Judgment:
Learned counsel for the respondent has relied upon the judgment of the Apex Court in Khazia Mohammed Muzammil v. The State of Karnataka and Anr. JT 2010(7) SC 149 : (2010) 8 SCC 255. In that case, the petitioner was appointed as District Judge under the Karnataka Judicial Services (Recruitment) Rules, 1983. On the ground that he was not suitable for the post, he was discharged from service. Contenting that he continued in service beyond the period of probation and the probation is deemed to have been extended, he filed the Writ Petition. The Apex Court observed as under.
“The purpose of any probation is to ensure that before the employee attains the status of confirmed regular employee, he should satisfactorily perform his duties and functions to enable the Authorities to pass appropriate orders. In other words, the scheme of probation is to judge the ability, suitability and performance of an officer under probation. Once these ingredients are satisfied, the Competent Authority may confirm the employee under Rule 5 of the 1977 Rules. Rule 5(2) places an obligation upon the Authority that at the end of the prescribed period of probation, the Authority shall consider the suitability of the probationer to the post to which he is appointed and take a conscious decision whether he is suitable to hold the post and issue an order declaring that the probationer has satisfactorily competed his probation period or pass an order extending the period of probation etc. Rule 5(b) empowers the Authority that in the event it is of the view that the period of probation has not been satisfactorily completed or the probationer has not passed the special examinations, it may discharge him from service unless the period of probation is extended. Rule 5(2) has been coveted with negative language. It specifically prescribes that a probationer shall not be considered to have satisfactorily completed the probation unless a specific order to that effect is passed. This Rule further clarifies that if there is a delay in issuance of an order under Sub-rule(1), it shall not entitle the probationer to be deemed to have satisfactorily completed his probation. In other words, the framers of the Rules have introduced a double restriction to the concept of automatic confirmation or deemed satisfactorily completion of the probation period. Firstly, the specific order is required to be issued in that regard and secondly, delay in issuance of such orders does not tilt the balance in favour of the employee. Rule 6(1) states that the Competent Authority may, at any time, during the period of probation, discharge from service, a probationer on grounds arising out of the conditions, if any, imposed by the Rules or in the order of appointment, or on account of his unsuitability for the service of post.”
The Seven Judge Bench of the Apex Court in Shamsher v.State of Punjab (1974) 2 SCC 834dealt with the issue whether termination during the probation could be found as a punitive action in some case or always has to be as discharge simplicitor during the said period. The Court expresses the view that no abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination, it can never amount to punishment. Thus, it is clear that whether a person has been terminated alleging misconduct or alleging that his conduct is not suitable to the said post, the same amount to punishment. This legal position has been well settled and there cannot be any dispute about the same.
Coming to the facts of the present case, the petitioner applied for the post of Assistant (Accounts and Cash). He was successful in the written test and also subsequent personal interview. Then the respondent-bank issued him appointment letter on 02.01.2009. Clauses (1) and (2) of the appointment letter reads as under.
i. You will be on probation for a period of six months from the date of your reporting for duty in the Bank. The probation period may be extended at the absolute discretion of the Bank if your work is not found satisfactory or is otherwise considered necessary by the Bank.
ii. The Bank will be entitled to terminate your services during the period of probation, on giving to you one month’s notice, and without assigning any reason for termination. If you desire to leave the service of the Bank during probationary period, it will be necessary for you to give to the Bank 14 day’s notice in writing, failing which an amount equivalent to 14 day’s pay will be deducted from your salary and wages.
On 01.07.2009, the bank extended the probation of the petitioner for a further period of three months i.e., up to 05.10.2009. However, in the second paragraph of the said letter, it is mentioned as under.
“However, we came to know that an FIR was lodged against you on 29.03.2009 in Tadepalli Police Station on the grounds that you were involved in cooperating to the banned moist party and dissemination of revolutionary material. The report of Verification of Conduct and Antecedents from the District Collector is not yet received by us.”
The termination order dated 29.09.2009 reads as under.
“We refer to our appointment letter dated 02.01.2009, according to which you were to be on probation for a period of 6 months from the date of reporting for duties in the Bank. Your probation was extended for another 3 months i.e. up to 05.10.2009 from the date 05.07.2009. As per terms of the appointment the bank is entitled to terminate your services during the period of probation on giving you one month notice or paying one month salary in lieu of notice without assigning any reason for termination.
