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Judgment
Vilas V. Afzulpurkar, J.—Petitioner was a probationer appointed in the second respondent organization, Central Power Research Institute, under the control of the fourth respondent, by proceedings dated 22.06.2009 as Engineering Officer Grade - II. After expiry of his probation period of two years, he was issued order of termination dated 26.08.2011 impugned herein. The said order is questioned on the ground that no enquiry was conducted and the fact that the petitioner continued beyond the probation period for 54 days amounts to petitioner having been confirmed and therefore, the discharge simpliciter as per the impugned order is not sustainable. Before approaching this Court, the petitioner herein filed O.A.No. 891 of 2011 before the Central Administrative Tribunal, Hyderabad where initially the tribunal granted stay against the order of termination but later after the respondents filed counter raising the plea of jurisdiction of the tribunal, the petitioner withdrew the said OA on 22.11.2011 and filed the present writ petition on 22.11.2011. Petitioner questions the said order of discharge on the ground that it is a punitive action without holding any enquiry and without giving any opportunity to the petitioner and as such, is not sustainable.
By order dated 23.11.2011, while issuing notice before admission, this Court granted interim stay. Hence, the respondents have now filed a counter affidavit together with an application to vacate the stay, being WVMP.No. 60 of 2012.
It is stated in the counter affidavit that petitioner''s appointment is governed by the terms and conditions mentioned therein, which includes that the petitioner will be on probation for a period of two years extendable by a further terms not exceeding one year. However, the working of the petitioner was not found satisfactory and as he was found to be unsuitable for the job, the competent authority decided to discharge the petitioner. Thus, and the order impugned cannot be equated to termination of a permanent employee and as such, there is no infirmity. The counter affidavit is annexed with a copy of the order of appointment together with the conditions as well as the proceedings relating to review of petitioner''s work and assessment for suitability of his retention in service on completion of probation. The assessment report is also produced where the overall performance of the petitioner is rated as poor and as against the recommendation for suitability, it is recommended termination of service by the remarks of the Joint Director, who, inter alia, stated that regardless of best efforts usefulness of the officer is neither satisfactory nor improving. Hence, it is recommended to terminate him from service. Counter affidavit is also annexed with settlement of salaries and amounts payable to the petitioner, which has been paid for the period from 01.11.2011 to 21.11.2011 considering the period of stay, which was in force in O.A.No. 891 of 2011 for a brief period.
Counter affidavit is followed by a reply affidavit and additional affidavit on behalf of the petitioner wherein the petitioner reiterates that he was never served with written remarks or memo with regard to his working during the entire two years period of probation and thereafter, he was allowed to work for 54 days over and above the two years period of probation. He also submitted that after withdrawal of the OA on the ground of jurisdiction on 22.11.2011 and before the certified copy thereof was available, the respondents removed the petitioner from service on 22.11.2011 and as such, when this Court passed the interim order on 23.11.2011, the petitioner was high handedly removed by the respondents one day earlier. In the additional affidavit, the petitioner has, further, stated that the respondents have not paid the remaining amount except the salary up to 22.11.2011 and according to the petitioner, the other amounts relating to EL, pension account kit etc would show that the petitioner is entitled to a further sum of Rs. 1,70,000/- and odd. Petitioner, therefore, states that neither there is any relieving letter nor termination order on 22.11.2011 and as such, claims that the account will remains unsettled and petitioner has to receive balance amounts from the respondents.
Both the learned counsel have cited number of decisions. Learned counsel of the petitioner placed reliance upon a decision of the Delhi High Court in Dr. N.G. Kulkarni v. Union of India 2000 (2) SLR 49; a decision of the Supreme Court in The State of Punjab Vs. Dharam Singh, and an unreported judgment of this Court in M. David Sam Roy v. Hyderabad Public School SOCIETY [WP.No. 20141 of 2008 dated 28.09.2011]. On the basis of the above decisions, it is contended that the order of termination after the expiry of the probation period amounts to dismissal of a confirmed employee without enquiry and as such, is not sustainable.
