1. Heard Sri Jitendra Singh, who has appeared in person and Sri S.B. Pandey, learned Senior Advocate and Assistant Solicitor General of India assisted by Sri Raj Kumar Singh for the Union of India.
2. By means of this petition the petitioner has prayed following relief :
"i) issue a writ, order or direction in the nature of Certiorari quashing the order of competent authority dated 26.12.2019, contained as Annexure No.1, to the present writ petition with all consequential benefits.
ii) issue a writ, order or direction in the nature of Certiorari quashing the proposal letter dated 17.12.2019 referred in the order of competent authority, contained as Annexure No. 2, to the present writ petition with all consequential benefits.
iii) issue a writ, order or direction in the nature of Certiorari quashing the letter dated 09.01.2020 issued by under Secretary to the Government of India Ministry of Civil Aviation (opposite party no.3), contained as Annexure No. 3, to the present writ petition with all consequential benefits.
iv) issue a writ, order or direction in the nature of Certiorari quashing the advertisement for filing up the post Registrar of University in the month of 04.05.202 contained as Annexure No.4, to the present writ petition, with all consequential benefits."
3. The questions to be considered in this writ petition are :
(i) as to whether the services of the probationer during the probation period can be terminated by the order of 'simplicitor' or by the punitive order?
(ii) what should be the nature of simplicitor order?
(iii) If only this much has been indicated by the employer that the services of the probationer were not satisfactory during the probation period, as to whether, in that case, the opportunity of hearing would be required or not ?
(iv) If the services of the probationer is terminated leveling serious allegation against him / her as to whether, in that case, the opportunity of hearing should be provided to him / her or not? and
(v) As to whether the order passed by the President of India as an ex-officio visitor of the University can be interfered with by the writ Court or not?
4. So as to appreciate the aforesaid questions of law, ignoring the exhaustive facts of the issue in question, some relevant facts which are directly touching the issue are being considered.
5. The petitioner applied for the post of Registrar, Rajiv Gandhi National Aviation University (hereinafter referred to as University in short) on 14.8.2018. The petitioner was interviewed by the competent authority on 23.10.2018. On the basis of satisfactory interview the offer of appointment was issued to the petitioner on 1.3.2019 and the petitioner submitted his joining on the post of Registrar of the University on 8.4.2019. The petitioner has informed that since he had submitted his joining on the post of Registrar of the University on 8.4.2019 so that period would be expiring on 8.4.2022.
6. As per the offer of appointment dated 1.3.2019 such appointment of the petitioner was on contract basis for the period of three years as per Rajiv Gandhi National Aviation University Act No. 26 of 2013 (hereinafter referred to as Act, 2013 in short). Further, as per aforesaid offer of appointment the probation period was of one year from the date of appointment subject to further extension at the discretion of competent authority as per prevailing rules. However, the services of the petitioner might have been terminated during the period of probation by giving one months notice or by making payment of one months salary in lieu thereof.
7. Appointment, terms and condition of service of employees of the Rajiv Gandhi National Aviation University Fursatganj Raebareilly now District Amethi (hereinafter referred to as University) governed by the Act, 2013 and Rajiv Gandhi National Aviation University first Statutes. 2016 (hereinafter referred as to First Statutes).
8. Section 2 (y) of the Act. 2013 provides that "University" means the National Aviation University Established under this Act. Act.
9. Section 9 (1) of the Act, 2013 says that the President of India shall be the Visitor of the University.
10. Provided that the President may, by order, nominate any person to be the visitor and such person so nominated shall hold office for such term, not acceding five years as may be specify in the order and the person so nominated shall exercise the powers and discharge duties of the visitor.
11. Section 46(b) of the Act, 2013 says that the First Registrar of the University shall be appointed by the visitor and shall hold office for a term of three years.
12. Clause 28 of the first statute of the University deals with the removal of the employees of the University.
13. Section 2(l) defines 'employee' which means any person appointed by the University and includes teachers and other staff of the University.
14. Clause 28 further provides that on the allegation of misconduct the Executive Council of the University, in respect of teachers and other academic staff and the appointing authority in respect of other staff shall have the power to remove such employee by affording them a reasonable opportunity of showing cause against the action proposed to be taken.
