Jharkhand High Court
Tulsi Rai vs Life Insurance Corporation Of India And ... on 22 July, 2002
Bench: M.Y. Eqbal, Hari Shankar Prasad
ORDER
1. This appeal under clause 10 of the Letters Patent Appeal is directed against the judgment dated 16.8.1999 whereby the learned Single Judge dismissed the writ petition and declined to quash the order dated 21st February, 1992 issued by the respondents whereby the petitioner was removed from the service w.e.f. 1 st September, 1991.
2. The facts of the case lie in narrow compass. The petitioner was appointed as Apprentice Development Officer in pursuance of the advertisement issued by the respondent No. 1-Life Insurance Corporation of India and after due interview and medical test, the order of appointment was issued on 13.11.1990. In terms of the appointment letter, the petitioner was appointed as a Probationary Officer with the stipulation that the period of probation shall be for a period of 12 months from the date of joining which may be extended at the discretion of the respondents for a maximum period of 24 months counted from the commencement of the date of appointment. Admittedly after the expiry of 12 months the petitioner continued in service on probation. However, in 1991 the petitioner, in apprehension of his removal from service, approached this court by filing CWJC No. 2683/91 (R). This court disposed of the said writ petition on 10.2.1992 by passing the following order :
"After hearing the counsel for the petitioner and the respondents, we do not make any direction asking the petitioner to join. This will be for the respondents/authority to consider.
Learned counsel for the respondents states that the respondents-authority are intending to pass certain order within one month in view of the conduct of the petitioner. They may such action, as may be necessary and permitted in law.
If the petitioner feels aggrieved by such an order, he will have the liberty to come to this Court.
With this observation this application is disposed of."
3. It appears that immediately thereafter the letter of termination was issued on 21.2.1992 whereby the services of the petitioner was terminated with effect from 1.9.1991. The petitioner-appellant challenged the aforesaid order of termination by filing aforementioned writ petition being CWJC No. 1146/92 (R) on the ground, inter alia, that the petitioner was not given any show cause notice nor opportunity of hearing and the order was passed in violation of the principle of natural justice. The petitioner also assailed the said order of termination on the ground that he was deemed to be confirmed after completion of probationary period in terms of the letter of appointment. The learned Single Judge after considering the relevant clause of the letter of appointment and the regulations framed by the respondents came to the conclusion that since there being a specific provision of confirmation laid down under the order of appointment, the petitioner cannot claim to be confirmed automatically on completion of the period of probation. Since the service of the petitioner could be terminated at any time during the period of probation and no notice was required to be given before such termination, the impugned order of termination was neither illegal nor unjustified. Accordingly the writ petition was dismissed.
4. We have heard the counsel for the parties at length. The relevant clauses of letter of appointment dated 30.11.1999 particularly clause Nos. 2 and 11 are reproduced herein below :
2. Probationary period.--You shall be on Probation initially for a period of twelve months from the date of your joining duties as a Probationer, but the Corporation may, in its sole discretion, extend your probationary period, provided that the total probationary period including the extended probationary period shall not exceed 24 months counted from the commencement of the probationary appointment. During the probationary period (which includes extended probationary period, if applicable) you shall be liable to be discharged from service of the Corporation without any notice and without any cause being assigned.
11. Confirmation and Increments.-- (i) On your satisfactorily completing the period of probation and your observance and compliance with all confiditions set out in this letter of appointments, you will be confirmed in the services of the Corporation in Class II, your confirmation will depend inter alia upon the fulfillment, of the minimum business guarantee set out in para 10 above and upon your record of post-sales service to the Corporation's policy holders and other functions performed by you in the area allotted to you to the satisfaction of the competent authority.
(ii) The grant of increments to you shall be governed by Regulation 56 of LIC of India (Staff) Regulations, 1960 read with Schedule-III as amended from time to time.
5. From perusal of the aforesaid clause it is manifest that the initial probation period fixed by the respondents was for 12 months from the date of joining and the Corporation reserved their right to extend the probationary period for a maximum period of 24 months. It was further mentioned that during the probationary period the petitioner was liable to be discharged from the service of the respondents without any notice.
6. The respondents in their counter-affidavit, in order to justify the order of termination, stated inter alia that the petitioner can not be termed as confirmed employee and as a matter of fact he continued on probation before the services was terminated. It is further stated that before completion of probationary period the petitioner was cautioned many times verbally and also in writing about his poor performance. The respondents further case is that by several letters the petitioner was informed about the deteriorating performance and consequences thereof but there was no improvement which resulted in the termination of service of the petitioner.
