P. Usha Radhey Mohan vs M.V. Ramu and others

Umesh Chandra Bannerjee, C.J.—Since the decision in Dhingra''s case Parshotam Lal Dhingra Vs. Union of India (UOI), the law as regards the confirmation of a probationer stands settled. The Supreme Court in Dhingra''s case observed:

"Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot therefore, by itself be a punishment.''

Subsequently in Samsher Singh''s case Samsher Singh Vs. State of Punjab and Another, the Supreme Court in no uncertain terms declared that question of there being a violation of Article 311(2) in regard to non-confirmation of a probationer does not and cannot arise. The Supreme Court in Samsher''s case (supra) observed:

"Before a probationer is confirmed, the authority concerned is under an obligation to consider whether the work of the petitioner 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 tempermental or other object not involving moral turpitude, the probationer is unsuitable for the job and hence must be discharged. No punishment must be 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)."

In a later decision in the case of Oil and Natural Gas Commission and Others Vs. Dr. Md. S. Iskender Ali, the Supreme Court reiterated the termination of services of a probationer cannot attract the provisions of Article 311 of the Constitution. The Supreme Court observed: "it is well settled by a long course of decisions 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 docs not attract the provisions of Article 311 of the Constitution"

Having dealt with the basic features of the law on the subject as regards probation, let us now advert to the factual matrix of the matter in issue briefly.

The factual score depict that the writ petitioner applied for a post in Computer Maintenance Corporation Limited (for short ''CMC''), a Government of India undertaking and subsequently the writ petitioner was appointed at a basic pay of Rs. 3,615/- per month with deamess allowance and ad hoc interim reliefs along with certain other allowances. The letter of appointment, however, records specifically the factum of the petitioner being on probation for six months from the date of joining CMC and as regards confirmation it has been specifically recorded that the petitioner will be confirmed on successful completion of the probationary period. The letter of appointment itself further recorded that all appointments in the CMC are terminable at three months notice on either side but as regards the probationary officers, the notice period would be one month on either side.

There, however, appears to be a report against the petitioner during the course of probation to the effect that the petitioner does not have the basic perspective of her job and responsibilities, neither she puts any effort to understand the same. As a matter of fact the concerned Reporting Officer Sri M.V. Ramu informed the Vice President of the CMC Sri Das Gupta to the following effect: "1 therefore feel that based on her performance till date, her level of performance is ''unsatisfactory''.

The records depict that on 204-1997 the following communication was addressed to the writ petitioner:

"Kindly recall our today''s discussion wherein you have informed me that there is no task pending with you. During our various interactions, I have informed you several times that there are tasks with you which are yet to be completed and have given a few examples also. Despite my requesting you, that you should try and recall all the tasks that are pending with you, you have insisted that there is no task pending with you. I once again request you through this letter to spend some time to recall all matters that you are yet to complete and let me know the status of the same."

On the factual score, it appears that prior to the earlier communication (as above) the Head, International Systems Group of CMC did send an intimation to the writ petitioner on 5-12-1996 to the following effect:

".....In order to enable you to come up to our expectations, your probation period is being extended upto March 1997. We are hopeful that you will utilise this opportunity to improve further your performance and attitude towards others. We are also hopeful that with your sincere efforts, you will be able to meet the requirements of the job within this period and measure upto our expectations. We wish to inform you that no further extension of probation wil be granted."

These narrations are being effected in this order by reason of the specific plea taken by the writ petitioner that there has been a ''gender bias'' or ''gender prejudice'' operating against her in CMC and it is on this score strong reliance was placed on the decision in Visakha''s case Vishaka and others Vs. State of Rajasthan and Others, . The Supreme Court in the contextual facts in Visakha''s case (supra) in no uncertain terms observed that the ''gender equality'' between the employees ought to be the guiding factor in the matter of employer-employee relationship.

