A.K. Singh vs Union of India

J.K. Ranka, J.—Instant writ petition has been filed by the petitioner assailing the order dt. 27/02/2013 passed by the Central Administrative Tribunal (for short, ''Tribunal") by which the Original Application (for short, ''OA'') preferred by the petitioner challenging the termination order dt. 13/11/2010 has been dismissed.

The Brief facts, as emerging from the material available on record, are that the petitioner, after being selected through the regular process of selection, was appointed on the post of Civilian Switch Board Operator Grade II on probation initially for a period of two years vide order dt. 04/06/2006, however, his probation period was extended by one year vide order dt. 31/10/2008. Vide order dt. 19/09/2009, the period of probation of the petitioner was again extended for a period of one year with the advise to improve in regard to certain aspects as mentioned in the order dt. 19/09/2009. Thereafter, the respondents issued an order/communication dt. 13/11/2010 communicating the petitioner that his services shall stand terminated with effect from the date of expiry of a period of one month from the date on which the notice is served on or, as the case may be, tendered to him.

The petitioner, appearing in person, submits that he challenged the termination order dt. 13/11/2010 by filing OA before the Tribunal and it was contended before the Tribunal that neither any complaint was there against the petitioner nor any show cause notice was issued to him to improve his performance. It was also contended that the attendance register did not indicate that he was not punctual and after extension of probation period for one year, he continued to perform his duties to the best of his ability and no reason has been assigned in the order of termination whereas his services have been terminated by applying provisions of CCS (Temporary Services) Rules, 1965.

We have heard the petitioner in person and also perused the impugned order as well as other material on record.

It reveals from the reply submitted by the respondents before the Tribunal that the petitioner was appointed on probation for a period of two years and he completed his two years of probation period w.e.f. 04/06/2008 but due to adverse remarks in his assessment report for the period from 05/06/2006 to 04/06/2008, his probationary period was extended to watch his further performance for a period of one year vide order dt. 31/10/2008 and the petitioner was further assessed during May/June, 2009 but no improvement in his performance was noticed but despite that he was again recommended for extension of probationary period for another one year vide order dt. 19/09/2009 with the advise to improve his performance on the points as referred to in the order dt. 19/09/2009 itself and the petitioner was again assessed during May/June, 2010 but with poor grading by the Reviewing Officer and accordingly he was not considered to be fit for retention in service by the Review Board on 20/10/2010 and recommended for discharge from service and notice for discharge from service was issued to him for termination of his services under Rule (5)(1) of the CCS (Temporary Services) Rules, 1965 vide order impugned.

As regards the contention of the petitioner that he was not given opportunity to improve his performance, the Tribunal, after taking into consideration the material, which came on record, arrived at a finding that the petitioner was given opportunity to improve his work while extending his probation period vide order dt. 31/10/2008 and thereafter, again while further extending his period of probation, his weak points were mentioned and he was advised to improve. The Tribunal arrived at a further finding that the order of extension of probation period dt. 31/10/2008 and further order of extension of probation period dt. 19/09/2009 issued by the respondents, clearly proves that the weak points of the petitioners were brought to his notice time and again and he was given chance to improve his work. So far as the contention of the petitioner that no reason has been assigned by the respondents while terminating his services vide order impugned, is concerned, the Tribunal considered the OM dt. 22/06/1956 issued by the Government of India, Ministry of Home Affairs, which provided that ''when action is taken under Rule 5 to terminate the services of a temporary employee, the order of termination, which should be passed by the appointing authority, should not mention the reasons for such termination and the Tribunal accordingly arrived at a finding that as per the said OM reasons for such termination are not required to be mentioned in the order impugned.

We have also carefully perused Rule 5 of the CCS (Temporary Service) Rules, 1965 which is quoted as under:-

"5. Termination of Temporary Service

(1)(a) The services of temporary Government servant shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant:

(b) the period of such notice shall be one month:"

We have also carefully perused the OM No. 39/14/56-Estt.(a) dt. 22/06/1956 issued by the Government of India, Ministry of Home Affairs which provides as under:-

"(4) Reasons should not be mentioned in the termination order.-

When action is taken under Rule 5 to terminate the services of a temporary employee, the order of termination, which should be passed by the appointing authority, should not mention the reasons for such termination."

In our view, the Tribunal has correctly considered the issue at hand and since the petitioner was appointed as a probationer, his services were liable to be terminated if not found satisfactory during the period of probation. The Tribunal, in our view, has rightly held that terminating services of the petitioner under the above rules cannot be said to be illegal.

The Hon''ble Apex Court, in the case of Satya Narayan Athya Vs. High Court of M.P. and another, , while considering the issue of a Judicial Officer, who was on probation, held in Para No. 5 as under:-

"5. Under the circumstances, the High Court was justified in discharging the petitioner from service during the period of his probation. It is not necessary that there should be a charge and an enquiry on his conduct since the petitioner is only on probation and during the period of probation, it would be open to the High Court to consider whether he is suitable for confirmation or should be discharged from service."

The Hon''ble Apex Court, in the case of Oil and Natural Gas Commission and Others Vs. Dr. Md. S. Iskender Ali, , held in Para 9 that as the respondent was merely a probationer, the appointing authority did not consider it necessary to continue the enquiry but decided to terminate services of the respondent as he was not found suitable for the job. It further observed that in the case of a probationer or a temporary employee who has no right to the post such a termination of his services is valid and does not attract the provisions of Article 311 of the Constitution.

The Constitution Bench of the Hon''ble Apex Court comprising of seven Hon''ble Judges, in the case of Samsher Singh Vs. State of Punjab and Another, , observed as under:-

"Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this....

The fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of punishment... A probationer whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311(2)....

An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article 311. Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct."

This Court, in the case of Kanwar Singh Vs. Union of India (UOI) and Others, had occasion to consider the identical issue under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965, observed as under:-

"21. Keeping in view, the above propositions of law, we are of the considered opinion that there is nothing wrong with the vires of Rule 5 of CCS (Temporary Services) Rules and that the said Rule is intra-vires and not ultra-vires of the Constitution as contended by the learned Counsel for the petitioner. We are further of the view that there is no discrimination nor there is any violation of Articles 14 & 16 of the Constitution of India and that there is no violation of principles of natural justice.

If the termination of a temporary employee has been ordered by the management or by the Government as in this case, the said order of termination which has been passed in bona fide exercise of power is not open to challenge and that no interference is called for in such matters. In this case, since the petitioner had voluntarily accepted the appointment as driver/constable in C.R.P.F. on temporary basis knowing fully well the implications of his appointment, it is not open to him at a later stage to challenge the termination order since the respondents were not satisfied with the services of the petitioner and the petitioner had already been directed to be given the pay and allowances in lieu of notice period of one month as admissible under the law. Hence, in any event no prejudice has been caused to the petitioner who was admittedly a temporary employee of C.R.P.F."

It is not for this Court to assess the work and conduct of the petitioner. As aforesaid, the law of probation is well settled. Ordinarily, even on the expiry of the probation period, there is no automatic confirmation and the person continues on probation even after the expiry of the period mentioned in the appointment letter until and unless a positive order of confirmation is passed.

After perusing the records including the order impugned passed by the Tribunal, do not find any cogent material which may controvert the findings recorded by the Tribunal and that being so, we do not find any manifest error being committed by the Tribunal in passing the order impugned which may call for interference of this Court u/Art. 227 of the Constitution of India.

Consequently, the writ petition, being devoid of merit, is hereby dismissed.