15. The petitioner has drawn attention of this Court towards Annexure no. 1 which is an I.D. letter dated 26.12.2019 issued from the Secretariat of President of India (Rastrapati Sachivalaya), which reads as under :
"PRESIDENT'S SECRETARIAT (Rashtrapati Sachivalaya) Subject: Termination of Incumbent Registrar Shri Jitendra Singh of Rajiv Gandhi National Aviation University reg.
The Ministry of Civil Aviation may kindly refer to their I.D. Note No. AV-28060/16/2019-ER(NAU)(Pt) dated 17.12.2010 on the subject cited above.
2 The President, In his capacity as the Visitor of Rajiv Gandhi National Aviation University (RGNAU), is pleased to approve the proposal contained in para 2 of the summery note.\ (Pawan Kumar Sain) Director"
16. Since one I.D. Note dated 17.12.2019 has been referred in the letter dated 26.12.2019 (Annexure no. 1), therefore, the petitioner has drawn attention of this Court towards such I.D. Note dated 17.12.2019, which is contained as Annexure no. 2 to the writ petition, which reads as under :
"CONFIDENTIAL Government of India Ministry of Civil Aviation Subject : Termination of incumbent Registrar, Rajiv Gandhi National Aviation University, Shri Jitendra Singh This is regarding the proposal for termination of incumbent Registrar, Rajiv Gandhi National Aviation Uversity (RGNAU) Shri Jitendra Singh. The following points have been noticed against the Registrar, RGNAU, Shri Jitendra Singh:
a) Indiscipline
b) Gross insubordination
c) Breach of protocol (including while dealing with the office of the President of India)
d) Discourtesy and disobedience
e)Making unsubstantiated allegations and use of derogatory language against superior officers
f) Continued defiance of official orders
g) Obstructing an officer from discharging his duties
h) Conduct highly unbecoming of an officer,
i) Wrongful claim of transport allowance
j) Substandard performance Based on the above tests and evidences, it is proposed that
(i) The probation of Shri Jitendra Singh, Registrar, RGNAU may be terminated and that he may be removed from his position with immediate effect.
(ii) Smt Garima Singh Director, Ministry of Civil Aviation may be appointed as Acting Registrar till the new Registrar is appointed or until further orders, whichever is earlier
(iii) The selection process for the new Registrar of RGNAU may be initiated at the earliest.
3. The relevant file along with all the documents is enclosed herewith
4. This issues with the approval of Hon'ble Minister of State for Civil Aviation (I/c) sd/- Illegible (Amber Dubay) Joint Secretary to the Government of India
17. Pursuant to the letter dated 26.12.2019 (Annexure no. 1) the Under Secretary, Government of India, Ministry of Civil Aviation, issued an order dated 8.1.2020 which is contained as Annexure no. 7 to the writ petition, which reads as under :
"ORDER Order of the Competent Authority hereby conveyed for the termination of probation of Shri Jitendra Singh, Registrar, Rajiv Gandhi National Aviation University (RGNAU) with immediate effect, Shri Jitendra Singh, Registrar, RGNAU accordingly stands removed and relieved from the position of the Registrar, RGNAU with immediate effect.
2. Shri Jitendra Singh is directed to vacate the office of the Registrar, RGNAU immediately and also vacate the official residence within 7 (seven) days of the issue of a order. Shri Jitendra Singh is further directed to surrender the official IDs and other items issued to him immediately.
Sd/- Illegible (Kameshwar Mishra) Under Secretary to the Govt. of India"
18. The said authority has intimated the order dated 8.1.2020 to the petitioner vide letter dated 9.1.2020 which is contained as Annexure no. 3 to the writ petition, which reads as under :
it is hereby informed that as per order No AV 26000/16/2016-ER(P) dated 8.01 2020, your probation as Registrar, Rajiv Gandhi National Aviation University (RGNAU) was terminated Further, the Order dated 8.01.2020 directed for your removal and relieving from the position of Registrar, RGNAU with immediate effect.
2. You may please note that your services were terminated on the following grounds
i) Obstructing an officer appointed by the Government from discharging his duties.
ii) Fabricating a complaint of sexual harassment by involving two girl students of the university. The girl students were called by you on 30.11.2019 on Saturday in your office. The complaint was drafted by you and the two students were made to append their signatures to the complaint.
iii) For willful insubordination and indiscipline by exhibiting defiance to the official orders.
3. As per clause (ii) of the offer of appointment dated 01.03.2019, payment of sum equivalent to the emoluments of a month will be made to you, in lieu of the notice period of one month.
