# Jitendra Singh v. U.O.I. & Ors

- **Citation:** (2021) 9 ILRA 1017
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-17
- **Case number:** Service Single No. 2295 of 2021
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-singh-v-u-o-i-ors-47341
- **Pages:** 12

## Headnote

A. Service Law - Rajiv Gandhi National
Aviation
University
Act,
2013
-
Termination order - Nature - Simplicitor
or punitive, how it can be determined -
Held, the language of the impugned order
of termination would establish the nature
of
termination
order,
whether
it
is
simplicitor or punitive. (Para 30)
B. Service law - Termination order -
Opportunity of hearing - Principle of
Natural Justice - Held, 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
1018 INDIAN LAW REPORTS ALLAHABAD SERIES
affording him an opportunity of hearing in
conformity of principles of natural justice
- High Court set aside the impugned
order. (Para 31 and 37)
C. Service Law - Termination - Order
passed during probation period - Validity
- Held, 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. (Para 33)
Writ petition allowed. (E-1)
Cases relied on :-

## Text

9 All Jitendra Singh Vs. U.O.I. & Ors.
1017
provides for State endeavour to come out
with free and compulsory education for the
children and accordingly by Constitutional
(86th
Amendment)
Act,
2002,
the
Parliament also recognized ''Right to
Education' and after inserting Clause (k) in
Article 51A vide Section 4 of Constitution
(86th Amendment) Act, 2002, it enacted
the Act of 2009 which was given effect
from 1st April, 2010.

24. The qualification for appointment
of teachers is now governed by the Act of
2009 and Rules made thereunder. Section
12-A of the Act of 1993 cannot to operate
in conflict to the provisions of the Act of
2009 and notification issued therein. The
field is now occupied by the Act of 2009 to
provide
educational
qualification
for
appointment of teachers. Section 12-A of
the Act of 1993 would not apply only for
the reason that notification dated 23rd
August, 2010 was issued by the Council. It
was not under the Act of 1993 but the Act
of 2009. It is by the Council as an academic
authority. Under Section 23 of the Act of
2009, the Government of India had
nominated Council as academic authority
to
lay
down
the
qualification
for
appointment under the Act of 2009. The
proviso to Section 12-A cannot apply
dehors the Act of 2009 and Rules made
thereunder. Therefore, we are not inclined
to accept the argument of learned counsel
for the petitioner-appellants that even if the
appellants
were
not
possessing
TET
certificate, their appointments should not
have been cancelled in reference to the
circular of the Government.

25. t this stage, it is to be clarified that
even compassionate appointment cannot be
given dehors the statutory provisions only
in reference to the Government Order dated
4th September, 2000. The administrative
order cannot stand in conflict with statutory
provisions.

26. The elaborate discussion of all
other issues has been made by the learned
Single Judge and is not being challenged
other than argument in reference to Section
12-A of the Act of 1993. Finding no merit
in the arguments, appeals fail and are
dismissed accordingly.
----------
(2021)09ILR A1017
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.09.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 2295 of 2021

Jitendra Singh ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Dinesh Kumar Singh (D.K.S.

Counsel for the Respondents:
A.S.G., Raj Kumar Singh

A. Service Law - Rajiv Gandhi National
Aviation
University
Act,
2013
-
Termination order - Nature - Simplicitor
or punitive, how it can be determined -
Held, the language of the impugned order
of termination would establish the nature
of
termination
order,
whether
it
is
simplicitor or punitive. (Para 30)
B. Service law - Termination order -
Opportunity of hearing - Principle of
Natural Justice - Held, 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
1018 INDIAN LAW REPORTS ALLAHABAD SERIES
affording him an opportunity of hearing in
conformity of principles of natural justice
- High Court set aside the impugned
order. (Para 31 and 37)
C. Service Law - Termination - Order
passed during probation period - Validity
- Held, 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. (Para 33)
Writ petition allowed. (E-1)
Cases relied on :-
1. Pavanendra Narayan Verma Vs Sanjay Gandhi
PGI of Medical Sciences & anr.; (2002) 1 SCC 520
2. Purshottam Lal Dhingra Vs U.O.I. AIR 1958
SC 36
3. Radhey Shyam Gupta Vs U.P. State Agro
Industries Corpn. Ltd.; (1999) 2 SCC 21
4. Dipti Prakash Banerjee Vs Satyendra Nath
Bose National Centre for Basic Sciences,
Calcutta; (1999) 3 SCC 60
5. Chandra Prakash Shahi Vs St. of U.P.; (2000)
5 SCC 152
6. Kishnadevaraya Education Trust Vs L.A.
Balakrishna; (2001) 9 SCC 319 2002 SCC (L&S)
53 : (2001) 1 Scale 196
7. H.F. Sangati Vs Registrar General High Court of
Kamataka; (2001) 3 SCC 117 2001 SCC (L&S) 534
8. Chandra Prakash Shahi Vs St.of U.P. (2000) S
SCC 152 : 2000 SCC (L&S) 613
9. V.P. Ahuja Vs St. of Pun. (2000) 3 SCC 239 :
2000 SCC (Cri) 606
10. Dipti Prakash Banerjee Vs Satyendra Nath
Bose National Centre for Basic Sciences,
Calcutta; (1999) 3 SCC 60 : 1999 SCC (L&S)
11. Radhey Shyam Gupta Vs UP State Agro
Industries Corpon. Ltd.; (1999) 2 SCC 21 : 1999
SCC (L&S) 439
12. St. of U.P. Vs Kaushal Kishore Shukla;
(1991) 1 SCC 691 : 1991 SCC (L&S) 587 :
(1991) 16 ATC 498
13. Mohinder Singh Gill Vs Chief Election
Commr., New Delhi; (1978) 1 SCC 405 AIR 1976
DC 851
14. S.P. Vasudeva Vs St. of Har. (1976) 1 SCC
236 : 1976 SCC (L&S) 12
15. Samsher Singh Vs St.of Pun. (1974) 2 SCC
831: 1974 SCC (L&S) 500
16. Benjamin (A.G.) Vs U.O.I. (1967) 1 LLJ 718
(SC)
17. St. of Orissa Vs Ram Narayan Das; AIR 1961
SC 177
18. Parshotam Lal Dhingra Vs U.O.I.AIR 1958
SC 36
19. Shrinivas Ganesh Vs U.O.I. AIR 1956 Bom
455 : 58 Bom LR 673
20. Nehru Yuva Kendra Sangathan Vs Mehbub
Alam Laskar; (2008) 2 SCC 479

