A. Janardhan vs Chairman and Managing Director, CMC Ltd. and Another

V. Rajagopala Reddy, J.—The petitioner, a graduate in Electronics and Telecommunications Engineering from the Institute of Electronics and Telecommunications Engineers, New Delhi, was appointed as Associate Development Engineer in 1980 in CMC Limited, CMC Centre, Hyderabad, a Government of India organisation, engaged in information technology service. He was later promoted as Senior Systems Engineer and meanwhile during that period he also secured Masters Degree in Advance Electronics from J.N.T.U., Hyderabad, with distinction. He received several appreciation and recognition awards for his service and had never received any adverse remarks in his service. He, however, left the organisation in 1989 and joined in Saline Water Conversion Corporation in Saudi Arabia. After he completed the assignment in Saudi Arabia for six years, the petitioner was appointed afresh as Project Manager at Hyderabad, and he joined as such on 16-5-1996. The appointment order dt. 14-5-96 along with annexures enclosed, contain the terms and conditions of his employment. The appointment was subject to the terms and conditions in Annexure-B attached to the letter of appointment and the rules and regulations of the Corporation. Para-2 of Annexure-B contains the terms of appointment. Paras 2.1 and 2.2 are relevant for our purpose, which are extracted hereunder :

"2. Terms of Appointment:

2.1 Every appointment is subject to the rules and regulations of CMC in force and as amended from time to time.

2.2 All confirmed and regular appointments in CMC are terminable at three months'' notice on either side. During the probation/ training period the notice period is one month on either side."

As per para 2.2 all the appointments are terminable on three months'' notice on either side. However, an employee on probation should be given one month''s notice before termination. One of the conditions in Annexure-B was that his appointment in CMC was treated as fresh appointment and that he was put on probation for a period of six months from the date of joining with the basic pay scale of Rs. 4300-8850/-. The petitioner was entitled to be confirmed, as per Annexure-A, on successful completion of his probation period. Accepting the above conditions, the petitioner joined in the organisation. The petitioner''s probation was extended by a period of 3 months upto 15-2-97, by a letter dt. 12-11-96, on the ground that the petitioner''s performance would have to be reviewed, as his performance was not up to the mark for confirmation. The petitioner alleges that Dr. Krishna Prasad and Mr. Srikumar, under whom he was asked to work, sent unsatisfactory reports to the higher officials as regards his performance, since they developed animosity towards him because he was more experienced in the field of executing projects on computers. The petitioner received the letter dated 12-2-97 from the 2nd respondent on 14-2-97 stating that his services were terminated w.e.f. 15-2-97. However, he was sought to be relieved on 17-2-97 as 15-2-97 happened to be a holiday. The above order of termination is under challenge in the instant writ petition.

The only contention that is advanced in the writ petition is that the order of termination was contrary to the appointment order for the reason that as per the terms and conditions the petitioner was entitled for one month''s notice prior to termination and since the impugned order does not precede with any notice, it was liable to be set aside.

However, the Counsel for the respondent-Corporation stoutly resists the contention advanced by the learned Counsel for the petitioner. He submits that the impugned order was not an order of termination at all. It was only a non-confirmation of the petitioner''s services, which does not require any notice. His services were not confirmed since his performance was not satisfactory and since the impugned order did not cast any stigma on the petitioner, no notice was necessary.

To appreciate the contention it is necessary to extract the impugned order, which reads as under :

"Subsequent to your appointment in CMC, we had reviewed your performance during the period of your probation period.

In our letter dt. Nov.12, 1996, we had informed you that your performance has not been upto mark for confirmation. Therefore, to enable you to come up to our expectations and improve upon the aspects mentioned in our letter dt. 12-11-1996, we had extended your probation period upto 15-2-1997.

Subsequent to the above, we have carefully reviewed your performance during the extended period of your probation. We regret to inform you that your performance has still not been upto mark. We are, therefore, terminating your services with the organisation with the closing hours of 15-2-1997. However, you will be relieved on 17-2-1997 as 15-2-1997 happens to be a holiday."

As per the appointment order, the period of probation was six months from the date of joining. The petitioner joined in the Corporation on 16-5-1996. On grounds of unsatisfactory performance, the period of probation was extended upto 15-2-1997. Till that date the petitioner continued to be on probation. The order of appointment dt. 14-5-96 explicitly stated that the petitioner''s appointment was subject to the terms and conditions communicated in Annexure-B. As per the terms of appointment in para 2.2 in Annexure-B, an employee, who is on probation, is liable to be terminated only after giving one month''s notice. As per Annexure-A an employee is entitled for confirmation on completion of his probation period. As per Annexure-A, as already noticed supra, the probation period is only for 6 months from the date of joining. However, it has been extended for a period of 3 months, upto 15-2-97. Thus, on the date of the impugned order dated 12-2-97, the petitioner was on probation, though his termination was ordered to take effect with the closing hours of 15-2-97. Admittedly the impugned order was passed without notice, which is contrary to the terms of appointment contained in para 2.2 of Annexure-B, which mandates the issue of one month''s notice of termination to a probationer. The contention that the petitioner''s probation came to an end on 15-2-97 and that the impugned order was not an order of termination, cannot be accepted. The impugned order categorically states that the petitioner''s services were terminated. It does not purport to say that the petitioner did not complete the probation successfully. In the light of the terms and conditions of appointment giving the benefit of one month''s notice to a probationer before his probation was terminated, it can safely be held that a probationer cannot be denied confirmation of his service thus terminating his services, without giving one month''s notice.

As contended by the learned Counsel for the respondent-Corporation, it is settled law that an order of termination of probation being not an order of punishment, the question of giving notice of hearing would not arise and that the order of discharging probationer did not attach any stigma to the probationer. However, the decision cited by the learned Counsel for the respondent-Corporation in Unit Trust of India v. T. Bijaya Kumar is not applicable to the facts of the instant case. The question that arose in the said case was whether termination of probation was "penal and stigmatic in character and springs from bias on the part of the officers of the appellant Trust." The Court, considering the language of the impugned order in that case and other circumstances, found that there was no material on record to conclude that it was smacked of bias or in any way mala fide or that any stigma attached to the probationer. It was also held that an order of discharge was not an order of punishment and therefore, there was no question of giving a hearing before termination of service. The above propositions are not disputed in the present case. The question that arises in the instant writ petition is different and that is whether the order of termination of employment of the petitioner was in accordance with the terms of order of appointment.

The other decision cited in Air-India Corporation, Bombay v. V.A. Rebellow was not a case of discharge or termination of probationer. The question was with regard to colourable exercise of power.

I am, therefore, of the view that the impugned order was not in accordance with the terms of appointment of the petitioner, which the Corporation is bound to follow. The respondent Corporation being a Governmental organisation is an authority under Article 12 of the Constitution and its actions are subject to Article 14 of the Constitution. Since the action of the respondent Corporation is arbitrary and violative of Article 14 of the Constitution a writ of mandamus will issue declaring the impugned order of termination as illegal and invalid.

Accordingly, the writ petition is allowed and the impugned order is set aside. In the circumstances, no costs.