Gauhati High Court
The Chairman & Managing Director & 2 Ors vs Colonel Mukul Kumar Gogoi (Retd.) @ ... on 20 September, 2013
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
1
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal
Pradesh)
REVIEW Pet No. 79/2013
In WP(C) No. 191/2013
1. Chairman & Managing Director,
Pawan Hans Helicopter Ltd. (A Govt. of India
Enterprise), Corporate Office, C-14,
Sector-1, Noida (UP), Pin-201301.
2. M/S Pawan Hans Helicopter Ltd.
(A Govt. of India Enterprise), Corporate
Office, C-14, Sector-1, Noida (UP), Pin-201301.
3. Base-in-charge, (NE),
Pawan Hans Helicopter Ltd. ( A Govt. of
India Enterprise), Assam Flying Club
Hanger, LGBI Airport, Borjhar,
Guwahati-781015
........ REVIEW APPLICANTS/
(RESPONDENT NOS. 2, 3 AND 4
IN THE WRIT PETITION)
-Versus-
Colonel Mukul Kumar Gogoi (Retd.)@
Captain Mukul Kumar Gogoi,
Son of Late Harendra Nath Gogoi,
Flat No. A5, Seujee Enclave, N.N. B. Road,
Chandmari, Guwahati-781003, Assam.
....... OPPOSITE PARTY/
WRIT PETITIONER
2
BEFORE
HON'BLE MR. JUSTICE UJJAL BHUYAN
For the Review Petitioner ... Mr. S. Shyam ,Advocate
Mr. A. Dhar, Advocate.
For the Opposite Party/
Writ Petitioner ... Mr. N. Deka, Advocate
Date of Hearing ... 05.09.2013
Date of Judgment ... 20.09.2013
JUDGMENT AND ORDER (ORAL)
Heard Mr. S. Shyam, learned counsel for the review petitioners and Mr. N. Deka, learned counsel for the opposite party/writ petitioner.
2. This petition seeks review of final order dated 03.05.2013 passed by this Court in WP(C) No. 191/2013.
3. Writ petition was filed by the opposite party challenging his discharge from service on probation by the Pawan Hans Helicopter Ltd.(Pawan Hans).
4. Case projected in the writ petition was that opposite party was appointed as Helicopter pilot by Pawan Hans on probation by order dated 01.12.2010 where-after he joined on 01.02.2011. As per the 3 appointment order, it was stated that opposite party would be on probation for a period of 1(one) year from the date of joining and during probation period, his service was liable to be terminated without any notice. Clause 5 of the appointment order, however, provided that Pawan Hans could terminate the service of the opposite party at any time by giving 2(two) months notice or salary in lieu thereof.
5. Since opposite party joined on 01.02.2011, he was to be on probation for a period of 1 year i.e. up to 31.01.2012.
6. On 06.06.2011, opposite party received an e-mail from the control room of Pawan Hans furnishing him a show-cause notice dated 30.05.2011. As per the show- cause notice, performance of the opposite party was assessed and was found to be "below average". As his performance was graded as "below average", it was stated that his continuance in service would be detrimental to the flying operations as well to the interest of the organization. Opposite party was given 3 days time to submit explanation. He, accordingly, submitted his explanation on 07.06.2011 i.e., on the next day. But before receipt of the above explanation, Deputy General Manager (P&HRD), Pawan Hans issued 4 impugned order on 06.06.2011 itself, terminating the service of the opposite party.
7. Representations submitted by the opposite party for re-consideration of the matter evoked no response.
8. Aggrieved, opposite party had filed the related writ petition.
9. This Court by final order dated 03.05.2013 took the view that impugned termination order dated 06.06.2011 could not be sustained and the same was quashed. Direction was issued to the respondents (review petitioners) to take back the petitioner as a probationer.
10. Now, respondent Nos. 2, 3 and 4 in the writ petition as review petitioners have filed the present review petition.
11. Mr. Shyam, learned counsel for the review petitioners submits that though learned Central Govt. counsel took notice on behalf of Pawan Hans, review petitioners did not issue any instructions to the learned Central Government counsel to appear on their behalf. While they were in the process of making arrangement for their representation, the case was heard and decided. On merits, it is contended that performance of the opposite party was assessed and it was found that 5 he was not fit to be permanently appointed in Pawan Hans. Accordingly, he was discharged from service. Discharge of a probationer on the ground that his performance was found to be unsatisfactory does not amount to any stigma. There is no legal requirement of issuance of notice to a probationer before discharge on the ground that his service is not satisfactory. If a probationer is found to be unsuitable, authority is empowered not to retain such a person in its employment. Writ Court committed error in overlooking the law and, therefore, the mistake that the Court had committed should now be corrected by reviewing the order. Learned counsel for the review petitioners besides placing reliance on a number of judgments on the law relating to discharge of a probationer, has also placed reliance on a decision of the Apex Court in the case of Board of Control for Cricket in India and Another Vs. National Cricket Club and Others reported in (2005) 4 SCC 741 to contend that in view of the settled law relating to probationers, final order of this Court is required to be reviewed.
12. Mr. Deka, learned counsel appearing for the opposite party submits that what the review petitioners are asking for is a re-hearing of the writ petition which is beyond review jurisdiction. In the facts and circumstances of the case, the writ Court was fully 6 justified in allowing the prayer of the writ petitioner/opposite party. No case for review is made out, he submits.
13. Submissions made have been considered.
14. Before proceeding further, relevant portion of the final order dated 03.05.2013 may be briefly referred to, which is quoted hereunder:-
"16.While it is true that the petitioner was on probation under the respondents, but the probation period had not yet been concluded or was about to complete. In fact, petitioner had just about completed four months as a probationer. In such circumstances, the above assessment appears to be hasty.
Though as per Clause-2 of the
appointment letter, service of the
petitioner could be terminated without any notice, Clause-5 clearly provided that before termination of service, 2(two) months notice or payment of salary in lieu thereof is necessary. A conjoint reading of the aforesaid two Clauses would therefore indicate that before dispensing with the service of the 7 probationer, he was required to be given 2(two) months notice or salary in lieu thereof. Moreover, a reading of the impugned termination order and the show cause notice shows, as noticed above, that it contains adverse remarks against the petitioner pertaining to his performance and continuation, much before completion of his probationary period. In such circumstances, it was incumbent upon the respondents to have put the petitioner on notice before terminating his service. Though the petitioner was given notice, the same appears to have been just a formality without any intention to consider the explanation of the petitioner.
17. In the present case, though the show cause notice is dated 30.05.2011, the same was sent to the petitioner by email only on 06.06.2011, giving him just 3(three) days time to submit his explanation in writing. However, even before the petitioner could submit his explanation on 07.06.2011 i.e., the next day, the impugned order was passed on the very same day i.e., on 06.06.2011. 8 Thus, the petitioner's explanation, though called for, was not considered. Having called for the explanation from the petitioner, fairness demanded that the same should have been considered by the authority before taking the final decision.
18. In Rajesh Kohli Vs High Court of Jammu and Kashmir and another reported in (2010) 12 SCC 783, which was a case of termination of service of a probationary judicial officer, the Hon'ble Apex Court held as under:-
"18. During the period of probation an employee remains under watch and his service and his conduct is under scrutiny. Around the time of completion of the probationary period, an assessment is made of his work and conduct during the period of probation and on such assessment a decision is taken as to whether or not his service is satisfactory and also whether or not on the basis of his service and track record his service should be confirmed or extended for further scrutiny of his service if such extension is permissible or whether his 9 service should be dispensed with and terminated."
19. In the case of the petitioner, the assessment was not made towards the end of the probationary period. Rather, it was carried out at the very beginning of the probationary period. In such circumstances, the action of the respondents cannot be said to be just, fair and proper.
20. Having regard to the above, the Court is of the view that the impugned termination order dated 06.06.2011 cannot be sustained and is accordingly set aside and quashed.
21. Petitioner shall be taken back as a probationer in the Pawan Hans Helicopters Limited and thereafter his service will be governed by the terms and conditions contained in the offer of appointment dated 01.12.2010."
15. There is no dispute to the submission of Mr. S. Shyam, learned counsel for review petitioners that discharge of a probationer on the ground of unsatisfactory service would not amount to a stigma and if there is no stigma, there is no requirement of 10 issuance of notice to a probationer. Article 311(2) is not applicable in case of a probationer.
16. Having said so, what the writ Court found in the present case was that while the opposite party was appointed on probation w.e.f. 01.02.2011, his performance was assessed immediately thereafter. A perusal of the record produced by Mr. S. Shyam would show that while the opposite party joined Pawan Hans from the Indian Army on deputation w.e.f. 15.10.2008 he was offered appointment on probation by order dated 01.12.2010 on being released from the Indian Army. Petitioner joined w.e.f. 01.02.2011. The record indicates that the assessment of the petitioner was made on 24.02.2011 and on one occasion thereafter. Though Pawan Hans had referred to the performance of the opposite party during the deputation period, Court is of the view that consideration has to be confined to the period when he was serving as a probationer and the assessment of his service as a probationer.
18. The writ Court while passing the final order had referred to the decision of the Apex Court in Rajesh Kohli Vs. High Court of Jammu and Kashmir and another reported in (2010) 12 SCC 783 and had pointed out that assessment of a probationer has to be made around the time of completion of the probation 11 period or atleast after a reasonable period of probationary service. Even if the employer need not wait for the probationary period to be completed, but for making a meaningful and honest assessment, the probationer should be allowed at least some reasonable period. In the present case, it is seen that while the petitioner joined on probation w.e.f. 01.02.2011, he was assessed on 24.02.2011 i.e. within a period of 2 weeks. This period, in the opinion of the Court, cannot be termed to be a reasonable period for making a meaningful and honest assessment of the competence of a probationer.
19. Coming to the issuance of notice, as already discussed above, ordinarily a probationer cannot seek protection of the principles of natural justice as no notice is required to be issued prior to the discharge of a probationer, unless the discharge is vitiated by stigma. However, in the present case, authorities of Pawan Hans themselves issued the show-cause notice dated 30.05.2011 which was stated to have been despatched by speed post and also by e-mail on 06.06.2011. Though the petitioner submitted his reply on the very next day on receipt of the show cause notice by e-mail, before receipt of the same, impugned discharge order was issued on 06.06.2011 itself. When the authorities had issued the show-cause notice to the opposite party 12 calling for his explanation, fairness and justice demands that explanation submitted should have been considered by the authority before taking the final decision.
20. Thus, having regard to the discussions made above, Court is of the view that no case for review has been made out.
21. Review petition is accordingly dismissed. Record produced by Mr. S. Shyam is returned back.
JUDGE Rupam