Punjab-Haryana High Court
Jagbir Singh vs The Haryana Sahitya Akademi on 15 March, 2011
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Civil Writ Petition No.8035 of 1991 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of Decision:-15.3.2011
Jagbir Singh, Ex-Driver, Haryana Sahitya Akademi ...Petitioner
Versus
The Haryana Sahitya Akademi ...Respondent
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.R.K.Malik, Senior Advocate with
Mr.Vishal Malik, Advocate for the petitioner.
Mr.Nitin Jain, Advocate for the respondent.
Mehinder Singh Sullar, J.
The epitome of the facts, culminating in the commencement, relevant for the limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the record, is that the petitioner was appointed as Driver by the Haryana Sahitya Akademi-respondent (for brevity "respondent- Akademi") on probation for a period of one year, by virtue of appointment letter dated 6.10.1987 (Annexure P1). As no extension was conveyed to the petitioner, therefore, he was claimed to have completed the period of probation.
2. The petitioner maintained that he applied for leave for a period of three days from 30.3.1990 to 3.4.1990 as his mother was very serious. He requested to extend the leave to enable him to attend his ailing mother. However, he received the letters dated 6.4.1990 and 17.4.1990(Annexures P2 and P3) respectively, by means of which, he was directed to report on duty by the Administrative Officer of respondent-Akademi. The petitioner was stated to have again requested the respondent-Akademi to extend his leave by sending a telegram, but again, he received another letter dated 15.5.1990 (Annexure P4), requiring him to inform it (respondent-Akademi) where his mother was under
treatment. He was also directed to produce the medical certificate of concerned Civil Writ Petition No.8035 of 1991 2 CMO in this regard, failing which, it will be presumed that he remained absent from his duty without any leave/permission and disciplinary action would be taken against him. Since the petitioner did not join the duty, despite repeated directions, so, his services were dispensed with, vide impugned order dated 14.6.1990 (Annexure P5). Thereafter the completion of one month's notice period, he was relieved, by way of impugned relieving order (Annexure P6) by the respondent-
Akademi.
3. The petitioner did not feel satisfied and preferred the instant writ petition, challenging the impugned orders, invoking the provisions of Article 226 of the Constitution of India, inter-alia pleading that although the termination order (Annexure P5) is a simpliciter order, but actual reason of his termination was that he remained willfully absent from duty. Thus, his termination was stated to be by way of punishment and since no charge sheet was issued or any inquiry was held against him, so, the impugned orders (Annexures P5 and P6) were stated to be not only illegal, but against the principles of natural justice as well.
4. Levelling a variety of allegations and narrating the sequence of events, in all, according to the petitioner that the termination order entails the disqualification and is stigmatic order and since no due procedure of inquiry was followed, so, the impugned orders are liable to be quashed. On the basis of aforesaid allegations, the petitioner sought the quashment of impugned orders (Annexures P5 and P6) in the manner indicated hereinabove.
5. The respondent-Akademi contested the claim of the petitioner and filed its written statement, inter-alia pleading certain preliminary objections of, maintainability of the writ petition, cause of action and locus standi of the petitioner on the ground of availability of alternative remedy of appeal. The respondent-Akademi claimed that petitioner was a probationer and his services were dispensed with strictly in accordance with the terms and conditions of appointment letter (Annexure P1). Petitioner was stated to have applied and Civil Writ Petition No.8035 of 1991 3 received the provident funds and other dues etc. after his termination. During the course of service, the behaviour of the petitioner was stated to be irresponsible and he was strongly warned for his lapses. The entry to that effect was incorporated in his annual confidential report (record).
6. The case set up by the respondent-Akademi, in brief in so far as relevant, was that the petitioner applied for the grant of leave, which was sanctioned for a period of ten days on 29.8.1989. He was required to join his duty on 12.9.1989. He did not report on his duties. Thereafter, the reminders (Annexures P2 to P4) were sent to him, but in vain. In all, according to the respondent Akademi that work, conduct and behaviour of the petitioner were not satisfactory. He remained absent from duties without any leave and station leave. Keeping in view his work and conduct, his services were dispensed with as per the terms and conditions of appointment letter (Annexure P1) during the course of period of probation. It will not be out of place to mention here that the respondent Akademi has stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. That is how, I am seized of the matter.
