It is settled law that it is the employer who decides whether or not probationary services of an employee are or are not satisfactory. This Court cannot substitute its decision with that of the competent authority which decides that the services of a probationer are or are not satisfactory for the employer. Moreover, the services of a probationer can be terminated by a non-stigmatic order without giving the opportunity of hearing. These legal principles were reiterated by Delhi high court, while hearing the petition of a teacher who had been terminated while being on probation. The order was passed by Justice Valmiki J. Mehta of Delhi high court in the case of Gurvinder Singh Saini v. Director Of Education And Ors. [W.P.(C) No.9060/2016, decided on 25 November, 2016]. Full order of the court is reproduced below.
The petitioner was appointed by Shri Guru Nanak Public School (Recognised Secondary School), managed by Sri Guru Singh Sabha Majlis Park, Adarsh Nagar, Delhi, on probation as a TGT (PET) on 1.1.1995, in pursuance of the school dated 24.12.1994. The probation period of the petitioner was extended vide Office Order dated 16.12.1995 extending the period of probation by one year w.e.f. 1.1.1996. During the course of probationary services of the petitioner, petitioner had resigned on 20.9.1996 but thereafter he was again appointed in the month of November, 1996. However, as per the case of the petitioner he continued in services because he had withdrawn his resignation. His services during the probation period were terminated by order dated 25.11.1997 passed by Sri Guru Nanak Public School. The relevant part of the termination order mentioned as under:
“The Management committee of the school having judged your performance as PET during this period of one year and is not satisfied with your services and hence your probation period is not extended any further. Your services shall not be required any further after 26.11.1997.”
The Petitioner’s challenge to the said termination order was rejected by the Delhi School Tribunal (DST) by order dated 21.7.2016. He challenged the DST order before the high court.
The high court held that it is settled law that it is the employer who decides whether or not probationary services of an employee are or are not satisfactory. This Court cannot substitute its decision with that of the competent authority which decides that the services of a probationer are or are not satisfactory for the employer. It was held that the petitioner who was terminated by the order of the employer has been rightly terminated including for the reason that the letter dated 25.11.1997 cannot be said to be stigmatic in nature.
The high court relied upon various judgments of the Supreme Court to reiterate the well-established legal principles that the probationer need not be confirmed in services and in fact if “reasons” are given for terminating services of a probationer, then, merely because the reasons may in some way show lack of efficiency or any other negative aspect as regards the employee, would not mean that services are terminated by a stigmatic order. The services of a probationer can be terminated by a non-stigmatic order is clear from the ratios of the judgments of the Supreme Court in the cases of:
- Muir Mills Unit of NTC (U.P.) Ltd. Vs. Swayam Prakash Srivastava & Another (2007) 1 SCC 491,
- State of W.B. and Others Vs. Tapas Roy (2006) 6 SCC 453,
- Chaitanya Prakash and Another Vs. H. Omkarappa (2010) 2 SCC 623,
- Rajesh Kumar Srivastava Vs. State of Jharkhand and Others (2011) 4 SCC 447, and
- Abhijit Gupta Vs. S.N.B. National Centre, Basic Sciences & Others (2006) 4 SCC 469.
For example, in the case of Chaitanya Prakash and Anr. Vs. H. Omkarappa (2010) 2 SCC 623, the Supreme Court had held as under:
“It is no longer res integra that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic.”
Likewise, in the case of Rajesh Kumar Srivastava Vs. State of Jharkhand and Ors. (2011) 4 SCC 447, Supreme Court held as under:
“The aforesaid decision to release him from service was taken by the Respondents considering his overall performance, conduct and suitability for the job. While taking a decision in this regard neither any notice is required to be given to the Appellant nor he is required to be given any opportunity of hearing.
In the present case, the high court held that it is seen that termination of the petitioner was by a non-stigmatic order of termination dated 25.11.1997, and therefore, the petitioner cannot argue that his services were terminated by a stigmatic order. In fact, ratios of the judgments of the Supreme Court show that even if reasons are given showing as to why the services are not satisfactory, and which may result in some sort of observations as to lack of potential or character of a probationary employee, even then, such language has been held by the Supreme Court to be not stigmatic.
Holding that satisfaction of services or otherwise has to be judged by the school and the Court cannot substitute its own opinion for that of the school by holding that services of the petitioner were satisfactory although the respondent school found that services were not satisfactory, the high court dismissed the petition challenging termination of his services.
Read full order of the court:
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