Gauhati High Court
Provat P. Konwar vs Union Of India (Uoi) And Ors. on 27 September, 2002
Equivalent citations: (2003)1GLR564
Author: Ranjan Gogoi
Bench: Ranjan Gogoi
JUDGMENT Ranjan Gogoi, J.
1. An order dated 17.8.2000, terminating the services of the petitioner on the ground of unsatisfactory performance of duties, is the subject matter of challenge in the present proceeding.
2. The facts necessary to appreciate the challenge made in the instant writ application and to decide the entitlement of the writ petitioner to the reliefs claimed may be briefly set out as hereunder:
By an order dated 29.3.1996, the petitioner was appointed as Manager (Marketing) in the respondent Corporation. The aforesaid appointment was made on probation for a period of one year with the stipulation that the period of probation may be further extended at the discretion of the management. By order dated 21.8.1997, the probation period of the writ petitioner was extended for a further period of 6 (six) months with effect from 28.3.1997. The petitioner thus continued to be in service under the respondent Corporation. He was allowed to attend to the duties of the General Manager (Marketing) by order dated 24.7.1998. By another order dated 31.8.1998 the petitioner was allowed to discharge the duties of the Zonal Manager with Headquarters at Guwahati. The petitioner claims to have discharged the aforesaid higher responsibilities satisfactorily. On 30.8.1999, the petitioner was transferred to the Zonal Office at Imphal. Thereafter, it appears that after serving for about 3 months at Imphal, the petitioner sought leave on health grounds and continued to remain away from duties for a considerable period of time until his case was reviewed by the Medical Board which certified him to be fit for duties w.e.f. 19.6.2000. The authority by order dated 8.8.2000 regularised the period of absence of the petitioner from 5.11.1999 to 19.6.2000 by granting him leave due to his credit. It, however, appears that prior to that on 2.5.2000, the probation period of the petitioner was further extended until further orders. The aforesaid order dated 2.5.2000 is stated to be in continuation of the earlier order dated 21.8.1997 extending the period of probation of the petitioner. Thereafter, the impugned order dated 17.8.2000 was issued terminating the services of the writ petitioner on the ground of unsatisfactory performance of duties as already noticed.
3. Mr. B.P. Kataki learned Sr. Counsel appearing on behalf of the writ petitioner has contended that after the expiry of the extended period of probation as made by the order dated 21.8.1997, the petitioner continued to be in service and in fact, he was given higher responsibilities of General Manager (Marketing) and Zonal Manager. In the year 1998, a certificate commending the writ petitioner for excellent work had also been issued by the authority of the Corporation. Nothing adverse relating to performance of duties was communicated to the writ petitioner asking him, in any manner, to step up his efficiency and performance at any point of time. The order dated 2.5.2000 extending the probation period of the petitioner made in continuation of earlier order dated 21.8.1997 and the order of termination dated 17.8.2000 is, therefore, contended to be actuated by reasons other than bona fide. A right akin to confirmation in service is claimed upon expiry of the extended period of probation on the basis of the facts subsequent. The learned counsel has argued that even if it is deemed that the writ petitioner continued to remain on probation, the instant is not a case of discharge simplicitor. Legal malice is evident for which reason this Court should lift the veil to hold that the petitioner has been removed by way of punishment. Two decisions of the Apex Court in the case of D.P. Banerjee v. S.N. Bose National Centre for Basic Sciences, Calcutta and Ors. reported in 1999 (3) SCC 60 and in the case of Pavanendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences and Another reported in AIR 2001 SCW 4616 have been pressed into service in support of the contentions advanced.
4. Mr. B.K. Sarma, learned Sr. Counsel appearing on behalf of the respondent Corporation has sought to controvert the arguments advanced on behalf of the writ petitioner by contending that as the period of probation of the petitioner was liable to be extended further at the discretion of the management, no right for automatic confirmation in service upon completion of the period of initial or extended probation, can be spelt out in favour of the writ petitioner. Learned counsel further submits that in view of the said expressed condition of his appointments made on probation, even in the absence of a formal order of extension, the petitioner must be deemed to be on probation and open to discharge for unsatisfactory performance of duties. Reliance, in this regard, has been placed on a Judgment of the Apex Court in the case of High Court of M. P. through Registrar and Ors. v. Satya Narayan Jhavar reported in (2001) 7 SCC 161.
