Allahabad High Court
Smt. Manju Tomar vs Union Of India And Others on 8 July, 2013
Bench: Rakesh Tiwari, Bharat Bhushan
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 35
Writ Petition No. 17698 Of 2006
Smt. Manju Tomar....................................................................Petitioner
Versus
Union of India and others....................................................Respondents
Hon. Rakesh Tiwari, J.
Hon. Bharat Bhushan, J.
This petition challenges the validity and correctness of the order of termination dated 13/14.12.1999 passed by Assistant Commissioner, Kendriya Vidyalaya Sangathan, which reads thus :
"In pursuance of the clause 5(five) of the offer of appointment issued in favour of Smt.Manju Kumari,PET, Kendriya Vidyalaya, NTPC, Korba vide this office memorandum no. F-26-11/95-KVS(JBP), dated 16.12.1997, the undersigned being the competent authority hereby terminate forthwith the services of Smt. Manju Kumari and direct that she shall be entitled to claim a sum equivalent to the amount of her pay plus allowance for the period of this notice at the same rates at which she was drawing them immediately before the termination of her service or as the case may be for the period by which such notice falls short of one month."
Contention of the learned counsel for petitioner is that the aforesaid order is stigmatic as probationary services of the petitioner have been terminated without any enquiry or affording any opportunity of being heard to the petitioner. In this regard, he has referred to letter dated 17.11.1999 issued by the Principal appended as annexure no. 2 to the writ petition , which shows that petitioner Smt. Manju Tomar had been absenting from duties since 28.10.1999; that she had joined on 7.1.1998 and had worked only for 66 days upto 17.11.1999. After noting that she is habitually negligent in respect of the duties, she has been directed to report for duty immediately. According to the counsel for petitioner, this letter dated 17.11.19999 is the basis for passing of the impugned order of termination dated 13/14-12-1999 and that an appeal dated 3.1.2002 had been preferred by the petitioner challenging the order of her termination which has been decided by the Deputy Commissioner (Administration), Kendriya Vidyalaya Sangathan/appellate authority vide order dated 3.4.2002 appended as annexure no. 5 to the writ petition.
The appellate authority after considering the pleas taken by the petitioner in her appeal, disposed it of in compliance of the order dated 19.12.2001 of the Central Administrative Tribunal, Bench Allahabad, Allahabad in O.A. no. 311 of 2000. Disposing of the appeal, the appellate authority has recorded findings of fact that after expiry of leave on 27.10.1999, the petitioner remained on unauthorised absence from duties, due to which Physical Education of the children was badly hampered; that her work place was under a project sector where project authority was to bear the entire expenditure (recurring and non-recurring) and that before termination of her services, she had been given a reasonable opportunity by the Principal by directing her to report for duty immediately but inspite of it she did not join her duties.
It appears from a perusal of the appellate order that Principal, KV NTPC Korba while submitting his report for the period of 22 months during which the petitioner was on probation, had brought the aforesaid facts regarding her negligence and dereliction of duty so that her case may be considered for absorption in service in terms of clause 4 of the appointment letter as stated above. The Assistant Commissioner, KVS, Jabalpur terminated the probationary service of the petitioner in terms of clause 5 of the offer of probation as stated above. Dismissing her appeal, the appellate authority in paragraph no.2(g) and 3, has observed as follows :
"2(g). That memorandum no. F 6-34/99-KVS(RO-JBP)/4242 dated 13/14.12.1999 terminating the services of Smt. Tomar has been issued by the Assistant Commissioner strictly as per rules as the CCS(Temporary Service) Rules do not apply to the employees of Kendriya Vidyalaya Sangathan as it is an autonomous body. The respondents organization cannot wait indefinitely for Smt. Tomar to join by sacrificing the interest of the students.
3. Having considered all the facts and circumstances of the appeal sympathetically and carefully in the light of the order of the Hon. CAT, Bench Allahabad, the undersigned rejects the appeal of Smt. Manju Tomar, Ex PET, KV NTPC, Korba and upholds the action taken by the respondent no. 1 i.e. the Assistant Commissioner, KVS(RO), Jabalpur."
A perusal of clause 4 of appointment letter of the petitioner shows that her appointment was for a period of two years on probation which could be extended and upon successful completion of the probationary period, she would be confirmed as per Kendriya Vidyalaya Sangathan Rules on the availability of permanent vacancy. Clause 5 and 6 of the letter of appointment provided that services of the appointee are terminable by one month's notice on either side without any reason being assigned therefor and the appointing authority was vested with the right to terminate the services before expiry of stipulated period of notice by making payment of sum equivalent to the pay and allowances for the period of notice or the unexpired portion thereof.
Whereas clause 7 provided that in case of any dispute or claim against the Kendriya Vidyalaya Sangathan, irrespect of service or any contract arising out of or flowing from this offer of appointment, the courts of Delhi alone shall have jurisdiction. The conditions of her service on probation was accepted by the petitioner in writing in terms of clause 8 of the appointment letter which reads thus:
"8.If he/she accepts the offer on the terms and conditions stipulated, he/she would send her acceptance immediately to this office on receipt of this memorandum and join the Kendriya Vidyalaya mentioned overleaf. Necessary proforma for the purpose is Annexure 1 to IV and attestation forms are enclosed herewith which should be submitted to the concerned Principal after getting the same duly completed in all respects............."
