Punjab-Haryana High Court
Jasmer Singh And Others vs Chandigarh State Co-Operative Bank ... on 5 March, 1999
Equivalent citations: (1999)IILLJ342P&H
Author: K.S. Kumaran
Bench: K.S. Kumaran
JUDGMENT Jawahar Lal Gupta, J.
1. The petitioners were appointed on the posts of Clerks and Peons etc. during the period from April 2, 1998 to June 5, 1998. Their services were ordered to be terminated vide Order dated November 21, 1998. Aggrieved by the orders of termination the petitioners had approached this Court through CWP No. 17994 of 1998. The petitioners had prayed that the orders or their termination be set aside and that they be allowed to continue to work as Clerks/Peons with all consequential benefits.
2. The claim made by the petitioners was contested by the respondent-Bank. It was pointed out that the appointments had been made without following any process of selection etc. The posts had not been advertised. No requisition had been sent to the Employment Exchange. Even the creation of posts had not been sanctioned by the competent authority. The appointments had in fact been made against non-existent posts and were, thus, wholly invalid. It was further stated that after the termination of services of the petitioners, the competent authority had granted sanction for the creation of posts and that these shall be filled up by following the prescribed procedure.
3. After hearing counsel for the parties, we had found that the posts could not have been created without the approval of the Registrar. Since the approval had not been obtained, the petitioners had been appointed against posts which had not been properly created. Still further, it was found that "each of the petitioners had submitted an application to the Managing Director and he (had) passed the order of appointment ..... The action of the Bank in making appointments to different posts without either inviting applications through advertisement or even making a reference to the Employment Exchange, was totally arbitrary and violative of Articles 14 and 16 of the Constitution". The Bench had further found that even according to the terms of appointment, the petitioners were put "on probation for a period of one year...." It has been further directed in the terms of appointment that the Bank could terminate the services "during or at the end of the probation period". The Bench had found that having been appointed during the period from April to June, 1998, the petitioners had not completed the period of probation when their services were terminated. The contention that the petitioners had a right to be heard, was also rejected in view of the fact that the appointments had not been made according to law and the termination was in conformity with the terms of appointment. A ground of discrimination had also been raised. That was also rejected.
4. Now this petition for review has been filed. Mr. Sharma, counsel for the petitioners had contended that the condition which permits termination by the grant of one month's notice is by itself violative of Article 14 of the Constitution. He further contends that the term is contrary to public policy and, thus, violative of Section 23 of the Contract Act. On these premises, it is contended that the order should be reviewed and that the impugned action be set aside.
5. We find no merit in any of the contentions. Firstly, we are satisfied that the petitioners could have raised even these grounds at the time of hearing of the writ petition. The mere change of counsel cannot entitle the petitioner to raise new grounds and seek the review. The ingredients of Orders 47, Rule 1 are not satisfied in the present case. Secondly, even if this aspect of the matter is overlooked, the term of appointment permitting the employer to terminate the services of the employee during the period of probation cannot be said to be illegal or unfair. When a person is appointed on a specific condition that he will be on probation, the employer has a right to adjudge the suitability of the employee in the light of his performance. The employee is on trial. It is clear and well-recognised right to terminate the services by passing an innocuous order. This is precisely what had been done in the present case. There is no arbitrariness or unfairness in the action.
6. Mr. Sharma has referred to the decision of the Delhi High Court in Shri R. P. Misra v. Union of India, 1987 (50) SLR 375. This was a case where a charge-sheet etc. had been issued to the officer. Yet, his services were terminated by invoking Regulation 9 and without holding him to be guilty during an enquiry. The action was held to be illegal and was thus, set aside. Such is not the position in the present case.
7. It was then contended that the stipulation in the terms of appointment that the services could be terminated, is against public policy.
8. The contention is wholly misconceived and cannot be accepted. The employer has a right to inform an employee that his performance shall be watched for a particular duration of time. If he does not come up to the required standard, his services can be terminated. The petitioners were appointed in a most unfair manner. They were ordered to be placed on probation. However, subsequently, their services were terminated. It was not even suggested that there was any extraneous consideration. No violation of any principle of public policy was involved. The action was not violative of any rule. Section 23 of the Contract Act is not even remotely attracted.
9. Mr. Sharma has referred to the decision in Mridul Bikash Chatak v. Union of India, 1998 (4) SCT 54. The factual position and the principle involved in that case were totally different. Consequently, the counsel can derive no advantage.
10. No other point has been raised.
11. The petition is wholly frivolous. It is totally lacking in merit. It is, consequently, dismissed.