Learned standing counsel for the respondents placed reliance upon the following judgments of the Supreme Court:
Municipal Corporation, Raipur Vs. Ashok Kumar Misra, ; Satya Narayan Athya Vs. High Court of M.P. and another, Dr Amritlal Dharshibhai Jhankharia Vs. State of Gujarat and Another, and Dr. T.C. Pillai Vs. The Indian Institute of Technology, Guindy, Madras, Based on these decisions, learned counsel contends that the petitioner continues to be on probation. 7. During the hearing of this matter, since neither side had referred to the service rules of the respondents, I had called upon the learned standing counsel to produce the service rules, if any, framed by the Central Power Research Institute. Learned standing counsel has thereupon produced the Rules framed by the Governing Council of the Central Power Research Institute by virtue of power under Rule 42 regarding service conditions of the staff, which are called the Central Power Research Institute (Service Conditions) Rules, 1989 (working rule No. 2). Rule 4 provides that in respect of the following matters, the rules and orders applicable to Central Government employees shall apply to the employees of the Institute subject to such modifications as may be made by the Governing Council from time to time. Relevant portion of Rule 4(g) is extracted, as under:
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g) Probation and confirmation subject to Rule 8 of these rules;
Rule 8 reads, as follows:
Unless otherwise stated in these or other rules issued by the Governing Council, persons appointed to the regular establishment of the Institute shall be on probation for a period of two years which may be extended by another year, if necessary
Petitioner has, admittedly, remained on probation for a period of two years from the date of his joining as per the order of appointment dated 22.06.2009. Similar condition as Rule 8 is also incorporated in the order of appointment. Petitioner joined on 03.07.2009 and as such, his initial two years period would expire by 02.07.2011. The rule provides that the probation is extendable by another year, but in the case of the petitioner there was no order extending probation, but while the respondents were reviewing his performance, the period of 54 days lapsed after initial two years, when the termination was issued to him. The legal position relating to discharge, probation and the effect of service rules, which provides for extension of probation was duly considered in various decisions, which are cited on behalf of both sides, as referred to above. It would not be necessary to refer to each of those decisions, as the Supreme Court in a later decision has noticed all the important decisions and the legal position has been fully reviewed and reiterated in Karnataka State Road Transport Corporation v. S. Manjunath AIR 2000 SCW 1938. Relevant paras 10 to 12 are extracted hereunder.
This Court had an occasion to review, analyse critically and clarify the principles on an exhaustive consideration of the entire case law in two recent decisions reported in Dayaram Dayal Vs. State of M.P. and another [OVERRULED], and Wasim Beg Vs. State of Uttar Pradesh and Others, . One line of cases has held that if in the Rule or Order of appointment, a period of probation is specified and a power to extend probation is also conferred and the officer is allowed to continue beyond the prescribed period of probation, he cannot be deemed to be confirmed and there is no bar on the power of termination of the officer after the expiry of the initial or extended period of probation. This is because, at the end of probation he becomes merely qualified or eligible for substantive permanent appointment. The other line of cases are those where even though there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The Constitution Bench which dealt with the case reported in State of Punjab Vs. Dharam Singh, while distinguishing the other line of cases held that the presumption about continuation, beyond the period of probation, as a probationer stood negatived by the fixation of a maximum time limit for the extension of probation. Consequently, in such cases the termination after expiry of the maximum period up to which probation could be extended was held to be invalid, inasmuch as the officer concerned must be deemed to have been confirmed.
