Central Administrative Tribunal - Jabalpur
Rakesh Kumar Sharma vs Comptroller And Auditor General Of ... on 9 April, 2025
1
(Reserved on 03.03.2025)
CENTRAL ADMINISTRATIVE TRIBUNAL
JABALPUR BENCH
(Circuit Sitting at Gwalior)
Original Application No. 191 of 2020
Jabalpur, this the 09th day of April, 2025
HON'BLE MR. JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE MRS. MALLIKA ARYA, ADMINISTRATIVE MEMBER
Rakesh Kumar Sharma, S/o Shri Sardar Prasad Sharma, Aged 48 years,
Occupation - terminated Staff Car Driver, Resident of C- 41, Bhagat Singh
Nagar, Bhind Road, near Gole Ka Mandir, Gwalior, District - Gwalior (MP).
.......Applicant
Advocate for the applicant: Shri A.K. Nirankari
VERSUS
1. Union of India through the Comptroller & Auditor General of India,
Pocket - 9, Deendayal Upadhyay Marg, New Delhi - 110002.
2. The Principal Accountant General (General and Social Sector Audit),
Audit Bhawan, Jhansi Road, Gwalior (MP) - 474002.
3. The Deputy Accountant General (Administration), Audit Bhawan, Jhansi
Road, Gwalior (M.P) - 474002. ......Respondents
Advocate for the respondents: Shri J.P. Saxena
ORDER
By Akhil Kumar Srivastava, JM.-
By means of the instant original application filed under section 19 of Administrative Tribunals Act 1985, the applicant has prayed for setting aside the order dated 29.01.2020 (Annexure A-1) and for a direction to the respondents to reinstate him in service with all consequential benefits. Page 1 of 12 ANAND 2025.04.09 PRAKASH 16:47:18+05'30' DUBEY 2
2. The applicant, who is ex-service man, was appointed as Staff Car Driver in the respondents' department vide order dated 29.01.2018 (Annexure A-6)on probation for a period of two year in terms of proviso to Rule 5 of the CCS (Temporary Service) Rules 1965 but his services were terminated vide order dated 29.01.2020 (Annexure A-1) by invoking proviso to sub rule (1) of aforesaid Rule 5. Thereafter, the applicant preferred an application dated 03.02.2020(Annexure A-9) before the respondent no. 2 but having received no response, he has filed the present original application.
3. Learned counsel for the applicant submitted that the action of the respondents is illegal, arbitrary and malafide because the termination order of the applicant has been passed without giving any opportunity to show cause and without assigning any reason just on the day before completion of his probation period. Learned counsel for the applicant further submitted that the termination of the applicant is not simplicitor, in fact it is punitive in nature, and hence before inflicting such a major penalty, a departmental inquiry was to be conducted. Learned counsel for the applicant also argued that it is settled legal position that the employees cannot be terminated during the probation period when specific allegation of misconduct has been alleged against him and a departmental Page 2 of 12 ANAND 2025.04.09 PRAKASH 16:47:18+05'30' DUBEY 3 inquiry ought to have been conducted before taking penal action against the applicant but in the present case, the above proposition has not been followed despite the fact that the impugned order has been passed by influence with the incident of 13.01.2020 (Annexure A-2) when a memo was issued to the applicant alleging negligence in driving the vehicle. Thus, the learned counsel for the applicant submitted that the order dated 29.01.2020 may be set aside and the applicant may be given reliefs.
4. The respondents have contested the claim of the applicant and filed reply stating therein that the appointment offered was on probation for a period of two years from the date of joining duty. The respondents contended that when the applicant was driving staff car on 23.03.2018, he collided with a motorcycle. Again, he collided the staff car on 25.04.2018 therefore, a memo was issued to him on 01.05.2018 (Annexure R-1). Again, on 23.10.2018, he collided the staff car with a motorcycle, he was issued a warning on 13.11.2018 (Annexure R-2) to improve his work. But, again on 13.01.2020, due to carelessness of the applicant, the staff car narrowly escaped from accident, therefore, a memo was issued to him on 13.01.2020 and a warning was also issued to him on 20.01.2020 to improve his performance in driving the vehicle. The applicant was also sent for trade test which was conducted by the R.T.O, Gwalior on 14.01.2020 wherein he was recommended for training (Annexure R-3). The Page 3 of 12 ANAND 2025.04.09 PRAKASH 16:47:18+05'30' DUBEY 4 respondents contended that since the work and performance of the applicant was not satisfactory right from the very beginning of his appointment, he was negligent in performance of duty for which he was issued memos and warning. Thus, despite given repeated opportunities to improve his performance, the applicant failed to improve his performance and the competent authority terminated his service which is simplicitor and not stigmatic.