7. At the very outset, taking the benefit of his usual ability and assailing the impugned orders, the learned counsel contended with some amount of vehemence that the period of probation of the petitioner was not extended and his services were dispensed with on account of his absence from duty, by means of stigmatic and punitive order and since no due procedure of inquiry was followed by the respondent Akademi, so, the impugned termination and relieving orders (Annexures P5 and P6) are illegal and against the principles of natural justice. In support of the contention, he has placed reliance on the judgment of Hon'ble Apex Court in case Karnataka State Road Transport Corporation & Anr. v. S.Manjunath 2000 (3) R.S.J. 474 and a judgment of this Court in case Jagtar Singh v. Punjab State 1990 (5) S.LR. 118.
8. On the contrary, hailing the impugned orders, the learned counsel for Civil Writ Petition No.8035 of 1991 4 the respondent Akademi urged that as the services of the petitioner were dispensed with in view of the terms and conditions of appointment letter (Annexure P1), passed during the course of period of his probation, which is neither stigmatic nor punitive, therefore, there was no legal requirement to hold regular inquiry against him. In this regard, he has relied on the judgments of Hon'ble Supreme Court in cases Vidyavardhaka Sangha and another v. Y.D.Deshpande and others (2006) 12 S.C.C. 482 and Kendriya Vidyalaya Sangathan v. Arunkumar Madhavrao Sinddhaye and another (2007) 1 S.C.C. 283.
9. Having heard the learned counsel for the parties, having gone through the record and legal position with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant writ petition in this context.
10. What is not disputed here is that there are no statutory rules governing the service conditions of the petitioner, providing maximum period of probation. Sequelly, it was specifically stipulated as per clause 7 of the terms and conditions of the appointment letter (Annexure P1) that although the initial appointment of the petitioner was on probation for a period of one year, but the completion of period of probation was subject to his satisfactory work and conduct. Not only that, he was appointed against a temporary vacancy and it did not carry any promise of subsequent permanent employment. He was required to go out of employment without any notice i.e. whenever there is no vacancy against which he can be appointed to continue to officiate. His services were liable to be dispensed with after giving him one month's notice period or one month's salary in lieu thereof. Likewise, an offer was given to him to resign after giving one month's notice or one month's salary in lieu thereof. In such a situation, whether the petitioner would be treated on probation or otherwise is the moot point to be decided in the present petition.
11. Ex facie, the initial argument of learned counsel that since the period Civil Writ Petition No.8035 of 1991 5 of probation of one year of the petitioner was not extended by the respondent- Akademi, so, he will automatically be deemed to have successfully completed the same, is not only devoid of merit but misplaced as well.
12. To me, if the argument of learned counsel for the petitioner is accepted as such, then, it will lead to speculative, impracticable and unambiguous situations. Taking for example, if an employee is engaged on purely temporary term post on probation for a period of one year. Having joined and attended his duties for some time, he remains absent from duty for a long period and resumes his duties after a period of one year or the term of the post expires, in that eventuality, whether he can claim the automatic deemed satisfactory completion of period of probation just after the expiry of one year? Obvious, the answer, to my mind, is in the negative. The completion of period of probation is not automatic with the expiry of period, but would depend upon the other relevant factors, including the work and conduct of an employee in the absence of any service rules.
13. Therefore, in the absence of any statutory/service rules governing and regulating the period of probation, unless and until, the specific order of successful completion of period of probation, is not passed by the competent authority within a reasonable time depending upon the facts and circumstances of each case, an employee would be deemed to be on a period of probation. Any delay in issue of such order shall not entitle him to have satisfactorily completed the period of probation. Be that as it may, but at the same time, it is mandatory duty of the competent authority to pass an appropriate order of extension or completion of period of probation or otherwise of an employee within a reasonable period. However, no straight jacket, uniform or celebrated formula can be formulated in this respect and each case would depend on variety of reasons, including the terms of appointment and the work and conduct of an employee. Needless to mention here that if the competent authority fails to pass such orders within a reasonable time, then, it (competent authority) may invite disciplinary Civil Writ Petition No.8035 of 1991 6 proceedings for dereliction of duties in this relevant connection. This matter is not res integra and is well settled.
