Kerala High Court
National Small Industries Corporation ... vs Narayanan on 24 May, 2005
Equivalent citations: 2005(3)KLT748
Author: J.B. Koshy
Bench: J.B. Koshy, K.T. Sankaran
JUDGMENT J.B. Koshy, J.
1. When order of terminating the probationary service was received by the petitioner, petitioner approached this Court challenging the same. Petitioner was appointed by Ext.P1 appointment order. Condition No. 1 in Ext.P1 appointment order reads as follows:
"1. You will be on probation for period of two years from the date of your joining the post. The probation period may be extended, at the discretion of the appointing authority. During the probation period the appointment will be liable to termination on one month's notice and thereafter on three months notice on either side or pay with allowances in lieu thereof. Continuance in service after the probation period is subject to satisfactory performance."
According to the petitioner, even though the order issued is an order simpliciter, it is actually a punitive order issued without conducting an enquiry and without complying with the rules and, therefore, it is liable to be set aside. The learned single Judge allowed the above plea and directed to reinstate the petitioner with continuity of service and with one-eighth of backwages. Petitioner filed Writ Appeal No. 1009 of 2001 demanding full backwages. The employer filed Writ Appeal No. 3358 of 2000 challenging the above judgment in so far as it interferes in the termination order. Ext.P10 termination order reads as follows:
"In pursuance of the proviso to Clause 1 of offer of appointment letter No. SIC/Pers.1/ 11(33)790 dated 9-11-90, Sri .M. Narayanan, Dy. Manager was placed on probation for a period of two years w.e.f. 21-1-1991. The services of Sh. Narayanan, whose probation was extended for a period of six months w.e.f. 21-1-93, for unsatisfactory performance vide office order No. NSIC/M/Estt.2(505)/92/1048 dt. 21-1-93 and was further extended for another period of six months w.e.f. 21-7-93 for poor performance vide office order No. NSIC/M/Estt.2(505)/92/1518 dated 30-7-93, is hereby terminated forthwith.
Sh. Narayanan shall be entitled to a sum equivalent to one month basic pay and IDA towards notice period as per Clause 1 of the offer letter dated 9-11-90 mentioned above, at the same rates at which he was drawing them immediately before the termination of his service."
2. The contention that his probation period was not extended till the time of termination is not correct. In any case, he has no case that his services were confirmed. There is no provision in the Standing Orders for automatic termination of service. In any event, it was specifically stated in the appointment order that his continuance of service after probationary period is subject to satisfactory service. It is settled law that in the absence of a provision in the service rule or a term in the appointment order to the contrary, a probationer will continue to be a probationer unless he is confirmed. In State of Maharashtra v. Veerappan R. Saboji ((1979) 4 SCC 468) it was held that automatic confirmation cannot be claimed in the absence of specific rule and work has to be satisfactory which is a prerequisite or precondition for confirmation and, therefore, even if the probationer is allowed to continue beyond the period of probation there is no deemed confirmation. The above view was followed recently also in Registrar, High Court of Gujarat and Anr. v. C.G. Sharma (2005 SCC (L & S) 12). Position will be different if there is a rule for automatic confirmation after a certain period.
3. It is true that even though the termination order is innocuously worded, the Court can lift the veil and look at the real foundation of the order to find out whether it is an order simpliciter for unsatisfactory service or it is a motivated order and punitive. The averments in the counter affidavit show that on the basis of some allegations, an investigation was conducted through the vigilance and, therefore, it is argued on behalf of the employee that the termination order is by way of punishment for misconduct. In Parshottam Lal Dhingra v. Union of India Constitution Bench of the Apex Court held that inefficiency, misconduct or even many other inducing factors may be there which influences the authority to terminate the services of an employee and it might have been the motive for terminating the services. But, the motive by itself does not make an order punitive unless the order was founded on those factors or other disqualifications. In this case, on the basis of Ext.P1 order, petitioner was appointed and posted at Jaipur. He was later transferred to Thrissur. According to the respondent, there were many allegations against him from the customers at Jaipur which is a very busy centre and, therefore, he was transferred to Thrissur. But, despite transfer, there was no improvement in his performance. His period of probation was extended. Inspite of the extension of the period of probation twice, there was no improvement in his performance and, finally, Ext.P10 order was issued. It is now well-settled law that services of a probationer can be terminated during or at the end of the period of probation on account of general unsuitability for the post in question and normally the performance of the probationer has to be assessed by the superior officers.
