Central Administrative Tribunal - Delhi
Mr. Shuman Mukherjee vs Steel Authority Of India Ltd on 30 October, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1520/2013
Reserved on : 10.09.2013.
Pronounced on :30.10.2013.
Honble Mr. V. Ajay Kumar, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Mr. Shuman Mukherjee,
S/o late Sh. Jyotirmoy Mukherjee,
R/o C-15 Asian Games Village,
New Delhi-49. .. Applicant
(through Sh. Rahul Gupta with Sh. Vijay Pandita and Sh. Shekhar
Dasi, Advocate)
Versus
1. Steel Authority of India Ltd.
Through Chairman,
Ispat Bhawan, Lodhi Road,
New Delhi.
2. Union of India through
Secretary,
Ministry of Steel,
SAIL (PC) Section,
Udyog Bhavan,
New Delhi. .. Respondents
(through Sh. A.S. Chandhiok, Addl. Solicitor General with S/Sh. Ritesh Kumar, Sidharth Tyagi, Alakh Kumar, Sharat Kapoor, Honey Kumar, D.S. Mahendru, and Ms. Shweta Gupta and Ms. Mallika Ahluwalia, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) Following relief has been sought in this O.A.:-
(A) Quash/set aside the order N. 6(13)2008-SAIL (PC) volume II Govt. of India Ministry of Steel dated 1.5.2013 issued by under Secretary to Govt. of India as well as order bearing No. PER/CCS/168/2013 dated 1.5.2013 issued by respondent No.1 (B). Any other order/direction that this Honble Tribunal may deem fit and proper in the nature and circumstances of the case may also be passed.
2. Facts of this case were reproduced in details in our order dated 16.05.2013 by which the issue of grant of interim relief in this O.A. was decided. Same are being reproduced here for the sake of convenience:-
4. Facts of the case are that OA applicant joined SAIL as a Management Trainee on 14.11.1977. He gradually rose to the level of ED in the aforesaid organization. On 22.12.2010 he was appointed as Director (Commercial) on the recommendations of PESB as approved by the President of India. The appointment of the applicant was for a period of five years w.e.f. the date of assumption of charge or till the date of his superannuation or until further orders, whichever was earlier. The guidelines of PESB by which the applicant was covered lay down the following procedure for confirmation:-
PESB has been monitoring the Board structure of PSEs and writes to Administrative Ministries on the completion of the first year of tenure of a Board Level executive requesting for a proposal of confirmation. This proposal includes a Special Performance Report (SPR) in prescribed format devised by PESB, up to date ACRs and a report on the performance of the executive vis-`-vis MOU targets. The SPR of Director level executives is initiated by the CMD/MD/Chairman of the PSE and countersigned by the Secretary of the Ministry indicating his agreement/disagreement with the evaluation of the CMD/MD and is sent to PESB for CMD/MD/Chairman, the SPR is written by the Secretary of the Administrative Ministry and sent to the PESB along with the documents after completion of Ist year. Executives who score less than 37.5 marks on the SPR are called for a joint appraisal meeting with the Board in presence of Secretary of the Administrative Ministry. In case, the recommendation of non-confirmation is approved by the Competent Authority, the executive vacates the post. Further, PESB vide D.O. letter No.13/07/2010-PESB dated 13.5.2011 have also laid down the following guidelines:-
Now Ministries are required to send proposal to PESB only in case of non-confirmation on performance grounds i.e. in cases where the score on the SPR is less than 37.5 A CMD/MD/Functional Director would be deemed to be confirmed unless the Ministry/Department sends a proposal to the PESB, to the contrary, within 30 days after the expiry of one year.
Within this stipulated period of one year thirty days, the officers would be deemed to have been confirmed and the Ministry shall issue necessary order for confirmation, if the Ministry fails to send a proposal to the contrary to the PESB.
5. As prescribed in the guidelines, SPR of the applicant was forwarded by the SAIL to the Ministry of Steel who convened a Joint Appraisal Meeting regarding the applicant on 23.02.2012. In that Meeting it was decided to review the performance of the applicant again after a year. Accordingly, the performance of the applicant was reviewed again in a Joint Appraisal Meeting of the PESB held on 26.02.2013 in which recommendation for non-confirmation and termination of the applicant was made to the President. The matter was then referred to the Appointments Committee of the Cabinet who accorded their approval on 30.04.2013. On 01.05.2013 this decision was communicated by Ministry of Steel to SAIL and on the same date SAIL passed the impugned order by which the applicant was terminated and reverted to the post of ED.