Taking into consideration the entire material facts, circumstances and evidence pertaining to the case, it has been decided by Appointing Authority to dispense with your services from the Bank owing to your unsuitability. Hence, please take notice that you shall cease to be in the service of the bank immediately with effect from the date of serving this letter. In this connection we enclose a Banker Ch.No.866889 Dated 29.09.2009 Rs.7939.99 in your favour, representing one month pay and allowances payable to you in lieu of one month notice period.”
Thus, it is clear from these two letters that the respondent bank came to know that an FIR was lodged against the petitioner on 29.03.2009 in Tadepalli Police Station on the ground that he was involved in cooperating with the banned Maoist Party and having considered the evidence pertaining to the case, they declared him not suitable for the post and accordingly, his probation was not extended resulting in terminating the service.
Learned counsel for the petitioner has taken me through the proceedings in M.C.No.55 of 2009 on the file of Mandal Executive Magistrate, Tadepalli. It reveals that an allegation was made against the petitioner that he was supporting the banned Maoist Party and that his father was attracted to the policies of the Maoist Party and that his father was working as President of the District Kerosene Hawkers Union and also the President of Nulakapet Auto Association. Thereupon, the petitioner was directed to execute a bond for Rs.1,00,000/- to put on good behaviour and to cooperate with all the citizens of India for a term of six months or until the completion of the enquiry in the case registered by the police in crime No.109 of 2009 under Section 40(1) Cr.P.C. The petitioner executed the bond on 30.03.2009 to the satisfaction of the Mandal Executive Magistrate, Tadepalli. Then the Mandal Tahsildar and the Mandal Executive Magistrate, Tadepalli, issued a certificate on 30.03.2009 certifying that the petitioner i.e., the respondent in M.C.No.55 of 2009 has successfully completed the bind over period of six months without involving in any other cases and his bind over period is completed on 29.09.2009.
It has to be seen that interestingly, the Station House officer, Tadepalli Police Station, also issued a certificate on 30.09.2009 certifying that the petitioner, who was kept in bind over before the Executive Magistrate, Tadepalli Mandal, successfully completed the bind over period of six months from 28.03.2009 to 29.09.2009 and that he was not involved in any other cases during the six months period as per the police records. Thus, it is clear that the petitioner completed the probation period successfully as per the directions of the Tahsildar-cum-Mandal Executive Magistrate. Interestingly, the respondents have issued proceedings just one day prior to 30.09.2009 i.e., on 29.09.2009 terminating the services of the petitioner contending inter alia that taking into consideration the entire material facts and evidence pertaining to the case, it has been decided by the appointing authority to dispense with his services from the bank owing to his unsuitability. It is crystal clear that the respondents were referring to the case, which they have mentioned in their letter on 01.07.2009 and that is the case in which he was asked to execute a bond a referred supra.
More over in para-5 of the counter filed by the respondents, it is stated as under.
“It is true that the petitioner was informed that the appointing authority decided to dispense with the services of the petitioner on the ground of unsuitability taking into consideration of the totality of the case relating to the involvement of the petitioner into the alleged offences.”
Thus, by stretch of no imagination, it can be said that the termination of services is a simplicitor termination.
Learned counsel for the petitioner relied on the decision reported in Channabasappa V Bangari v. Chief Security Commissioner, Railway Protection Force 2002 (6) ALT 40, wherein this Court observed as under.
“It is always desirable that the affected party be given an opportunity of hearing since this is a matter involving serious civil consequences and the Apex Court had repeatedly held that whether a rule specifically and explicitly contemplates the issuance of notice or giving of opportunity or not, the Rules of Principles of natural justice are to be observed.”
Learned counsel further relied on the decision reported in Pawan Kumar v. State of Haryana 1996 (2) LLN 227 : 1996 LIC 1740, wherein it was held as under.