14. An identical question arose before the Hon'ble Apex Court in Karnataka State Road Transport Corporation's case (supra), wherein it was ruled (para 13) that unless a specific order has been made by the competent authority enabling the employee to successfully complete his probation period, the person concerned shall not be considered to have satisfactorily completed his period of probation and any delay in issue of an order shall not entitle the person to be deemed to have satisfactorily completed the period of his probation.
15. Not only that, having considered the various aspects of the deemed confirmation, the Hon'ble Supreme Court in case High Court of M.P. through Registrar and others v. Satya Narayan Jhavar (2001) 7 S.C.C. 161 has held that "there are three lines of cases on the question of deemed confirmation. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. Sequelly, it was further held that though under the rules, a maximum period of probation is prescribed, but the same requires a specific act on the part of the employer, then again, an employee will be deemed to be on probation. In such cases there is no bar against termination at any point of time after expiry of the period of probation on the ground of his misconduct." The same view was again reiterated by Hon'ble Apex Court in case Kazia Mohammed Muzzammil v. State of Karnataka and another (2010) 8 S.C.C. 155.
16. As indicated earlier, there is no statutory rule prescribing any maximum period of probation in the instant case and as per clause 7 of the appointment letter (Annexure P1), the completion of period of probation of petitioner was subject to his satisfactory work and conduct, therefore, he would be Civil Writ Petition No.8035 of 1991 7 deemed to be on probation till any specific order of his confirmation is passed. The ratio of law laid down in the aforesaid judgments "mutatis mutandis" is fully applicable to the facts of this case. Since no cogent material is forth coming on record to prove that any such order completing the period of probation of the petitioner was passed by the competent authority, so, in the absence of the same, he will be deemed to be on a period of probation in view of law laid down by Hon'ble Supreme Court in the indicated judgments.
17. Above being the position on record, now the next short and significant question, though important, that arises for determination in this case is, as to whether the impugned termination order is stigmatic and punitive (as urged on behalf of the petitioner) or simpliciter order passed during his period of probation (as claimed by the respondent-Akademi) ?
18. Having regard to the rival contentions of the learned counsel for the parties, in relation to the law laid down by the Hon'ble Supreme Court, to me, the impugned termination order cannot possibly be termed as stigmatic or punitive order in this behalf. Possibly, no one can dispute with regard to the observations of Hon'ble Apex Court in Karnataka State Road Transport Corporation and this Court in Jagtar Singh's cases (supra) that termination of an employee after the expiry of maximum period of probation, cannot be put to an end, except by means of departmental disciplinary proceedings, after following the mandatory requirements of law and principles of natural justice, but the same would not come to the rescue of the petitioner in the instant controversy.
19. As depicted hereinabove, petitioner was offered the appointment against a temporary vacancy, which did not carry any promise of subsequent permanent employment and he was required to go out of employment without notice i.e. whenever there is no vacancy against which he can be appointed to continue to officiate. It was specifically indicated in the appointment letter (Annexure P1) that his services were liable to be dispensed with after giving him Civil Writ Petition No.8035 of 1991 8 one month's notice or an offer was given to him to resign after giving one month's notice or one month's salary in lieu thereof.
20. The impugned termination order (Annexure P5) is as under:-
"Whereas Shri Jagbir Singh was appointed as Driver, on temporary basis in this Akademi vide this office Memo No.Estab.(58)/Steno/43 dated 6.10.1987;
Whereas his services are no longer required in the Haryana Sahitya Akadmi now;
Therefore Shri Jagbir Singh is hereby given one month's notice as per terms of his appointment contained in para 3 of this office Memo No.Estt-58/Steno/43, dated 6.10.1987, that his services shall stand terminated after the expiry of a period of one month from the date of issue of this notice."
21. Similarly, the relieving order (Annexure P6) is in the following manner:-
"In compliance of the order No.Estt.(542)/6397 dated 14.6.90 Shri Jagbir Singh, Driver, Haryana Sahitya Akademi shall be deemed to be relieved from service on 13.7.90 on completion of one month notice."
22. In this manner, as the services of the petitioner were no longer required, therefore, the same were dispensed with after giving him one month's notice during the course of period of his probation. He was paid the salary in lieu of one month's notice period, in accordance with the terms and conditions of appointment letter (Annexure P1). Thus, the order was termination simpliciter and no stigma was attached to it. The mere fact that the petitioner was asked to join his duty, by means of letters (Annexures P2 to P4) in regard to his absence from duty and unsatisfactory performance cannot lead to the conclusion that the order terminating his services during the period of his probation was stigmatic and entails any disqualification.
23. Again an identical question came to be decided by the Hon'ble Apex Court in Pavanendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences and another AIR 2002 Supreme Court 23, Chaitanya Prakash & Anr. Vs. Civil Writ Petition No.8035 of 1991 9 H.Omkarappa 2010 (1) RSJ 568, Vidyavardhaka Sangha and Kendriya Vidyalaya Sangathan's cases (supra). Having considered the various aspects of the matter and previous judgments, it was held in para 20 of Chaitanya Prakash's case (supra) as under:-
"In our considered opinion, the ratio of the above-referred decisions are squarely applicable to the facts of the present case. The respondent was time and again informed during the probation period about his deficiencies and was given ample opportunities to improve them. Therefore, enough precautions were taken by the appellants to see that the respondent improved his performance and such an opportunity was provided to him. But such advices and opportunity were totally misplaced as the respondent considered the same as unnecessary encroachment and interference in his work and wrote back rudely in an intemperate language. Whether or not a person is suitable to be retained and confirmed in service could be considered and assessed by the Managing Director, namely, appellant No.1, but he after making an appraisal submitted his report along with all other records of the respondent before the Board of Directors, who finally took the decision. The Board of Directors constituted of responsible persons and they while deciding the suitability of the respondent not only considered the Performance Assessment Report but also considered all other records, and thereafter they took a considered and conscious decision that the respondent was not suitable for confirmation and terminate his service. The said decision of the Board of Directors appears to be in parity with the ratio of the aforesaid decisions of this Court (supra). The reasons mentioned in the letter dated 29.11.1999 - terminating the services of the respondent cannot be said to be stigmatic. The appellant had time and again specifically brought to the notice of the respondent his short comings and no misconduct as such is alleged against the respondent by the appellant and therefore the present case is a case of termination simpliciter due to unsuitability of the respondent and not a case of punishment for misconduct."
24. The same view was reiterated by this Court in case "Diljit Singh son of Santokh Singh v. State of Punjab and others" CWP No.17187 of 1991 decided on 9.3.2010. As the ratio of law laid down in the aforesaid judgments is squarely applicable to the facts of the present case as such and is the complete answer to the problem in hand, therefore, the contrary arguments of learned counsel for the petitioner "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances.
Civil Writ Petition No.8035 of 1991 10
25. Therefore, it is concluded that the impugned order (Annexure P5) is termination simpliciter order passed during the period of probation of the petitioner, after giving him the salary in lieu of one month's notice period in accordance with the terms and conditions of appointment letter (Annexure P1). Since neither the impugned termination order is stigmatic nor punitive and would not entail any disqualification, so, no regular inquiry was required to be conducted before passing it in the obtaining circumstances of the case, as urged on behalf of the petitioner .
26. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
27. In the light of aforesaid reasons, as there is no merit, therefore, the instant writ petition is dismissed as such.
(Mehinder Singh Sullar) 15.3.2011 Judge AS Whether to be referred to reporter?Yes/No