3. The applicant has challenged the impugned order on various grounds. We discuss hereunder each of the grounds taken by the applicant, the response of the respondents thereto and our findings on the same:-
3.1 The first ground taken by the applicant is that the impugned order dated 01.05.2013 is illegal and liable to be so declared as it is contrary to the PESB guidelines for Boards level appointment dated 13.05.2011. According to the applicant as per these guidelines he had stood deemed confirmed on the post of Director (Commercial) since the proposal for non-confirmation dated 30.01.2013 on the basis of which the impugned order has been passed was itself beyond the period of one year and thirty days from the appointment of the applicant which was made on 22.12.2010. Learned counsel for the applicant argued that the first proposal regarding confirmation of tenure of the applicant was dated 18.01.2012 and meeting in respect thereof was held on 23.02.2012. On the recommendations of this meeting the final decision of the Government was taken on 11.12.2012. In that it was decided that the performance of the applicant shall be reviewed again on the basis of fresh Special Performance Report (SPR). Learned counsel argued that from the above it is clear that the proposal dated 18.01.2012 had come to an end and a fresh proposal was initiated only thereafter. This proposal was admittedly beyond the period of one year and thirty days from his appointment on the aforesaid post.
3.2 The PESB Guidelines dated 13.05.2011 have laid down emphasis for issuance of proposal of confirmation within one year and thirty days and the said Guidelines also provide for deemed confirmation if the proposal is beyond this period. It is also mandated that the Ministry shall issue order for confirmation in favour of the applicant. The object of these Guidelines is clear i.e. that the proposal for confirmation should be finalized as expeditiously as possible. The rationale of such a mandate is also obvious since the total tenure of a Director level officer is only five years, it is imperative that decision about his confirmation is taken expeditiously. Learned counsel for the applicant argued that the applicant has thus become entitled for deemed confirmation and consequently the impugned order of his termination dated 01.05.2013 is illegal and liable to be set aside. He relied on the decision of Apex Court in the case of State of Punjab Vs. Dharam Singh, AIR 1968 SCC 1210 in which the following has been held:-
8. The initial period of probation of the respondents ended on October 1, 1958. By allowing the respondents to continue in their posts thereafter without any express order of confirmation, the competent authority must be taken to have Extended the period of probation up to October 1, 1960 by implication. But under the proviso to r. 6(3), the probationary period could not extend beyond October 1, 1960. In view of the proviso to R. 6(3), it is not possible to presume that the competent authority extended the probationary period after October 1, 1960, or that thereafter the respondents continued to hold their posts as probationers.
9. Immediately upon completion of the extended period of probation on October 1, 1960, the appointing authority could dispense with the services of the respondents if their work or conduct during-the period of probation was in the opinion of the authority unsatisfactory. Instead of dispensing with their services on completion of the extended period of probation, the authority continued them in their posts until sometime in 1963, and allowed them to draw annual increments of salary including the increment which fell due on October 1, 1962. The rules did not require them to pass any test or to fulfil any other condition before confirmation. There was no compelling reason for dispensing with their services and re-employing them as temporary employees on October 1, 1960, and the High Court rightly refused to draw the inference that they were so discharged from service and re-employed. In these circumstances, the High Court rightly held that the respondents must be deemed to have been confirmed. in their posts. Though the appointing authority did not pass formal orders of confirmation in writing, it should be presumed to have passed orders of confirmation by so allowing them to continue in their posts after October 1, 1960. After such confirmation, the, authority had no power to dispense with their services under r. 6(3) on the ground that their work or conduct during the period of probation was unsatisfactory. It follows that on the dates of the impugned orders, the respondents had the right to hold their posts. The impugned orders deprived them of this right and amounted to removal from service by way of punishment. Theremoval from service could not be made without following the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and without conforming to the constitutional requirements of Art. 311 of the Constitution. As the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, 1952 was not followed and as the constitutional protection of Art. 311 was violated, the impugned orders were rightly set aside by the High Court. He also relied on the decision of the Apex Court in the case of Kazia Mohammed Muzzammil Vs. State of Karnataka and Another, (2010) 8 SCC 155, in Paras 46 to 48 the following has been laid down:-
46. On a clear analysis of the above enunciated law, particularly, the Seven Judge Bench judgment of this Court in Samsher Singh (supra) and three-Judge Bench judgments, which are certainly the larger Benches and are binding on us, the courts have taken the view with reference to the facts and relevant rules involved in those cases that the principle of automatic or deemed confirmation would not be attracted. The pith and substance of the stated principles of law is that it will be the facts and the rules, which will have to be examined by the courts as a condition precedent to the application of the dictum stated in any of the line of the cases afore noticed.
47. There can be cases where the rules require a definite act on the part of the employer before an officer on probation can be confirmed. In other words, there may a rule or regulation requiring the competent authority to examine the suitability of the probationer and then upon recording its satisfaction issue an order of confirmation. Where the rules are of this nature the question of automatic confirmation would not even arise. Of course, every authority is expected to act properly and expeditiously. It cannot and ought not to keep issuance of such order in abeyance without any reason or justification. While there could be some other cases where the Rules do not contemplate issuance of such a specific order in writing but merely require that there will not be any automatic confirmation or some acts, other than issuance of specific orders, are required to be performed by the parties, even in those cases it is difficult to attract the application of this doctrine.