“Mere payment of fine of Rs.20.00 does not go to show that the conviction was validly and legally recorded. Assuming that the conviction is not open to challenge at the present juncture, we cannot bus deprecate the action of the respondents in having proceeded to adversely certify the character and antecedents of the appellant on the basis of the conviction per se, opining to have involved moral turpitude, without satisfying the tests laid down in the policy decision of the Government. We are rather unhappy to note that all the three Courts below, even when invited to judge the matter in the said perspective, went on to hold that the act/s involved in conviction under Section 294 IPC per se established moral turpitude. They should have been sensitive to the changing perspectives and concepts of morality to appreciate the effect of Section 294 IPC on today’s society and its standards, and its changing views of obscenity. The matter unfortunately was dealt with casually at all levels.”
This Court in T.K.Prabhakar v. APSRTC(W.P.No.2727 of 2001 dated 19.09.2008), held as under.
“Though there cannot be any hard and fast rule that can be followed while assessing the antecedents and character, but certain factors like the seriousness of the crime, the circumstance in which such crime is committed, and whether the conviction recorded by the criminal Court was on merits or otherwise, are also to be taken into consideration. A crime can be a pre-mediated one, or it can be committed on the spur of a moment. A crime can also be committed for a strong motive or for insignificant or no motive at all, and the crime may be gruesome or otherwise. It can be committed for monetary gain or no gain. The circumstances of the crime will be helpful in throwing a floor of light on the personality of the criminal, so as to assess his overall antecedents and character. Further, even the time-lag after the conviction is yet another aspect to be kept in mind. In that view of the matter, in each and every case, the authorities have to apply their mind to the material on record, and come to an opinion whether a person is to be disqualified or not, having regard to the nature of charges levelled and the conviction recorded against him. But however, merely because of the conviction recorded in an isolated petty case, that too, upon the admission of guilt by the petitioner, it cannot be said that his antecedents and character are bad, disentitling him from holding the post of a Driver. For the aforesaid reasons, it is clear that the respondents have not considered the seriousness of the charges leveled against the petitioner in the criminal case, and the circumstances in which the petitioner was convicted, and also the effect of such conviction on the post which he has to hold after appointment. Therefore, I am of the view that it is a fit case where the matter has to be reconsidered by the respondents.”
As seen from the record, it is clear that because of the involvement of the petitioner in a case in which he was asked to execute a bond, his services have been terminated and subsequently, the police and Revenue officials have certified that the petitioner’s conduct had been satisfactory during the said period. It is said that Governments have been making efforts to bring the extremists to the main stream of the society and showing them alternate jobs and assigning land to them. In that view of the matter, the family members of such extremists (Maoists etc.) should not be harassed merely because they are accidentally related to an extremist. No person should be suspected or harassed merely because he is related to an extremist (Maoist). The experience of society reveals, once a person is suspected and harassed, he may be forced to become an extremist. Taking birth in a particular caste, religion, region or to a particular parents is not in the hands of such person. Therefore, relationship such as brother or sister to a particular person is nothing but an accident. Merely because a person is related to an extremist (Maoist) as a brother, sister or brother-in-law or son, it does not mean that he is a sympathizer or follower of Maoist philosophy.
It has to be seen that even if a person has certain views, ideology or philosophy or even may be a sympathizer of Maoists, it does not mean that he is a criminal or anti-social.
Having certain ideology, certain views, or even expressing those views or mere singing songs of extremists cannot be treated as an offence. If a person is punished merely because he has expressed certain views or if he is in possession of certain literature, the same is nothing but violative of Article 19 of the Constitution of India. If a person has committed a crime or abetted a commission of crime or instigated others to commit a crime, that is a different issue and the same is to be dealt in accordance with law. No person can be punished merely because he has certain views, ideology or philosophy or even when he shares his views with others by writing books or articles or in a public speech. We should not forget the poem of Rabindranath Tagore. First stanza of it is as follows.
“Where the mind is without fear and where the head is held high…”. Therefore, one may oppose the views of another, but, it becomes everybody’s duty to protect the right to express the views of others. If the Right of expression is suppressed, then the democracy would be only on paper and the people of this country cannot have true democracy.
In the circumstances of the case, the termination of the services of the petitioner appears to be clearly illegal and violative of principles of natural justice and accordingly, the respondents are directed to reinstate the petitioner in service with continuity of service and all consequential benefits.
Accordingly, the Writ Petition is allowed without any order as to costs. WPMP.No.8473 of 2012 shall stand disposed of.