7. Admittedly after completion of 12 months the petitioner continued in the services, may be, as a probation. It was only on 21st February, 1992 the letter of termination was issued, a copy of which has been annexed as Annexure-7 to the writ petition. The letter of termination reads as under :
"Re : Termination of your services from the Corporation.--We refer you to out letter ref : JDO/Sales/AIM dated 13.11.1990 appointing you as Probationary Development Officer initially for a period of 12 months from 1.9.1990 and the Order dated 10.2.1992 of the Ranchi Bench of The Hon'ble High Court, Patna in connection with your CWJC No. 2683/91 (R).
In this connection we have to inform you further that on considering the facts and performance, work habits and attitude during the initial probationary period, your case does not deserve any extension of probation. You, therefore, stand discharged from the services of the Corporation with effect from 1.9.1991 which please note."
8. From perusal of termination letter it is clear that the services of the petitioner was terminated on the ground of his poor performance, work habits and attitude during the initial probationary period. From the letter which have been made Annexure-B in the counter-affidavit it appears that the petitioner had given business of 25.71 lacs during the probationary period till the end of May, 1999. He had given a business of 24,81,000/- whereas he had to give a business of 65 lacs. However, allegation was made in the letter dated 30th July, 1991 (Annexure-R/3) to the counter affidavit that the petitioner did not take up the job seriously and failed to improve the target and a number of proposal in the month of August, 1991. The question, therefore, which fall for consideration is whether even assuming that in absence of letter of confirmation the petitioner cannot be automatically confirmed as held by the learned single Judge, a probationer can be removed from service on the basis of allegations without holding an enquiry and without giving him opportunity of hearing in order to explain them of that his performance was not so unsatisfactory which warranted such punitive action of removal from service.
9. In the case of B.P. Ahuja v. State of Punjab, AIR 2000 SC 1080 the same question fell for consideration before the Apex Court. The fact of that case was that the appellant was appointed as a Chief Executive in the Establishment of Punjab Corporation Cotton Marketing and Spining Mills Federation Limited in 1978. One of the terms of his appointment was that his probation period was of 2 years which could be extended further at the discretion of the management. It further provided that during the probation period, the management shall have right to terminate his service without notice. By order dated 2.12.1998 a letter of termination was issued on the ground that the appellant failed in the performance of his duties, administratively and technicality. The said order was challenged in the High Court in a writ petition which was dismissed on the ground that the order of termination was stigmatic and nothing at all has been urged that may attract such an order being passed during the period of probation. The Apex Court, setting-aside the order of the High Court, held that the order did not satisfy its being stigmatic as also punitive. The order was founded on the ground that the appellant had failed in the performance of his duties, administratively and technicality. For the aforesaid reasons the services of the appellant was terminated. Their Lordships further held that a probationer-servant is also entitled to certain protection and his service can not be terminated nor can his service be terminated in a punitive manner without complying the principles of natural justice.
10. In the case of Krishnadevaraya Education Trust and another v. L.A. Balakrishna. (2001) 9 SCC 319 the order of termination of a probationer was under challenge before Apex Court. The Apex Court reiterated the view and held that if the order on the face of it states that his service should have been terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts stigma. However, their Lordships held that the order of termination was passed after committee was constituted by the respondents and proper enquiry was held then such termination can not be said to be punitive or violative of the principles of natural justice.
11. Coming back to the instant case the learned single Judge upheld the order of termination merely by recording a finding that even after the expiry of 12 months the petitioner continued on probation and also assuming that the services of the petitioner can be terminated at any time without notice even if the order of termination is stigmatic. The learned single Judge has not given reasons as to how and under what circumstances the services of the petitioner as a probationer could be terminated without holding an inquiry.
12. As noticed above, in the letter of termination it is mentioned that because of the poor performance, work habits and attitude during the probation period the services of the petitioner is terminated.
13. In our opinion, therefore, ex-facie the impugned order of termination is stigmatic and since his order was issued without holding an inquiry much less a preliminary inquiry and without giving an opportunity to the petitioner to satisfy that his performance is quite satisfactory, the impugned order of termination of the petitioner appears to be in violation of the principles of natural justice.
14. For the aforesaid reasons, we allow this appeal set aside the judgment of the learned single Judge and consequently the order of termination is also quashed. However, this order will not debar the respondent to terminate the services of the petitioner in accordance with law. We also make it clear that by reason of quashing of the order of termination the petitioner will not claim any salary or wages for the period he did not discharge his duty as a Development Officer. However the appellant shall be deemed to be in service as a Development Officer.