Wg. Commander J. Kumar (Retd.) vs State of H.P. and Others

P.D. Desai, C.J.—HIMTORN is an integral unit of the Himachal Pradesh State Small Industries and Export Corporation (hereinafter referred to as �the Corporation�). The petitioner was offered appointment by the Corporation in the temporary post of General Manager (Electronics) vide its letter dated May 2, 1983, Annexure B. Two of the material conditions in the letter of offer read as follows:

(8) that he will be on probation for a period of one year;

(9) that his services in the Corporation will be subject to the provisions of service bye-laws and Rules and Regulations of the Corporation as in force or may be amended from time to time.

The petitioner accepted the offer and joined service on May 10, 1983. He was placed incharge of the HIMTRON.

The services of the petitioner came to be terminated by an order passed by the Managing Director of the Corporation on April 8, 1986, which was communicated to the petitioner vide Memorandum dated April 9, 1986 (See: paragraph 25 of the petition). The termination came as a result of a decision taken at the meeting of the Board of Directors of the Corporation held on March 13, 1986, to abolish the post of the General Manager (Electronics). The petitioner challenges the said order of termination which came into effect immediately and which purports to have been passed under the provisions of the service bye-laws of the Corporation.

The challenge is based on the following grounds :

(1) The decision to abolish the post was malqfide; and

(2) The post was not temporary but permanent; in

any case, the petitioner had acquired the status of a permanent employee by completing the period of probation; under those circumstances, his services could have been terminated only by giving three months notice or, in lieu thereof, on payment of the salary for the period the notice falls short of three months.

The challenge levelled on the aforesaid grounds has no merit.

The full text of the minutes of the meeting of the Board of Directors at which the decision to abolish the post was taken have been placed on record. The minutes show that the Board was not satisfied with the working of the HIMTRON, which had returned a loss of Rs. 9.95 lacs approximately till March 31, 1985, that is, during six years of its existence. The Board also considered the working plan submitted by the petitioner as the incharge of the Unit but found that during the best year of working (1984-85), the Unit had achieved a sale of Rs. 12.92 lacs but had still given a loss of Rs. 2.02 lacs approxi mately and the main reason for the same was the very high administrative overheads in the factory. The Board felt that compared to the sale of Rs. 12.92 lacs, the production and sale of Rs. 45 lacs approximately as proposed in the working paper was unrealistic and coupled with the slump in the market, stiff competition from private manufacturers, very low margin and very high overheads of the factory, the working paper was �risky and economically unviable�. The Board was apprised that the Himachal Pradesh Mineral and Industrial Development Corporation, which was running a TV manufacturing Unit at Solan, had shown their inclination to take over the Unit but without the General Manager (Electronics) and, therefore, it was decided that there was no use of continuing it with the Corporation. The Board, therefore, resolved:

(a) that HIMTRON was not to be revived and the decision taken in the meeting held under the Chair manship of the State Minister of Industries on January 13, 1986 was not to be implemented.

(b) that the temporary post of General Manager (Elec tronics) in HIMTRON was to be abolished and the services of the incumbent were to be terminated by the Managing Director as per rules.

(c) that thereafter HIMTRON was to be transferred to the Himachal Pradesh Mineral and Industrial Development Corporation and the terms finally determined for the transfer were to be put up before the Board for approval.

The decision of the Corporation to discontinue the HIMTRON as its integral Unit and to transfer the same to Anr. Public Sector Undertaking after abolition of the temporary post of General Manager (Electronics) on the grounds aforesaid set out in the minutes of the meeting of the Board of Directors cannot possibly be characterised as mala fide. It is apparent that in view of the very high administrative overheads of the Unit and, in all reasonable probability, their own existing administrative infrastructure being adequate, the other public sector undertaking was agreeable to take over the HIMTRON only if the post of the General Manager (Electronics) was not to be transferred along with the Unit and that the said factor weighed with the Corporation in deciding to abolish the post. The challenge based on that ground must, therefore, be rejected.

The fact that the petitioner was holding a temporary post is evident not only from the letter of offer of appointment, Annexure B, but also from the decision recorded by the Board of Directors with regard to the abolition of the post vide the minutes reproduced hereinabove. Merely because the letter of appointment recites that the petitioner was on probation would not make the temporary post a permanent one. In the iield of public employment where the employer is the State as per Axticle 12, posts have to be created and sanctioned and they may be of different categories such as permanent, temporary, supernumerary etc. At both the material points, namely, at the stage of appointment as well as at the stage of termination, the post held by the petitioner is described as temporary. The petitioner has placed nothing on record to correct or controvert such categorisation of the post. Since the post in which the petitioner was appointed was of a temporary character, he could have been appointed to the same only on a temporary basis as per bye-law 3.1 (g) of the Employees Service bye-laws framed by the Corporation. It is true that the letter offering appointment to the petitioner recited that he would be on probation for a period of one year. Such a recital cannot, however, have the effect of converting a temporary posts into a permanent one.