In view of the correspondence exchanged between the writ petitioner and the employer-CMC we, however, do not deem it fit to consider this aspect of the matter in detail, suffice it to record that the contextual facts do not reveal any ''gender inequality'' or ''gender bias'' and the decision of the Supreme Court in Visakha''s case (supra) does not have any manner of application in the facts and circumstances of the matter under consideration. The communication dated 5-12-1996, as a matter of fact, runs counter to the submission of ''gender bias'' or ''gender prejudice'' and as such we need not dilate much on this score any further.

The contextual facts depict that subsequently however, on 31-3-1997 a letter of termination was sent to the petitioner herein having a reference to the earlier letter dated 5-12-1996. The termination letter reads as follows:

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

In our letter dated December 5, 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 dated December 5, 1996, we had extended your probation period upto March 31, 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 March 31, 1997. You will be relieved on March 31, 1997.

You are requested to contact our Accounts Department for settlement of your dues".

It is this letter of termination which was under challenge in the writ petition before the learned single Judge. Before, however, turning our attention on to the contentions raised in the matter, another significant fact ought to be placed on record at this juncture. The petitioner, as appears, after the letter of termination filed a complaint before Lok Ayukta, though, however, the letter returned the said complaint with certain observations and it is on these observations that some stress has been laid by the learned advocate appearing in support of the appeal. Obviously, the observations of the Lok Ayukta prompted the appellant to advance submission on the basis of Visakha''s case (supra). We have, however, not been able to appreciate the observations of the Lok Ayukta. It is true that we are not sitting in an appeal, neither the appellate Bench in a Letters Patent Appeal, can be termed to be the appellate authority against the order of the Lok Ayukta, but recording of facts by Lok Ayukta, in our view, was wholly unnecessary in the factual matrix of the matter under consideration, hi the event of there being any substance of such facts as recorded by Lok Ayukta there was no bar, however, for the writ petitioner to take appropriate steps in accordance with law. As a matter of feet, the Lok Ayukta himself has recorded that probably a suit for defamation would lie, but the writ petitioner thought it fit not to proceed in such a direction. The observations of the Lok Ayukta as regards the order of termination, we are constrained to record, does not have any factual support. It is pertinent to note, however, that the Lok Ayukta himself was pleased to record that it is not for the Lok Ayukta to say anything against the order of termination, but for the Central Administrative Tribunal or for the High Court in exercise of the jurisdiction under Article 226 of the Constitution to pass appropriate orders. The Lok Ayukta on being satisfied that the forum chosen by the writ petitioner was not the proper forum, however, recorded certain issues which we feel should not have been recorded since he himself has returned the complaint with an observation that the chosen forum is not the correct forum. The recording of the factual aspect and the observations pertaining thereto by the Lok Ayukta was not required in the contextual facts.

Turning attention on to the contentions raised, be it noted that one of the principal contentions before the learned single Judge was in regard to the factum of the order of termination being signed by a person not otherwise authorised to sign the same. The learned single Judge while dealing with the matter did consider the same and has been pleased to observe:

"It was also urged on behalf of the petitioner that her services were terminated by an authority who was not the appointing authority and, therefore, the termination order was bad in law, which also necessitated, according to the petitioner, to allow the relief claimed in the present writ petition. It is true that the two authorities are different. The officer who signed the appointment order was M.H.Razack, Advisor, CMC. However, the termination order dated 31-3-1997 is signed by Dr. P. Dasgupta who is the Vice-President, R&D of the respondent-Corporation. In my opinion, no infirmity could be treated as arising from this discrepancy because the Vice President of the Corporation is obviously a superior authority than the Advisor, RMO and, therefore, there could be no constraint on the power of the superior authority to terminate the services of an officer working in that Corporation. On this ground, therefore, the termination could not be held to be illegal and void."

