Central Warehousing Corporation and Another vs O. Rosaiah

B. Subhashan Reddy, J.—The respondents in the writ petition are the appellants herein. The appeal is preferred against the orders of the learned single Judge in W.P. No. 8325 of 1986 setting aside the orders passed by the 2nd appellant by which the respondent who is the employee of the appellants and who was promoted from the post of Superintendent to that of Storage and Inspection Officer and was put on probation was served with an order dated 25-6-1986 resulting in the reversion of the respondent to the lower post of Superintendent. By reason of stay, pending writ petition and by reason of subsequent allowing of the writ petition, the respondent is still continuing in the post of Storage and Inspection Officer. The respondent was initially appointed in the service of the 1st respondent-Central Warehousing Corporation as Junior Technical Assistant with effect from 1-9-1969 and was further promoted as Superintendent with effect from 30-6-1978. By proceedings dated 25-4-1984, he was promoted to the post of Storage and Inspection Officer and was placed on probation for a period of one year which was extendable for a further period of one year. On 10-7-1985, the respondent received a memorandum to the effect that his probation has been extended for a further period of 6 months i.e., upto 28-12-1985. Again, the probation was extended by six more months i.e., upto 28-6-1986. Three days prior to the expiry of the same i.e., on 25-6-1986, the respondent was served with an order stating that since his performance has not been found to be satisfactory, he is reverted to the post of Superintendent.

The learned single Judge has allowed the writ petition on the ground that there was violation of principles of natural justice as an opportunity of representation and hearing, though necessary, were not afforded to the respondent. The premise on which the learned Judge passed the order holding that the principles of natural justice have been violated, is that the reversion was not a simpliciter and non-declaration of the probation and consequent reversion of the respondent was coupled with stigma and not simpliciter.

Mr. G. Ramachander Rao, the learned Counsel appearing for the appellants strenuously contends that the order of reversion is simpliciter and not casting any stigma and to support his argument, he has placed reliance on the decisions rendered by this Court in Unit Trust of India and Others Vs. T. Bijaya Kumar and Another, and in Governing Council of Kidwai Memorial Institute of Oncology, Bangalore Vs. Dr. Pandurang Godwalkar and another, . The learned Counsel also cited the decisions in S.P. Vasudeva Vs. State of Haryana and Others, , The Regional Manager and Another Vs. Pawan Kumar Dubey, and The State of U.P. Vs. Ram Chandra Trivedi, .

Mr. V. Venkatramanaiah, the learned Counsel appearing for the respondent submits that the non-declaration of probation and the consequent reversion of the respondent to the lower post of Superintendent was not simpliciter, but by casting stigma and that the reason for extension of probation on two occasions referred to above, was not the unsastifactory work of the respondent, but for the sole reason of non-clearance of the respondent from vigilance case which was under enquiry of the vigilance officials.

In view of these rival contentions, we felt necessary to call for the file and Mr. G. Ramchander Rao after faking time, has produced the same before us and we have perused the same meticulously. On 3-6-1985, Personnel Division has put up a note stating that probation of the respondent ends on 28-6-1985 and it also states that the report with regard to assessment of the respondent was received from the Regional Manager, Hyderabad. There is nothing adverse stated against the respondent with regard to his work. In para 2 of the said note, a clarification was sought for as to whether any disciplinary action is pending/ contemplated against the respondent. Then on 5-6-1985, it was endorsed that the case of ante-dated delivery of fertilizers has been referred to CBI and that the name of the respondent is figuring in it. On 27-6-1985. a note was put up which is extracted thus:

"Sri O. Rosaiah, SIO C.W. Nellore was promoted to the said post w.e.f. 29-6-84. He shall, thus, be completing one year of his service on 28-6-1985. The probation C.R. for the period ending 28-6-85 has been received which is placed below:

The same has duly been assessed, reviewed and counter-signed by the concerned officers.

It is therefore, put up for kind consideration whether we may initiate action for closure of the probation or extend the probation for a further period of six months i.e., up to 28-12-1985, keeping in view the observations made by the Vigilance Cell."

The next higher officer has endorsed as mentioned below:

"Until the CBI submits its report, it will not be possible to decide whether or not Shri Rosaiah SIO is actually involved in the irregularities to initiate departmental action against him.

It is therefore for consideration whether or not we should take a decision on termination of his probation. In case a decision is not taken, his probation will have to be extended by six months."

The final decision of the Officer concerned on 28-6-1985 was to the effect:

"Since a case has been registered against Sri Rosaiah, SIO by the CBI, we may extend his probation by six months."

When the extended probation was coming to an end, a note was put up by Personnel Division on 21-11-1985 which reads:

"Probation CR for the extended period ending 28-12-1985 in respect of Sri O. Rosaiah S.I.O.C. W. Nellore has been received and the same is placed below. The report in question has duly been assessed by R.M. R.O., Hyderabad and is found to be in order. It is stated that the probation period in respect of the official was extended vide this office memorandum dated 10th July, 1985 for a further period of six months i.e., upto 28-12-1985. for want of vigilance clearance.

D.M. (Vig.) may please indicate the present position of the vigilance case handed over to CBI for investigation against the official.

Mgr. (Bus.) and CM. may please review the report in Part-III.

G.M. may please counter-sign the report in Part-IV."

As the extended period of one year also was coming to an end, then it was imperative to take a decision. The same is so clear from the endorsement of the Personnel Division dated 5-6-1986.

"Sub: Closure of probation period in respect of Shri Rosaiah, S.I.O. C.W. Nellore.

The case for closure or otherwise of the probation period in respect of the above noted official is under consideration.

Vigilance Cell may please indicate whether any vigilance case is pending/ contemplated against the official concerned."

The reply dated 12-6-1986 was:

"The Disciplinary action against him for effecting ante-dated delivery of fertilisers is still pending."

The note of the Personnel Division dated 13-6-1986 is worth extracting:

"PERSONNEL DIVISION (ESTT- SECTION)

No. CWC/I-2208/Estt. dt. 13-6-1986. Sub:- Closure or otherwise of Probation period in respect of Sri O. Rosaiah, SIO C.W. Nellore-reg.

The case in question relates to the closure or otherwise of the probation period in respect of Shri O. Rosaiah, SIO, C.W. Nellore. In this connection, it is stated that the official was promoted to the said post w.e.f. 29-6-84 (AN) and placed under probation for a period of one year w.e.f. the aforesaid date. Accordingly, the probation CR for the 1st six months/IInd six months were called for from the concerned officer. As the official was not clear from the vigilance angle at that time, which is a pre-requisite for initiating action for closure or otherwise of the probation period, the probation period was, therefore, extended initially for a period of six months i.e., upto 28-12-85 vide memo of even No. dated 10-1-86. Notes on pages5-8/n may kindly be perused in this regard.

The probation CR for the extended period ending 28-6-86 has now been received which is placed below. The report in question has duly been assessed, reviewed and countersigned by the concerned officers who have recommended for the satisfactory completion of the probation period, whereas vigilance cell in their note on page 10/n has recorded that the disciplinary action against him for effecting ante-dated delivery of fertilizers is still pending. As per Personnel Division letter dated 31-12-1982, it has been decided that the probation period of the employee who are likely to complete two years of service, but against whom departmental proceedings are pending, may be terminated if the CRs in respect of such employees are unsatisfactory. Action on the outcome of the departmental proceedings in such cases will be taken, as per rules. As regards, the procedure to be followed for promotion and confirmation the instructions contained in Ministry of Home Affairs, Department of Personnel & Administrative Reforms Office Memo No. 22011/3/77-Estt(A) dated 14-7-77 shall apply wherein it has been clearly stated that until the competent authority arrives at such a conclusion the officer may be treated on par with others in the matter of promotion, confirmation etc.

It is, however, stated that a decision has already been taken by the former M.D. in a similar case of Sh. M. Prabhakara Rao, Supdt. C.W. New Parel, who was also involved in the case of ante-dated delivery of fertilizers for reversion to the substantive/regular post.

As the official shall complete two years of his service as on 28-6-86 beyond which the probation period cannot be extended and the individual is deemed to have completed the probation period satisfactory, it is therefore, put up for orders and kind consideration whether the official may be allowed to cross the probation period satisfactorily in the light of the facts stated above."

As such, it is crystal clear that the work of the respondent was satisfactory, but his probation was not declared and consequently was reverted by order dated 15-6-1986 only for the sole reason of pendency of investigation by vigilance officials, and that the reason stated in the impugned order dated 25-6-1986 is only colourable and baseless. It is well settled that probation can be terminated by discharging the probationer either from service, if it is an initial appointment or reverted to his lower post, if it is a promotion, if the said action is simpliciter and on assessment of the work of the probationer. If the assessment is pure and simple as unsatisfactory, it will not amount to stigma and no notice need be issued to the probationer and no question of hearing him arises. Then there would be no scope of a complaint of infraction of principles of natural justice. But the same will not be the situation when the termination of probation is by casting stigma. In the orders passed terminating the probation, may be, stigma cast is not apparent. But, if the party complains that even though the order of termination of probation apparently appears to be simpliciter stating simply that the service was unsatisfactory, but the basis was not this unsatisfactory work, but on account of stigma, then it is open for the Court to lift the veil and then look into the basis perusing the records as to what weighed in termination of probation.

Applying the said principle, and in view of the material placed before us stated supra, the irresistable conclusion is that the termination of probation of the respondent was not on account of simple and plain unsatisfactory service, but was on account of pendency of enquiry by the vigilance authorities which clearly amounted to stigma and we are in complete agreement with K. Ramaswamy, J. (as he then was) that there was infraction of principles of natural justice for want of notice and hearing to the respondent By reason of that, we would have directed the appellants to issue notice and afford opportunity to the respondent to meet the allegations, but there is no necessity of the same as we are informed that vigilance report has cleared the respondent of the charges and consequently no disciplinary action was taken against the respondent. In view of the same, we direct the appellants to treat the respondent as having completed his probation in the post of SIO CW satisfactorily w.e.f. 28-6-1986. It is needless to mention that the respondent shall be entitled for all the attendant benefits like, pay and emoluments, increments, seniority on the premise that the respondent was an approved probationer in the post of SIO CW.

The Writ Appeal is dismissed. No costs.