiated a departmental proceeding and
    only after due enquiry any action should have been taken.

        Being aggrieved by U1e High Court's order, the appellant-Institute
G has preferred the present appeal.
           Allowing the appeal, this Court,

          HELD: 1.1. When an appointment is made on probation, it pre-sup-
     poses that the conduct, performance, ability and the capacity of the
H    employee concerned have to be W'atched and examined during the period
                                          250
            KIOWA! MEMORIAL INSTITUTE '· DR. GODWALKAR                  251

of probation. He is to be confirmed after the expiry of probation only when    A
his service during the period of probation is found to be satisfactory and
he is considered suitable for the post against which he has been appointed.
The principle of tearing of the veil for finding out the real nature of the
order shall be applicable only in a case where the Coµrt is satisfied that
there is a direct nexus between the charge so levelled and the action taken.
If the decision is taken to terminate the service of an employee during the
                                                                               B
period of probation, after taking into consideration the overall perfor-
mance and some action or inaction on the part of such employee then it
cannot be said that it amounts to bis removal from service as punishment.
Tbe appointing authority at the stage of confirmation or w!tile examining
the question as to whether the service of such employee be terminated          C
during the continuance of the period of probation, is entitled to look iqto
any complaint made in respect of such employee w!tile 4isc!iari:ing his
<juties for purpose of making assessment of the performance of such
employee. [254-J<;-H; 255-A]

      1.2. Even if such employee while questioning the validity of an order    p
of termination simpliciter brings on the record that some prelimi11ary
h1quiry or examination of some allegations had been made, that will llQf
vitiate the order of termination. [255-!l]

      Oil a11d Nantral Gas Commission v. Dr. Mohd. S. Iskeitdfr Ali, [1980]    B
3 SCR 603; Ravindra Kumar Misra v. U.P. State Handloom Coip11. /..tq.,
[1987] suppl. SCC 739: State of Uttar Pradesh v. Kaushql Kishore Shukla,
[1991] l SCC 691 and Triveni Shankar Saxena v. State of U.P., J.T. 1992
(1) S.C. 37, relied on.

     Anoop Jaiswal v. Govemment of India, [1984] 2 sq~ 453, <!istin·           F
guished.

        CIVIL A.PPELLATE JURISDICTION : Civil Appeal No. 3244 of
1988.

     From the Jud~cnt and Order dated 8.7.1988 of the Karnataka High G
Court in W.A. No. 560 of 1983.

        K.N. Bhat. S.K Kulkarni and Ms. Kir&n Suri for the Appellant.

        S.N. Bhat, M. Vcerappa and KH. Nobin Singh for the respondents.        Ji
    252                 SUPREME COURT REPORTS (1992] SUPP. 2 S.C.R.

A         The Judgment of the Court was delivered by

          N.P. SINGH, J. This appeal has been filed against an order passed
    by the High Court, on a writ application filed by the petitioner-respondent
    (hereinafter referred to as "the respondent") quashing the order of termina-   •
    tion of the service of the respondent.
B
          The respondent was appointed as a Lecturer in Surgical Oncology
    on 3rd July, 1981. He was to be on probation for a period of one year from
    the date of his appointment which period could have been extended at the
    discretion of the competent authority. One of the conditions provided is as
    follows :-
c
            "Failure to complete the period of probation to the satis-
            faction of the competent authority will render you liable to
            be discharged from service. 11

D   Before the expiry of one year, the impugned order of termination was
    issued on 30th January, 1982 saying :
             1
             'In accordance with the decision of the Governing Council
             at its meeting held on 28th January, 1982 che services of
             Dr. Pandurang Godwalkar, Lecturer in Surgical Oncology
E            (on probation), Kidwai Memorial Institute ot Oncology,
             Bangalore are terminated \Vith effect from the afternoon
             of 30 January, 1982, as per Rule 4 of the Conditions of
             Service Rules (Annexure - 2 Chapter [) of the lnstitute.

             He is paid one month's salary in lieu of one month's notice
F            required as per rules. 11

          Although the order under challenge was order of termination
    simpliciter, the validity thereof was questioned by the respondent on the
    -ground that an order of dismissal had been passed in the garb of an order
    of termination. According to the respondent, some complaints had been
G
    made against him to the Director of the Institute \Vho instead of initiating
    a departmental proceeding on basis of charges levelled against the respon-
    dent, put up the matter heforc the Governing Council of the Institute for
    termination of the service of the respondent during the period of probation.

H         The learned Judge in view of the assertions made on hchalf of the
   KJDWAI MEMORlAL INSilTUTE v. DR GODWALKAR lN.P. SINGH. l.J           253

respondent directed the institute l(' produce the original records including   A
certain documenls and papers which had been marked "·s confidential.
From the note of the Direct or it appeared that complaints had been made
in respect of performance ol the duties by the respondent. In that note it
was ::ilso mentioned that the respondent was unsympathetic towards the
patients. It had also hecn brought to the notice of the Governing Council B
that the respondent had attempted to obtain the signatures of some of the
patients on the petitions stating that he was a good doctor. On one occasion
it was reported that the respondent had taken away a girl on his scooter
and brought her back late in the night. The said girl was zn attendant to a
patient in the hospital. The learned Judge came to the conclusion that as
the service of the petitioner had been terminated because oft he complaints
                                                                               c
made against him, it really amounted to his removal, for the misconduct
alleged in the note of the Director. According to the learned Judge, the
Institute should have initiated a departmental proceeding in respect of the
alleged charges and only after due enquiry any action should have been
taken.                                                                       J)

