# U.P.State Road Transport Corporation & others v. Jamal Ahmad & another

- **Citation:** (2012) 1 ILRA 494
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-04-12
- **Case number:** Civil Misc. writ Petition No. 30790 of 1998
- **Bench:** Sunil Hali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-state-road-transport-corporation-others-v-jamal-ahmad-another-42219
- **Pages:** 3

## Headnote

Constitution
of
India,
Article
226Termination during Probation periodLabor Court allowed claim-petition on
ground workman a probationer no right
of
hearing-not
available
where
termination order passed putting stigmainquiry and opportunity of hearing is
must.

Held: Para 5

In the present case, foundation of the
order is that he has managed to get an
employment on the basis of a certificate
which was found to be forged. This is a
1 All] U.P.State Road Transport Corporation & others V. Jamal Ahmad & another
495
matter which requires to be enquired
into and an opportunity has to be given
to the workman to rebut this plea.
Petitioner cannot invoke the principle
that since the workman is on probation
as such he has power to dispense with
his services, even if there is a case of
misconduct on the basis of which his
services have been terminated. It is
already stated herein supra, that the
foundation of the order determines the
scope of interference by the Court where
the order clearly mentions that the order
of discharge is based upon the fact that
the work of employee was not found to
be satisfactory than no judicial review in
such matter is permissible. But where
the order of discharge is founded on the
ground that there are allegations of
misconduct against the employer in that
eventuality the Courts have always
power to review the order on the ground
as to whether enquiry in the matter has
been conducted or not before issuance of
order of termination. In the present
case,
no
such
enquiry
has
been
conducted.
Case law discussed:
2011-Lawas (SC)-3-55

## Text

494 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

5. So far as the second ground raised
by the petitioner is concerned, suffice is to
record that the minimum qualifications
prescribed for appointment on the post of
Headmaster have been laid down in Rule
8 of the Rules, 1981. Training is a must
for
appointment
on
the
post
of
Headmaster/Headmistress in senior basic
schools as well as in junior basic schools.
Admittedly, the petitioner is not possessed
of any training qualification as on date. In
absence of his being possessed of the
prescribed minimum qualification for
such
appointment
on
the
post
of
Headmaster,
as
per
the
statutory
provisions applicable, the Basic Shiksha
Adhikari appears to be justified in holding
that the petitioner cannot be promoted on
the post of Headmaster/Headmistress.

6. So far as the claim of parity is
concerned, it may be recorded that the
Hon'ble Supreme Court of India in the
case of Ghulam Rasool Lone vs. State of
Jammu & Kashmir, reported in JT 2009
(13) SC, 422 has held that there cannot
be
any
negative
equality
and
no
mandamus can be issued by a writ court
asking the State authorities to perpetuate
the illegality. Therefore said contention is
also repelled.

7. This Court, however, directs that
respondent no. 1 shall take all necessary
steps
requiring
the
Basic
Shiksha
Adhikari of the district concerned to
ensure that no person, who is not
possessed of the prescribed minimum
qualification as per Rule 8 of the Rules
1981, is appointed and permitted to work
on the post of Headmaster/Headmistress,
if any such appointment has been made,
the same is recalled immediately in
accordance with law.

8. Petitioner is at liberty to file a
certified copy of this order before the
Secretary, who shall take appropriate
action within four weeks from the date a
certified copy of this order is filed before
him.

9.

With
the
aforesaid
observation/direction the present writ
petition is disposed of.
---------
ORIGINAL JURISDICTION'
CIVIL SIDE
DATED: ALLAHABAD 12.04.2012

BEFORE
THE HON'BLE SUNIL HALI, J.

Civil Misc. writ Petition No. 30790 of 1998

U.P.State Road Transport Corporation &
others

 ...Petitioner
Versus
Jamla Ahmad & another ...Respondents

Counsel for the Petitioner:
Sri Vivek Saran
Sri R.A. Gaur

Counsel for the Respondents:
S.C.
Sri A.M. Zaidi
Sri M.H. Khan

Constitution
of
India,
Article
226Termination during Probation periodLabor Court allowed claim-petition on
ground workman a probationer no right
of
hearing-not
available
where
termination order passed putting stigmainquiry and opportunity of hearing is
must.

Held: Para 5

In the present case, foundation of the
order is that he has managed to get an
employment on the basis of a certificate
which was found to be forged. This is a
1 All] U.P.State Road Transport Corporation & others V. Jamal Ahmad & another
495
matter which requires to be enquired
into and an opportunity has to be given
to the workman to rebut this plea.
Petitioner cannot invoke the principle
that since the workman is on probation
as such he has power to dispense with
his services, even if there is a case of
misconduct on the basis of which his
services have been terminated. It is
already stated herein supra, that the
foundation of the order determines the
scope of interference by the Court where
the order clearly mentions that the order
of discharge is based upon the fact that
the work of employee was not found to
be satisfactory than no judicial review in
such matter is permissible. But where
the order of discharge is founded on the
ground that there are allegations of
misconduct against the employer in that
eventuality the Courts have always
power to review the order on the ground
as to whether enquiry in the matter has
been conducted or not before issuance of
order of termination. In the present
case,
no
such
enquiry
has
been
conducted.
Case law discussed:
2011-Lawas (SC)-3-55

(Delivered by Hon'ble Sunil Hali,J. )

1. Petitioner was appointed as
Cleaner on 26.9.1998 for a period of one
year and was put on probation for the said
period. At the time of appointment he had
produced a certificate of training of I.T.I.,
Hameerpur. It transpires from the record
that the certificate was verified from the
Principal of the I.T.I. Hameerpur and on
verification of the same it is found to have
not been issued by the said Principal and a
communication dated 28.7.1999 to this
effect has been issued by the Principal of
I.T.I. Hameerpur. The claimant services
were
terminated
on
23.3.1999.
An
Industrial Dispute was raised by the
employee before the Labour Court and the
Labour Court vide its order dated
7.11.1997 allowed the claim and set aside
the order of termination. It is this order
which is subject matter of challenge
before this Court.

2. Case of the petitioner is that the
workman was under probation and it is
during this period it was found that a
certificate which he had produced was
found forged. This was based upon a
communication of the Principal of I.T.I.,
Hameerpur dated 28.7.1999 and being a
probationer the workman had no right to
be heard in the matter. Learned counsel
for the petitioner has placed reliance on
the case of the Hon'ble Apex Court in
Rajesh Kumar Srivastava Vs State of
Jharkhan
reported in
2011-Lawas
(SC)-3-55.

3. Heard learned counsel for the
parties and perused the material on
record.

4. There is no dispute with this
proposition of law that where a person who
is placed on probation can be discharged
during period of probation. No enquiry in
the matter is required in this behalf. The
object of placing a person on probation is
to enable the employer to adjudge the
suitability of an employee for continuation
in service and also for confirmation in
service. During period of probation his
activities are generally under scrutiny and
on the basis of his over all performance a
decision is generally taken by the
employers as to whether his service should
be confirmed or he should be released
from service. Once the decision to this
effect is recorded by the employer the
option is either to confirm his services or
to release him from service. But where the
order of termination is based upon a
complaint that the certificate procured by
496 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the workman is forged which is foundation
of the termination order then the principle
of discharge simplicitor cannot be applied.
Satisfaction
of
the
employer
which
empowers him to order the discharge of an
employee is only to assess the suitability of
a person to be retained in service or not.
Any act of the employer unconnected with
the purpose which results the termination
of an employee then the veil has to be
lifted in order to find out the purpose for
such termination. Once it is disclosed that
services of the employee are terminated for
some misconduct even if he is on
probation then the enquiry in the matter is
required to be conducted.

5. In the present case, foundation of
the order is that he has managed to get an
employment on the basis of a certificate
which was found to be forged. This is a
matter which requires to be enquired into
and an opportunity has to be given to the
workman to rebut this plea. Petitioner
cannot invoke the principle that since the
workman is on probation as such he has
power to dispense with his services, even if
there is a case of misconduct on the basis
of
which
his
services
have
been
terminated. It is already stated herein
supra, that the foundation of the order
determines the scope of interference by the
Court where the order clearly mentions
that the order of discharge is based upon
the fact that the work of employee was not
found to be satisfactory than no judicial
review in such matter is permissible. But
where the order of discharge is founded on
the ground that there are allegations of
misconduct against the employer in that
eventuality the Courts have always power
to review the order on the ground as to
whether enquiry in the matter has been
conducted or not before issuance of order
of termination. In the present case, no such
enquiry has been conducted.

6. In this view of the matter, I do not
find any reason to interfere in the
impugned order. The impugned order do
not suffers from any illegality or infirmity.
The writ petition lacks merits and is hereby
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.04.2012

BEFORE
THE HON'BLE BHARATI SAPRU,J.

Civil Misc. Writ Petition No. 41702 of 1998

Abhilash Kumar

 ...Petitioner
Versus
State of U.P. & another ...Respondents

Counsel for the Petitioner:
Sri V.C.Srivastava
Sri C.B.Yadav
Sri V N Yadav

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 226-Right
of appointment-petitioner selected as
Police Constable-not allowed to join
Training-on
allegation
of
false
deceleration in application form-inspite
of interim order-not enforced within an
year-subsequent
acquittal-immaterialheld-person propensity to perpetuate
falsehood not entitled to be a member of
disciplinary force-case law relied by
petitioner-distinguishable
considering
facts and the circumstances-petitioner
dismissed.

Held: Para 17, 18 and 19

Thus in my opinion, the petitioner
deserves no relief. It may also be stated
here that despite interim order given by