We do not see any infirmity in the reasoning of the learned single Judge. The hierarchy of officers as appears from a Circular produced before the Court, categorically records that Dr. P. Dasgupta, the Vice-President of CMC has succeeded Mr. M.H. Razack, as the Location Head of CMC Centre, Hyderabad with effect from 1-6-1996. The Circular contained ''''as Location Head, he is responsible to discharge all the duties and responsibilities of the Head of the Centre including that of appointment, confirmation, promotion, suspension, dismissal etc. of staff members under his charge". In the contextual facts and since the letter of termination has been signed by Dr. P. Dasgupta, as Location Head of CMC Centre, Hyderabad, question of there being any infirmity on that score does not and cannot arise. Dr. P. Dasgupta has been incharge of the Location and as the Circular refers, he has the authority to issue appointment, confirmation, promotion, suspension as well as the dismissal orders and as such, termination on that score, cannot be termed to be illegal or in any way run counter to the known principles of law as has been contended by the learned advocate appearing in support of the appeal.

15 At this juncture, however, it would be convenient to advert to the issue as to whether the petitioner has any right or any legal right which suffered infringement in the hands of the respondent-authority warranting intervention of the writ Court under Article 226 of the Constitution. The contextual fact depict that there is no confirmation of the petitioner. The probation of the appellant-writ petitioner has been extended only because of the fact that the Company in fact is desirous of having a suitability criterion being attached to the petitioner after completion ofthe probationary period and in the event the appellant writ petitioner made use of such opportunity and satisfy the suitability test by improving her performance to the expectation of the authorities. It is only then that she could be brought into the main stream of employment and a right will stand conferred on her thereafter only and not at any stage prior thereto. Admittedly the petitioner is a probationer and not a regular employee in the facts of the matter under consideration. The records do not justify any conclusion as regards the efficient administrative capability associated with the post so far as the petitioner is concerned. As a matter of fact, the probationary period was once extended but with no effect. In our view, law Courts cannot possibly supplement the views of the employer as regards the suitability of an employee and the interference of the law Court cannot but be said to be very restrictive in nature and it is only in the event of there being departure from the known principles of law such an interference could be had and not otherwise. The Company itself feels it expedient not to extend the probationary period. It is no part of the law Court to extend the probationary period or to direct cancellation of the termination notice. It is the requirement of the employer which is to be considered and no extra-ordinary consideration ought to be introduced in such matters. In a long catena of cases, some of which have been noted above, the Supreme Court in no uncertain terms recorded that as a probationer the employee does not get any protection whatsoever and question of applicability of Article 311 does not and cannot arise. The reasoning is not far too difficult to see since it is the requirement of the employer which is to be a prime consideration in the matter of confirmation of a probationer.

There has been a feint attempt on the part of the learned advocate for the appellant following a Bench decision of this Court in W. A.No. 690 of 1997 in the case of Chairman & Managing Director, CMC Limited, v. A. Janardhan to submit before the Court that the Court should direct a further opportunity to the probationer to satisfy the requirement of the employer. For convenience sake the observations of this Court is reproduced herein below:

"The learned Counsel for the petitioner-respondent states that if the petitioner-respondent is given further opportunity to work on probation for a period of three months, he would show sincerity and satisfy all concerned with his work. A positive response to the above has come from the learned Counsel for the appellant, hi view of the above, we are inclined to order as follows:

The appellant shall extend the period of the petitioner-respondent for a period of three months and accordingly give opportunity to the petitioner-respondent to work.

The appellant shall assess the work of the petitioner-respondent and if the work is found satisfactory, continue him in service in accordance with law.''''

The decision of this Court, as above, in our view, however, does not have any manner of application in the contextual facts and the same is clearly distinguishable on facts. The observations of the Court as regards the prayer of a further opportunity and a positive response from CMC in regard thereto is totally absent in the facts of the matter under consideration, hi any event, in our view, the appellate Court would not be justified in extending the period of probation since the appellate Court cannot act as an employer or substitute itself as the employer of the writ petitioner.

Considering the above and also considering the facts and circumstances of the matter in issue we do not see any merit in this appeal.

The appeal, therefore, fails and is dismissed. There shall be no order as to costs.