Sd/- Illegible (Kameshwar Mishra) Under Secretary to the Government of India Tele 24648983"
19. Referring the aforesaid enclosures the petitioner has submitted that the President of India being the appointing authority of the petitioner as a visitor of the University was pleased to approve the para 2 of the proposal bearing I.D. Note dated 17.12.2019 which is stigmatic in nature inasmuch as para 2 of the I.D. Note dated 17.12.2019 clearly indicates that the allegation / imputations against the petitioner vide 'a' to 'j' which are serious allegations and before accepting those allegations, the petitioner has not been afforded an opportunity of hearing of any kind whatsoever. If the services of the petitioner being probationer has been terminated on the basis of facts and evidences relating to 'a' to 'j' of I.D. Note dated 17.12.2019 without affording any opportunity of hearing to the petitioner, then the impugned orders / letter dated 26.12.2019 (Annexure no. 1) would be punitive order and such punitive order cannot be passed even against the probationer without affording an opportunity of hearing in conformity with the principles of natural justice.
20. Besides, the letter dated 9.1.2020 (Annexure no. 3) is addressed to the petitioner whereby in para 2 it has been categorically indicated that the services of the petitioner have been terminated on three grounds and all three grounds are casting stigma against the petitioner and such stigmatic order has been passed without even conducting any fact finding enquiry as the petitioner has not been associated with any fact finding enquiry nor any opportunity has been given to the petitioner to submit his bona fide, therefore, it may not be doubted that on account of serious allegations and expressions the services of the petitioner have been terminated.
21. The simple inference from aforesaid orders may not likely tobe drawn as if the services of the petitioner were not satisfactory during his period of probation but the serious allegation and aspersions against the petitioner as per I.D. Note dated 17.12.2019 (Annexure no. 2) and letter dated 9.1.2020 (Annexure no. 3) were having far reaching effect inasmuch as after the termination of the services of the petitioner vide letter dated 9.1.2020, the petitioner has not been given any appointment at anywhere.
22. The petitioner has lastly submitted that the University has issued an employment notification advertising the post of Registrar, Finance Officer and Consultant in the month of June, 2020 which is contained in Annexure no. 4 to the writ petition. He has submitted that since the services of the petitioner has been terminated illegally, therefore, he may be permitted to discharge his duties of Registrar in the University till expiry of the period of his employment i.e. up to 8.4.2022, ignoring the employment notification.
23. Per contra, Sri S.B. Pandey, learned Senior Advocate assisted by Sri Raj Kumar Singh, learned counsel for the opposite parties has submitted that since the order impugned has been passed from the Secretariat of the President of India, therefore, the said order is not amenable under the writ jurisdiction. He has further submitted that for terminating the services of the probationer the full fledged departmental enquiry would not be required and the services of such probationer may be terminated by giving one months notice or one months salary in lieu thereof and such exercise has been carried out in this case, therefore, the order impugned may not be interfered with. In support of his aforesaid argument Sri Pandey has drawn attention of this Court towards the dictum of Apex Court in re: Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences and another reported in (2002) 1 Supreme Court Cases 520 referring para 31 which reads as under :
31. Returning now to the facts of the case before us. The language used in the order of termination is that the appellant's "work and conduct has not been found to be satisfactory. These words are almost exactly those which have been quoted in Dipti Prakash Banerjee case as clearly falling within the class of non-stigmatic orders of termination. It is, therefore, safe to conclude that the impugned order is not ex facie stigmatic."
24. As per Sri Pandey in the aforesaid judgment the Apex Court has considered almost all relevant judgment of the Apex Court relevant for the issue in question right from Purshottam Lal Dhingra vs. Union of India reported in AIR 1958 SC 36, Radhey Shyam Gupta vs. U.P. State Agro Industries Corpn. Ltd. reported in (1999) 2 SCC 21, Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta reported in (1999) 3 SCC 60 and Chandra Prakash Shahi vs. State of U.P. reported in (2000) 5 SCC 152.
25. Sri Pandey has further submitted that the Apex Court has observed that when the probationer's appointment is terminated it means that the probationer is unfit for the job whether by the reason of misconduct or ineptitude, whatever the language used in the termination order may be.
26. Further, in the case of Pavanendra Narayan Verma (supra) the term used to terminate the services of the probationer was 'work and conduct has not been found to be satisfactory' and the Apex Court has held that it can, therefore, safely be held that the impugned order is not ex-facie stigmatic.
