Central Administrative Tribunal - Delhi
Dr. Neelam Kumar Singh vs Union Of India on 4 August, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL,PRINCIPAL BENCH
TA No. 19 of 2008
New Delhi, this the 4th day of August, 2008
HONBLE MRS. MEERA CHHIBBER, MEMBER (J)
HONBLE DR. R.C. PANDA, MEMBER (A)
Dr. Neelam Kumar Singh
S/o Shri N.P. Singh
R/o E-30, Type-V NIHFW Campus,
Munirka, New Delhi. Applicant
By Advocate: Shri K.K. Jha.
Versus
1. Union of India
Through the Secretary (Family Welfare),
Ministry of Health and Family Welfare,
Nirman Bhawan, New Delhi.
2. National Institute of Health and
Family Welfare through the Director,
New Mehrauli Road, Munirka, New Delhi-110 067.
3. The Dy. Director,
National Institute of Health and
Family Welfare,New Mehrauli Road,
Munrika, New Delhi-110067.
4. The Acting Head,
Department of Statistics & Demography,
NIHFW, New Mehrauli Road, Munirka, New Delhi-67.
5. The Director,
CBI, CGO Complex, Lodhi Road, New Delhi. Respondents
By Advocate: Shri A.K. Bhardwaj for respondents No.1 and 5.
Shri Mukul Gupta for respondents No.2,3 and 4.
ORDER
By Honble Mrs. Meera Chhibber, Member (J) This matter was transferred by Honble High Court of Delhi vide order dated 28.4.2008 as Writ Petition No.948/2001 was initially filed in the Honble High Court of Delhi. While transferring this case it was clarified that petitioner will be at liberty to file an independent writ petition in respect of relief to have investigation done by the CBI and in such an event it would be open to the respondents to raise all objections in case any such Writ Petition is filed.
2. Applicant has challenged order dated 25.1.2001 (page 63) whereby he has been terminated under proviso to sub-rule (1) of Rule 5 of CCS (Temporary Service) Rules, 1965 read with Bye-law 26 of Bye-laws of National Institute of Health and Family Welfare (hereinafter referred to as NIHFW) in terms of his appointment letter dated 31.12.1999 (page 63). He has further sought a direction to the respondents to reinstate him in service with all consequential benefits.
3. It is submitted by the applicant that he had applied for the post of Lecturer (Statistics and Demography) (in short S&D). After he was duly selected, he was given offer of appointment on 23.8.1999 (page 27) wherein it was clearly mentioned that period of probation would be one year from the date of joining and the performance of the appointee would be assessed during the said period. He had joined the post on 28.12.1999 whereas applicant has been terminated on 25.1.2001 after the period of probation was over, therefore, this order is not sustainable in law. Applicant stood deemed confirmed in the post after one year, therefore, he could not have been terminated. In any case the order dated 25.1.2001 is wrong because no appointment order dated 31.12.1999 was issued. Moreover, CCS (Temporary Service) Rules would not be applicable in the instant case, therefore, order dated 25.01.2001 may be quashed and set aside. Counsel for the applicant relied on the following judgments:-
(i) Dr. N.G. Kulkarni Vs. Union of India reported in 2000 (2) SLR 49;
(ii) Pratap Singh Jadeja Vs. Rajkot Municipal Corporation and Others reported in 2007 Vol. 10 SCC 71; and
(iii) V.P. Ahuja Vs. State of Punjab and Others reported in 2000 (3) SCC 239.
4. Respondents on the other hand have relied on their Bye-Laws (copy of which was produced at the time of arguments) to state that power to extend the probation period was available and his services could have been terminated without giving him any notice. He submitted since Bye-Laws were very clear that applicants probation could be extended and his services could be terminated on assessment of his work, he cannot be said to be deemed confirmed because confirmation requires a positive order.
