Calcutta High Court
Dipti Prokash Banerjee vs Satyendra Nath Bose And National ... on 23 April, 1998
Equivalent citations: (1998)3CALLT283(HC)
Author: S.B. Sinha
Bench: Satyabrata Sinha
JUDGMENT S.B. Sinha, J.
1. The writ petitioner-appellant has preferred this appeal from an order dated 15th May, 1997 passed by U.C. Banerjee, J. (as his Lordship then was) in writ petition No. 8484 (W)/97 whereby the and whereunder the writ petition was dismissed, infer alia, on the ground that the petitioner being a probationary and his period of probation having been extended thrice, cannot have any legal right to question and order of termination of his probation on the ground that his service was not satisfactory.
2. The basic fact of the matter is not in dispute.
3. The appellant was appointed as Office Superintendent by the 1st Respondent on probation on 11.1.1995. Certain complaints were received by the Director as regard functioning of the appellant. Again a complaint was received by the Director relating to unsatisfactory performance of the appellant which was brought to his notice by a letter dated 15.4.1996. The said letter was replied to by the writ petitioner on 16.4.96. Allegedly on 25.4.96 the Administrative Officer submitted, report as regard the excellent working of the petitioner. On 30.4.1996 the appellant was apprised oh his unsatisfactory performance and was asked to improve the same. His period of probation was extended from 2.5.96 upto 2.11.96. He was again asked to improve his performance by the Director of Institute in terms of the letter dated 17.10.96. Allegedly on 30.10.96 the Administrative Officer submitted a report that the appellant's performance is extremely satisfactory. On 31.10.96 the appellant was again informed about his unsatisfactory service and asked to improve his performance. His period of probation was extended again from 2.11.1996 to 2.5.97. Yet again on 27.3.97 the Director of the 1st respondent intimated the appellant about his unsatisfactory service. On 30.4.97 the impugned order was passed whereby the appellant was Informed that the management was unable to confirm him in the service as during his probationary period his service was unsatisfactory. The appellant's service, was therefore, terminated with effect from 2.5.1997.
4. The learned trial Judge passed the aforementioned order without issuing any direction to the respondents to file their affidavit-in-opposition.
5. Mr. Indrajit Sen, the learned counsel appearing on behalf of the appellant.
inter alia, submitted that the Impugned order is not an innocuous one as thereby stigma has been cast on the petitioner, and thus, the same could not have been issued without complying with the principles of natural justice. It was further submitted that from a perusal of the impugned order dated 30.4.97 it would be evident that the same has been issued by the Director who has no jurisdiction to issue the said letter. The director, the learned counsel would urge, is merely entitled to extend the period of probation. The learned counsel submits, that keeping in view the facts and circumstances of this case and particularly the Administrative Officer's report who is the immediate Supervisor of the probationer would clearly go to show that the impugned order has been passed mala fide. According to the learned Counsel that even the legal proceedings in terms of Rule 3.8 could be initiated or continued by the Administrator and as in the instant case he has appointed a separate lawyer supporting the appellant's case, the appeal should be allowed.
6. The learned counsel submits that in this situation this court would pierce the veil so as to arrive at a finding that the impugned order dated 30.4.97 has been passed by way of punishment. Reliance in this connection has been placed on Life Insurance Corporation of India & Anr. v. Shri Raghavendra Seshagiri Rao Kulkarni and the United India Insurance Co. Ltd. v. Partha Sarathi Banerjee & Ors. reported in 1997(2) CLJ 348.
7. Mr. Purna Ch. Paul Chowdhury. the learned counsel appearing on behalf of the respondent No. 3 (Administrative Officer) adopted the submissions of Mr. Sen.
8. Dr. Tapas Banerjee, the learned counsel appearing on behalf of the respondent Nos. 1, 2 and 4, on the other hand, submitted that the Director was the appointing authority. The learned counsel has drawn out attention to various letters annexed to the writ application to show that despite several chances granted, the appellant did not improve his performance and as such his services had to be terminated. The learned counsel submits that the appellant did not derive any legal right to continue in service and, thus, the appointing authority was not bound to comply with the principles of natural justice. Reliance in this connection has been placed on Unit Trust of India & Ors. v. Vijaya Kumare & Anr. reported in 1993(1) LLJ 240; Kunwar Arun Kumar v. U.P. Hill Electronics Corpn. Ltd. and ors. ; Union of India v. Shri Rati Pal Saroj & Anr. and M/s. Oswal Pressure Die Casting Industry. Faridabad v. Presiding Officer & Anr. reported in 1998(2) Supreme 327.
9. It is evident that the respondent No. 1 suffers from internal disputes as it is noticed that the Administrative Officer does not support the other respondents and has sought to project his own case. On the other hand Dr. Banerji has tried to show that the Administrative Officer is hand in gloves with the appellant. In this view of the matter, this court has to consider the merit of the case on the basis of the materials on records.
10. The contention of Mr. Sen to the effect that the Director has no authority to terminate the services of the appellant cannot be said to have any basis. A bare perusal of the appointment letter dated 11.1.95 would clearly show that the appointment has been Offered to the appellant under the orders of the Director.
11. In terms of Article 42 of the Memorandum of Association the Director has to exercise the powers of general supervision and disciplinary control over the officers and the staff of the Centre and prescribe their duties and functions. The appellant being a member of the administrative staff, could be appointed with a probationary period of one year to 2 years as may be decided by the Governing body. The appointing authority at his discretion was entitled to extend the probationary period but not beyond 4 years.
12. Clause 7.1 clearly provides that every employee would be governed by the Rules. Bye-Laws and Orders issued by the Centre from time to time.
13. Clause 12.1 postulates that apart from the posts of Director, Professors, Associate Professors, in respect of all other members of his academic staff. Librarian and all posts carrying a basic salary above Rs.2,000/- per month, the Director would be the appointing authority and the Governing Body would be the appellate authority.
14. The appellant admittedly does not come within the purview of exempted category. As indicated hereinbefore, the offer of appointment was also issued to him under the Orders of the Director. The salary of the appellant was fixed at Rs. 1,400 p.m. In the scale of Rs.1,400 - 2,300 E.B. 60-2.600. In this view of the matter the Director of the respondent No. 1 cannot be said to have acted without jurisdiction in issuing the impugned order dated 30.4.97.
15. It is now a well settled principle of law that a person in entitle to be confirmed only upon satisfactory completion of the period of probation. The fact, as noticed hereinbefore, clearly shows that he has failed to satisfactorily complete the period of probation. The appellant was asked to improve his performance by letters dated 11.12.96 and 20.2.96 as also by a letter dated 15.4.96. The period of probation was extended by another six months by a letter dated 30.4.96 stating:
"However, in order to afford you an opportunity to improve your performance and in order to enable us to consider your case favourably for confirmation your probationary period is hereby extended 6 months from 2nd May. 1996."
We hope that you would improve your performance generally and also in the areas pointed out to you."
16. By another letter dated 30th October, 1996 the period of probation was extended for a further period of six months in terms whereof the appellant again was advised to improve his performance. The areas of his deficiencies had also been pointed out. Yet again on 29.3.97 the attention of the appellant was drawn towards the areas of deficiency and he was asked to improve his performance. On 30.4.97 a committee (which was presumably constituted by the Director, decided that the appellant was not fit to be confirmed pursuant whereto the impugned order was issued. Without going into the correctness or otherwise of the report of the Administrative Officer we may point out that the chronological events as noticed hereinbefore would clearly show that the period of probation has been extended by the Director despite such report. It was for the appointing authority to be satisfied with the performance of the concerned employee purported satisfaction of any other officers is of no moment.
17. The submission of Mr. Sen to the effect that the impugned order is not an innocus one and thereby a stigma has been cast on the appellant cannot also be accepted. The said order reads thus:--
"You joined as Office Superintendent on the 2nd May. 1995.
You were appointed on probation with a situation that the confirmation would depend upon satisfaction of the Administration with the quality of your service.
Since the performance during the initial period of probation was not satisfactory, by letter No. SNB/PER 4 1201/DO-5 dated 30 April. 1996 your period of probation was extended by six months from 2 May 1996.
By letter dated 17th October 1996 your attention was drawn to unsatisfactory performance and the areas of unsatisfactory performance were brought to your notice. You were advised to improve your performance considerably.
Since during the extended period also your performance was not satisfactory, the Management was constrained to further extend your period of probation and accordingly by letter No. SNB/PER 4 1201/DO-ICO dated 31 October 1996 your period of probation was extended further six months.
During the period of further extension of probation you could not improve your performance.
We have closely watched and examined your conduct, performance, ability and capacity during the whole period of probation but your performance is found to be unsatisfactory and you are considered unsuitable for the post against which you have been appointed. The period of probation was extended with the execution that you would improve your performance but there was no improvement in your performance.
Under the circumstances, the Management is unable to confirm your service in the Centre and as such the Management is unable to continue your service on the expiry of the stipulated period of probation on the 1 May, 1997 and your service shall stand terminated after close of working hours of 1 May. 1997. In case you want to appeal against this decision, you may appeal to the Governing Body of the Centre.
You will be paid one month's pay although the contract of employment does not stipulate any such payment.
Your other dues, if any, will be calculated and sent to you as soon as possible."
18. A bare perusal of the aforementioned order would clearly show that the same does not cast any stigma. It of course refers to an earlier order dated 17th October, 1996, the offending portion thereof reads thus:--
"You complaint of 28.5.96 against Sri P.Chakraborty. helper, was duly investigated. You behaviour before the inquiry committee was reprehensible. It was confirmed by the committee that you were involved in the scuffle and did other misdeeds like obtaining false signature, so that you were characterized as a person of dubious character."
19. The characterisation of the appellant as a person of dubious character was not made by the appointing authority but was made by a committee which was set up to inquire into a complaint against Sri. P.Chakraborty, helper. The appellant was merely informed about the report of the committee. The Director merely, in this situation, had asked him to improve his performance considerably as otherwise it would be difficult for him to recommend his confirmation.
20. The Impugned order, therefore, was not passed by way of or in lieu of punishment. Had ah order of punishment been passed on the basis of the said letter, the court could have come to a different finding but as noticed hereinbefore the Director of the Institute had given ample opportunities to the petitioner to improve his performance.
21. In LIC of India & Anr. v. Shri Raghavendra Seshagiri Rao Kulkarni , it is clearly held that if the services of a probationer are terminated by an innocuous order which does not cast any stigma on him, there is no requirement to hold any departmental inquiry, it has further been held that when the termination is punitive in nature and is brought about on the ground of misconduct, such termination cannot be brought about unless an opportunity of hearing is given to the person whose services, even during the period of probation, or extended period, are sought to be terminated.
Even in that case, the apex court held:--
"The period of probation is a period of test during which the work and conduct of an employee is under scrutiny. If of an assessment of his work and conduct during this period it is found that he was not suitable for the post it would be open to the employer to terminate his services. His services cannot be equated with that of a permanent employee who , on account of his status, is entitled to be retained in service and his services cannot be terminated abruptly without any notice or plausible cause. This is based on the principle that a substantive appointment to a permanent post in a public service confers substantive right to the post and the person appointed on that post becomes entitled to hold a lien on the post. He gets the right to continue on the post till he attains the age of superannuation or is dismissed or removed from service for misconduct etc. after disciplinary proceedings in accordance with the Rules at which he is given a fair and reasonable opportunity of being heard. He may also come to lose the post on compulsory retirement."
The apex court itself noticed:--
"To bring home the point, we may refer to a few other case relating to the termination of service of a probationer. They are State of Maharashtra v. Veerappa R. Saboji & Another . In the same value, another case, namely, Oil and Natural Gas Commission and Others v. Dr. Md. S. Iskander Ali is reported in which the same principles have been reiterated. In the Union of India and Others v. P.S.Bhatt, AIR 1981 SC 957: (1981) 2 SCC 81 promotion was made to a higher post on probation which was ultimately terminated. It was held that a person who is placed on probation does not have the right to hold the post and if it is found that he was not suitable for the post, his probation can be terminated at any time and he can be reverted to his original post.
A distinction was drawn again as between permanent employee and an employee appointed on probation in Bishan Lal Gupta v. The State of Haryana and Ors. . In this case, a formal enquiry was held merely to assess the work and conduct of an employee who was appointed on probation. It was held that there was not need either to give notice or to hold the regular departmental enquiry."
22. The apex court on the basis of the aforementioned findings held that the order of termination of expiry of the period of probation is valid. Reference in this connection may be made to 1998 Lab IC 411; 1998 Lab IC 420 and 1998 Lab IC 558.
23. In the United Insurance Co. Ltd. v. Partha Sarathi Banerjee & Ors. reported in 1997(2) CLJ 348. a division bench of this court ( of which one of us was a member) referred to various decisions of the apex court and held:--
"It is now well known that an employee who is on probation, has no legal right to be confirmed. No employee, can be confirmed, as the apex court has stated time without number only upon completion of the period of probation, unless, a statute or the officer of appointment otherwise suggests. For obtaining a writ of or in the nature of Mandamus, the writ petitioner has to show the existence of a legal right in himself. As in terms of the offer of appointment, the writ petitioner/respondent No. 1 did not have any legal right to be confirmed in the service automatically, he does not have any legal right to be confirmed in the service automatically. He in our opinion, is not entitled to obtain a writ of or in the nature of Mandamus as had been directed to issued by the learned trial Judge."
24. In that case it was further held that the principles of natural justice have no application.
25. In Kunwar Arun Kumar v. U.P.Hill Electronics Corporation Ltd. & Ors. . It has been held:
"The petitioner challenged the order of termination in the High Court. The High Court without going into the question whether or not it is a stigma, came to the conclusion that the respondents had totally lost confidence in the appellant and that he was totally unsuitable for the job for which he was employed and, therefore, he was found not entitled to any enquiry. Consequently, it dismissed the writ petition. Shri Sehgal, learned Senior Counsel for the petitioner, contends that the finding recorded amounts to a stigma: action taken without conducting enquiry and giving an opportunity to the petitioner, is violative of Article 311(2) of the Constitution and the rules made thereunder. Therefore, he is entitled to an opportunity of being heard and be dismissed only on the ground of misconduct and not by termination simpliciter. We do not agree with the learned counsel. The reasons mentioned in the order may be a motive and not a foundation as a ground for dismissal. During the period of probation, the authorities are entitled to assess the suitability of the candidates and if it is found that the candidate is not suitable to remain in service they are entitled to record a finding of unsatisfactory performance of the work and duties during the period of probation. Under there circumstances, necessarily the appointing authority has to look into the performance of the work and duties during the period of probation and if they record a finding that during that probation period, the work and performance of the duties were unsatisfactory, they are entitled to terminate that service in terms of the letter or appointment without conducting any enquiry. That does not amount to any stigma. If the record does not support such a conclusion reached by the authorities, a different complexion would arise. In this case, they have recorded the finding that the petitioner was regularly absent on one ground or the other. Under these circumstances, the respondents terminated his services. We do not find any illegality in the action taken by the respondents."
In Union of India v. Shri Rati Pal Saroj & Anr. , it was held:--
"It is well settled that a probationer's service can be terminated during the period of probation if he is found unsuitable. No enquiry is necessary for such term inaction of the service of a probationer. In the case of Samsher Singh v. State of Punjab & Anr. , a bench of this court consisting of seven Judges, inter alia, held that the services of a probationer can be terminated when the authorities are satisfied regarding his inadequacy for the job, or unsuitability for temperamental or other reasons not involving moral turpitude, or when his conduct may result in dismissal or removal but without a formal enquiry. An enquiry is necessary only when the termination is by way of punishment, and to determine this the substance of the order and not the form is decisive. The same position has been re-affirmed in Anoop Jaiswal v.Government of India Anr. where the decision in Samsher Singh v. State of Punjab (supra) has been quoted extensively.
Before a probationer is confirmed, the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. If it comes to the conclusion that the probationer is not suitable he is liable to be discharged. He cannot, in this situation, claim the benefit of Article 311(2)."
26. In M/s. Oswal Pressure Die Casting Industry, Faridabad v. Presiding Officer & Anr. reported in 1998(2) Supreme 327: 1998(2) SC 256, it was held:--
"What the High Court failed to appreciate was that it was not open to it to sit in appeal over the assessment made by the employer of the performance of the employee. Once it was found that the assessment made by the employer was supported by some material and was not mala fide it was not proper for the High Court to interfere and substitute its satisfaction with the satisfaction of the employer. The High Court was also wrong in holding that in order to support its satisfaction it was necessary for the appellant to produce some reports or communication or other evidence to show that performance of the respondent was below the expected norms. We find that the whole approach of the High Court was wrong and, therefore, the order passed by it will have to be set aside."
27. In view of our findings aforementioned, no relief can be granted to the appellant. The appeal is, therefore, dismissed but without any order as to costs.
D.B. Dutta, J.
28. I agree.
29. Appeal dismissed