In Union of India and Ors. v. Arun Kumar Roy AIR 1986 SC 737, the order of appointment of the Respondent in that case in the post of Stores Officer, Zoological Survey of India, showed that he was appointed on a temporary basis in a post which was temporary but which was likely to continue indefinitely. There was a further recital that the Respondent would be on probation for a period of two years which may be extended, if necessary, and that the other conditions of service would be governed by the orders and rules in force fromtime to time. The services of the Respondent were terminated before the expiry of the extended period of probation. The termination was challenged in a writ petition. The learned single Judge, who heard the writ petition, held that the Respondent was a temporary Government servant and that he was governed by Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965 and that the order of termination was valid. On appeal the Division Bench reversed the decision of the learned single Judge. On further appeal, one of the question before the Supreme Court was as to what was the true legal status of the Respondent, that is, whether he was a temporary or a permanent hand. The following observations made in para 14 of the judgment being material are quoted verbatim:

We would first dispose of the contention raised by the Respondent that he was not a temporary hand. The order of appointment itself makes it clear that he will be on probation for a period of two years which may be extended, if necessary. According to him, a temporary hand is not normally put on probation nor is probation extended in the case of temporary hands. The fact that he was originally put on probation for a period of two years which was extended by one year itself indicates according to him that he is not a temporary hand. This contention need not detain us for long. The appointment order makes it clear that the appointment will be on a temporary basis. The mere fact that he was put on probation does not ipso facto make the appointment any the less temporary and for that reason his extended probation also. Unless the Respondent makes out a case based on some rule which requires confirmation to a post on the expiry of the period of probation, he cannot succeed on the mere ground of his being put on probation for a period of two years or by the fact that his probation was extended. He cannot rely upon the first clause in the order of appointment either which states that though the post is temporary it is likely to continue indefinitely.

The principle underlying the aforesaid observations is attracted also in the present case. The mere fact that the petitioner was put on probation, although he was appointed in a temporary post, does not ipso facto make the appointment any the less temporary. The petitioner cannot, on the strength of such a condition in the letter offering employment, contenc also that his appointment was in a post which was not temporary but permanent.

The mere fact that the petitioner continued to serve even after the expiry of one year�s period of probation would not also necessarily confer upon him the status of a permanent employee. It is difficult to comprehend how a person can be treated to have become permanent in a post which itself was temporary. That apart, under the letter offering appointment to the petitioner, his services were to be subject to the provisions of the service bye-laws and the rules and regulations of the Corporation as in force or as may be amended from time to time and, therefore, after his appointment, the relationship between him and the Corporation was governed by the service bye-laws. Clauses (k), (l) and (m) of bye-law 1.4 define the expressions �Permanent employee�, �Probationer� and �Temporary employee� respectively. �Permanent employee� means an employee appointed on a permanent basis against a permanent post. �Probationer� means an employee provisionally employed to fill a permanent vacancy on probation for the period specified in bye-law 3.1 (h). �Temporary employee� means an employee appointed for a limited period for work which is essentially of a temporary nature or appointed against a temporary post or vacancy for a specified or un-specified period. These definitions demonstrate that the petitioner was and continued to remain a temporary employee and could not have become a permanent employee. Bye-law 3.1 provides in clauses (h) and (i) respectively that the period of probation in the case of direct recruits, like the petitioner, shall be one year and that if at the expiration of the period of probation, the work of an employee is found to be satisfactory, the appointing authority shall confirm him. There is thus no provision in the service bye-laws which results in automatic confirmation in the post on the expiry of the period of probation. Unless confirmation takes place by an overt act upon the work of the employee being found to be satisfactory, the confirmation would not follow as a matter of course. The petitioner�s con-tention, therefore, that he had acquired the status of a permanent employee by completing the period of probation is wholly un-founded.

In light of the foregoing discussion, the services of the petitioner must be regarded as having been validly terminated by the simultaneous tender to him of one month�s salary in lieu of notice which was all that he was entitled to as per bye- law 3.2 (ii) since he was a temporary employee holding a tem porary post.

In view of the fact that there is no substance in the only two contentions advanced by the petitioner, the writ petition fails and it is summarily rejected.