5. Counsel for the respondents explained that applicant had joined on 28.12.1999. DPC considered his case on 2.1.2001, i.e., within 2 years and found he was not fit to be retained in service. Accordingly, his services were terminated by the impugned order. He further submitted that during the period of probation, applicant was issued 4 Memos apart from adverse remarks for the period from 1999 to 2000 communicated to the applicant vide memorandum dated 4.7.2000. Applicant gave representation against said adverse remark only on 12.12.2000 (page 56 at 58), i.e., much after the period of limitation. Applicants representation was rejected vide order dated 15.12.2000 (page 60). Applicant neither challenged the adverse remarks nor the order of rejection meaning thereby the adverse remarks were accepted by him. This clearly shows that applicant has been terminated as he was not found suitable due to his overall performance.
6. Counsel for the respondents further submitted that perusal of the complaints, which applicant has been writing from time to time, it is clear that he has some psychological problem. Applicant has alleged mala fides against the officers but none of them have been impleaded as party in the Writ Petition, therefore, the question of mala fides cannot be even be looked into.
7. Counsel for the respondents relied on the following judgments:-
(i) Satya Narayan Athya Vs. High Court of M.P. and Another reported in 1996 (1) SLR 52.
(ii) Municipal Corporation, Raipur Vs. Ashok Kumar Misra reported in 1991 (3) SCC 325.
(iii) State of Punjab Vs Baldev Singh Khosla reported in 1996 (9) SCC 190.
8. We have heard both the counsel and perused the pleadings as well.
9. The only argument advanced by the counsel for the applicant was that since in offer of appointment period of probation was only I year, therefore, after 1 year he was deemed confirmed. As such, he could not have been terminated without holding an enquiry and he has been terminated as a result of vengeance because he had written complaints against the officers. He also submitted Bye-Laws would not apply in this case.
10. Counsel for the applicant also submitted that applicant had reported the matter to CBI for bungling in Civil Services Examination held in 1985-86. As a result of which, those persons became his enemy and threatened him. He informed about these threats to the Director and requested him to get the list prepared of all the vehicles entering in the campus after 5.2.2000. The Directors and Dy. Directors behavior changed thereafter and they hatched a conspiracy against the applicant. He has, therefore, been terminated in connivance with those persons who were involved in bungling in Civil Services Examination.
11. Admittedly applicant was given adverse remarks vide Memorandum dated 4.7.2000 for the year 1999-2000 which read as under:-
Writing capability Very Good
Oral Communication Very Good
General remarks/specific During the period under
Comments About the self review, the officer has not
Assessment given by the performed very satisfactorily.
Officer concerned He has tendency to absent
Without leave and is not
Punctual either.
12. Applicant had represented against the said adverse remarks only on 12.12.2000, i.e., after more than about 5 months from the date of the communication of the adverse remarks. Accordingly, the same was rejected vide Memorandum dated 15.12.2000 (page 60). Neither adverse remarks nor rejection order has been challenged in the present OA which means these adverse remarks were accepted by the applicant. Moreover, during the period 1999 to 2000 admittedly 4 memos were given to the applicant.
13. From above it is clear that applicant had not been performing to the entire satisfaction of the authorities which is evident form the Minutes of the DPC also produced by the counsel for the respondents. They have also produced the report of IB for our perusal, which shows that applicant had been writing several letters to them also alleging that he is being persecuted by his seniors of NIHFW and others. However, they were of the view that applicant is suffering from some kind of psychiatric disorder and he indulges in abnormal activities such asincoherent conversation with people, writing of letters etc. during such phases. They had suggested that applicant should be subjected to medical examination to assess his suitability. In other words even officers of I.B. were of the opinion that applicant is writing irrelevant letters. At this juncture we would like to observe that when counsel for the applicant invited our attention to some of the letters written by the applicant, even we also felt that applicant is suffering from some kind of psychiatric problem as he feels every person is conspiring and trying to harm him. In fact, most of the complaints which applicant has annexed with this petition are not relevant because they are alleged to be with regard to some bungling in the Civil Services Examination held by UPSC in 1985-86 as is evident from page 37 onwards. This letter was written to the CBI. All his complaints revolve around the same bungling but how he is connecting it with his officers for this appointment in 1999 is not clear. May be applicant had some bad experience but that cannot be the basis for making allegations against his officers in a new organization. In fact as far as those complaints are concerned, they are not at all relevant for the present case because Honble High Court of Delhi had already given him liberty to file a separate Writ Petition for those complaints, therefore, no purpose would be served by referring to those complaints in this case. The allegations that applicant has been terminated by the officers in connivance with that group is noted only to be rejected as there is no link.