48. However, there will be cases where not only such specific Rules, as noticed above, are absent but the Rules specifically prohibit extension of the period of probation or even specifically provide that upon expiry of that period he shall attain the status of a temporary or a confirmed employee. In such cases, again, two situations would rise: one, that he would attain the status of an employee being eligible for confirmation and second, that actually he will attain the status of a confirmed employee. The Courts have repeatedly held that it may not be possible to prescribe a straightjacket formula of universal implementation for all cases involving such questions. It will always depend upon the facts of a case and the relevant rules applicable to that service. Learned counsel has also relied on the Apex Court ruling in the case of Headmaster Lawrence School Lovedabel Vs. Jayanthi Raghu and Anr., 2012 (4) SCC 793, in Para-27 the following has been laid down:-
27. After referring to the decisions in Dharam Singh (supra), Sukhbans Singh (supra) and Shamsher Singh (supra) and other authorities, the three-Judge Bench expressed thus:-
11. The question of deemed confirmation in service Jurisprudence, which is dependent upon language of the relevant service rules, has been subject matter of consideration before this Court times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. Other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry order of termination has not been passed. The last line of cases is where though under the rules maximum period of probation is prescribed, but the same require a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor the person concerned has passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired. 3.3 On the basis of the above, learned counsel stated that as far as the issued of deemed confirmation is concerned, the Apex Court has laid down that the facts and rules of each case will have to be examined by the Courts as a condition precedent for deciding the issue of deemed confirmation. In the instant case he stood deemed confirmed in terms of PESB Guidelines.
4. Respondents on the other hand have denied that the applicant is entitled for deemed confirmation. According to them the Guidelines for confirmation provide as under:-
.Executives who scores less than 37.5 marks on the SPR are called for a joint appraisal meeting with the Board in presence of the Secretary of the Administrative Ministry. In case the recommendation of non-confirmation is approved by the Competent Authority, the executive vacates the post. Confirmation of Board level appointees Now Ministries are required to send proposal to PESB only in cases of non-conformation on performance grounds i.e. in cases where the score on the SPR is less than 37.5.
A CMD/MD/Functional director would be deemed to be confirmed unless the Ministry/Department sends a proposal to the PESB, to the contrary, within 30 days after the expiry of one year.
Within this stipulated period of one year and thirty days, the officer would be deemed to have confirmed and the Ministry shall issue necessary order for conformation, if the Ministry fais to send a proposal to the contrary to the PESB.
4.1 Learned ASG arguing on behalf of the respondents stated that the deemed confirmation will come into play only when the score in the SPR is more than the prescribed bench-mark. In such a situation there would be no need to send any proposal to PESB and after expiry of the period of one year and thirty days requisite confirmation order has to be issued. He argued that the applicant himself has admitted this interpretation in Para-4.6 of the OA. However, in the instant case the score of the applicant was below the bench-mark. The proposal of the Ministry was sent within the requisite period to PESB. Therefore, the conditions of deemed confirmation were not satisfied. Learned ASG also argued that the applicant himself had participated in the Appraisal Meeting in which his confirmation was considered. Had he been satisfied that his was a case of deemed confirmation, there was no need for him to attend the meeting on 23.02.2012 and 26.02.2012. The fact that he attended those meetings establishes that he was himself aware that he was not deemed to be confirmed. Moreover, the applicant was not aggrieved till 26.02.2013 i.e. date of second Appraisal Meeting as he never protested. Therefore, after having submitted to the process the applicant cannot now take the plea that he was deemed to be confirmed on 22.01.2012 itself.
4.2 Learned ASG stated that mere continuation of the applicant on the said post after expiry of the period of one year and thirty days from his appointment does not mean that he is deemed to have been confirmed. In the aforesaid case at the first instance in the Joint Appraisal Meeting it was decided to review the performance of the applicant afresh after obtaining one more SPR. This recommendation was subsequently approved by the ACC also. The implication of this is that period of probation of the applicant was deemed to have been extended. Learned ASG pointed out that in the present case there was no maximum period of probation that had been prescribed. Relying on the judgment of the Apex Court in the case of Sukhbans Singh Vs. State of Punjab, AIR 1962 SC 1711, learned ASG stated that in this case Constitution Bench had opined that a probationer cannot, after the expiry of probationary period, automatically acquire the status of a permanent member of the service, unless of course, the Rules under which he is appointed expressly provide for such a result. He stated that in the case of U.P. Vs. Akbar Ali Khan, AIR 1966 SC 1842, Constitution Bench of the Apex Court held that:-
6If the order of appointment itself states that at the end of the period of probation.in the absence of any order to the contrary, the appointee will acquire a substantive right to the post even without an order of confirmation. In all other case, in the absence of such an order or in the absence of such a service rule, an express order of confirmation is necessary to give him such a right. Where after the period of probation an appointee is allowed to continue in the post without an order of confirmation, the only possible view to take is that by implication the period of probation has been extended, and it is not a correct proposition to state that an appointee should be deemed to be confirmed from the mere fact that he is allowed to continue after the end of the period of probation. Further, in the case of Lawrence School Vs. Jayanthi Raghu, (2012) 4 SCC 793 the following has been held:-
38. Had the rule-making authority intended that there would be automatic confirmation, Rule 4.9 would have been couched in a different language. That being not so, the wider interpretation cannot be placed on the Rule to infer that the probationer gets the status of a deemed confirmed employee after expiry of three years of probationary period as that would defeat the basic purpose and intent of the Rule which clearly postulates :if confirmed. A confirmation, as is demonstrable from the language employed in the Rule, does not occur with efflux of time. As it is hedged by a condition, an affirmative or positive act is the requisite by the employer. In our considered opinion, an order of confirmation is required to be passed. Learned ASG also relied on the case of Kazia Mohammed Muzzammil Vs. State of Karnataka, (2010) 8 SCC 186 which has been relied upon by the applicant as well.
