Madras High Court
K. Harigovindan vs The Chairman, Tuticorin Port Trust on 24 July, 2007
Author: K. Chandru
Bench: K. Chandru
ORDER K. Chandru, J.
1. The Writ Petition is filed by the petitioner against the order dated 16.10.2004 passed by the respondent, by which the petitioner's service as probationer was brought to an end.
2. It is stated that the respondent has excised his power under Regulation 10(1)(a) of the TPE Employees (RSP) Regulation 1979. The petitioner was employed in the respondent Port Trust by an order dated 28.11.2001 and it was stated in that order that he would be kept under probation for a period of two years from the date on which he joined the duty and it might be extended at the discretion of the competent authority.
3. Subsequently, the petitioner's probation was extended by an order dated 6.5.2004 for a period of six months with effect from 12.12.2003 as the petitioner's service was found not satisfactory. Once again, the petitioner's service were extended by another six months by an order dated 15.10.2004 with effect from 12.6.2004. This order was also passed under Regulation 8(2) of the TPE Employees (RSP) Regulation 1979. After the end of three years period, the petitioner's services were terminated by the impugned order referred to earlier. The text of the order reads as follows:
In exercise of powers conferred on me by Regulation 10(1)(a) of the TPE Employees (RSP) Regulation 1979, I, N.K. Raghupathy, Chairman, Tuticorin Port Trust hereby terminate forthwith the services of Shri K. Harigovindan, Marine Engineer, Marine Department, Tuticorin Port Trust as he is considered unfit for further retention in service on the basis of his performance and conduct during the period of probation.
4. When the petitioner was given orders extending his probation two times by the respondent, the petitioner did not prefer any appeal against the extension of probation before any statutory authority as contemplated under Regulation 8(2). Finally, the order bringing an end to the petitioner's service is sought to be challenged.
5. The respondent has filed a counter dated 23.12.2004 justifying the circumstances under which the order of termination came to be passed. The respondent also averred that the petitioner was unfit to be retained in the services on the basis of his performance.
6. Mr. R. Sekaran, learned Counsel for the petitioner contended that when extension was given, it was done on retrospective basis. Therefore, the extension itself was illegal. With reference to this contention, it must be stated that there was no challenge to the extensions of probation given to the petitioner even though a statutory appeal is provided under the regulation. Therefore, this contention cannot be raised by the petitioner at this stage. Further, under the regulation, there is no automatic confirmation after the end of a maximum period of probation and it requires an order in writing for confirmation.
7. Learned Counsel for the petitioner relying upon the judgment of the Supreme Court V.P. Ahuja v. State of Punjab contended that inasmuch as the impugned order is stigmatic and in the absence of any enquiry or notice, the impugned order is liable to be set aside.
8. V.P. Ahuja's case cited supra came to be considered by two decisions of the Supreme Court subsequently. In the first judgment in H.F. Sangati v. Registrar General, High Court of Karnataka and Ors. , a three Judge Bench of the Supreme Court, in para 11, it is observed as follows:
Para 11 : Reliance by the appellants on the decisions of this Court in V.P. Ahuja is misconceived. In V.P. Ahuja's case the appellant's appointment was terminated during the period of probation. One of the recitals of the order was that the appellant "failed in the performance of his duties, administratively and technically". The order was founded on a stigmatic allegation and was, therefore, held punitive. The appellant was an employee of a Cooperative Federation in Punjab. The judgment does not refer to the relevant service rules and none have been brought to our notice so as to claim parity of the appellant's case with that of V.P. Ahuja case. In these appeals, as we have already stated, the statutory rule requires the order of discharge to indicate the grounds for the discharge. If the ground for discharge would not have been mentioned in the impugned order, it would have invited the criticism of being arbitrary or not satisfying the requirement of the rule. It may be stated that in the High Court, the appellants have not laid any challenge to the vires of Rule 6.
9. Further once again the Supreme Court had an occasion to consider the same in Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. . The relevant passage found in paragraphs 30 and 31 reads as follows:
Para 30 : As was noted in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences 12 : (SCC p.73, para 28)
28. At the outset, we may state that in several cases and in particular in State of Orissa v. Ram Narayan Das it has been held that use of the word 'unsatisfactory work and conduct' in the termination order will not amount to a stigma.
Para 31 : Returning now to the facts of the case before us. The language used in the order of termination is that the appellant's "work and conduct has not been found to be satisfactory". These words are almost exactly those which have been quoted in Dipti Prakash Banerjee case as clearly falling within the class of non-stigmatic orders of termination. It is, therefore safe to conclude that the impugned order is not ex facie stigmatic.
10. In the light of the same, no case is made out to interfere with the impugned order of termination. Accordingly, the Writ Petition will stand dismissed. No costs.