14. From above it is clear that applicants services have not been terminated due to any bias or mala fides.
15. The short point which is required to be considered by us is whether in these circumstances when applicants overall performance is not found to be satisfactory by the respondents, whether his services could have been terminated by a simplicitor order dated 25.1.2001 or principles of natural justice were required to be followed.
16. Counsel for the applicant vehemently argued that since in the offer of appointment probation period was only one year and there was no provision for extension of probation period, therefore, on completion of one year, he had become a confirmed employee, as such his services could not have been terminated under Rule 5(1) of CCS (Temporary Service) Rules.
17. At this juncture it would be relevant to refer to the Bye-Laws which for ready reference read as under:-
24. Period of Probation (1) Employees appointed / promoted to Group A, B and C posts shall be on probation for two years and to Group D posts, for one year. During the period of probation, the employee shall be required to put in satisfactory service failing which his service shall be liable to be terminated at any time without assigning any reason. The Appointing Authority may, however, extend or curtail the period of probation.
(2) Where a person appointed to a post under the Institute on probation, is, during his period of probation, found unsuitable for holding that post, or has not completed his period of probation satisfactorily, the Appointing Authority may.
in case of a person appointed by promotion or by direct recruitment as a departmental candidate revert him to the post held by him immediately before such appointment;
in the case of a person appointed by direct recruitment terminate his services under the Institute without notice;
every person appointed to a permanent post under the Institute by promotion or by direct recruitment shall, on satisfactory completion of his period of probation, be eligible for substantive appointment for that post.
25. Temporary and Permanent Service An employee shall be temporary employee of the Institute unless he is appointed substantively to a permanent post under the Institute.
An employee appointed substantively to any permanent post under the Institute shall be permanent employee of the Institute.
26. Termination of Services Service of a temporary employee may be terminated by the Appointing Authority:
without assigning reasons during the period of probation following first appointment at any time without notice;
after such period of probation in accordance with the provisions of the Central Civil Services (Temporary Service) Rules 1965 as amended from time to time.
18. From above it is absolutely clear that as per Bye-Laws period of probation was 2 years for Group A post which could be extended also, therefore, it is wrong to suggest that after 1 year applicant was deemed to be confirmed employee. These Bye-Laws make it further clear that if during probation, a person is not found suitable, his services could be terminated without assigning any reasons.
19. Counsel for the applicant submitted that Bye-Laws would not apply in his case but in the offer of appointment dated 23.8.99 it was clearly stated as follows:-
(i) The post is regular.
(ii) The period of probation will be one year from the date of joining and the performance of the appointee will be assessed during the period.
(iii) During the period of temporary employment, the appointment may be terminated at any time by a months notice given by either side viz. the appointee or the appointing authority without assigning any reason. The appointing authority, however, reserves the right of terminating the services of the appointee forthwith or before the expiry of the stipulated period of notice by making payment to him a sum equivalent to the pay and allowances for the period of notice or the unexpired portion thereof. During the period of probation, however, the appointment can be terminated at any time without any notice.
20. In the last column it was further mentioned as under:-
Dr. Neelam Kumar Singh accepts the offer on the above terms he should communicate his acceptance to the undersigned by 24th September, 1999 at the latest and forward the enclosed form duly completed, failing which the offer of appointment will be cancelled. If h accepts the offer of appointment, he should be ready to appear for his medical examination on receipt of further communication from the Institute.
21. These terms were accepted by the applicant, therefore, it is not open to the applicant to now state that Bye-Laws would not be applicable in his case. The terms as referred to above clearly show that his performance was to be assessed during the probation period, therefore, if on assessment of his performance during the probation period DPC came to the conclusion that he is not fit to be retained in service, no further notice was required to be given to the applicant.