4.3 On the basis of the above, learned ASG stated that in the present case the period of probation was deemed to have been extended from 2012 to 2013 when the performance of the applicant was reviewed again. The contention of the applicant that the fresh proposal dated 15.01.2013 was not a valid proposal since it was made after expiry of period of one year and thirty days by which time the applicant had been confirmed is thus not tenable. In fact, after first evaluation the applicant was given another chance to improve his performance. However, the situation did not improve. In this regard, he relied on the decision of the Apex Court in the case of Mohd. Salman Vs. Committee of Management, (2011) 12 SCC 308 in which the following has been laid down:-
16. The correspondences which are on record also indicate That the service of the appellant was also found to be not satisfactory by the respondent and the said fact was also brought to the notice of the appellant continuously and repeatedly so as to give him an opportunity to improve his performance. However, despite the said opportunity granted and also extension, his performance and service were not improved and, therefore, the service was terminated under the aforesaid letter dated 3-4-1993.
17. In the case of Kedar Nath Bahl Vs. The State of Punjab and Others reported in 1974 (3) SCC 21, this Court clearly laid down the proposition of law that where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if no order is passed on that behalf. It was also held in that decision that unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period or that there is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. This Court went on to hold that at the end of the period of probation an order confirming the officer is required to be passed and if no such order is passed and if he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer. Learned ASG stated that the first proposal resulted into a decision by which another chance was given to the applicant to meet his performance and he remained a probationer even thereafter.
5. We have considered the submissions made by both sides. We looked at the citations given by the applicant in support of his claim for deemed confirmation. The first citation is of State of Punjab Vs. Dharam Singh (supra). Going through the facts of this case we find that it was provided under the proviso to Rule-6(3) that the probationary period could not extend beyond October 1, 1960. In view of this position of the Rules the Apex Court had ruled that even though appointing authority did not pass any formal orders of confirmation, it should be presumed to have passed orders of confirmation by so allowing the petitioners to continue in their posts after October 1,1960.
5.1 The applicant has also relied on the Apex Court ruling in the case of Headmaster Lawrence School Lovedabel (supra). Going through Para-27 of this judgment we find that Apex Court has quoted the ruling of three-Judge Bench expressed in Dharam Singh (supra), Sukhbans Singh (supra) and Shamsher Singh (supra) to state that depending upon the position of the Rule there could be different types of cases and deemed confirmation in service-jurisprudence would be dependent on the language of the Service Rules. They have stated that deemed confirmation would take place only in cases where a maximum period of probation has been prescribed and beyond which no extension is permissible.
5.2 The next citation relied upon by the applicant is of Kazia Mohammed Muzzammil (supra). The respondents have also relied on the same. We find that the view taken by the Apex Court is that it may not be possible to prescribe a straightjacket formula of universal implementation for all cases as far as deemed confirmation is concerned. The Apex Court has stated that it will always depend upon the facts of a case and the relevant rules applicable to that service.
5.3 Thus, the position that emerges from Apex Court rulings cited by both the parties is that no straightjacket formula for deemed confirmation can be prescribed and the facts and service rules of each case have to be seen for deciding this issue. However, if the rules provide for the maximum period beyond which confirmation cannot be extended and if the officer concerned is continued beyond such period then he will be deemed to have been confirmed. In both the cases cited by the applicant, namely, State of Punjab Vs. Dharam Singh (supra) and Headmaster Lawrence School Lovedabel Vs. Jayanthi Raghu and Anr. (supra) Apex Court has held that only.
5.4 In the instant case, we find that the appointment of the applicant was governed by PESB Guidelines which prescribe that after completion of one year of the tenure of a Board Level Executive a SPR in the prescribed format provided by the PESB will be written by CMD and Secretary of the Administrative Ministry. In case the Executive scores less than 37.5 marks in the SPR he will be called for a joint appraisal meeting with the Board in the presence of the Secretary of Administrative Ministry. Further, by their D.O. Letter No. 3/7/2010-PESB dated 13.05.2011 they have also laid down that Ministries are required to send proposal to PESB only in case of non-confirmation on performance grounds i.e. when the SPR score is less than 37.5. Further, it is laid down that an Executive would be deemed to have been confirmed unless the Ministry/Department sends proposal to PESB to the contrary within 30 days after expiry of one year. Thus, the condition of deemed confirmation gets triggered only if the proposal for non-confirmation is not made by the Administrative Ministry within a period of 30 days after expiry of one year.
5.4 The applicant was appointed as a Director (Commercial) on 22.12.2010. His one year tenure ended on 21.12.2011. The period of 30 days beyond this one year tenure would have ended on 21.01.2012. However, on 18.01.2012 itself the Administrative Ministry had moved a proposal to PESB for non-conformation of the applicant. Thus, in our opinion, time frame prescribed by the PESB Guidelines had been adhered to and thus deemed confirmation does not get triggered. Moreover, PESB Guidelines also do not provide for any maximum period of probation. Hence, we are not inclined to agree with the contention of the applicant that he stood deemed confirmed. It is noteworthy that as per the PESB Guidelines no time frame is prescribed for passing final order regarding non confirmation of the Executive as a consequence of the Joint Appraisal Meeting. Also the Guidelines are silent on the maximum period of probation. In the instant case, since no order of confirmation was passed, the presumption is that the period of probation gets extended as is laid down by the Apex Court in the case of Mohd. Salman (supra).
5.5 On the point of deemed confirmation, learned counsel for the applicant had also argued that admittedly the impugned order was passed on the basis of the fresh proposal dated 30.01.2013 since the proposal dated 18.01.2012 had come to an end. This fresh proposal was undoubtedly after the expiry of period of one year and 30 days from the date of appointment of the applicant. Thus, as per PESB Guidelines the applicant should have been deemed to have been confirmed. He argued that the Guidelines have strictly laid down a time schedule for confirmation. This is because tenure of Board Level Executive is limited and it is absolutely necessary that decisions regarding their confirmation or otherwise are taken expeditiously. The total tenure given to a Director Level Officer was 5 years and the applicant had already spent 2 years and 5 months on the post of Director when his termination order was issued. Learned counsel for the applicant argued that this is in violation of the Guidelines.
5.6 In response to this, learned ASG stated that the first proposal for non-confirmation was made by the Ministry on 18.01.2012 which was admittedly within the time frame prescribed under the PESB This proposal did not end as claimed by the applicant but resulted in a decision requiring fresh proposal on the basis of an additional SPR. Therefore, the question of deemed confirmation does not arise as deemed confirmation is prescribed in the PESB Guidelines only after the first proposal for non-confirmation is not moved on time. Moreover, as is clear from the citation given above, namely, Mohd. Salman (supra) merely because the Executive has been allowed to continue beyond his period of probation, it does not follow that he has been deemed confirmed till a specific order to that effect is passed. In fact, the implication of his contention would be that his period of probation gets extended.
6. We have considered the submissions of the learned counsel for the applicant that the first proposal dated 18.01.2012 had come to an end and the second proposal dated 26.02.2013 was beyond the prescribed period of one year and 30 days and therefore the applicant should be deemed to have been confirmed. In our opinion, two proposals cannot be viewed in isolation as they are connected to each other. The first proposal resulted in the decision of the authorities to reconsider the issue of confirmation of the applicant again after giving him one more chance to meet his performance. It is obvious that in the first proposal meeting it was found that on the basis of the material available, it was not possible to confirm the applicant. After that, only two options were available, namely, to terminate the applicant or as has been done in this case, to give him another chance. The view taken by the Appraisal Committee was more beneficial to the applicant as the other option would have led to termination straight away. The applicant also seems to have accepted the decision as he readily participated in the Second Appraisal meeting held on 26.02.2013. The applicant was well aware of the PESB Guidelines which prescribe that Joint Appraisal Meetings are to be held only in cases where Ministrys proposal for non-confirmation of the Executive has been made. Since he readily and willingly participated in the said meeting without protest it follows that he had submitted to the process. Having done so, it is not open to him to now take the plea that he stood confirmed and therefore there was no need for the Second Appraisal Meeting. Hence, we come to the conclusion that the applicants contention that he stood deemed confirmed and therefore his termination order is illegal is not tenable.
6.1 The second ground taken by the applicant is that the impugned order is illegal being in violation of principles of natural justice and fair play. It is admitted that this decision has been taken after consideration of (i) SPR; (ii) MOU Performance Report; and (iii) Copies of available ACRs for the corresponding year. However, at no point of time had these been supplied to the applicant. It is incorrect to say that PESB Guidelines do not provide for supply of these documents to the concerned officer and therefore they were not supplied. In fact, it was the requirement of principles of natural justice that material relied upon to arrive at a decision against the applicant should have been supplied to him before the Joint Appraisal Meeting. In this regard, learned counsel for the applicant relied on the judgment of Honble Supreme Court in the case of Dev Dutt Vs. Union of India & Ors., 2008(8) SCC 725.
