B.K. Sharma, J.
1. Shortly stated the facts leading to the filing of the instant writ petition are that the petitioner was appointed on 17.3.2003 as Data Entry Operator under the respondents. This was preceded by advertisement and selection. In the advertisement as well as in the order of appointment, the appointment was indicated to be on contractual basis for a period of one year. The petitioner while was serving as such was issued with a letter dated 16.6.2003 by the appointing authority indicating her irregularity in attendance and unsatisfactory performance of duty. By the said letter she was directed to improve herself within one month. This was followed by yet another letter dated 31.7.2003 indicating non-improvement in her performance and was given a further one month time to improve in her performance. Thereafter by the impugned letter dated 30.8.2003. The services of the petitioner was terminated with effect from 1.9.2003 on the ground of unsatisfactory performance in discharging duties and failure to improve in spite of warning given to her. The petitioner submitted representation dated 10.9.2003 making a grievance against such termination of service. Same having failed to yield any result, the petitioner approached this court by initiating the present writ proceeding.
2. The respondents have filed their affidavit indicating poor performance on the part of the petitioner in discharge of her duties. In the affidavit it has been indicated that the petitioner was irregular in her attendance and disobeyed the orders of the superior authority. In spite of warning given to improve in her performance, the petitioner failed to improve and accordingly her service was terminated. The petitioner denying the allegation made in the affidavit in opposition has filed an affidavit-in-reply. In the said reply the petitioner has taken the stand that the respondents did not provide any opportunity to the petitioner to improve in her performance and that the order of termination being on the ground of unsatisfactory performance of duty such as irregular attendance and disobedience to the superiors, same is stigmatic.
3. I have heard Mr. J.L. Sarkar, learned counsel appearing for the petitioner and Mr. R.K. Bora, learned Govt. advocate, appearing for the respondents. Mr. Sarkar in his persuasive pursuits submitted that on the face of it, the order of termination is stigmatic and not a termination simpliciter. Referring to the warning letters by which the petitioner was warned to improve in her performance as well as the statements made in the affidavit, he strenuously argued that although the termination was on the alleged ground of poor performance, but in fact same was resorted to accommodate person of the choice of the respondent No. 4. He further submitted that before terminating the services of the petitioner on the grounds mentioned in the aforesaid letters and in the impugned order itself, the petitioner ought to have been given an opportunity of being heard by way of issuing a show cause notice. In support of his arguments, Mr. Sarkar, relied on two decisions of the Apex Court as reported in AIR 1988 SC 686 (K.I. Shephared v. UOI) and (2000) 3 SCC 239 (V.P. Ahuja v. State of Punjab).
4. On the other hand Mr. R.K. Bora, learned Govt. advocate submitted that the petitioner having been appointed only for a period of one year and that too on contractual basis, she does not have any indefeasible right to continue in her service. He submitted that the termination of the services of the petitioner was, on evaluation of her performance and was on the basis of her poor performance, which she could not improve in spite of adequate opportunity given to her.
5. I have given my anxious consideration to the submission advanced by the learned counsel for the parties. During the course of hearing, it was pointed out to the learned counsel for the petitioner that even if the petitioner succeed in her case, no useful purpose would be served since her terms of appointment automatically comes to an end on completion of one year service on 16.3.2004, however, the learned counsel submitted that the matter requires consideration on its own merit inasmuch as if the impugned order is held to be bad in law, the petitioner would be entitled to the consequential benefits. It was also argued that in such an eventuality the stigma attached to her would perish entitling her benefit of future employment.
6. The admitted position is that the petitioner was appointed on contract basis for a period of one year which even otherwise also would have expired on 16.3.2004. However, it is to be seen as to whether the order of termination of the services of the petitioner is an order simpliciter or is an order punitive. The petitioner was informed of her lackings by issuing letters dated 16.6.2003 and 31.7.2003 and she was also asked to improve in her performance by the said letters. The petitioner never submitted any representation objecting to the contents of the said letters and thus the same went unrefuted. It was only thereafter, the service of the petitioner was terminated by the impugned order on the ground of non-improvement in her performance. The same very stand has been taken in the affidavit-in-opposition. A reference to the lackings in the performances of the petitioner towards issuance of the warning letters, termination order and filing of the affidavit referring to the same cannot be said to be irrelevant, rather same was the only consideration in terminating the services of the petitioner. She was given adequate opportunity to improve in her performance, which she failed to do. If the respondents and for that matter the appointing authority was not satisfied with the performance of the petitioner and her service was terminated on that ground after giving her adequate opportunity to improve herself, no fault is attributable to the respondents or the appointing authority, more particularly when the employment itself was on contract basis of a duration of one year. Where the employee had been given suitable warnings, requested to improve, or where he was given a long rope by way of extension of probation, the Apex Court held that the termination order in such a case cannot be said to be punitive. I may gainfully refer to the decisions as reported in (1996) 11 SCC 404 (Hindustan Paper Corporation v. Purnendu Chakravorty) ; (1980) 3 SCC 428 (ONGC v. Dr. Md. S. Iskender Ali) ; (1992) 5 SLR 855 (SC) (UTI v. T. Bijaya Kumar); 1995 Supp (4) SCC 609 (Principal, Institute of Post Graduate Medical Education v. S. Andel) and (1998) 3 SCC 225 (Oswol Pressure v. Presiding Officer).