5. Learned counsel for the respondents submitted that there is no illegality in the order dated 29.10.2020 as it has been passed in accordance with the proviso of Rule 5(1) of CCS (Temporary Service) Rules 1965 (Annexure R-4) giving one month salary to the applicant. Learned counsel for the respondents also submitted that the applicant's termination from service is only on account of his unsatisfactory performance and not based on allegation. Learned counsel further submitted that his termination is simplicitor in nature and the same is not punitive, therefore, there is no requirement to hold regular departmental enquiry.
6. We have heard Shri A.K. Nirankari, learned counsel for the applicant and Shri J. P. Saxena, learned counsel for the respondents and perused the pleadings. We have also considered the rival contentions. Page 4 of 12
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7. Learned counsel for the applicant vehemently argued that the impugned order dated 29.01.2020 terminating the applicant from service is illegal and arbitrary as no reason has been assigned for terminating the applicant from service, therefore, being non-speaking order is liable to be set aside. He further argued that before passing the impugned order, the applicant has not been given an opportunity of being heard, therefore, also the impugned order suffers from violation of principles of natural justice.
8. On the other hand learned counsel representing the respondents argued that there is no need for giving any reason to a probationer. He argued that even in the case of probation there is no need to comply with the principle of natural justice. It is for the competent authority to assess the work of a probationer and thereafter an opinion has to be formed whether the order of confirmation is to be passed or a probationer is to be removed from service. He urged that during the probation period, the work and performance in driving staff car was closely monitored by the competent authority and despite several opportunities he did not improve his performance. Accordingly the competent authority passed the impugned order of termination.
9. We have considered the rival submissions and have gone through the record.
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10. The question for our determination is whether a probationer can be terminated from service without giving reason and; whether principle of natural justice has to be complied with in the case of probationer before passing the order of termination.
11. The law with regard to termination of the services of a probationer is well established and it has been repeatedly held that such a power lies with the appointing authority which is at liberty to terminate the services of a probationer if it finds the performance of the probationer to be unsatisfactory during the period of probation. The assessment has to be made by the appointing authority itself and the satisfaction is that of the appointing authority as well. Unless a stigma is attached to the termination or the probationer is called upon to show cause for any shortcoming which may subsequently be the cause for termination of the probationer's service, the management or the appointing authority is not required to give any explanation or reason for terminating the services except informing him that his services have been found to be unsatisfactory. This position is no longer res integra and it is well- settled that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. The issue involved herein has been considered by the courts time and again. In Parshottom Lal Dhingra v. Union of India and Ors. Reported as 1958 SCR858, a Constitution Bench Page 6 of 12 ANAND 2025.04.09 PRAKASH 16:47:18+05'30' DUBEY 7 of the Hon'ble Supreme Court held that appointment even to a permanent post on probation means that the employee was taken on trial and such an appointment comes to an end even during or at the end of the probation if the person so appointed is found to be unsuited and his services are terminated.
12. Again , a Seven Judges Bench of the Hon'ble Apex Court, in Samsher Singh v. State of Punjab. Reported as 1975(1) SCR 814 has held that an appointment on probation or on an officiating basis is of a transitory character with an understanding/implied condition that such an appointment is terminable at any time. The appointment on temporary basis or on probation cannot be equated with holding the permanent post, for the reason that when a person is appointed on probation, he does not have a right to hold the post and if it is found that he was not suitable for the post, his probation can be terminated at any time.
