Bhuwan Chandra Joshi vs State of U.P.and another

B.C. Saxena, J.—The petitioner who was working on the post of Orderly in the U.P. Waqf Vikas Nigam Ltd., Lucknow, feeling aggrieved by an order dated 5191, terminating his services, has filed this writ petition.

The brief facts are that the petitioner, who was an Intermediate passed, joined as a Class IV employee with U.P. Waqf Vikas Nigam Ltd. Lucknow on 2111988. Initially he was appointed on daily wage basis. Subsequently Committee of three members, which was constituted to make recommendations about the suitability of the employees to fill up certain Class IV posts, considered the petitioner''s candidature on 30th of December, 1989 recommended for his appointment against the regular post of Orderly. The Managing Director by an order dated 30th of December, 1989 passed the appointment order, copy of which is Annexure 2 to the writ petition. A perusal of the same shows that the petitioner was appointed on probation for a period of one year which period was stipulated to be extended for another one year. The petitioner''s services have been terminated by the Managing Director by his order dated 5191.

Counteraffidavit has been filed on behalf of opposite party no. 2. The petitioner filed his rejoinderaffidavit and also sought to amend the petition and take up certain other legal pleas. The amendment has been allowed and it has been incorporated.

On behalf of oppositeparties a short counteraffidavit, in reply to the rejoinderaffidavit, has been filed.

I have heard the learned counsel for the petitioner and learned counsel for opposite party no, 2. The opposite party no. I has not filed any counteraffidavit and it is in the nature of proforma opposite party.

The learned counsel for the petitioner urged that by the order of appointment dated 30th December, 1989 the petitioner who was placed for probation for one year, he submitted that the petitioner had successfully completed one year of probation and the period of probation has not been extended. It has been averred in the writ petition that the petitioner''s work and conduct has all along been satisfactory and he has not been given any warning or adverse entry. The order of termination is not an order simpliciter and amounts to an order of dismissal from service and the petitioner has been denied any opportunity to show cause nor has been apprised of any shortcomings in his work at any time. In the counteraffidavit it has been stated that the work and conduct of the petitioner was not satisfactory and there were several complaints against his work and conduct. A copy of the complaint has been annexed as Annexure C3 to the counteraffidavit. It has been further stated in the counteraffidavit that no person junior to the petitioner is working in the Nigam and since the petitioner''s retention in the service was against the interest of the Corporation the services were terminated. Annexure C3 shows that a note was put up by one Zakir Khan by which it was stated that the Managing Director has informed that the petitioner does not take interest in his work and does not report for duty in time and does not perform the work entrusted to him satisfactorily. From the pleadings of the parties it appears that one Sri Majid Ali has taken over as Managing Director of the Nigam on 16th October, 1990 and was relieved from the said post on 19th November, 1990 and one Dr. M.A. Khan took over on 27th December, 1990. Note put up by Zakir Ali for orders by the Managing Director remained pending. Again a note was put up on 3rd of January, 1991 by one Sri Mirazul Haq, General Manager for consideration of the Managing Director. In this note it was stated that because of the transfer of the earlier MD no action was taken on the earlier note. The Managing Director again reiterated that the work of the petitioner is unsatisfactory and he has indicated that he is a T.B. patient. On a consideration of the said note the Managing Director ordered for termination of the petitioner''s services. The termination order has been issued by the Managing Director on 5th of January, 1991.

In the rejoinderaffidavit a document has been filed as Annexure R2, purporting to be the annual character roll entry for the period 301289 to 30990. In the shortcounteraffidavit, filed in reply it has been averred that this entry is not on the record of the Nigam. It has been pleaded that it is a. confidential document and the petitioner has not indicated the source from where he obtained the same. Another document filed as Annexure R1 also shows that in consideration of their hard work and cooperation extended by them an honorarium has been awarded by the General Manager to six employees. The petitioner''s name has also been included therein and an honorarium for Rs. 200 has been given to him. The same is not disputed.