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

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.
9 All Jitendra Singh Vs. U.O.I. & Ors.
1019

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 exofficio 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
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
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. AV28060/16/2019-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
9 All Jitendra Singh Vs. U.O.I. & Ors.
1021

Subject
:
Termination
of
incumbent
Registrar,
Rajiv
Gandhi
National Aviation

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.
1022 INDIAN LAW REPORTS ALLAHABAD SERIES

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 :

"Shri Jitendra Singh,

Dated 9th January 2020

Ex-Registrar,

RGNAU,

Fursatganj,
Amethi
(UP),
Reabareli

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,
9 All Jitendra Singh Vs. U.O.I. & Ors.
1023
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."
1024 INDIAN LAW REPORTS ALLAHABAD SERIES

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
9 All Jitendra Singh Vs. U.O.I. & Ors.
1025

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
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
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 caselaw. 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
9 All Jitendra Singh Vs. U.O.I. & Ors.
1027
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.
1028 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2021)09ILR A1028
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE RAVI NATH TILHARI, J.

Writ C No. 494 of 2021

M/s Fiserv India Private Ltd., Noida
 ...Petitioner
Versus
The
Assist.
Director,
Directorate
of
Enforcement, Zonal Office, Lucknow, Govt.
of India & Anr. ...Respondents

Counsel for the Petitioner:
Sri Rahul Agrawal

Counsel for the Respondents:
C.S.C.

A. Company Law - Foreign Exchange
Management Act, 1999 - Section 13 -
Foreign
Exchange
Management
(Adjudication Proceedings and Appeal)
Rules, 2000: Rule 4

Initially, in the present case, the company was
incorporated as M/s Results India Systems
Private Limited and later on acquired by Fiserv
Group. To which the Court observed that it is
not the case that the M/s Results India stood
liquidated and changed its name and therefore
the control of the company was taken over by
different group. The company is a body
corporate
notwithstanding
change
of
its
management
its
existence
continues.
Therefore, in the eyes of the law, the legal
person committed the contravention of the
provisions of the FEMA with continued even
after changing its name. (Para 18)

The proceedings against the petitioner company
have been initiated in respect of not utilizing,
within
stipulated
period,
certain
export
advances. As utilization of those advances might
have to be proved by submitting information
and documents to the authorized dealer i.e., the
Bank, whether any export advance has been
utilized or not, within the prescribed period,
might not, on expiry of the stipulated period,
automatically come in the knowledge of the
enforcement directorate or the prosecuting
agency as it would depend on the mode and the
manner in which the information is shared with
the relevant authorities. Thus, whether the
enforcement
directorate
was
lethargic
in
prosecuting the defaulter is pure question of
fact and cannot be the basis of quashing a
show-cause notice at the threshold, which
otherwise discloses all the ingredients necessary
for initiated proceedings under FEMA. (Para 19,
20)

Writ Petition Rejected. (E-10)

List of Cases cited:

1. Adjudicating Officer, Securities and Exchange
Board of India Vs Bhavesh Pabari (2019) 5 SCC
90

2. Joint Collector Ranga Reddy District & anr. Vs
D. Narsingh Rao & ors. (2015) 3 SCC 695
(distinguished)

3. Sanghvi Reconditioners Pvt. Ltd. Vs U.O.I. &
ors. MANU/MH/3805/2017 (distinguished)

4. Shrish Harshvardhan Shah Vs Deputy
Director,
E.D.

MANU/MH/0635/2010
(distinguished)

5. M/s Keshav Marble and Granites Vs U.O.I.
S.B. Civil Writ Petition No. 12937of 2020

(Delivered by Hon'ble Manoj Misra, J.)

1. By this petition the petitioner has
sought quashing of a show cause notice
dated 30th September 2020 issued by the
Assistant
Director,
Directorate
of
Enforcement, Zonal Office, Lucknow (first
respondent)
thereby
calling
for
an
explanation
from
the
noticee
(the
petitioner)
as
to
why
adjudication