6.2 The applicants counsel also argued that the respondents have taken the defence that since the applicant was a probationer principles of natural justice do not apply in this case. Learned counsel argued that it was incorrect to say that he was probationer on the date the impugned order was passed as he had already stood deemed confirmed as mentioned before.
6.3 In reply, the respondents have stated that once it was concluded that the applicant was not confirmed and he was still a probationer, then as per law there was no requirement which mandated following principles of natural justice in the case of discharge/termination of a probationer. Respondents have relied on the judgement of Honble Supreme Court in the case of Rajesh Kumar Srivastava Vs. State of Jharkhand, (2011) 4 SCC 447 in which it has been held as under:-
9. A person is placed on probation so as to enable the employer to adjudge his suitability for continuation in the service and also for confirmation in service. There are various criteria for adjudging suitability of a person to hold the post on permanent basis and by way of confirmation. At that stage and during the period of probation the action and activities of the appellant are generally under scrutiny and on the basis of his overall performance a decision is generally taken as to whether his services should be continued and that he should be confirmed, or he should be released from service. In the present case, in the course of adjudging such suitability it was found by the respondents that the performance of the appellant was not satisfactory and therefore he was no suitable for the job.
10. The aforesaid decision to release him from service was taken by the respondents considering his overall performance, conduct and suitability for the job. While taking a decision in this regard neither any notice is required to be given to the appellant nor he is required to be given any opportunity of hearing. Strictly speaking, it is not a case of removal as sought to be made out by the appellant, but was a case of simple discharge from service. It is, therefore, only a termination simpliciter and not removal from service on the grounds of indiscipline or misconduct. While adjudging his performance, conduct and overall suitability, his performance record as also the report from the higher authorities were called for and they were looked into before any decision was taken as to whether the officer concerned should be continued in service or not. They have also relied on the decision of the Apex Court in the case of H.F. Sangati Vs. Registrar General, High Court of Karnataka, (2001) 3 SCC 117 in which the following has been laid down:-
There was, thus, no requirement to comply with the principles of natural justice, much less to be preceded by any formal proceedings of inquiry before making the order. They have further relied on the decision of the Apex Court in the case of High Court of Judicature at Patna Vs. Pandey Madan Mohan Prasad Sinha, (1997) 10 SCC 409 in which the following has been laid down:-
As regards a probationer, the law is well settled that he does not have a right to hold the post during the period of probation. The position of a probationer cannot be equated with that of an employee who has been substantively appointed on a post and has a right to hold that post. An order terminating the services of a probationer can be questioned only if it is shown that it has been passed arbitrarily or has been passed by way of punishment without complying with the requirements of Article 311(2) of the Constitution. Since a probationer has no right to hold the post on which he has been appointed on probation, he cannot claim a right to be heard before an order terminating his services is passed. The obligation to communicate the adverse material to a person before taking action against him on the basis of the said material is a facet of the principles of natural justice. But principles of natural justice have no application in the case of termination of the services of a probationer during the period of probation since he has no right to hold the post. It is, therefore, not possible to hold that there is an obligation to communicate the adverse material to a probationer before a decision is taken on the basis of the said material that he is not fit for being retained in service. Such material can be relied upon to show that such a decision does not suffer from the vice of arbitrariness and is not capricious. 6.4 On the basis of above citations, learned ASG argued that the present case is not one of punitive dismissal but discharge from service because the applicant was not found fit. It is true that ACRs and SPRs were used by the respondents to arrive at the decision. However, decision was taken during the period when the applicant was a probationer and therefore as laid down by the Apex Court there was no requirement of following principles of natural justice. Moreover, no judicial review is available because the termination order of probationer can be challenged only on the ground of mala fide etc. It is not open to the Courts to sit as an Appellate Authority on the decision for not confirming a probationer. A probationer has no right to continue against the orders of his employer.
7. We have considered the submissions of both sides. First of all we reject at the outset the contention of the applicant that at the time of Joint Appraisal Meeting he was not a probationer as he stood deemed confirmed. Had this been the case, there was no need to hold a Joint Appraisal Meeting as the very purpose of that Meeting was to discuss the confirmation of the applicant. Since applicant has himself willfully participated in the aforesaid Meeting, it is obvious that he himself accepted this position. Therefore, it is now not open to him to claim deemed confirmation and termination of his probation period. As discussed in the earlier part of this judgment, we have not accepted this contention of the applicant and have come to the conclusion that his probation period was deemed to have continued till the time he was terminated from his post.