22. After all DPC met on 2.1.2001 to consider the case of Dr. Neelam Kumar Singh, Lecturer (S&D), a Group A post in NIHFW for lifting of probation/confirmation, but it was noted that as per the assessment reports of probation period, professional output, work habits and conduct of Dr. Neelam Kumar Singh has been very poor and does not meet requirements of the job. He is not fit for retention in service and his services should, therefore, be terminated in accordance with the terms of appointment. It is relevant to note that DPC consisted of the Chairman, 3 Members and 1 Member-Secretary. We have no reason to doubt their assessment because they are all sufficiently senior officers and no case of mala fides have been made out against them except making vague allegations. Even those officers against whom vague allegations have been made viz. the Director and Dy. Director, they have not been impleaded by name as parties, therefore, the allegations of mala fides cannot even be looked into. At this juncture reference may be made to E.P. Royappa vs. State of Tamil Nadu reported in AIR 1974 SC 555, wherein it was held as under:-
The burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility.
23. Even otherwise law of mala fides is well settled that one who avers mala fides must implead those against whom mala fides are alleged so they may respond to the allegations. In the absence of impleading them by name, such vague allegations cannot even be looked into, therefore, contention of mala fide is rejected.
24. We would be failing in our duties if we do not consider the judgments relied upon by the counsel for applicant. He has placed reliance on Dr. N.G. Kulkarnis case (Supra). This judgment, according to us does not advance the case of the applicant. On the contrary even the facts are different. Adverse remarks were not communicated in the said case whereas in the instant case not only adverse remarks but even memos were also given to the applicant during probation period. This judgment in fact goes against the applicant. The facts of the said case were that petitioner was appointed as Chemist (Research and Laboratory) Grade-I in the Bank Note Press, Dewas (M.P.) on regular (officiating basis) w.e.f. 24.6.1976 till further orders. He was to be on probation for a period of 2 years from 24.8.1976. Honble High Court observed even though the probationary period was not extended in express terms but in view of the powers vested with the respondent, his probationary period stood extended when not expressly confirmed. Thus it cannot be said that on expiry of 2 years the appellant automatically got confirmed. It was held that so long as specific order of confirmation is not made, the probationer may continue and remain in service even after expiry of probation but he will continue to be a probationer. Reference was made to the case of S. Sukhbans Singh Vs. The State of Punjab reported in AIR 1962 SC 1711 wherein Honble Supreme Court had observed unless rule expressly provides that after the expiry of the period of probation the probationer will automatically get confirmed, the probationer in the normal course cannot seek automatic confirmation. It was held that confirmation requires necessary passing of the order to that effect. Contention of the petitioner that since in the appointment letter issued by the respondents, it was not mentioned that the probation may be extended at the discretion of the Ministry and hence they could not extend the probation period, was rejected.
25. In the instant case also though it is correct that in the offer of appointment period of probation was stated to be one year but since in the Bye-Laws (which have been produced by the counsel for the respondents) it is clearly mentioned that if any person is appointed/promoted to Group A, B and C posts, they shall be on probation for 2 years and the appointing authority has the right either to extend or curtail the probation period and also to terminate the services if they are not found satisfactory, therefore, the same principle, as enunciated above, would apply in the present case also. Simply because in the offer of appointment it was not mentioned that probation period can be extended, it does not mean power is not available nor can Bye-Laws be ignored. So long right to extend probation period, was given to the authorities, under the Bye-Laws, it would be binding on the applicant as well specially when it was categorically mentioned in the offer of appointment in para (iv). In fact counsel for the respondents explained that in the offer of appointment period of probation was mentioned as one year because there was a proposal to amend the Bye-Laws but the said amendment has not been carried out so far. The law is well settled if power is given under the rules merely because it is not mentioned in the order it would not vitiate the order. The applicants services had been terminated on 25.1.2001 whereas he had joined the service on 28.12.1999, i.e. within 2 years which was very much permissible under the Bye-Laws.
26. Counsel for the applicant relied on the judgment in Pratap Singh Jadeja (Supra). In this case appellants appointment was regulated by the Bombay Provincial Municipal Corporation Act, 1949 but there was no provision for extension of probation period. Moreover, there was clear finding that appellant discharge was not based on solely assessment of appellant work and conduct but on misconduct during probation whereas in the instant case we have already recorded that applicants services were terminated due to unsatisfactory performance during probation period and power to extend probation period was available under the Bye-Laws, therefore, this judgment would not apply in the present case. Even in V.P. Ahuja Vs. State of Punjab and Others also Honble Supreme Court had recorded a finding that the order was stigmatic and punitive because in the order itself it was mentioned that he failed in performance of his duties administratively and technically whereas in the instant case applicant has been terminated by an order simplicitor, therefore, this judgment would also not apply in the present case.