5. Mr. Sarma, learned Sr. Counsel has further submitted that the decision making process in the instant case, records of which has been made placed before the Court, would go to show that the termination of the service of the writ petitioner was on account of his unsatisfactory performance of duties and no misconduct on the part of the writ petitioner was even remotely in the mind of the authority prior to the termination. It is therefore submitted that it will be wholly unnecessary for this Court to embark upon any exercise to determine the foundation and motive behind the discharge of the petitioner.
6. The law relating to discharge of probationers has been evolved in a long line of decisions of the Apex Court spreading over the last several decades. There are several landmarks in the long journey which the judicial verdict has undertaken in search of the real test. A recent manifestation of the law in this regard is to be found in the judgment of the Apex Court in the case of Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Another (supra) where in the Apex Court has observed :
"Thus some Courts have upheld an order of termination of a probationer's services on the ground that the enquiry held prior to the termination was preliminary and yet other Courts have struck down as illegal a similarly worded termination order because an inquiry had been held. Courts continue to struggle with semantically indistinguishable concepts like 'motive' and 'foundation' ; and terminations founded on a probationer's misconduct have been held to be illegal while terminations motivated by the probationer's misconduct have been upheld. The decisions are legion and it is an impossible task to find a clear path through the jungle of precedents."
7. In the above case Pavanedra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences and Another (supra), the Apex Court has observed that the judicial endeavour has been to strike a right balance between the apparent lack of any right in a probationer to continue to remain in service and the right recognised in him to challenge an order of dismissal if such dismissal has been made by way of punishment. The dividing line though fine is clear ; if misconduct has acted as the foundation for the termination, interference must be made, if it is the motive, the order of discharge must be sustained. To determine the said question, the veil must be lifted and the lifting of the veil would depend on the prima facie case that has been established to justify such judicial action. Upon lifting the veil, if any misconduct is revealed and consequences thereto were primarily responsible for the discharge, than misconduct must be deemed to be foundation of the action. If, however, notwithstanding the allegations of misconduct, an employer does not pursue the same or if after an initial attempt, the pursuit is abandoned and the discharge/ termination is made on account of unsatisfactory performance of duties, the misconduct must be understood to be the motive and not the foundation for the discharge and the order must be sustained.
8. It had become necessary to cull out the aforesaid principles of law laid down relating to discharge of probationers in view of the very weighty arguments advanced by the learned counsels for both the parties. The applicability of the aforesaid principle would, however, stand on a different footing and such applicability has to be determined with reference to the facts of a given case.
9. Adverting to the facts of the present case, a perusal of the relevant records of the decision making process, as placed by the learned counsel for the petitioner, particularly, the eventual decision of the authority to discharge the writ petitioner as recorded in the Note Sheet dated 25.4.2000, would go to show that no misconduct whatsoever was even remotely considered by the authority prior to discharge of the writ petitioner. The aforesaid materials perused by this Court, amply reveal that the discharge of duties by the writ petitioner since the date of his initial appointment, was alone considered by the authority and on such consideration, the performance of the writ petitioner not having been found to be satisfactory, the decision to discharge the petitioner was taken. The contention of the learned counsel for the petitioner that the assumption of higher responsibilities by the writ petition in the post of General Manager (Marketing) and Zonal Manager belies the case of the respondent that the petitioner's performance was not satisfactory would hardly merit any serious consideration inasmuch as assumption of such higher responsibilities were entirely fortuitous and compelled by the exigencies of the situation. The fact that the authority thought it necessary to pass a formal order dated 2.5.2000 to put on record that the petitioner was on probation at the time of his discharge, would be equally irrelevant inasmuch as it has already been held in a earlier part of the Judgment that the writ petitioner would have no legal right to claim automatic confirmation in service on expiry.
10. Having held, as aforesaid, the inevitable conclusion that this Court has to reach is that this writ petition is bereft of any merit and deserves to be dismissed. It is accordingly dismissed. But considering the facts and circumstances of the case, there will be no order as to costs.