7.1 The other arguments of the applicant that non-communication of the relevant material was violation of principles of natural justice has also been considered by us. We are inclined to agree with the respondents that as per law laid down by the Apex Court in the citations given above, it was not mandatory for the respondents to have communicated the ACR, SPR and MOU performance report to the applicant before taking a decision regarding his confirmation. The applicant has relied on the judgment of the Apex Court in the case of Dev Dutt (supra). However, we feel that the facts of the present case are different from the case cited by the applicant. In the case of Dev Dutt, Honble Supreme Court were concerned with un-communicated below bench-mark ACRs of an officer being assessed by DPC for promotion. First of all that case was not of a probationer. Secondly, it was a case of DPC in which decision is taken purely on the basis of ACRs by the DPC and the officer concerned has no say in the matter. In such a situation, the Apex Court had come to the conclusion that below bench-mark ACRs should be communicated to the officer and he be given a chance to represent against them before a decision is taken by the DPC regarding his promotion. However, in the instant case we notice that the decision is not based purely on SPR/ACR etc. The PESB Guidelines provide that in case the SPR score of an Executive is below the prescribed level, the Ministry can move a proposal for his non-confirmation. The Guidelines also provide that if the SPR score is more than the prescribed level then the Ministry is duty bound to issue a confirmation order of the applicant if he is otherwise eligible. Thus, while the confirmation is automatic based on the SPR score, non-confirmation is not. In such a case, a proposal is made by the Ministry to PESB who then convene a Board Meeting in which besides the Secretary of the Administrative Ministry the concerned Executive is also invited. Thus, the process of arriving at the decision of non-confirmation is participatory in nature. The Executive himself participates in the discussions held where he will get full chance to rebut any material i.e. relied upon against him. Thus, in our opinion, the Apex Court ruling in the case of Dev Dutt (supra) will not apply in the instant case. We do not find the procedure followed by the respondents to be violative of the principles of natural justice as the decision was taken with full participation of the applicant.
7.2 Moreover, the fairness of the procedure followed is also obvious from the fact that in the first Joint Appraisal Meeting held on 23.02.2012, it was decided to give the applicant another chance to improve his performance. The Board had clearly come to the conclusion that it was not possible to confirm the applicant on his post. Yet instead of terminating his appointment at that very stage, they decided to give him one more chance by recommending that his performance be reviewed after a fresh SPR becomes available. Thus the procedure followed cannot be faulted for lack of transparency, fairness or as being violative of principles of natural justice.
7.3 The next ground taken by the applicant is that the termination order is illegal because in his appointment letter, it was laid down in Clause-1.1 that if the appointment is terminated then three months notice is mandatory. However, the impugned order dated 01.05.2013 has been passed with immediate effect. He has relied on the judgment in the case of Pradeep Kumar Dass Vs. UOI & Ors., 2012(191) DLT 651.
7.4 The respondents in their reply have stated that clause 1.1. of the appointment letter has not been used in the present case. The applicant was terminated because he was found not suitable in terms of the guidelines. In any case, no service of the notice or pay in lieu thereof is not fatal as held by the Honble Supreme Court in the case of State of M.P. Vs. Virendera Kumar Chourasiya, 1999 SCC (L&S) 1155. The operative portion of this judgment reads as follows:-
2. It is urged by the respondent that under the order of appointment, there is a provision for termination of service by issuing one months notice or by making payment of one months salary and allowances in lieu of notice. However, in his case, one months salary in lieu of notice has not been paid. Looking to the nature of the appointment, the appellants have a right to terminate the services of the respondent simpliciter. The order, therefore, is not vitiated though the appellants are bound to pay to the respondent one months salary and allowance in view of the conditions contained in the letter of appointments. 7.5 We have seen the terms and conditions of the appointment of the applicant which were issued on 01.03.2013. Clause 1.1 of the aforesaid letter reads as follows:-
Period : His appointment will be for a period of five years w.e.f. 23.1.2010 (A/N) in the first instance or till the date of superannuation or until further orders, whichever event occurs earlier and in accordance with the provisions of the Companies Act, 1956 as amended. The appointment may, however, be terminated even during this period by either side on 3 months notice or on payment of three months salary in lieu thereof. 7.6 In our opinion, the respondents are right in saying that they have not terminated his appointment under Clause 1.1 which provide for three months notice for termination of the appointment by either side or payment of three months salary in lieu thereof. In fact, the services of the applicant have been terminated under Clause 1.2 which provide for the Government to take a view regarding continuance or otherwise of the applicant after reviewing his performance. This is also obvious from the letter No. 6(13)2008-SAIL (PC) Vol.II dated 01.05.2013 issued by the Ministry of Steel, in Para-6 of which it is clearly mentioned that the termination was being resorted to in terms of Clause 1.2 of the terms and conditions of the appointment of the applicant. It was on the basis of this letter that SAIL issued the impugned termination order of the applicant.
7.7 Learned counsel for the applicant also argued that it is wrong to say that the applicant had been communicated the ACC order dated 11.12.2012 and that he was aware about the review of his performance on the basis of fresh SPR. In fact the applicant had never been communicated this decision and he was not aware that the ACC had decided to approve the proposal for review of this performance by fresh SPR. The applicant has stated that he had only received following letters and communications from the Respondents:-
(i) The office order of appointment dated 22.12.2010.
Letter dated 21.2.2012 calling upon the applicant to attend the meeting to be held on 23.02.2012 in respect of appraisal of his performance.