13. In the case of K.V. Krishnamani Vs. Lalit Kala Academy reported in 1996 (5) SCC page 90, Hon'ble Supreme Court has held as under:-
"The very object of the probation is to test the suitability and if the appointing authority finds that the candidate is not suitable, it certainly has power to terminate the services of the employee. Under these circumstances, it cannot but be held that the reasons Page 7 of 12 ANAND 2025.04.09 PRAKASH 16:47:18+05'30' DUBEY 8 mentioned constitute motive and not foundation for termination of service"
14. In the case of Krishnadevaraya Education Trust v. L.A. Balakrishna reported in (2001) 9 SCC 319, the services of respondent- Assistant Professor were terminated on the ground that his proficiency in the job was not upto the mark. The Hon'ble Court held that merely a mention in the order by the employer that the services of the employee are not found to be satisfactory would not tantamount to the order being a stigmatic one. The Court held in para 5 thus: -
"5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say that such a contention will succeed. Normally, therefore, it is preferred that the Page 8 of 12 ANAND 2025.04.09 PRAKASH 16:47:18+05'30' DUBEY 9 order itself does not mention the reason why the services are being terminated.
6. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services."
15. In the case of State of Punjab v. Bhagwan Singh reported in (2002) 9 SCC 636, Hon'ble Apex Court at paragraphs 4 & 5 held as follows: -
"4. ...........In our view, when a probationer is discharged during the period of probation and if for the purpose of discharge, a particular assessment of his work is to be made, and the authorities referred to such an assessment of his work, while passing the order of discharge, that cannot be held to amount to stigma.
5. The other sentence in the impugned order is, that the performance of the officer on the whole was not satisfactory. Even that does not amount to any stigma."Page 9 of 12
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16. In the case of State of Punjab and ors. vs. Sukhwinder Singh [(2005) 5 SCC 569], a three Judge bench of the Hon'ble Supreme Court stated, "Termination of service of a probationer during or at the of the period of probation will not ordinarily and by itself be a punishment because the servant so appointed has not right to continue to hold such a post any more than a servant employed on probation by a private employer is entitled to. The period of probation, therefore, furnishes a valuable opportunity to the master to closely observe the work of the probationer and by the time the period of probation expires to make up his mind whether to retain the servant by absorbing him in regular service or dispense with his service. Period of probation may vary from post to post or master to master and it is not obligatory on the master to prescribe a period of probation. It is always open to the employer to employ a person without putting him on probation. Power to put the employee on probation for watching his performance and the period during which the performance is to be observed is the prerogative of the employer"
17. In the case of Chaitanya Prakash v. H. Omkarappa reported in (2010) 2 SCC 623, the services of respondent were terminated by the appellant company. During the period of probation, his services were not found to be satisfactory and he was also given letters for improvement of his services and his period of service was also extended and ultimately Page 10 of 12 ANAND 2025.04.09 PRAKASH 16:47:18+05'30' DUBEY 11 company terminated him. Court after referring to a series of cases held that the impugned order of termination of respondent is not stigmatic.
18. The underlined ratio of the above judgments indicates that a probationer has no legal right to be retained in service, if he did not successfully complete his probation period, as during the probation his performance has to be judged by the competent authority. The facts of the present case is that undisputedly the applicant was offered appointment on 29.01.2018 pursuant to which he joined on 30.01.2018 and as per appointment letter, initially the applicant was put on probation for a period of two years. During the probation period, he was served with several memos for negligence in driving the staff car and the applicant also submitted his reply ensuring to improve his performance in driving the staff car. Since, there was no improvement in his performance, the applicant was sent for trade test wherein the R.T.O, Gwalior had recommended him for more training. Thus, we are of the considered opinion that during the probation period the performance of the applicant was not satisfactory despite he was given opportunities to improve himself but he failed to do so even he did not qualify the trade test successfully. Further, we noted that it is also a condition in the appointment letter 'the appointment may be terminated at any time on one month notice given by Page 11 of 12 ANAND 2025.04.09 PRAKASH 16:47:18+05'30' DUBEY 12 the either side. The appointing authority may do so without assigning any reason...'.
19. In view of the above we find that the services of the applicant has been terminated being unsatisfactory and in view of the authoritative law on the subject we cannot substitute our opinion with that of an employer , who is the sole judge of the performance of the probationer. Further, the learned counsel for the applicant has not been able to prove the allegation of malafide alleged against respondents. In the absence of any evidence or proof of malafide, we cannot hold the impugned order illegal.
20. In view of the above, we find no reason to interfere with the impugned order dated 29.01.2020. Hence the O.A No. 191/2020 is dismissed being devoid of merits. No order as to costs.
(Mallika Arya) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
Anand...
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