In these facts the learned counsel for the petitioner urged that the petitioner''s work and conduct has been satisfactory. Annexure C3 has been manipulated to make out a case for the termination of the petitioner''s services since he has already completed one year of probation and the same has not been extended.

The learned counsel for the petitioner relying on a decision reported in 1992(5) SLR page 421 Smt. Rameshwari Devi v. Maharishi Dayanand University and others urged that the petitioner has completed one year of probation and it was not extended, the termination order treating him to be a temporary employee is illegal. The said decision is by a learned Single Judge of Punjab and Haryana High Court. The said decision turned on a interpretation of Rule 15 of the Services and Conduct Rules for non teaching employees of the University. The said Rule was specific and provided that if on completion of the initial period of probation the period is not extended, the probation period would be deemed to have been completed satisfactorily and on that basis the employee will be deemed to have been confirmed accordingly. In the instant case no service Rule has been relied upon. May be, none exists. The said decision is therefore not of any help.

The learned counsel for the petitioner also cited a decision of the Supreme Court reported in 1989 SCD page 767 Dr. Mrs. Sumti P. Shere v. Union of India and others. The appellant in that case was appointed on ad hoc basis for a period of six months or till regular candidate from the Union Public Services Commission became available whichever was earlier. She was continued on services by giving her successive extension from time to time. Last of such extension was upto Fubruary 15, 1985. By a letter dated 12185 she was informed that her services would stand terminated with effect from 15th February, 1985. She filed a writ petition in the High Court of Bombay and upon the constitution of the Central Administrative Tribunal writ petition stood transferred to the Bombay Bench of that Tribunal. It was pleaded before the Tribunal that the order amounted to an order of removal from services by way of penalty. The Tribunal however after perusing the confidential file of the appellant found that it was recorded therein that the authorities were not satisfied with the performance of the appellant and so reappointment after the expiry of the term was not recommended. The Tribunal negatived the plea that the order has been passed by way of penalty. Before the Supreme Court it was urged that the stand of the respondents that they were not satisfied with her performance should not be accepted since at no time the was informed about the deficiencies in her working. In paragraph 5 of the judgment the Apex Court emphasised that in relationship of master and servant there is a moral obligation to act fairly. An informal, if not formal, give and take, on the assessment of work of the employee should be there. The employee should be made aware of the defect in her work and deficiency in her performance. Timely communication of the assessment of work in such cases may put the employee on the right track. Without any such communication, in our opinion, it would be arbitrary to give a movement order to the employee on the ground of unsuitability. The Supreme Court considered the submissions made by the counsel for the respondents that the appellant being a temporary servant no enquiry need to be held for her removal if her services are not upto the mark. Two decisions were cited: 1964 Supreme Court 1854 and 1980 SC 1242. The said case pertains to the termination of a temporary Government servant on probation. The Supreme Court approving of the proposition laid down in said case that termination of services in such case on the ground of unsuitability for the post does not attract Article 311(2) of the Constitution. The Supreme Court also indicated that they were not laying down the Rule that there should be a regular enquiry in such case. It only emphasized that if the services were to be discontinued it is proper and necessary that the employee should be told in advance that his work and performance are not upto the mark.

From the facts indicated hereinabove it would be evident that the petitioner was not apprised about the defect in his work and deficiency in his performance. The order of termination is challenged on the ground of being arbitrary and against the principles of natural justice. From, the material on record this Court is satisfied that the ground of unsuitability of the petitioner appears to be arbitrary and without basis. The result is that the writ petition deserves to be allowed and the order of termination dated 5191, contained in Annexure3 is quashed. The petitioner shall be reinstated in service forthwith and will be deemed to have continued in service and shall be paid salary and other service benefits as if the termination order has not been passed. It is however made clear that the petitioner will not claim the status of a regular employee unless he is confirmed in accordance with law. The parties shall bear their own costs.

(Petition allowed)