Karnataka High Court
The Manipal Academy Of Higher ... vs R. Swaminathan And Anr. on 25 September, 2001
Equivalent citations: [2002(92)FLR289], ILR2001KAR4835, 2002(1)KARLJ1, (2002)IIILLJ29KANT, 2002 AIR - KANT. H. C. R. 128, (2002) 1 KANT LJ 1, (2002) 3 LABLJ 29, 2002 LABLR 13, (2002) 1 SERVLR 663, (2002) 2 ESC 238, (2002) 1 CURLR 481, (2002) 92 FACLR 289
Author: N. Kumar
Bench: N. Kumar
JUDGMENT
1. These writ appeals are filed against the order dated 10-1-2001, passed by the learned Single Judge in Writ Petition Nos. 3535 and 3536 of 1999 (R. Swaminathan and Anr. v. The Manipal Academy of Higher Education, Manipal and Anr.), wherein the learned Single Judge has quashed the termination orders dated 28-1-1999 - Annexures-E and F and directed the appellants to reinstate the respondents in their respective posts of Assistant Professors.
2. The respondents were appointed as Assistant Professors on probation for a period of two years vide Orders Annexures-C and D, dated 23-12-1997 and 17-9-1997 respectively. They were terminated from their services during the period of probation.
3. The learned Counsel for the appellants submitted that the learned Single Judge has wrongly come to, the conclusion that the services of the respondents could not be terminated without completion of the probation period. It is also stated that the learned Single Judge has failed to appreciate the clear distinction made by the appellants and wrongly relied upon the decision of the Supreme Court in Express Newspapers Limited v. Labour Court, Madras, and has not considered the decision of the Supreme Court in H.F. Sangati v. Registrar General, High Court of Karnataka and Ors.
4. On the other hand, the learned Counsel for the respondents submitted that the learned Single Judge has rightly held that the services of the respondents, could not be terminated without completion of the period of probation and therefore the order does not call for interference.
5. We have heard the learned Counsels on both sides and considered the decisions relied on by them.
6. Now, the question is whether the services of a probationer can be terminated without his completing the period of probation. To appreciate this, it is necessary to state the relevant portion of the appointment order, which reads:
"You will be on probation for a period of two years from the date of joining. During this period, if your work and conduct is found satisfactory, you will be confirmed in the post of Assistant Professor, otherwise your services are liable to be terminated".
The plain meaning of the words 'during this period' means during probation period if the work and conduct of the respondents are found satisfactory, they can be confirmed, otherwise their services are liable to be terminated. The respondents have not been able to show that any order has been passed holding that their work and conduct were found to be satisfactory. In the absence of that, it cannot be said that their services cannot be terminated without their completing the two years of probation. The learned Single Judge has wrongly construed that in case the work and conduct of the respondents are found not satisfactory within the period of probation, their services are liable to be terminated duly after the expiry of the probation period.
7. It is well-settled by the Apex Court in Samsher Singh v. State of Punjab , that services of an appointee to a permanent post on probation can be terminated or dispensed with during or at the end of the period of probation because the appointee does not acquire any right to hold or continue to hold such a post during the period of probation.
8. The authorities have to assess the work of the probationer during the period of probation as to whether he is suitable for the post. As stated, in the instant case, the performance of the respondents was not satisfactory and their services were terminated with one month's salary as per Clause 1 of the Appointment Order vide Annexures-E and F, dated 28th January, 1999.
9. A reference can also be made to H.F. Sangati's case, supra, wherein in a case where initial probation was for two years was extended for one year before declaring the period of probation, having been successfully completed the services were terminated as they are unsuitable to complete the probation period. It was held that while considering the suitability of the appointee if it is found that he is unsuitable to continue in service, the termination without enquiry or proper notice cannot cast a stigma. In the instant case, the performance of the respondents was not satisfactory and their services were terminated. He was also provided one month's salary as per Clause 1 of the Appointment Orders vide Annexures-E and F, dated 28th January, 1999. Under the circumstances, it cannot be said that the termination order is bad or violative of any rule, which needs interference of this Court.
10. So far as Indian Express Newspapers case, supra, is concerned it was a case arising under the Industrial Disputes Act, wherein the respondent-Bobb therein was appointed on probation and the letter of appointment reads:
"Your appointment will, in the first instance, be on probation for six months. If during this period we find you satisfactory and you find the job suitable, we will confirm you".
In the meanwhile, he was elected as a President of the Madurai Branch of Madras Union of Journalists before the expiry of the period of probation of six months. Bobb received a letter dated 11th July, 1957, in these terms;
"We regret to inform you that we have found your work unsatisfactory and that we are compelled to terminate your probation. Your accounts will be settled forthwith".
His services were terminated. It was challenged before the Labour Court that his services were terminated as mala fide. The Labour Court held that it was a clear case of victimization and ordered for reinstatement with back wages. The same was challenged in the High Court. The writ as well as later patent appeal were dismissed. The special leave petition before the Supreme Court was granted. The contention of management was that there could be automatic termination of the service as soon as the period of probation of six months had expired. Their Lordships repeal the contention and held that High Court is right in rejecting the Management's contentions that there was an automatic termination of Bobb's services after 28th August, 1957. Under the circumstances the decision is not applicable to the facts of the present case and the learned Single Judge erred in relying upon the decision while ordering reinstatement.
11. In the facts of the present case and in view of the settled law, decision of the Supreme Court in H.F. Sangati's case, supra, the termination of the services of the respondents during the period of probation is just and proper. Hence, the order of the learned Single Judge directing the appellants to reinstate the respondents in their respective posts of Assistant Professors is not sustainable and is liable to be set aside.
12. In view of what is stated above, the order of the learned Single Judge is set aside and the writ appeals are allowed with no order as to costs.