7. The Apex Court in the case of Kamal Kishore Lakshman v. Pan American World Airways as reported in (1987) 1 SCC 146 explained the meaning of stigma in paragraph 8 of the judgment as follows :
'According to Webster's New World Dictionary it is something that detracts from the character or 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 word to be blemish, defect, disgrace, disrepute, imputation, mark of disgrace of 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.'
8. In several cases and in particular in State of Orissa v. Ram Narayan Das as reported in AIR 1961 SC 177, the Apex Court held that 'the use of the word unsatisfactory work and conduct in the termination order will not amount, to sigma'. In that case the Apex Court held that an order discharging a public servant even if a probationer, in an enquiry on charges of misconduct, negligence, inefficiency or other disqualification, may appropriately regarded as one by way of punishment, but an order discharging a probationer following upon a enquiry to ascertain whether he should be confirmed, is not of that nature. The Apex Court further observed that the fact of the holding of of inquiry is not decisive, What is decisive is, whether the order is by way of punishment. In the instant case the termination of services of the petitioner was not preceded by any full-fledged enquiry making the same to be the foundation of termination of the services of the petitioner. The appointing authority itself noticed the shortcomings and poor performance of the petitioner and it was on that basis her service was terminated after giving her due warnings to improve in her performance. Thus it was the motive and not the foundation on the basis of unsatisfactory performance which led to termination of services of the petitioner. Such a termination cannot be said to be stigmatic.
9. The decisions on which reliance was placed by the learned counsel for the petitioner is altogether in a different context. In the case of K.I. Shephared (supra) the Apex Court emphasised the need to follow the principles of natural justice even in administrative action. In that case action was initialed under the Banking Regulation Act, 1949 for amalgamation of three private banks with that of three nationalized banks in terms of separate schemes drawn under the provisions of the Act. Some of the employees of the private banks were excluded from employment and their services were not taken over by the respective transferee banks. It was in that context the Apex Court after an exhaustive discussion on the principles of natural justice directed the transferee banks to take over the excluded employees. It was emphasised by the Apex Court that even when a State agency acts administratively, rules of natural justice would apply. Same is not the case here. The petitioner was appointed on contractual basis and her services have been dispensed with on ground of unsatisfactory performance and non-improvement in her performance even after due warning. Applying the test of motive and foundation as available in the matter of discharge of a probationer, it has already been noticed that unsatisfactory performance was the motive behind discharging the petitioner from service. Needless to say that the ratio of any decision must be understood in the background of the fact of that case and that a case is only an authority for what is actually decides, and not what logically follows from it.
10. The next case relied on by the learned counsel for the petitioner is of V.P. Ahuja (supra). In that case the Apex Court held that a probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner, without complying with the principles of natural justice. The Apex Court noticed the background in which the services of the appellant was terminated and as indicated in the affidavits filed by the respondents and came to the conclusion that the order of termination was stigmatic. However, in the instant case, as noticed above the service of the petitioner has been dispensed with no ground of unsatisfactory performance and failure on the part of the petitioner to improve herself in spite of repeated warnings and opportunity given to her. It is also an admitted position that the petitioner never objected to the warning letters which necessarily leads to the irresistible conclusion that the petitioner was aware of her shortcomings. If the employer terminates the services of a contractual employed like that of the petitioner on the grounds mentioned in the impugned order and in the affidavit, no fault is attributable to the employer. The petitioner cannot dictate the terms to the employer more so, when admittedly she was on contractual employment.
11. The Apex Court in the case of Pavanendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences as reported in AIR 2002 SC 23, held that the language used in the order of termination, 'work and conduct has not been, found to be satisfactory' fall within the class of non-stigmatic orders of termination. In that case also the services of the appellant was terminated after due warning by way of extending the period of probation on ground of 'work' and conduct' being not satisfactory. Referring to various decisions of the Apex Court and tracing back the history of such cases in which the services of a probationer is terminated, the Apex Court held that an employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. The Apex Court observed that whenever a probationer challenges his termination, the court's first task will be to apply the test of stigma or the 'form' test and if the order survives this examination, the 'substance' of the termination have to be found out. The Apex Court further observed that generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Equally an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order.
12. I may also gainfully refer to the decision of the Apex Court as reported in AIR 2001 SC 625 (Krishna Devaraya Education Trust v. A. Balakrishna). In that case also the services of the probationer was terminated on the basis of the opinion formed by the committee set up for evaluation of the general performance of the probationer. The committee was of the opinion that the probationer's job proficiency was not up to the mark. Making the same explicit in the order of termination, the services of the probationer was dispensed with. The Apex Court held that there can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. The Apex Court pointed out that if the termination during probationary period is without any reasons, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged.
13. In the instant case, the service of the petitioner has been terminated on the specified ground of unsatisfactory performance. The petitioner was duly warned pointing out the deficiencies to improve herself. If she failed to improve in her performance, the employer had a right to terminate her services which was exercised by way of issuance of the impugned order. Such an order of termination cannot be said to be stigmatic and must be held to be an order of termination simpliciter.
14. The petitioner has brought on record that an advertisement for the same very post of Data Entry Operator has been advertised to be filled up on contractual basis and she apprehends that in view of the order of termination and the attending circumstances thereto, her case will not be considered in its true perspective. Once having held that the order terminating the services of the petitioner is a termination simpliciter and not a termination punitive, the petitioner would be entitled to be considered for fresh appointment and the respondents will consider her case without being guided by any of the factors attributed to her towards termination of her service.
15. Subject to the above observation, I do not find any merit in the writ petition and the same is dismissed without, however, any order as to costs.