The principles laid down in Dharam Singh''s case (supra) though were accepted in another Constitutional Bench of a larger composition in the case reported in Samsher Singh Vs. State of Punjab and Another, the special provisions contained in the relevant rules taken up for consideration therein were held to indicate an intention not to treat the officer as deemed to have been confirmed, in the light of the specific stipulation that the period of probation shall be deemed to be extended if the officer concerned was not confirmed on the expiry of his period of probation. Despite the indication of a maximum period of probation, the implied extension was held to render the maximum period of probation a directory one and not mandatory. Hence, it was held that a probationer in such class of cases is not to be considered confirmed, till an order of confirmation is actually made. The further question for consideration in such category of cases where the maximum period of probation has been fixed would be, as to whether there are anything else in the rules which had the effect of whittling down the right to deemed confirmation on account of the prescription of a maximum period of probation beyond which there is an embargo upon further extension being made, and such stipulation was found wanting in Dayaram Dayal Vs. State of M.P. and another [OVERRULED],
The decision in Wasim Beg Vs. State of Uttar Pradesh and Others, also purported to classify these type of cases into three categories, on a review of the entire gamut of law. It was observed therein as follows:
Whether an employee at the end of the probationary period automatically gets confirmation in the post or whether an order of confirmation or any specific act on the part of the employer confirming the employee is necessary, will depend upon the provisions in the relevant Service Rules relating to probation and confirmation. There are broadly two sets of authorities of this Court dealing with this question. In those cases where the Rules provide for a maximum period of probation beyond which probation cannot'' be extended, this Court has held that at the end of the maximum probationary period there will be a deemed confirmation of the employee unless Rules provide to the contrary. This is the line of cases State of Punjab Vs. Dharam Singh, , M. K. Agarwal v. Gurgaon Gramin Bank ( AIR 1988 SC 286 : 1988 Lab IC 380), Om Parkash Maurya Vs. U.P. Cooperative Sugar Factories Federation, Lucknow and Others, State of Gujarat Vs. Akhilesh C. Bhargav and Others,
However, even when the Rules prescribe a maximum period of probation, if there is a further provision in the Rules for continuation of such probation, beyond the maximum period the Courts have made an exception and said that there will be no deemed confirmation in such cases and the probation period will be deemed to be extended. In this category of cases we can place Samsher Singh Vs. State of Punjab and Another, which was the decision of a Bench of seven Judges where the principle of probation not going beyond the maximum period fixed was reiterated but on the basis of the Rules which were before the Court, this Court said that the probation was deemed to have been extended. A similar view was taken in the case of Municipal Corporation, Raipur Vs. Ashok Kumar Misra, In Satya Narayan Athya Vs. High Court of M.P. and another, although the Rules prescribed that the probationary period should not exceed two years, and an order of confirmation was also necessary, the termination order was issued within the extended period of probation. Hence the termination was upheld.
The other line of cases deals with Rules where there is no maximum period prescribed for probation and either there is a Rule providing for extension of probation or there is a Rule which requires a specific act on the part of the employer (either by issuing an order of confirmation or any similar act) which would result in confirmation of the employee. In these cases unless there is such an order of confirmation, the period of probation would continue and there would be no deemed confirmation at the end of the prescribed probationary period. In this line of cases, one can put Sukhbans Singh Vs. State of Punjab, , State of Uttar Pradesh Vs. Akbar Ali Khan, , Shri Kedar Nath Bahl Vs. The State of Punjab and Others, ,, Dhanjibhai Ramjibhai Vs. State of Gujarat, and Tarsem Lal Verma v. Union of India,, 1997 (9) SCC 243 ), Municipal Corporation, Raipur Vs. Ashok Kumar Misra, and State of Punjab Vs. Baldev Singh Khosla, in the recent case of Dayaram Dayal Vs. State of M.P. and another [OVERRULED], (to which one of us was a party) all these cases have been analysed and it has been held that where the Rules provide that the period of probation cannot be extended beyond the maximum period there will be a deemed confirmation at the end of the maximum probationary period unless there is anything to the contrary in the Rules.
The facts of that case are different from the facts on hand but the legal position, as extracted above, clearly governs the present case. From the analysis made, as above, keeping in view Rule 8 with which we are concerned in the present matter, it is evident that the maximum period of probation provided under the rule is 2 years + 1 year. Petitioner having been terminated before the expiry of the maximum period of probation, it cannot be said that the petitioner has acquired the status of a deemed confirmed employee. In appropriate service rules dealing with different services, the rule may provide that an order of confirmation is specifically required to be passed. There may not be other set of rules providing for confirmation on expiry of maximum period of probation, interpretation of which may support the case of deemed confirmation but such situation would arise only where the maximum period of probation has expired. In the present case, it cannot be said that the maximum period of probation has expired and as such, the contention of the learned counsel for the petitioner that merely because he was continued for 54 days beyond the initial period of two years, the petitioner acquired the status of a deemed confirmed employee, is difficult to be accepted. Consequently, therefore, when petitioner is deemed to be within the maximum period of probation, a discharge simpliciter , on the ground of unsuitability, cannot be said to be either stigmatic or punitive. The impugned termination, therefore, deserves to be sustained and the writ petition accordingly fails. However, if the respondents have not settled the pecuniary claims of the petitioner, he is at liberty to make a representation in that regard within two (2) weeks from the date of receipt of a copy of this order and on receipt of such representation, the respondents, particularly the fourth respondent, shall consider the same and pass appropriate orders within a period of two (2) weeks thereafter.
The writ petition is disposed of, as above. As a sequel, the miscellaneous applications, if any, shall stand dismissed. There shall be no order as to costs.