27. On the contrary, it is clearly held in Satya Narayan Athyas case (Supra) by the Honble supreme Court that if at the end of probation period a person is not found fit for confirmation, his services can be discharged due to non-satisfactory work. It is not necessary that there should be a charge and an inquiry on his conduct. Similarly in Municipal Corporation, Raipur Vs. Ashok Kumar Misra reported in 1991 (3) SCC 235 it was held, where rules empower the authority to extend probation beyond the prescribed period, mere expiry of initial period of probation would not automatically result in deemed confirmation. An express order of confirmation is necessary. In other words it was held that confirmation requires a positive act on the part of the respondents. It was held that before confirmation, appointing authority is empowered to terminate the service of the probationer by issuing one calendar months notice in writing and on expiry of the same, the service stands terminated without any further notice. In the said case three months from the date of expiry of 2 years period of probation was over, respondents services were terminated. Honble Supreme Court observed that there was no question of conducting any inquiry under the CCS(CCA) Rules after giving him opportunity as that situation does not arise. Similar view was taken by the Honble Supreme Court in State of Punjab Vs. Baldev Singh Khosla reported in 1996 (9) SCC 190. In the said case also adverse remarks were given to the respondent therein during the period of probation and his probation period was extended. Under these circumstances it was held he cannot be deemed to have been confirmed. There are number of judgments on this point. No purpose would be served by simply multiplying the judgments. Suffice is to state that since in the Bye-Laws it was clearly mentioned that his period of probation could be extended, the applicant cannot be said to have been deemed confirmed after one year of probation period as alleged by the counsel for the applicant, therefore, this contention is rejected.
28. Counsel for the applicant also submitted that applicant could not have been terminated by attracting Rule 5 (1) of the CCS (Temporary Service) Rules. However, perusal of the impugned order shows that he was terminated by attracting Rule 26 of the Bye-Laws and terms and conditions of his appointment as well, therefore, even if it is assumed for the sake of argument that rule 5 (1) would not apply, this by itself would not vitiate the order of termination. He further submitted that in the impugned order respondents have referred to some appointment order dated 30.12.1999 whereas offer of appointment was dated 23.8.99. This contention is also without any merit because counsel for the respondents produced appointment order dated 28.12.99 from the original record for our perusal and we find that the said order is very much in existence. Memorandum dated 23.8.99 was only offer of appointment. In the appointment order it was clearly mentioned that during the period of probation, his work would be assessed and he would be governed by other terms and conditions as conveyed to him by Memorandum dated 23.8.1999. In Memorandum dated 23.8.1999 (page 27) it was clearly mentioned in clause (iii) as follows:-
(iii) During the period of temporary employment, the appointment may be terminated at any time by a months notice given by either side viz. the appointee or the appointing authority without assigning any reason. The appointing authority, however, reserves the right of terminating the services of the appointee forthwith or before the expiry of the stipulated period of notice by making payment to him a sum equivalent to the pay and allowances for the period of notice or the unexpired portion thereof. During the period of probation, however, the appointment can be terminated at any time without any notice.
29. In clause (iv) it was further mentioned that other conditions of service would be governed by the relevant rules and order and Bye-Laws in force from time to time. It is thus clear that applicant was fully aware that his service would be governed by the Bye-Laws. These terms were accepted by the applicant, therefore, now he cannot turn around and say that Bye-Laws would not be applicable in his case as suggested by the counsel for the applicant.
30. In these circumstances when applicants services have been terminated on account of his overall performance, which is supported by the memos and adverse remarks communicated to him during the period of probation, we do not think any case is made out for interference by the Tribunal.
31. In view of above, we do not find any merit in the OA. The same is accordingly dismissed. No costs.
(DR. R.C. PANDA) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh