Central Administrative Tribunal - Jabalpur
Shiv Kumar vs Union Of India on 6 February, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH JABALPUR ORIGINAL APPLICATION NO. 95 OF 2007 Jabalpur, this the 6th day of February, 2009 HONBLE MR. MUKESH KUMAR GUPTA, JUDICIAL MEMBER HONBLE MR.RANBIR SINGH, ADMINISTRATIVE MEMBER Shiv Kumar, Son of Late Chhotelal, Aged about 24 years, Ex-Workman, Ticket No.Y&E/10/13115, Vehicle Factory, Jabalpur Resident of H.No.263, Bada Patthar Sanjay Nagar, Ranjhi, Jabalpur (M.P.) - Applicant (By Advocate Shri R.N.Roy) V e r s u s 1. Union of India, The Senior General Manager, Vehicle Factory, Jabalpur (M.P.) 2. The Works Manager (Ad) Vehicle Factory, Jabalpur (M.P.) -Respondents (By Advocate Shri A.P.Khare) O R D E R
By Mukesh Kumar Gupta, JM.-
Validity of termination order dated 26th August, 2006 (A-7) is challenged in present OA. The applicant seeks reinstatement with all consequential benefits including full back wages etc.
2. Admitted facts are that Shri Chhottelal, Ex. Workman, Vehicle Factory, Jabalpur, died in harness. The applicant being his son was appointed on compassionate grounds as labourer (unskilled) grade Rs.2550-3200 on 29th August,2002, and put on probation for two years. Vide order dated 14th August, 2004 the probationary period was extended for six months w.e.f. 28th August, 2004. In order to review the extended probationary period, his performance report was called for and since his performance was found to be poor as well as irregular attendance the probationary period was extended for another six months w.e.f. 28.2.2005 vide order dated 7th March, 2005. Vide order dated 11.3.2005 he was also warned to improve his performance and attendance failing which his services will be terminated without any notice. Warning was also issued vide order dated 18.11.2005 (R-4). Vide order dated 24.2.2006, the probation period was further extended by six months from 28th February, 2006. During his entire probationary period, he was found to remain absent for 254 days unauthorisedly. His services were terminated vide impugned order dated 26th August, 2006 (A-7).
3. His grievance is that impugned order was issued without any application of mind. He was suffering from chronic viral fever and was unfit for duties. He submitted medical fitness certificate from 2nd August, 2006 (A-2). He was also admitted in Vehicle Factory Hospital Jabalpur and discharged on 5th August, 2006 (A-3). He had applied for grant of medical leave. These vital aspects and material information were ignored while passing impugned termination order. His representations dated 5.10.2006 and 8.11.2006 seeking revocation of said termination remained unconsidered though he had a genuine claim. The impugned termination order amounts to victimization. There was no justification to keep him on probation for such a long time though the maximum period of probation had expired. He was entitled to medical leave with or without pay, but it had not been sanctioned despite production of relevant documents. Principles of natural justice were grossly violated. The impugned order is punitive in nature though wording innocuously. Shri R.N.Roy learned counsel forcefully contended that as per terms and conditions of appointment particularly vide para 2(d) he was entitled to leave as admissible under the rules. Learned counsel further contended that no reasons were assigned while terminating his services. The reply filed by the respondents reveals that his services were terminated for specific misconduct and it was not a termination simplicitor. Further more, his representation had been rejected vide communication dated 16.12.2006 (A-10) without assigning any reasons. Thus, it was maintained that he is entitled to relief as prayed for.
4. Per contra, by filing reply, the respondents contested the claim stating that the applicant, who was appointed on compassionate grounds, was found to be not performing his duties up to the mark. His probationary period had been extended thrice. Despite warning issued to improve his performance as well as advisory note, no heed was paid. The divisional officer of the applicant recommended extension of his probationary period. In spite of repeated extension of probationary period, there was no improvement in his performance and attendance. He was transferred from Yard and Estate section to Stores Section, so that his performance could be assessed by another Head of section/ divisional officer. As there had been no improvement at all, the appointing authority decided that he did not deserve any further consideration and accordingly his services were terminated. In terms of condition of offer of appointment dated 23.8.2002(R-1) his probationary period had been extended and no notice was required before terminating his services as stipulated vide para 2(b) thereof. He remained absent for duty on many occasions without any intimation. The reason for termination is not due to unauthorized absence from duty from 31st July, 2006 to 27th August, 2006 alone, as projected.
5. Shri A.P.Khare, learned counsel placed reliance on AIR 2005 SC 2960 State of Punjab and others Vs. Sukhwinder Singh, as well as 2008(2) SCC (L&S) 573 State of Punjab Vs. Constable Avtar Singh,
6. We heard learned counsel of parties, perused the pleadings as well as original records produced before the Tribunal.
7. At the outset we may note that annexure A-2 medical certificate was in respect of 3 days absence from 31st July 2006 to 2nd August, 2006 and similarly perusal of annexure A-3 reveals that he was admitted in Vehicle Factory, Hospital Jabalpur on 3.8.2006 and discharged on 5.8.2006 and was further advised for rest for 4 days only. Annexure A-5 medical certificate dated 10.8.2006 justified his absence for a period of 3 weeks w.e.f. 10.8.2006 as he was suffering from viral fever and he was found to be fit for duties w.e.f. 28.8.2006. The original record produced further reveals that his performance was assessed when he was about to complete two years probationary period and based on consideration, the probationary period was extended for a period of six months. Similarly, the probationary period was extended on subsequent occasions as his performance was found to be poor besides irregular attendance. A Board consisting of three senior officers was constituted to assess his retention in service and based on its advice impugned termination order was passed. The original record also reveals that applicant remained absent unauthorisedly during different spells.
8. In Karntaka State Road Transport Corporation & another Vs. S.G.Kotturappa and another, 2005 SCC (L&S) 484 Honble Supreme Court has held that the principles of natural justice can not be applied in vacuum. They can not be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of termination of services of an employee is to apply the objective criteria for arriving at the subjective satisfaction. If the criteria required for arriving at an objective satisfaction stand fulfilled, the principles of natural justice may not have to be complied with, in view of the fact that the same stood complied with before imposing punishments upon the delinquent employee on each occasion and, thus, the employee could not have improved its stand even if further opportunity was given. In Sukhwinder Singh (supra) it was observed that a probationer is on test and temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry for the purpose of imposing punishment, and an order of discharge or termination of service as a result thereof punitive in character, the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong. The mere fact that in response to the challenge the employer states that the services were not satisfactory, would not ipso facto meant that the services of the probationer were terminated by way of punishment (Krishnadevraya Education Trust Vs. L.A.Balakrishna, 2001(9) SCC 319.
9. When tested the facts of the present case in the light of aforementioned settled law, we observe that applicant was given numerous opportunities to improve his performance as well as attendance. Warning issued did not yield any positive result. Even his posting was changed from one section to another, but there was hardly any improvement. In these circumstances, it can not be said that his services were terminated by way of punishment. He was found to be unauthorized absent in each of the extended period of probation. In this view of the matter, it can not be alleged that there was any infraction of principles of natural justice or the order in question was punitive in nature. The senior officers, besides his immediate superior officer, applied their mind and were satisfied that he was not fit to be continued in service and bona fide attempt was made to afford him an opportunity of hearing, which exercise remained futile. As it is well settled that the probationer has no right to the post, since he was found to be lacking in efficiency and sincerity, as well as devotion to duty, the otherwise innocuous order of termination can not be ascribed as punitive in nature. Thus, we do not find any substance or justification in the contentions raised by the applicant. In our considered view, applicant has been afforded more than reasonable opportunity to improve himself, which he failed to avail.
10. In this view of the matter and for the reasons mentioned hereinabove, OA being bereft of merits is dismissed. No costs.
(Ranbir Singh) (Mukesh Kumar Gupta) Administrative Member Judicial Member rkv