Aggrieved by the order dated 3.4.2002 dismissing the appeal, the petitioner challenged the same before the Central Administrative Tribunal, Allahabad in O.A. No. 596 of 2002, filed by her under section 19 of the Central Administrative Tribunals Act, 1985 on the ground that the impugned order is ex facie illegal, arbitrary and cannot be sustained in the eyes of law as she was selected after following the prescribed procedure for appointment as in case of filling up of regular vacancy.
It was also asserted before the Tribunal that she had been punished with extreme penalty of termination of service without any opportunity of hearing and her termination of service is wholly illegal based on malafide charges and the respondent no. 4 while passing the order impugned had not at all considered the facts and circumstances of the case.
The Tribunal, however, recorded findings of fact thus :
"7. On merit however I would agree with respondents, because the object of appointing physical education teacher or for that matter any other teacher in a school is to impart education to students and to enhance the name of school by showing better performance. If a teacher absents continuously for such a long time that too during probation period itself naturally the authorities have a right to assess the said teacher and to come to the conclusion whether she is fit to be retrained or her services should be dispensed with. In the instant case, we have seen out of two years period, applicant attended the school only for 67 days, meaning thereby that on rest of the days students did not have any teacher for their physical education, thus it defeats the very purpose of appointing a teacher.
8.It is submitted by applicant that normal enquiry should have been held but since applicant was still on probation and was not even confirmed, her services could always be terminated on assessment of overall performance of the employee. Her termination is not by way of punishment but because she was not likely to make a good teacher, therefore, it was not necessary to hold an enquiry.
9.Applicant has next contended that she had carried out the assignment given to her successfully but that was because children must have practiced throughout the year but thereafter she absented herself for such a long time inspite of being told to join the duties so naturally the authorities feel it was no point in confirming such an employee who does not even attend the school regularly even during probation period.
10.In these circumstances if respondents terminated her services on overall unsatisfactory record, the order cannot be termed as illegal. O.A. is accordingly dismissed with no order as to costs."
Law on probation is quite clear that there can be no automatic absorption until and unless the conditions/offer of appointment as probationer or Rules governing the service of a probationer so provide. In the instant case the offer of appointment on probation clearly shows that she would be considered for absorption subject to the condition of availability of post and in consonance with the Rules. A probationer in fact is not a regular employee but is considered short of that mark as his work is under scrutiny for being absorbed in service before her appointment as a regular employee. Admittedly, the appellate authority as well as the Central Administrative Tribunal have reached a finding that termination of service of the petitioner was not the result of any malafide but based upon appraisal of her work; she had attended the school only for 66 days in two years of her probation. Furthermore, she had not joined her duties even after letter dated 17.11.1999 was issued to her by the Principal bringing the aforesaid facts to her notice and granting an opportunity to her to join her duties. Therefore, it appears to be her fault in not joining her duties even after notice and opportunity for which the Management of the school cannot be blamed of terminating her services without notice or opportunity as alleged.
In our considered view the appointing authority has a right to assess the work and conduct of a probationer and to come to a conclusion as to whether a person on probation is fit to be absorbed in service. Departmental enquiry may be conducted by the employer where the employee is part of the regular strength in service of the establishment. The law is that a probationer in fact is not on the strength of an employers' establishment as his work is under scrutiny for the purpose of regularisation or for his appointment on a substantive post in accordance with the rules. The petitioner was under probation and not a confirmed employee, therefore, in our considered opinion, the authority has rightly terminated the probationary services of the petitioner in terms of clause 5 of her offer of appointment which . in the instant case has been accepted in writing by the petitioner providing that her services could be terminated during the probationary period also. Her work having been assessed on merits by the authority for coming to the conclusion that she cannot be absorbed in service, does not suffer from any illegality or non application of mind.
Moreover, from the order impugned, it appears that it does not refer to any misconduct nor it can be read between the lines that probationary services of the petitioner were being terminated for any misconduct. It appears that in order to challenge the termination order, the petitioner has sought shelter under umbrella of the letter dated 17.11.1999 of the Principal wherein noting her absence from work, the petitioner was directed to join her duties immediately, therefore, it is not a punitive order. Had the principal not directed her to join her duties in the aforesaid letter, probably an inference could have been drawn that her termination from services during probation was a result of misconduct or stigma. That not being so, contention of the learned counsel for petitioner cannot be sustained. The decision rendered by the Apex Court in Nehru Yuva Kendra Sangathan Vs. Mehbub Alam Laskar ( 2008 AIR-1190 SC), does not help the petitioner at all as in that case, Sri Mehbub Alam Laskar had allegedly withdrawn some amount from the Govt. fund, to which he was entitled to, and had deposited in his personal account. Whereas in the instant case the petitioner was on unauthorised leave and during her probation had admittedly attended her duties only for 66 days in a span of two years. Thus,the facts of that case are distinguishable from the facts of the present case.
For the aforesaid reasons, we do not find force in the argument of the petitioner. The writ petition is accordingly dismissed upholding the order impugned in this petition dated 13/14.12,1999 of termination, order dated 3.4.2002 passed by the appellate authority and the order dated 8.12.2004 passed by Central Administrative Tribunal. No order as to costs.
Dated: 8.7.2013/SNT .