Letter dated 8/13.02.20213 calling upon the applicant to attend the meeting dated 26.02.2013 for appraisal of his performance once again.
Terms and conditions of appointment dated 01.03.2013 issued to the applicant.
The copy of the impugned orders both being dated 01.05.2013 issued by the respondent No.1 (SAIL) and respondent No.2 (UOI through Ministry of Steel, New Delhi).
Thus, it was stated that the applicant was completely in dark about the decision taken by the ACC and he was simply called on two occasions to attend the meetings by the Joint Appraisal Board which he duly attended.
7.8 While the respondents have rebutted this contention of the applicant yet in our opinion, we need not deal with this issue at all because we have already come to the conclusion that the process adopted by the respondents to arrive at a decision regarding non-confirmation of the applicant cannot be faulted for lack of transparency as it was participatory in nature and not based on documents alone. The applicant himself has not been able to establish that lack of knowledge of certain documents, in particular the ACC decision dated 11.12.2012 adversely affected his performance in the Joint Appraisal Meetings. There is also no record of his having asked for any material from the respondents before taking part in these meetings.
7.9 During arguments, the applicants counsel had also stated that he had been granted Performance Related Pay (PRP) at 100% for the period 2010-2011 and 2011-2012 and the said PRP was itself based on the MOU performance of the applicant. Therefore, it is clearly unthinkable that in his SPR he has been given marks below the prescribed bench-mark.
7.10 The respondents in their reply have stated that it was not open to the Courts to sit as an Appellate Authority on the decision for not confirming a probationer. It was in the realm of the CMD and the Secretary of the Administrative Ministry to assess the performance of the applicant and assign him the score in SPR which according to their assessment was appropriate.
8. We agree with the respondents that it is not for the Courts to sit in judgment over the assessment made by the competent authority regarding the performance of the applicant until and unless mala fide is alleged in such assessment. Moreover, during the course of arguments we were shown Office Order No. PER/EC/1213/PERP/2011-12 dated 07.03.2013 which deals with the Scheme for PERP for Executives of SAIL for the year 2011-2012. From this letter we find that the weightage given to individuals performance while determining PRP was only 15%. 50% weightage was given to the Companys performance as a whole, and 35% weightage was given to items like production, energy consumption etc. Thus, it is very much possible that despite having below bench-mark performance an individual might become eligible for PRP. Hence this ground of the applicant is not accepted.
9. During arguments, the applicants counsel had also stated that applicants termination has come about due to mala fide on the parts of respondents No.1 and 2 because he had written a letter to CBI on 24.12.2012 (page-29 of the paper-book) for investigation of various financial irregularities taking place in SAIL. Thus, the contention of the counsel was that the applicant has been victimized.
9.1 We are not inclined to accept this argument. The termination of the applicant has not been done by anyone person but by PESB Board in which the Secretary of the Administrative Ministry was also present. This decision has been approved by ACC. Moreover, had there been any victimization, the applicant could have been terminated in the first Joint Appraisal Meeting itself rather than being given any chance. Thus, this argument of the applicant appears to be an after thought. In any case, if he had seriously alleged mala fide, he should have made the CMD of SAIL and Secretary, Ministry of Steel parties by name which would have given them an opportunity to rebut his claim. The respondents in this regard have cited the judgment of Honble Supreme Court in the case of All India State Bank Officers Federation Vs. Union of India, (1997) 9 SCC 151 in which it was observed as under:-
22.There is yet another reason why this contention of the petitioners must fail. It is now settled law that the person against whom mala fides are alleged must be made a party to the proceeding. The allegation that the policy was amended with a view to benefit Respondents 4 and 5 would amount to the petitioners contending that the Board of Directors of the Bank sought to favour Respondents 4 and 5 and, therefore, agreed to the proposal put before it. Neither the Chairman nor the Directors, who were present in the said meeting, have been impleaded as respondents. This being so the petitioners cannot be allowed to raise the allegations of mala fides, which allegations, in fact, are without merit.
10. Lastly, the applicant argued that he had already put in 33 years of unblemished service and was now due for retirement shortly within a less than 2 years period from the date of his termination. The respondents have posted him at Ranchi which is in violation of Government Guidelines which provide officers should not be transferred during the last two years before their superannuation.
10.1 We have considered this submission and in our opinion posting at Ranchi after being terminated from the post of Director (Commercial) based in Delhi cannot be ground for quashing of the termination order itself. Nevertheless, we direct the respondents to consider sympathetically posting the applicant in Delhi itself for the remaining part of his service. This will, of course, be subject to availability of a suitable post and eligibility of the applicant to occupy the same.
11. On the basis of the above analysis, we are of the view that none of the grounds taken by the applicant to challenge his termination order are acceptable. The O.A. is dismissed being devoid of merit. We, however, direct the respondents to consider posting the applicant in Delhi for the balance period of his service provided a suitable post is available and the applicant is otherwise eligible to hold it. No costs.
(Shekhar Agarwal) (V. Ajay Kumar) Member (A) Member (J) /vinita/