Isabella Mariam

The High Court of Calcutta Division Bench of Justice Tapabrata Chakraborty and Justice Partha Sarathi Chatterjee dismissed an appeal by an engineering institute’s governing board, thereby affirming a Single Judge’s order that had set aside the termination of the institute’s superintendent during probation. The dispute arose from the employer’s reliance on allegations that the probationer had withheld information about a criminal case and had engaged in conduct said to include unauthorised absence and involvement in a tender process. The Division Bench held that the termination order could not be sustained on the record and declined to interfere with the Single Judge’s decision, also refusing to stay its own judgment.

The employee was appointed on a provisional basis and placed on probation for a specified period, during which the employer retained discretion to assess suitability. The termination order was issued while the employee was still treated as being on probation and cited alleged unauthorised absence and involvement in a tender process involving substantial financial implications. It also referred to the employee’s alleged suppression of information regarding a criminal case.

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The employee challenged the termination before the High Court through a writ petition, contending that he had disclosed the pendency of the criminal case at the time of appointment, that the allegations of unauthorised absence were unfounded, and that the tender process relied upon had been scrapped. It was further asserted that the termination order was stigmatic and punitive, having been passed without holding any disciplinary enquiry.

The employer opposed the writ petition and subsequently the appeal, contending that a probationer has no vested right to continuation, that suitability can be assessed during probation, and that the termination was a discharge simpliciter in accordance with service conditions. Reliance was placed on judicial precedents dealing with probation, confirmation, and employer discretion.

The Single Judge allowed the writ petition and set aside the termination order. The employer carried the matter in appeal before the Division Bench, challenging the findings of the Single Judge and asserting that no interference was warranted.

The Division Bench examined the nature of termination of a probationary employee and reiterated the settled distinction between termination simpliciter and punitive discharge. The Court observed that “there is no dispute as regards the proposition of law that the termination of services of a probationer under the rules of his employment is neither per se dismissal nor removal”, but clarified that “if the order visits the employee with evil consequences or casts aspersions against his character or integrity, it would be an order by way of punishment”.

On examining the termination order, the Court recorded that “going by the tenor of the impugned order of termination, it is incomprehensible as to how the same can be construed as termination simpliciter”. The Bench noted that the order expressly attributed unauthorised absence and irregularities in a tender process to the employee and stated that “the form and language of the impugned order of termination clearly indicates that it is punitive in nature”.

The Court further observed that “the desirability towards issuance of the termination order was based on allegation of misconduct and as such the impugned order of termination cannot be construed to be an order of simple discharge”. It was recorded that the allegations relied upon were unfounded, since “in the midst of the period of alleged unauthorized absence [the employee] was given additional duties and the tender referred to was scrapped”.

Addressing the criminal case disclosure, the Court noted that the Single Judge had rightly found that disclosure was made and observed that “to find unsuitability on a police case subsequent to PVR… without giving opportunity to petitioner to explain, is something that does not appeal to this Court”. It further recorded that “a pre-requisite cannot relate to a subsequent event”.

On precedents cited by the employer, the Bench stated that “there is no dispute with the proposition of law laid down” therein, but recorded that “the same are distinguishable on facts”. The Court also took note of the surrounding circumstances and observed that “such circumstances preceding and attendant on the order of termination of service visits the public servant on probation with evil consequences and it cannot be ruled out that the said order was issued by way of punishment”.

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The Division Bench recorded that “we do not find any infirmity in the order impugned” and further stated that “the learned single Judge upon dealing with the factual issues arrived at specific findings and we do not find any error in the same warranting interference in appeal”.

Accordingly, the Court directed that “the appeal and the connected application, if any, are dismissed”. The Bench also ordered that “there shall, however, be no order as to costs”. A subsequent prayer seeking stay of operation of the judgment was considered and “rejected”.

Advocates Representing the Parties

For the Appellants: Mr. Md. Sarwar Jahan, Ms. Mousumi Mitra, Mr. Gourav Das, Ms. Tapati Sarkar, Mr. Asif Mehedi, Ms. Shalini Sen, Ms. Sahina Parvin, Mr. Soumyajit Roy Choudhury

For the Respondents: Mr. Kallol Basu, Advocate, Mr. Swapnamoy Sarkar, Advocate, Mr. Anil Kr. Gupta, Advocate (for UGC)

Case Title: The Board of Governors, Ghani Khan Choudhury Institute of Engineering & Technology & Ors. vs Deb Halder & Ors.
Neutral Citation: 2026: CHC-AS:112-DB
Case Number: FMA 2046 of 2018
Bench: Justice Tapabrata Chakraborty, Justice Partha Sarathi Chatterjee