Perceived Unfairness Of 'Hire & Fire' Policy Substantially Diluted If Sufficient Notice Is Given To Employee To Respond To Charges: Calcutta HC

The Calcutta High Court has recently observed that the perceived unfairness of a 'hire and fire policy' or a clause of summary dismissal is substantially diluted if an employee is given sufficient opportunity to respond to the charges levelled. 

Opining that Courts intervene only if the principles of natural justice is found to have been violated, Justice Moushumi Bhattacharya observed, 

"The perceived unfairness of a "hire and fire" policy or a clause of summary dismissal is substantially diluted where sufficient notice is given to the employee to respond to the charges made against the employee. Courts usually intervene and rectify a situation where a clear breach of the rules of natural justice is established on fact or where the notice of termination is opaque and indecipherable in failing to disclose reasons for the sudden dismissal."

The Court further opined that in several sectors, such conditions of summary dismissal may be necessary for maintaining disciplinary standards and also for ensuring the competence levels of employees. 

"The words "hire and fire" carry a sense of an inherent and abrupt injustice. The underlying imputation is one of summary dismissal without an opportunity of a meaningful say in the decision of dismissal. There are also several sectors where the persons are employed under the condition of a summary dismissal on the happening of certain events. In other spheres, these conditions may be seen as necessary for maintaining disciplinary standards and the competence levels of employees", the Court opined further. 

Reliance was also placed on the Supreme Court judgment in Krishnadevaraya Education Trust v. L.A. Balakrishna wherein the Apex Court had held that the employer is entitled to assess the suitability of an appointee and has a right to terminate the services if the services are found to be unsatisfactory.

Background 

In the instant case, the petitioner had sought for the cancellation of a letter dated July 19, 2021 by which he was asked to discontinue his service as Assistant Professor in Bio-Sciences effective from August 19, 2021. The petitioner had also sought for an order declaring Clause 6 of the letter of appointment dated February 27, 2021 to be declared as illegal and null and void.

Clause 6 of the letter of appointment provided for termination with the management reserving the right to terminate the services of the petitioner without any notice in case of misconduct and violation of the rules of the University.

The petitioner had joined the University on March 5, 2021 and thereafter on June 11, 2021 the Vice-Chancellor of the University had issued a letter evaluating the performance of the petitioner. The letter contained several allegations pertaining to the petitioner's failure to fulfil certain responsibilities. 

The petitioner was given seven days to respond to the issues raised in the letter and was further informed that the University will thereafter decide whether the petitioner's service is required or not. The impugned letter of discontinuation was issued thereafter on 19th July, 2021.

This was followed by a letter of apology dated July 23, 2021 from the petitioner undertaking to abide by the terms and conditions of the University. The petitioner also requested the University to withdraw the letter of discontinuation and give an opportunity to the petitioner to continue with his service.

The petitioner vide letter dated August 2, 2021 sought to know the facts and circumstances and the specific points in relation to Clause 6 of the appointment letter. Thereafter, the petition was filed on August 18, 2021. 

Observations 

The Court noted that the letter of discontinuation cannot be seen as a bolt from the blue or said to have completely caught the petitioner unawares since the petitioner was put on notice of his less than satisfactory performance by the letter dated June 11, 2021 from the Vice-Chancellor.

It was further noted that the concerned letter contained the particulars of the inadequacy of the petitioner's performance and the fact that the petitioner was not attending pre-submission seminars or submitting detailed project reports. The Court further took into consideration that the letter had also given an opportunity to the petitioner to respond to the contents of the letter or seek clarification with regards to the same. The petitioner was also informed that if the petitioner fails to respond, the University would take a decision on whether the petitioner's services would be continued.

Opining that adequate opportunity was given to the petitioner before the impugned letter of discontinuation was issued and that the petitioner had himself accepted the inadequacy of performance, the Court underscored, 

"The chain of correspondence indicates that not only was adequate notice given to the petitioner before the impugned letter of discontinuation but also that the petitioner acknowledged and accepted the charges of failure/ inadequacy of performance. The documents hence belie the contention of the petitioner that the petitioner was an innocent victim of a "hire and fire" policy of the University in breach of the principles of natural justice. The documents also run contrary to the stand of the petitioner, namely, that the letter of discontinuation read with Clause 6 of the appointment letter violates the right to a fair hearing since the petitioner chose not to respond to the letter dated 11th June, 2021 by which the petitioner was given an opportunity to answer to the charges made against him."

The Court further opined that the ratios laid down in Supreme Court decisions in Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly and Videsh Sanchar Nigam, Ltd v. Dipali Bandopadhyay would not be applicable as due process had been adhered to in the instant case. 

The Court noted that in the instant case, although the letter of appointment does not indicate whether the petitioner was taken on probation, the admitted fact is that the petitioner had just completed four months in service when the impugned letter of discontinuation was served on the petitioner.

Opining that there is no 'unequal bargaining power' between the petitioner and the University authorities, the Court further observed, 

"There is admittedly no element of an unequal bargaining power between the petitioner and the respondent or any sense of the petitioner being in a position of comparative weakness which could have forced the petitioner to accept an unreasonable term in a contract. Moreover, the letter of appointment entails an unmistakable flavour of a contract of personal service between the petitioner and the University and the University being established by a statute does not diminish that flavour. Clause 6 of the terms under the appointment letter may also be seen as a facilitator for preserving the excellence of the University and to safeguard the interest of students."

Accordingly, the Court ruled that considering the sequence of correspondence exchanged between the petitioner and the University, it is unable to accept the contention that Clause 6 of the letterof appointment is discriminatory and should be declared null and void on that basis or that the impugned letter of discontinuation dated July 29, 2021 should be revoked in the facts of the case.

Case Title: Dr. Kausik Paul v. Seacom Skills University and Others

Case Citation: 2022 LiveLaw (Cal) 93

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