      There is no dispute that the service of the respondent had been
terminated during the period of probation. The appointment of the respon-
dent was with a clear condition that failure to complete the period of
probation to the satisfaction of the competent authority shall render him      E
liable to be discharged from the service. Relevant part of Rule 4 of the
Conditions of Service Rules is as follows :-

        "4. TERMINATION:·

        1. All appointments shall be tern1inable on a notice in                F
        writing either by the appointing authority or the employee
        without assigning any reason as set below:-

        a) During the period .. one month cf probation.

        b) After completion of the period of probation ...... :. 3
                                                                               G
           months.

        c) The notice referred to in rule (1) above shall not be
           necessary if in lieu there6f all amOrint equal to the pay
            and .allowance ·for the period of notice is.paid.                  H
    254                SUPREME COURT Rf'POR1'S [1992] SlJPP. 2 S.C.R.

A
           Genetatly in connection with an order of termination, a question is
    raised before the court as to what is the motive behind the termination of
    the service of the employee cottcerned - whether the teason mentioned in
    the order of termination has to be accepted on its face value or the
B
    backgtound in which such order of termination simplicitcr has been passed
    should be examined to find out as to whether an officer on probation or
    holding a temporary appointment has been, in fact, dismissed from the
    service without initiating any departmental enquiry. If an employee who is
    on ptobation or holding an appointment on temporary basis is removed
c   from the service with stigma because of some specific charge, then a plea
    cannot be taken that as his service was temporary or his appointment was
    on probation, there was no requirement of holding any enquiry, affording
    such an employee an opportunity to show that the charge levelled against
    him is either not true or it is without any basis. But whenever the service
D   of an employee is terminated during the period of probation or while his
    appointment is on temporary basis, by an order of termination simpliciter
    after some preliminary enquiry it cannot be held that as some enquiry had
    been made against him before the issuance of order of the termination it
    really amounted to his removal from service on a charge as such penal in
E   nature.

          When an appointment is made on probation, it presupposes that the
    conduct, performance, ability and the capacity of the employee concerned
    have to be watched and examined during the period of probation. He is to
    be confirmed after the expiry of probation only when his service during the
F   period of probation is found to be satisfactory and he is considered suitable
    for the post against which he has been appointed. The principle of tearing
    of the veil for finding out the real nature of the order shall be applicable
    only in a case where the Court is satisfied that there is a direct nexus
    between the charge so levelled and the action taken. If the decision is
G   taken, to terminate the service of an employee during the period of
    probation, after taking into consideration the overall performance and
    some action or inaction on the part of such employee then it cannot be
    said that it amounts to his removal from service as punishment. It need not
    be said that the appointing authority at the stage of confirmation or while
H examining the question as to whether the service of such employee be
   KJDIVAI MDIORIAL li\S'llTCTE •·. DR. GODIV ALKAR fN.P. SINGH, J.]   255
terminated during the continuance of the period of probation, is entitled    A
to look into any complaint made in respect of such employee while dis-
charging his duties for purpose of making assessment of the performance
of such employee.

       Even if such employee while questioning the validity of an order of
                                                                            B
termination simpliciter brings on the record that some preliminary enquiry
or examination of some allegations had been made, that will not vitiate the
order of termination. Reference in this connection may be made to the case
of Oil and Natural Gas Commission v. Dr. Mohd. S. Iskender Ali, [1980] 3
SCR 603, where it was pointed out that a temporary employee is appointed
on probation for a particular period "only in order to test whether his      c
conduct is good and satisfactory so that he may be retained". It was also
said that even if misconduct, negligence, inefficiency may be the motive or
the influencing factor which induced the employer to terminate the service
of the employee which such employer admittedly had under the terms of
the appointment, such termination cannot be held to be penalty or punish- D
ment. Same view has been reiterated in connection with appointment on
temporary or ad hoc basis in the cases of Ravindra Kumar Misra v. U.P.
State Handloom Corpn. Ltd., [1987] Suppl. SCC 739; State of Uttar Pradesh
v. Kaushal Kishore Shukla, [1991] 1 SCC 691 and Trive11i Shankar Saxena
v. State of U.P., Judgements Today (1992) 1 S.C. 37.                        E

      On behalf of the respondent reliance was placed on the case of
Anoop Jaiswal v. Government of India, I1984] 2 SCR 453. In that case the
service of the appellant had been terminated during the period of proba-
tion. On the materials on record it was held by this Court that the order
of termination really amounted to punishment because the real foundation F
of the action against the appellant was the act of misconduct on June 22,
1981. The aforesaid judgment is of no help to the respondent because in
that case a clear finding was recorded by this Court that the service of the
appellant had been terminated because of a particular misconduct alleged
against him which had never been enquired into. So far the facts of the G
present case are concerned, the Governing Council examined the different
reports in respect of the respondent during the period of probation and
considered the question as to whether he should be allowed to continue in
the service of the Institute. The decision appears to have been taken by the
Governing Council on the total and overall assessment of the performance H
                                                                                   t

    256                 SUPRl'ME COURT REPORTS IJ992] SUPP. 2 S.C.R.

A of the respondent, in terms of the condition of the appointment and Rule
    4 aforesaid.

         Accordingly the appeal is allowed ard the judgment of the High
    Court is set aside. However, in the circumstances of the case, there will be
    no order as to costs.

    G.N.                                                       Appeal allowed.