4. In Chandra Prakash Shahi v. State of UP and Ors. , it was held that the entire case law on termination is based on the peculiar facts of each individual case and the concept of motive and foundation etc. are to be looked into considering the facts of each case. The learned counsel for the petitioner relied mainly on the decision of the Constitution Bench of the Supreme Court in Shamsher Singh v. State of Punjab and Anr. . In that case, after the findings of the Vigilance Director without notice to the petitioner, a show cause notice was issued asking to show cause. The show cause notice was actually replied. But, then, the services were terminated. On the facts of those cases, the Supreme Court held that the order was actually punitive in nature. But, the Court observed that "the period of probation is intended to assess the work of the probationer whether it is satisfactory and whether the appointee is suitable for the post; the competent authority may come to the conclusion that the probationer is unsuitable for the job and hence must be discharged on account of inadequacy for the job or for any temperamental or other similar grounds not involving moral turpitude. No punishment is involved in such a situation. In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors. after reviewing the entire available case law on the issue, the Apex Court held that "termination of a probationer's services, if motivated by certain allegations tantamounting to misconduct but not forming foundation of a simple order of termination cannot be termed punitive and hence would be valid." The Supreme Court in Mathew P. Thomas v. Kerala State Civil, Supplies Corporation Ltd. and Ors. (2003 (1) KLT 874 (SC) : (2003) 3 SCC 26) held that repeated dereliction of duty will tantamount to unsatisfactory performance. Even though serious allegations of misconduct and of unsatisfactory service were contained in the show cause notice, order of termination was solely based on unsatisfactory performance in terms of the conditions in the appointment order and it was held that the order of termination is an order simpliciter and judicial review is not possible. In High Court of Judicature at Patna v. Pandey Madan Mohan Prasad Sinha and Ors. it was held that consideration of complaints regarding integrity and character and morality of the petitioner and his alleged indulgence in drinking and gambling, in taking decision to terminate his service does not show that the decision is punitive. The Supreme Court in State of U.P. and Anr. v. Kaushal Kishore Shukla held that when order of termination is based on assessment of suitability on considerations of adverse entry, despite pendency of various allegations of misconduct, the order is not punitive. A similar view was taken by the Supreme Court in Kunwar Arun Kumar v. U.P. Hill Electronics Corporation Ltd. and Ors. . Merely because there was a vigilance investigation against the employee in view of certain complaints, order of termination will not become punitive. Apex Court in Pavanendra Naravan Verma v. Sanjay Gandhi PGI of Medical Sciences further held:
"It cannot be held that the enquiry held prior to the order of termination turned the otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A charge sheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. None of the three factors catalogued above for holding that the termination was in substance punitive exists in the present case.
An affidavit cannot be relied on to improve or supplement an order. Equally, an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order."
In Krishnadevaraya Education Trust v. L.A. Balakrishna it was held by the Apex Court that:
"5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps, such an order would be sought to be challenged on the ground of being arbitrary. Therefore, naturally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say that such a contention will succeed. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated.
6. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services."
5. In Unit Trust of India and Ors. v. T. Bijaya Kumar and Anr. (1993 I LLJ 240) it was held by the Supreme Court that before terminating the services of a probationer for unsatisfactory performance, no notice of hearing need be issued. The above decision was rendered by a three-member Bench. As far as the facts of this case are concerned, the confidential report shows that the assessment was very bad and the adverse entry in the confidential report was communicated to the petitioner. Ext.P5 is one of such communications which reads as follows:
"The following remarks made in his confidential report for the year 1991-92 are communicated to Shri M. Narayanan, Deputy Manager for information and such representation as he may wish to make against it but not later than three months from the date of issue of this Memorandum:-
Assessment Inadequate
Cost Consciousness Aware of effecting economy but makes no special efforts.
Innovative Thinking Seldom puts forth ideas; barely understand problems;
solutions evolved are usually irrelevant.
Decision making Slow at taking decisions.
Interpersonal Relations Sometime unco-operative; occasionally creates friction
with colleagues, subordinates and seniors.
Leadership Marginally able to influence the team; minimally effective
in developing and training subordinates.
Discipline Needs to improve his sense of discipline; needs to be
punctual and regular in attendance.
Group Effectiveness Marginally able to maintain group morale; occasionally
fails to utilize manpower resources optimally.
Integrity Questionable.
Understanding of the
organisational and corporate Inadequate.
objective
Overall evaluation Unsatisfactory - Performance barely adequate
Under the column of Achievement/Failure vide para-IV of the report, Reporting/Reviewing Officers have observed as under:-
"Certain cases of malpractices were reported and 1 confirmed after he was relieved from B.O."
"Needs removal from any commercial assignment."
There is no evidence of mala fide on the part of the employer. They could have terminated the service at that time itself. He was transferred from Jaipur to Thrissur. Thereafter also, there was no improvement. As pointed out by the counsel for the respondent, self appraisal forms were also not written by the petitioner. It is also pointed out that several complaints were received against him. All these factors establish that his service was not satisfactory. His representations were also disposed of as can be seen from Ext.R2 (c) to (e). On going through the confidential reports, we cannot find fault with the opinion of the employer that despite the extended period of probation, petitioner was not able to show any improvement and his work during the probation period was not satisfactory. Ext.P10 termination order is not punitive in nature, but, only an order simpliciter in accordance with the appointment order. The allegations levelled by the petitioner that when petitioner was in Jaipur all officers above him were acting against the interest of the company, that he made complaints and that when he was transferred again the officers at Thrissur were also acting against the interest of the company etc. are mere self serving statements and these wild allegations are not substantiated. In any event, his probationary service was not satisfactory and Ext.P10 termination order was issued in accordance with Condition No. 1 of Ext.P1 order. In the above circumstances, the learned single Judge should not have interfered with the termination order. In the result, the judgment of the learned single Judge is set aside and W.A.No. 1009 of 2001 filed by the petitioner is dismissed and W.A.No. 3358 of 2000 is allowed.