Pinaki Ghosh vs International Airports Authority Of … on 28 August 2006

Delhi High Court
Pinaki Ghosh vs International Airports Authority Of … on 28 August, 2006
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat
JUDGMENT

S. Ravindra Bhat, J.

1. The writ petitioner in these proceedings has challenged an order issued by the Respondent, International Airport Authority of India (hereafter referred to as “IAAI”) on 22.3.1985.

2. The brief facts necessary for deciding this case are stated as follows. The Petitioner was appointed with effect from 8.3.1984 as a Legal Officer, by the IAAI, through an appointment letter dated 23.3.1984. That letter of appointment stated, inter alia, that the petitioner would abide by the Rules and Regulations of the Authority.which might be enforced from time to time. Clause 7 of the letter, dated 8.3.1984 stated as follows:

7. Notwithstanding any of the clause of this letter of appointment, the Authority reserves the right to terminate your appointment at its absolute discretion after giving you One month’s notice of on payment of one month’s salary in lieu thereof without assigning any reason. Similarly you shall be at liberty to resign from the service after giving one month’s notice.
3. The petitioner claims that during the initial months of his employment, his duties were found to be satisfactory and he was even commended by the then General Manager. He, however, claims to have been the target of harassment and arbitrariness after a new General Manager, one Shri P.R.P Rao took over, some time during the end of 1984. It is claimed that the petitioner received a commendation for his performance in the third quarter of 1984. In these circumstances, he was issued a Memo by the said Shri P.R.P. Rao, General Manager on 23.5.1985, expressing dissatisfaction with the performance of his duties and the progress made in pending legal matters. The Memorandum also recited that the petitioner’s allegations made against senior officials was not a healthy tendency. He was, therefore, warned to refrain from the lapses and directed to show improvement in the tasks assigned. The Petitioner replied to the Memorandum, on 16.2.1985 expressing difficulty in working without help of any Assistant, and denied that he had ever levelled allegations against senior officials.

4. On 16.3.1985 a Memo was issued to the petitioner; it reads as follows:

No. AAM/PERS/CONF/PG/135 Dated 16.03.1985

MEMORANDUM

It has been reported that during the second week of March 1985, two volumes of personal files bearing No. AAC/PERS/BC/JE (E)/918 (received from Calcutta Airport- containing 33 pages) and No. AAM/PERS/0-2 (40/BC (opened at this airport (Electrical), were handed over to Shri Pinaki Ghosh, Legal Officer, after obtaining proper receipt, as these were required by him.

On 11.03.1985, the two files referred to above were returned to the dealing assistant Shri J.F.A. De Silva, Asstt. Gr. II of Personnel Section after taking back the receipt half-an-hour in advance.

On verification of these files, it was found that the file bearing No. AAM/PERS/02/(40)/BC was empty and page Nos.11, 16 and 17 of File No.AAC/ PERS/BC (W)/918 were removed.

Shri Pinaki Ghosh, legal Officer is hereby directed to show-cause as to why disciplinary action should not be initiated against him.

His reply should reach the undersigned within 3 days.

Sd/- P.R.P. Rao General Manager.

To Shri Pinaki Ghosh Legal Officer, IAAI, Madras – 27,

5. The petitioner claims that he replied to the memorandum on the same day; a copy of the reply, handed over to the General Manager’s office, has been placed on record. It reads as follows:

Handed over to G. M.’s PA On 16.03.1985.
While acknowledging the receipt of Memorandum No. AAM/PERS/CONF/PG/135 dated 16.03.1985. I say the following:
It is not a fact that during the second week of March, 1985 two volumes of personal files of Shri B. Chatterjee AE (E) were handed over to me. It is not a fact that the two volumes of personal files of Shri B. Chatterjee (AE) (E) contained 33 pages and 2 pages as alleged. It is not a fact that on verification, the file No.AAM/PERS/Q-2(40)/BC as alleged was found empty. It is not a fact that page numbers as alleged of file No.AAC/PERS/BC/JE(E)/918 were removed. It is a fact that on 11.3.85 G.M. was pleased to call me in his room at about 17.00 Hours when I explained everything. Yours faithfully, Sd/-Illegible Legal Officer, 16.03.1985
6. On 22.3.1985 the IAAI issued the impugned termination letter. It reads as follows:

International Airport Authority of India (Department of Personnel) Akbar Hotel 10th Floor, Chanakyapuri New Delhi – 110 021 No. PERS/1007/932/85/3034 Date : 22nd March 1985 OFFICE ORDER Shri Pinaki Ghosh was appointed as Legal Officer with effect from 23rd March, 1984 on temporary basis. During the 1st,2nd and 3rd quarters of probation period, the performance of Shri Pinaki Ghosh was adjudged unsatisfactory. Despite (ample) counselling and written warning issued to him from time to time, there has been no improvement.
2. Since the performance of Shri Pinaki Ghosh, Legal Officer still continues to be unsatisfactory, it has been decided to terminate the services of Shri Pinaki Ghosh as per Clause 7 of his appointment letter No. PERS -II 1002/9/78-part/82 dated 8th March, 1984 with effect from 23rd March, 1985 (afternoon). He will be paid one month salary in lieu of notice as stipulated in Clause 7 of his appointment letter referred to above.
3. The receipt of this letter may be acknowledged.
Sd/- S.A. Raza Chief of Personnel.

7. The petitioner impugns the termination on the ground that it is based upon an impermissible stipulation in the appointment letter in Clause 7; that condition has also been challenged. It is also alleged that the impugned order was in utter violation of principles of natural justice, malafide, and issued without any rhyme or reason.

8. The record reveals that the petitioner had initially impugned the termination order before the Calcutta High Court; the writ petition was rejected on 16.3.1987. The appeal against that order was disposed off on 31.3.1988 holding that the High Court did not possess territorial jurisdiction over the dispute raised.

9. The IAAI has resisted the claim and alleged that the petitioner was appointed on temporary basis as a probationer and posted at Madras Airport. It is alleged that all employees are governed by IAAI (General Conditions of Service Regulations) duly approved by its Board. It is claimed that as per Clause 12 every employee is placed on probation for one year from the date of appointment and as per Clause 12(2), an employee directly recruited is liable to be discharged from service, if his performance is found unsatisfactory.

10. It is averred that during the period of petitioner’s probation his performance was determined to be unsatisfactory. IAAI claims that in spite of verbal counselling and written warnings issued to him, he showed no improvement in the work and performance. Consequently, the competent authority decided to terminate his services with effect from 23.5.1985 in terms of provisions of IAAI General Conditions of Service. The IAAI also avers that the Memorandum was issued in January warning of his unsatisfactory work, with a view to give him opportunity to improve his functioning.

11. It is claimed by IAAI that some personal files were handed over to the petitioner after obtaining receipt; however, when they were returned, a number of pages were found missing. This was noticed, by the Airport Director, and the petitioner’s explanation was called for but in the meanwhile having regard to his work and performance, IAAI terminated him from his services. The termination is justified on the ground that it was issued on the unsatisfactory services of the petitioner.

12. Mr. Deepak Bhattacharya, learned Counsel for the petitioner submitted as follows:

(a) Clause 7 of the appointment letter and recourse to that condition by the IAAI are both arbitrary and liable to be set aside. Reliance was placed upon the judgment of the Supreme Court in Delhi Transport Corporation v. DTC Mazdoor Congress 1991 (1) Supp SCC 600 as well as several other Supreme Court decisions which have followed that judgment, in support of the judgment that such a “hire and fire” condition is inconsistent with Articles 14 and 16 of the Constitution of India.
(b) The background leading up to the impugned order betrays the intention of the IAAI to base the termination on allegations of misconduct. Inasmuch as the termination was not preceded by any enquiry, but was on the basis of such unfounded allegations, it was stigmatic and, therefore, illegal. He relied upon the decision of the Supreme Court in State of U.P. v. Ram Bachan Tripathi 2005(6) SCC 496 and Kirti Ahuja v. State of Punjab . Counsel also submitted that even if it was assumed that the petitioner were a probationer, the IAAI could not have dispensed with his services in such an unceremonial manner, without holding an enquiry and without furnishing an opportunity to the petitioner to defend himself;
(c) the impugned order is illegal because it was actuated by bias. Reliance was placed upon the judgment reported as Kumaon Mandal Vikas Nigam Ltd. v. Girija Shankar Pant and Ors. 2001(1) SCC 182. It was argued that the petitioner’s performance was deemed adequate and even favorably commended for assessment during three quarters before the new General Manager, Mr. P.R.R. Rao took charge. After he joined as General Manager, the petitioner started facing difficulties and Shri Rao started objected to his work and performance. It was contended that there was no reason for the termnation order having regard to the previous record of his performance, except the bias of Shri Rao.
13. Mr. Rajan Sabharwal, learned Counsel for the respondent denied that the impugned termination order was bad in law. He contended as follows:

(a)As per Regulation 12 of the IAAI Regulations of 1980, every employee regularly recruited, like the petitioner, otherwise than on deputation was to be on probation for at least a year. The petitioner was on probation; during that period, on account of his indifferent work and inability to improve performance the IAAI, in bonafide exercise of powers under Clause 12(2) issued the termination order;
(b) the impugned order has to be read in the context of the petitioner’s performance; it was not issued on the basis of power in Clause 7 of the appointment letter. Rather, it was based on an overall assessment and evaluation of the petitioner’s unsuitability to be continued with IAAI;
(c) the impugned order is not stigmatic. The Petitioner’s work and performance was assessed every quarter and reports were periodically made. Inefficiency of the petitioner was reported to the General Manager on 23.8.1984, requesting a Memo to be issued to the petitioner in that regard. It is claimed that on 19.9.1984 the Law Officer once again wrote to the Geneeral Manager in regard to incomplete information received from him, pertaining to the proposed schedule of fees to be paid to advocates. It was also contended that the petitioner was counselled on many occasionsand also warned him in writing.
14. During the course of hearing the counsel for IAAI produced the record and pointed out certain letters written from the Headquarters of the IAAI to the petitioner informing about his indifferent attitute towards work and advising improvement. A copy of the letter dated 8.1.1985, mentioning about a letter written by the petitioner in relation to a draft counter affidavit was also pointed out: reliance was also placed upon the Memo dated 12.3.1985, in respect of missing papers from the personal file.

15. In view of the above narrative, in my opinion three questions arise for consideration namely:

(i) Whether the petitioner’s services were terminated purusant to Clause 7 of his appointment letter;
(ii) Whether the impugned order is relatable to Regulation 12;
(iii) Whether the impugned order is stigmatic or othrwise arbitrary.
16. An isolated reading of Clause 7 of the appointment letter, and the impugned order would seemingly support the petitioner’s contention that the impugned termination letter was based solely on invocation of this power. However, Clause 9 of the appointment letter also indicates that every employee is bound by the terms contained in the Rules and Regulations applicable to the IAAI. Regulations 12, is unambiguous; it stipulates that every direct recruit employee has to be appointed and treated as a probationer with an initial probationery period of one year; the maximum period of probation prescribed is two years. Clause 12(2) stipulates that the period of probation can be curtailed and the employee can be terminated if his performance is not found satisfactory or up to the standard.

17. It is no doubt true that stipulations in conditions of employment like Clause 7 have been deemed arbitrary as they confer unguided discretionery power to dispense with services of public employees. This line of reasoning was affirmed by a Constitution Bench judgment of the Supreme Court in the Delhi Transport Corporation case (supra). That reasoning has been consistently followed in various later judgments, and received approval in the recent judgment of the Supreme Court. In K.C. Sharma v. Delhi Stock Exchange .

18. The existence of Clause 7, which is identical in terms with conditions that were held to be unlawful by the Supreme Court in its various judgments, by itself is not however indicative that the petitioner’s termination was illegal. Indisputably, the termination order recites or refers to that power. However, the existence of the condition that every employee is on probation, for an initial period of one year, is a factor, which cannot be ignored. Public employment, as employment with IAAI indisputably would be, is not a matter of contract. The judgment in the DTC case itself had observed that such employment has to be regulated by clear fair and uniform terms. In the decision of the Supreme Court in Roshan Lal Tandon v. Union of India the Court had held that public employment ceases to be premised on contract and acquires the character of status. The court held as follows:

It is true that the origin of Government service is contractual. There is an offer an acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee.
19. If the above principles are kept in mind, the argument that the termination was based only on Clause 7 cannot be accepted. With the advent of the 1980 Regulations, both the IAAI and its employees were bound by its terms; they could not have traversed beyond it. Therefore, every direct recruit employee appointed by IAAI had to be treated as a probationer in terms of Clause 12. The petitioner was no exception. The termination, in my considered view, is relatable to Regulation 12. I am of the opinion that mere recital of a provision, which is not consistent with the Constitutional mandate, would by itself not invalidate the order, if any other provision exists, but is not expressly referred to (See N. Mani v. Sangeetha Theatre 2004 (12) SCC 278). The order clearly refers to the petitioner’s unsatisfactory performance, and that he had been counseled. The order is therefore relatable to the power to terminate a probationer, which existed under the regulations; it was a valid power. The absence of any reference to the power by itself could not have vitiated the order, if it could be otherwise justified on merits.

REGARDING POINT NO.3

20. Several decisions of this Court, and the Supreme Court have held that if services of a probationer or temporary servant are found to be unsatisfactory in his work; efficiency or is not, otherwise, eligible, his services can be terminated. At that stage the employer would have to examine the question about suitability of the public servant to be continued, and acting bona-fide in that regard, it may ask the employee to explain his conduct if complaints are received against him or his competence or suitability is under a cloud on some grounds arising out of quality of his work. Such and enquiry would have to be restricted only with regard to the desirability of continuing his services and not with a view to punishing him or inflicting any penalty. If during the course of such enquiry material is collected and the authority takes a bonafide decision that the temporary servant or probationer should not be continued in service, it does not logically follow that the order of termination is founded on alleged misconduct. (See Delhi Development Authority v. Surinder Pal Jain 1998(7) AD (Del) 181; Governing Council of Kidwai Memorial godwalker ; Ram Chandra Tripathi v UP Public Services Tribunal ; Dhananjay v. Chief Executive Officer and Union of India; and Municipal Committee v. Munshi Ram 2005 (2) SCC 282). On the other hand, if the termination of a probationer is based on allegations of misconduct, gleaned from materials gathered on the basis of such enquiry, or out of an enquiry primarily aimed at addressing the issue of misconduct, such termination is unlawful, unless preceded by a regular departmental proceeding, or enquiry, as mandated by the rules. (Ref Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. ; Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Chandra Prakash Shahi v. State of U.P.

21. In Mathew P. Thomas v. Kerala State Civil Supplies Corporation Ltd , the court was called upon to consider the legality of an order of termination that contained certain allegations; the High Court had permitted withdrawal of those allegations, and after considering the overall circumstances of the case, concluded that the order was not punitive, but a bona fide exercise of power. The court had summarized the law on the subject, in the following manner:

From a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. If the form and language of the so-called order of termination simpliciter of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. In cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simpliciter, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct.
22. In the present case, no doubt the respondent indicated broadly the grounds on which the petitioner’s services were terminated. They relate to his suitability and performance. The question is whether the termination, per se is punitive in these circumstances. A reading of the order of termination shows that it is premised on the discharge of the petitioner’s functions; the order recites that he had not performed as expected, it also indicates that the IAAI had counselled him to improve performance. The rationale for termination therefore was the continued the unsatisfactoriness of the petitioner’s performance as Legal Officer. I am of the opinion that such reasons cannot be characterized as a “foundation” of misconduct. They record the petitioners’ style of functioning, and put down the assessment of the employer about the desirability of continuing him in the services. Therefore, the order is not based on misconduct, but on an appreciation of the petitioner’s functioning and his utility in the IAAI. The order is therefore, not “stigmatic”.

23. As far as allegations of bias go, no doubt certain aspersions on the conduct of Shri Rao, were made by the petitioner. However, no specific instance bearing out those allegations, or the reason for such an attitude was indicated. In bias, as in case of mala fides, the pleadings have to be specific, not vague and general. Particulars and instances have to necessarily be pleaded, to bear out the complaint of ill motive, and malice. The court, in the absence of these requirements, would be loath to accept such accusations. Further, the petitioner has also not imp leaded the official concerned, a vital necessity deemed by procedure, to confront the person with the truth of the accusations of bias. In these circumstances, I conclude that the allegations of bias have not been substantiated.

24. In view of the foregoing reasons, the petition is lacking in merits. It is accordingly dismissed; Rule discharged. No costs.