27. Therefore, even if the work and conduct of the petitioner has been considered by the competent authority being not satisfactory, that order cannot be treated as stigmatic, so the termination of the services of the petitioner should not be interfered with.
28. Having heard learned counsel for the parties and having perused the material available on record, at the very outset, I am going through the dictum of Apex Court in re: Pavanendra Narayan Verma (supra) being referred by Sri S.B. Pandey, learned Senior Advocate.
The Apex Court in re: Pavanendra Narayan Verma (supra) has considered the cases in re:
1. (2001) 9 SCC 319 2002 SCC (L&S) 53 : (2001) 1 Scale 196, Kishnadevaraya Education Trust v. L.A. Balakrishna
2. (2001) 3 SCC 117 2001 SCC (L&S) 534, H.F. Sangati v. Registrar General High Court of Kamataka
3. (2000) S SCC 152 : 2000 SCC (L&S) 613, Chandra Prakash Shahi v. State of U.P.
4. (2000) 3 SCC 239 : 2000 SCC (Cri) 606, V.P. Ahuja v. State of Punjab
5. (1999) 3 SCC 60 : 1999 SCC (L&S) Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta.
6. (1999) 2 SCC 21 : 1999 SCC (L&S) 439, Radhey Shyam Gupta v. UP State Agro Industries Corpon. Ltd.
7. (1991) 1 SCC 691 : 1991 SCC (L&S) 587 : (1991) 16 ATC 498, State of U.P. v. Kaushal Kishore Shukla
8. (1978) 1 SCC 405 AIR 1976 DC 851, Mohinder Singh Gill v. Chief Election Commr., New Delhi
9. (1976) 1 SCC 236 : 1976 SCC (L&S) 12, S.P. Vasudeva v. State of Haryana
10. (1974) 2 SCC 831: 1974 SCC (L&S) 500, Samsher Singh v. State of Punjab
11. (1967) 1 LLJ 718 (SC), Benjamin (A.G.) v. Union of India
12. AIR 1961 SC 177, State of Orissa v. Ram Narayan Das
13. AIR 1958 SC 36, Parshotam Lal Dhingra v. Union of India
14. AIR 1956 Bom 455 : 58 Bom LR 673, Shrinivas Ganesh v. Union of India
29. After considering all the aforesaid cases the Apex Court vide para 28 to 30 has observed that in order to amount a stigma an order must be in a language which imputes something over and above mere unsuitability for the job. Para 28 to para 30 reads as under :
28. Therefore, whenever a probationer challenges his termination the court's first task will be to apply the test of stigma or the "form" test. If the order survives this examination the "substance" of the termination will have to be found out
29. Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which Imputes something over and above mere unsuitability for the job.
30. As was noted in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences (SCC p. 73, para 28) "28. At the outset, we may state that in several cases and in particular in State of Orissa v. Ram Narayan Das it has been held that use of the word 'unsatisfactory work and conduct' in the termination order will not amount to a stigma."
30. The bare perusal of the aforesaid paras make it crystal clear that the language of the impugned order of termination would establish the nature of termination order, whether it is simplicitor or punitive. In the case in re: Pavanendra Narayan Verma (supra) the services of that petitioner was terminated saying that the 'work and conduct has not been found to be satisfactory' but in the present case the facts considered against the petitioner are that he committed 'indiscipline, gross insubordination, breach of protocol, discourtesy and disobedience' making unsubstantiated allegations and use of derogatory language against the superior officers, continued defiance of official orders, obstructing the officer from conducting duty, conduct highly unbecoming of an officer, wrongful claim of transport allowance and substandard performance. Not only the above the impugned order dated 9.1.2020 (Annexure no. 3) addressed to the petitioner clearly says that 'petitioner may please note that his services were terminated on the ground indicated in para 2 of that letter whereby the stigma has been casted against the petitioner.
31. Therefore, the language of the impugned orders in the present case imputes something over and above mere unsuitability for the job and, therefore, such impugned order should have not been issued against the petitioner without affording him an opportunity of hearing in conformity of principles of natural justice.
The Apex Court in re: Dipti Prakash Banerjee (supra) in para 19 has observed as under :
"19. As to in what circumstances an order of termination of a probationer can be said to be punitive or not depends upon whether certain allegations which are the cause of the termination are the motive or foundation. In this e area, as pointed out by Shah, J. (as he then was) in Madan Gopal v. State of Punjab1 there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. This very question was gone into recently in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd.2 and reference was made to the development of the law from time to time starting from Parshotam Lal Dhingra v. Union of India3 to the concept of "purpose of enquiry" introduced Shah, J. (as he then was) in State of Orissa v. Ram Narayan Das and to the seven-Judge Bench decision in Samsher Singh v. State of Punjab and to post-Samsher Singh case-law. This Court had occasion to make a detailed examination of what is the "motive" and what is the "foundation" on which the innocuous order is based."
32. The Apex Court in re : Nehru Yuva Kendra Sangathan vs. Mehbub Alam Laskar reported in (2008) 2 Supreme Court Cases 479 has observed that there exists a distinction between motive and foundation. If misconduct is foundation of such order, the same would be bad in law even if appears to be innocuous one. The Apex Court has further observed that only in the event of unsatisfactory performance by the employee the termination of probation would have been held to be justified. However, when the foundation for such an order is not unsatisfactory performance on the part of the employee but overt acts amount to misconduct, an opportunity of hearing to the employee concerned is imperative. In other words if the employee is found to have committed misconduct although an order terminating probation would appear to be innocuous on its face, the same would be vitiated if in effect and substance it is found to be stigmatic in nature.
33. In view of what has been considered above the reply to the question no. 3(i), (ii) and (iii) would be the services of the probationer during probation period can be terminated by the order of 'simplicitor' and to indicate that the services of the petitioner were not satisfactory during the probation period is not ex-facie stigmatic. However, for question no. 3(iv), I am of the opinion that in order to amount a stigma an order must be in a language which imputes something over and above, mere unsuitability for the job. In the present case the language of the impugned order imputes something over and above a mere unsuitability for the job and the alleged misconduct of the petitioner is a foundation of such order which is not limited to the unsatisfactory performance on the part of the petitioner but alleged overt acts of the petitioner amounts to misconduct, therefore, an opportunity of hearing must be provided to the petitioner. Therefore, all the questions are answered accordingly.
34. Now, I am considering the argument of Sri Pandey, learned A.S.G. that the order impugned has been passed by the President of India, therefore, on account of immunity granted to such office the impugned order may not be interfered.
35. Article 361 of the Constitution of India provides that the President or the Governor shall not be answerable to any court for the exercise and performance of the power and duties of his office or for any act done or purported to be done by him in exercise and performance of those powers and duties. This Article further provides that nothing in this clause shall be construed as restricted right of any person to bring appropriate proceedings against the Government of India or the Government of State.
36. Section 9(1) of the Act, 2013 provides that the President of India shall be the visitor of the University, therefore, such appointment of the petitioner has been made under the Act. For the University he acts as a statutory authority not as the President of India. The law is trite that the action of any statutory authority shall be subjected to the judicial review, therefore, the impugned order dated 26.12.2019 passed by the Visitor of the University under the statute may be subjected to judicial review and for that order no immunity may be granted for the reason that such order has been passed by the President as an ex-officio Visitor of the University. Therefore, the question no. 3(v) is answered in affirmative.
37. In view of the facts and circumstances and case laws so considered above, I hereby set aside / quash the letter dated 26.12.2019 (Annexure no. 1), I.D. Note dated 17.12.20129 issued by the Joint Secretary, Government of India, Ministry of Civil Aviation, New Delhi (Annexure no. 2), letter dated 9.1.2020 issued by Under Secretary, Government of India, Ministry of Civil Aviation, New Delhi (Annexure no. 3).
38. A writ in the nature of mandamus is issued commanding the opposite parties to reinstate the petitioner on the post of Registrar of the University with all consequential service benefits in terms of his offer of appointment dated 1.3.2019 ignoring the employment notification for making appointment on the post of Registrar etc. in the University.
39. Since the services of the petitioner has been terminated by means of punitive and stigmatic orders, therefore, the petitioner shall be treated in service with back wages. However, his term of appointment shall be governed with the offer of appointment of the petitioner dated 1.3.2019.
40. Compliance of the aforesaid order shall be made with promptness preferably within a period of one month from the date of receipt of certified copy of this order, failing which the petitioner shall be entitled for the interest on the dues as per the current market rate.
41. Accordingly, writ petition is allowed.
42. No order as to costs.
Order Date :- 17.9.2021 Om (Rajesh Singh Chauhan, J.)