Gauhati High Court
The Chairman & Managing Director, Pawan ... vs Colonel Mukul Kumar Gogoi [Retd] @ ... on 11 September, 2015
Author: P.K. Saikia
Bench: T. Vaiphei, P. K. Saikia
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Writ Appeal No. 58 OF 2014
1. The Chairman & Managing Director,
Pawan Hans Helicopter Ltd., (A. Govt.
Of India Enterprise), Corporate Office,
C-14, Sector-1, Noida (UP), Pin-201301.
2. M/S Pawan Hans Helicopter Ltd.
(A Govt. of India Enterprise), Corporate
Office, C-14, Sector-1, Noida (UP), Pin-
201301.
3. Base-in Charge, (NE),
Pawan Hans Helicopter Ltd.,
(A Govt. of India Enterprise),
Assa m Flying Club Hanger,
LGBI Airport, Borjhar, Guwahati,
781015.
.....Appellants
-Versus-
Colonel Mukul Kumar Gogoi (Retd.)
@ Captain Mukul Kumar Gogoim
Son of Late Harendra Nath Gogoi,
Flat No. A5, Seujee Enclave,
N.N.B. Raod, Chandmari,
Guwahati-781003, Assam.
.....Respondent/ Writ Petitioner
BEFORE
HON'BLE MR. JUSTICE T. VAIPHEI
AND
HON'BLE MR. JUSTICE P. K. SAIKIA
For the Appellants : Mr. A. D. Choudhury,
: Mr. A. Dhar, Advocates
For the Respondent : Mr. K. N. Choudhury, Sr. Counsel
: Mr. R. M. Deka, Advocates
Date of judgment : 11.09.2015
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JUDGMENT AND ORDER (CAV)
(P.K. SAIKIA, J)
This appeal is directed against the judgment dated 03.05.2013,
rendered by the learned Single Judge in WP(C) No. 191/2013, quashing the
order dated 06.06.2011, whereby the appellant herein terminated the
service of the writ petitioner in WP(C) No. 191/2013 (who is respondent
herein).
2. Being aggrieved by and dissatisfied with, the respondent therein has
preferred this appeal contending that the judgment under challenge is
unsustainable.
3. We have heard Mr. A. D. Choudhury, learned counsel for the
appellants and also heard Mr. K. N. Choudhury, learned counsel for the
writ petitioner.
4. The facts necessary for disposal of the present appeal, in short, are
that by the order dated 01.12.2010, passed by the Deputy General Manger
(P&HRD), Pawan Hans Helicopters Limited, a Govt. of India Enterprise, (in
short, PHHL), the petitioner was offered the post of Helicopter Pilot as
Captain. Petitioner was required to report the General Manager, Western
Region for joining there w.e.f., 01.02.2011. It was stated in the
appointment order that the petitioner would be on probation for a period of
1 (one) year from the date of joining.
5. Though it was stated in Clause-2 of the said appointment order that
during the probation period, services of the petitioner was liable to be
terminated without any notice, Clause-5 thereof provided that the company
could terminate his service at any point of time by giving him 2(two)
months notice or salary in lieu thereof.
6. While he was rendering service to the aforesaid company as being
probationer, w.e.f. 01.02.2011, on 06.06.2011 at 15:32:07 hours, petitioner
received an email from the control room of Pawan Hans Helicopter Limited
furnishing him a show cause notice dated 30.05.2011 stating therein that
his service was assessed and was rated as 'below average'.
7. It was stated therein that since his service was graded as 'below
average' his continuance in service would be detrimental to the flying
operation as well as to the interest of the organization. Petitioner was,
therefore, asked to submit his explanation in writing as to why his service
should not be terminated and such explanation was to reach the authority
within a period of 3(three) days from the date of receipt of such
communication.
8. On the receipt of such email dated 06.06.2011, petitioner submitted
a detailed explanation dated 07.06.2011 to the authority concern
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contesting the assessment of the authority under which his performance
was rated as 'below average'. He therefore, requested the authority to re-
consider the decision to terminate him from services.
9. However, before the receipt of the explanation, which he sent to
Deputy General Manager, (P&HRD), the later had issued the impugned
order dated 06.06.2011 itself terminating the service of the petitioner.
Thereafter, on 29.07.2011, a representation was sent to the Chairman and
Managing Director, Pawan Hans Helicopters Limited requesting him to look
into the matter.
10. Since such representation was not responded to, a subsequent
representation dated 04.06.2012 as well as legal notice dated 16.08.2012
was served on the aforesaid authorities. Since all those measures could not
evoke any response from the respondent authorities, the petitioner had
approached this court by the way of WP(C) No. 191/2013.
11. On the receipt of the same, this court ordered issuance of notice on
the respondents. The respondents (herein after referred to as "appellants" )
received the notice of the proceeding. However, despite service of notice on
respondents in aforesaid proceeding, learned counsel representing the
respondents, it is found from the impugned judgment, could not file
affidavit-in-opposition for want of necessary instruction.
12. Since the respondents in WP(C) No. 191/2013 could not file
affidavit-in-opposition, learned Single Judge proceeded to decide the matter
on the basis of materials, available on record and after hearing the
arguments, advanced by the learned counsel for the parties., leaned Single
Judge rendered the judgment in question setting aside the impugned order
dated 06.06.2011 vide judgment dated 03.05.2013 in WP(C) No. 191/2013.
13. Being aggrieved by the judgment dated 03.05.2013 in WP(C) No.
191/2013, the respondent preferred a review petition seeking the review of
the judgment aforesaid stating that there are some errors apparent on the
face of the record and same, therefore, needs correction. The learned Single
judge heard both the sides and thereafter was pleased to dismiss such
review petition vide judgment dated 20.09.2013 rendered in Review Petition
No. 79/2013.
14. While dismissing the Writ proceeding, learned Single Judge held that
though a probationer is not entitled to a notice before his termination but
in the peculiar facts and circumstances of the case in hand, such notice
was indispensable and since he was dismissed without giving an
opportunity of being heard, such dismissal is unsustainable in law.
15. The learned Single Judge further held that though the petitioner was
to remain on probation for a period of 1(one) year w.e.f. 01.02.2011 to
31.01.2011, his service was terminated well before the completion of
probation period stating that his performance was found to be 'below
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Average'. In Rajesh Kohli Vs. High Court of Jammu and Kashmir and
Anr., reported in (2010) 12 SCC 783, the Apex court held that the
performance of a probationer is to be assessed towards the end of
probation period.
16. Relying on the decision of Hon'ble Apex Court in Rajesh Kohli
(Supra), learned Single Judge found that since the performance of the
petitioner was assessed even before he could complete 4(four) months of
his probationary period, such termination is a premature one inasmuch
such a decision was taken in haste and on this count also, order impugned
in WP(C) No. 191/2013 was held to be illegal which, in turn, requires the
quashment of such an order.
17. Mr. A. D. Choudhury, learned counsel for the appellant contends
that such finding is unsustainable for reasons more than one. In that
connection, it has been stated that the performance of the petitioner was
assessed from time to time and was given ample opportunity to improve his
performance but in spite of affording opportunity to improve his
performance, no significant improvement was noticed and as such,
respondent was compelled to terminate him from service.
18. Regarding the contention that service of petitioner was terminated
without giving him an opportunity of being heard, it is contended that such
notice is not necessary inasmuch as the nature of the service of the writ
petitioner is quite different from the nature of other services. This is
because of the fact that the petitioner is to operate a flying machine and
inept handling of it may result in serious consequences including putting
the life of the petitioner himself in huge peril.
19. He further submits that termination of the petitioner is a
termination simpliciter as it casts no stigma on the petitioner. Since the
termination in question was not a stigmatic one and since such
termination was a termination simpliciter, the petitioner is also not entitled
to any inquiry before his termination, more so, when he was merely a
probationer when he was terminated from service.
20. In support of such contention our attention has been drawn to the
following decisions: -------
a) A.G. Benjamin Vs. Union of India, reported in (1067) 1 LLJ 718 (SC),
b) High Court of Judicature at Patna Vs. Pandey Madan Mohan Prasad Sinha and
others, reported in (1997) 10 SCC 409,
c) Pavanendra Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences and another,
reported in (2002) 1 SCC 520,
d) Chaitanya Prakash and another Vs. H. Omkarappa, reported in (2010) 2 SCC 623
e) Basavaiah (Dr.) Vs. H. L. Ramesh, reported in (2010) 8 SCC 372
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f) Rajesh Kohli Vs. High Court of Jammu and Kashmir and another, reported in (2010) 12
SCC 783
g ) Rajesh Kumar Srivastava Vs. State of Jharkhand and others, reported in (2011) 4 SCC 447
h) Deputy Commissioner, Navodaya Vidyalaya Samiti, Shillong and anr Vs. Hemraj,
reported in 2012 (3) GLT 258
i) Ratnagiri Gas and Power Private Limited Vs. RDS Project Limited and others, reported in
(2013) 1 SCC 524
21. Such contention was, however, refuted by the learned counsel for
the respondent herein (herein after referred to as writ petitioner, the
petitioner in WP(C) No. 191/2013) stating that entire allegation that on
assessment, his performance was found to be 'below average' is based on
the letter dated 27.08.2010 which is nothing but an enormously bogus
document. Various facts on record make such position crystal clear.
22. What is equally interesting to note is that though appellants claim
that the performance of the writ petitioner was found far from satisfactory
during his period of probation requiring his immediate termination from
the service, yet, the document on the basis of which his service was
terminated shows that his performance was evaluated----- not after joining
the appellants company on 01.02.2011 on probation ------ but it was
evaluated on 27.08.2010 when he rendered service to appellants as being
Army pilot on deputation.
23. A perusal of letter dated 27.08.2010 makes such a position more
than clear and such revelation clearly demonstrates the hollowness of the
claim of appellants that the performance of the writ petitioner during the
period of probation which commenced from 01.02.2011 was found far from
satisfactory. This also speaks loud and clear that appellants had resorted
to falsehood in throwing the writ petitioner out from service illegally.
24. It is also contended by the learned counsel for the writ petitioner
that according to appellants, the writ petitioner could not perform well
when he was asked to fly machine in "off shore" area which is
comparatively difficult sector to fly a machine which is why the service of
the petitioner was advised to be utilized in "on shore" area in the NR which
is relatively less hazardous zone.
25. But the letter dated 13.04.2011 again demonstrates that the service
of the writ petitioner was utilized not in "on shore" area in the NR but in
"off shore" area of the NR. This is one more testimony of claim of appellant
that the writ petitioner could not perform well in "off shore" area being
based on falsehood and nothing else------ argues learned senior counsel
appearing for the writ petitioner.
26. Admitting the proposition of law that normally a probationer is not
entitled to notice before his termination, it has been contended that when
the respondents chose to give the petitioner an opportunity of being heard
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before his proposed termination from service, they cannot run away from
such arrangements subsequently, more so, when there is enormous
evidence to show that the petitioner was sought to be terminated on
concocted allegation.
27. It is also the case of the petitioner that termination in question is a
stigmatic one. A reading of termination order together with the documents
on the basis of which such termination order was issued by the respondent
authorities would make such position very clear. Being so, without giving
him an opportunity of being heard, he could not have been dismissed from
service.
28. It has also been contended that before being appointed as pilot on
probation by appellants, the writ petitioner had been doing duty as an
army helicopter pilot and he worked as above for a period close to 30 years
with an un-blemish record and as such, he is not required to undergo some
of the formalities which are applicable to other helicopter pilots. But in
spite of all those, he is still ready to undergo any test that respondent
authorities may find it necessary for him to undergo.
29. For ready reference, the relevant part of objection affidavit filed in
the present appeal is reproduced below:---
"With respect to the contention of the Appellants that the answering respondent during the
entire deputation period continued to fly Commercial Helicopters under the Appellants without
acquiring a Commercial Helicopter Pilot License (hereinafter referred to as CHPL in short) is
not correct and hence categorically denied by the answering respondent. In the humble
submission of the deponent the said contention is contrary to the then stated policy of PHHL
communicated vide letter dated 27.02.2010 to the deponent, which was to convert Pilots
inducted under Rule 160 to 'Type 41' CHPL where Air Navigation, Meteorology and
Technical General DGCA papers were not required to he cleared. The above was in conformity
with paragraphs 1 (2) & 1(3) of Ministry of Civil Aviation, Govt. of India letter dated
01.09.2008 which states "...the central Government in exercise of powers conferred by Rule
160 of the Aircraft Rule, 1937 hereby, Grants exemption with immediate effect to the serving
and retired services pilots ....in respect of operation of M/s PHHL helicopters including radio
telephony apparatus fitted thereon without being in possession of valid commercial pilot license
(Helicopter) and FRTOL, till they fulfill requirements of CHPL, subject to passing the Air
Regulation, RTR examination and General Flying Test (GFT) on type of helicopter to be
operated by them"
30. We have considered the rival submissions having regard to the
materials on record. But before proceeding further, we find it necessary to
have a look at the past career of the petitioner which he had reflected in his
affidavit in opposition in the present appeal. For ready reference same is
reproduced below: ---
"i That with regard to the statement made in paragraph I (1) of the Memo of
Appeal the deponent respectfully begs to state that the deponent joined the Indian Army on
11.06.1977 and had started his flying career in the year 1981. The deponent having
successfully appeared in all the required tests graduated as a helicopter pilot on 21.11.1981
from Helicopter Training School, Air Force. Pursuant thereto, the deponent was awarded
Air Observation Post Pilot Flying Badge on 26.03.1982 at 659 Air Observation Post
Squadron under School of Artillery, Devlali. The deponent was an Army Aviator with
accident/incident free flying experience of flying of almost 14 years 9 months including
7
training and total service flying of 3279 hours 45 minutes of flying time during period in
Army. The deponent was sent to the Pawan Hans Helicopter Ltd. ( hereinafter referred to
as PHHL in short) on deputation from the Indian Army w.e.f., 15.10.2008 to 31.01.2011
after getting exemption from the Govt. under Rule 160 of the Aircraft Rules,1937. He
flew for 529 house 15 minutes in Dauphin N helicopter with accident/incident free record,
with total flying experience of 3809 hours inclusive of service period in the Army.
ii That with regard to the statements made in paragraph I (2) of the Memo of
Appeal the deponent respectfully begs to state that after successful conversion of Dauphin N
Helicopters under the appellant company the deponent had satisfactorily flown three
Proficiency Check sorties (hereinafter referred to as PC in short) with Director General
Civil Aviation's (hereinafter referred to as DGCA in short) approved examiners. Due to
satisfactory service rendered by the deponent to the PHHL during the deputation period,
the PHHL vide letter dated 01.12.2010 had made an offer to the deponent for
appointment to the post of Helicopter Pilot as Captain w.e.f., 01.02.2011. on his
superannuation from Army on 31.01.2011 the respondent was appointed in PHHL as a
regular employee w.e.f., 01.02.2011 and he was required to report to the General
Manager, PHHL, Western Region (hereinafter referred as WR in short). In that
appointment letter it was stated that the deponent would be on probation for a period of
one year from the date of joining and during the probation period the service of the
respondent was liable to be termination without any notice by giving 2 months notice of
salary in lieu thereof."
31. We have already found that the writ petitioner has questioned the
authenticity of the letter dated 27.08.2010 alleging that such a document
is a product of huge fabrication. In fact, no IR test was conducted on
27.08.2010 to assess the performance of the petitioner. Rather such a test
was abandoned on 27.08.2010 due to inclement weather and it was,
therefore, converted to "proficiency check" and the performance of the
petitioner in such a test was rated as good.
32. Being so, let us consider the petitioner's first allegation that the
letter dated 27.08.2010 by Captain S. Chander (DGM) (TGR), W.R which
ultimately led to termination of service of the petitioner is a bogus
document. In order to appreciate such allegation, we find it necessary to
have a look into the letter dated 27.08.2010 (Annexure- 4 to the writ
appeal). For ready reference, same is reproduced below: ---
"DATE : 27 AUG 2010
SORTIE REPORT
1. Capt. M K Gogoi flew an I R Test sortie with me on 27 Aug 2010. His sortie was of
below average standard for IR Test.
2. His Instrument flying was of below average standard and he was not clear about the IF procedure.
He did not know how to use Nav aid like 'VOR/NDB for diverting to Daman. While returning to
Juhu he did not use GPS to locate Airport in bad weather.
3. He needs to be given further training for instrument flying and only after that he should be put up
for IR Test.
CAPT S CHANDER
DGM (TGR)WR"
33. In that context, we also find it necessary to look into the letter dated
07.06.2011 which the petitioner has addressed to DGM (P&HRD), PHHL
and which was annexed as Annexure-11 to the memo of appeal. For ready
reference the relevant part of the letter is reproduced below: ---
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"Sir,
1. With due respect the following facts are submitted for your kind consideration.
2. I had under gone Instrument Rating training at Madurai with effect from 09 to 12
Aug 2010 with DGCA Examiner Capt AP Singh. The IR training sorties went fairly
well.
3. Thereafter I was put up for IR Test with DGCA Examiner Capt. S. Chander. The IR
Test with Capt. S. Chander on 27 Aug 2010 could not be carried out due to bad
weather condition when we had to return to Mumbai. The above sortie was
subsequently converted by Capt. S. Chander to Proficiency Check. As my 42 days ON
period was coming to an end. I was apprised by DGM (Operation & Support) Maj
(retd) Nimetullah to complete my IR Test prior to my OFF period. On 44th day. I again
approached Maj (retd) Nimettullah for the IR Test when he asked me to approach DGM (OPS),
Capt. A. K. Govil, who then asked me to go on OFF period and that the IR Test will be done later.
4. In this connection it is submitted that I had not flown any IR sortie with FOI (H), DGCA as has
been mentioned in your letter under reference.
5. The aforesaid IR Test sortie on 27th Aug 2010 with Capt. S. Chander, was done during my
deputation tenure with PHHL, which was to come to an end on 31st January 2011 on my
superannuation from the Army. I was at no time apprised / counseled by DGM (OPS) (WR) or
DGM (Trg) (WR) that my carrier at flying at PHHL was to come to an end due to the above IR
Test or otherwise.
6. I had applied for permanent absorption to PHHL vide my letter No 34550P/Pers/01 dt 24 Aug
2010. The same was personally handed over to DGM (OPS) (WR) Capt AK Govil and on my
return from OFF period I was apprised by Capt AK Govil that above mentioned application for
permanent absorption has been forwarded duly recommended by him.
7. In this connection it is submitted that any such adverse appraisal would have facilitated me to apply
for a re-employment tenure in my parent organization to which I was entitled to for a period of four
years, before my superannuation / completion of my deputation with PHHL.
8. I was not interviewed or counseled by General Manager (OPS) on any occasion to improve my
performance. In fact I had apprised General Manager (OPS), PHHL that I am not getting
adequate flying, as early as end of 2009 and since there was no improvement I had applied for a
posting to PHHL (NR) vide my letter No 34550P/Pers/01 dt 04 Mar 2010. I had again
approached GM (OPS) during middle of 2010 during his visit to PHHL (WR) regarding my
request for posting to PHHL (NR), when GM (OPS) had apprised me that he can help me only if I
get a licence. Subsequently I had cleared all my ground subjects to appear and qualify for a licence.
The about was also communicated to GM (OPS) in Feb 2011 during my stay at PHHL, New
Delhi.
9. With my tenure after superannuation, with PHHL wef 01st Feb 2011, I had undergone a
Proficiency Check with Capt AP Singh, DGCA Examiner on 03rd Feb 2011 and thereafter, I was
cleared to fly. No adverse remarks were communicated by Capt AP Singh. In fact during the pre
flight briefing before the Proficiency Check, Capt AP Singh had asked me as to why my IR Test has
not been done so far to which I had apprised him that I had appeared for the same but due to bad
weather the same could not be carried out.
10. After the Proficiency Check, I was apprised by DGM (Operation & Support) Maj (retd) Nimetullah
that I should be ready for a IR Test to which I had requested that I need about two to three days to
prepare and also one or two sorties to handle the controls prior to the IR Test since more than six
months ha elapsed since the IR training. Later I had also requested the General Manager, Western
Region for one or two sorties prior to the IR Test with the above stated reasons to which he had
agreed to help me out.
11. It is also submitted that prior to visit of CMD, PHHL to PHHL, WR in Feb 2011, I was called by
DGM (Trg) WR to the office of DGM (OPS), WR, Prior to my entering the office, Maj (retd)
Nimetullah had come out of the office of DGM (OPS), WR. On my6 entering the office I was asked
by Capt S Chander as to when was my IR Test was done. I had apprised that the sortie was on 27th
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Aug 2010 but however due to bad weather the IR Test could not be carried out and the same was
converted into a Proficiency Check. It was then he told DGM (OPS), WR that the IR Training
needs to be done again and that he can give the same in writing. After the above, DGM (OPS), WR
asked me to go from his office. I would like to mention here that during my stay at PHHL, New
Delhi I saw the letter written by Capt S Chander which however was back dated to 27th Aug 2010. I
was never told earlier prior to the incident mentioned in this para that the IR training needs to be
carried out again and I believe even my instructor Capt AP Singh was not apprised about it, as
otherwise he would not have broached the subject as mentioned in para 9 of this letter.
12. On night of 16th Feb 2011, I was apprised by DGM (Operation & Support), Maj (retd) Nimetullah
that I am required to go to PHHL, New Delhi. I reached New Delhi on 17th Feb 2011. From there,
I was sent to Port Blair for flying duties and I did a detachment there wef 06th Mar to 05th Apr
2011. I did a Route Check with Capt. JJ Singh, DGCA Examiner on 12th March 2011 and a sortie
with Capt. B. Badani, DGCA Examiner on 29th March 2011. No adverse points on flying aspects
were brought out to me by both the DGCA Examiners. Capt. JJ Singh during the e-brief had
apprised me that flying aspects were o.k.
13. Most importantly. I have been utilized as a co-pilot only so far. Even in Port Blair, besides the two
sorties with the DGCA Examiners the entire detachment was done as a co-pilot when one does very
less handling of the controls. It would have been fairer if I was given some exposure as Pilot-in-
Command under supervision.
14. It is earnestly requested that the above stated facts which are all Truth be weighed with due
consideration before arriving at any decision under clause 2 of appointment letter as stated in para 2
of your above quoted letter under reference."
34. On perusal of the same, we have found that in the letter dated
07.06.2011, the petitioner specifically and categorically claimed that on
27.08.2010, no I.R. test was done. In fact, due to bad weather such test
could not be done and it was converted to Proficiency check. More
importantly, performance of the petitioner in such test was rated as good.
More important, he was told that such I.R. test would be done and he
would be given notice thereof which was, however, happened as alleged by
the writ petitioner.
35. We have not noticed any serious attempt on the part of appellants
denying above contention of the writ petitioner (respondent herein). This
firmly shows that the allegation that on 27.08.2010, no IR test was done is
found to be truthful one which alone establishes that letter dated
27.08.2010 (Annexure 1 to WA No. 58/2014) is based not on facts but on
concoction.
36. Even if we believe the letter dated 27.08.2010 to be a genuine
document, such a document no way advances the claim of appellants that
the performance of the petitioner as probationary Pilot was found far from
satisfactory. This is because of the fact that the writ petitioner had joined
the appellant company as probationary Helicopter Pilot for a period of
1(one) year only on 01.02.2011 whereas the letter dated 27.08.2010
reveals that the performance of the writ petitioner as Helicopter Pilot was
evaluated when he was serving the appellant company on deputation.
37. Such revelation clearly shows that performance of the petitioner
never evaluated while he served the appellant company as probationer.
Quite contrary to it, such evaluation was done long before the petitioner
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joined the appellant company as probationary pilot on 01.02. 2011.
Situation being such, the letter dated 27.08.2010 totally belies the claim of
appellants that the performance of the petitioner as probationer was found
"below average". This also demonstrates the complete emptiness of the
claim that the writ petitioner performance during the probation period was
not up to the mark.
38. For yet another reason the letter dated 27.08.2010 is to be viewed
with suspicion. If the performance of the writ petitioner on 27.8.2010 was
found to be unsatisfactory and if the appellants came to the conclusion
that there was no possibility of his doing better in future despite he being
trained under qualified persons, then, one would be hard pressed to know
as to why appellants chose him to appoint as Helicopter Pilot and put him
on probation w.e.f., 01.12.2011 to 31.01.2012. This is more and more
testimony of the claim of appellants that the performance of the writ
petitioner was found to be 'below average' is without any substance.
39. We may also note here that there is no quarrel over the fact that the
writ petitioner had been working as Helicopter Pilot in Indian Army for
about 30 years, and that too, without any blemish whatsoever. Such a fact
when considered in the light of revelations which have emerged from our
foregoing discussion, one would only find that the claim of appellants that
the petitioner could not handle his job while working with the appellants on
probation is without any basis.
40. The further contention of the writ petitioner was that since the
performance of the writ petitioner was rated as "below average", the
authority concerned advised his service to be utilized only in "on shore"
which is considered to be less hazardous area. But then, against such
advice of the authority concerned, the service was utilized in "off shore".
This not only shows the lack of bonafide in the claim of the appellants that
on assessment the performance of the writ petitioner was found "below
average" but it also shows how hell bent appellants were in getting
petitioner out of his job, most illegally.
41. In that context, we find it necessary to look into the letter dated
13.04.2011 from Sr. Mgr(Ops), NR addressed to TO: GM(NR), CC TO:
GM(Ops), CO, GM(P&HRD), CO and DGM(Ops), WR. For ready reference
same is also reproduced below:--
CONFIDENTIAL
INTER OFFICE MEMO
PAWAN HANS HELICOPTERS LIMITED
PORT BLAIR
FROM: Sr. Mgr(Ops), NR TO:
GM(NR)
Date: 13/04/2011 CC TO:
GM(Ops), CO
GM(P&HRD), CO
DGM(Ops), WR
SUB: PERFORMANCE REPORT: CAPT M.K. GOGOI & CAPT. S.P. PATNAYAK
11
1 Please refer office order no. PHHL/CO/PERS/1371 dated 22.03.2011, vide which both
Capt M.K. Gogoi and Capt S.P. Patnaik have been transferred from Western Region to
Northern Region.
2 As briefed by GM (Ops), that these pilots have been transferred to Northern Region as they
were not able to cope up wwll in offshore operations of WR. Hence, they were checked
and assessed by both the examiners of Dauphin Stream of NR at Port Blair
during Revenue (OJT) flying sorties. Their performance was assessed as given below:-
a) Capt. M.K. Gogoi: He puts in a lot of effort but was found to be slow and unable to
cope up. His performance in flying, RT communication and general awareness was
assessed as 'Below Average'.
b) Capt. S.P. Patnaik: He lacks in proper efforts and preparation for flying duties and
was also found to be quite slow. His performance in flying, aircraft knowledge, checks
procedures and general handling was assessed as 'Below Average'.
3. It is felt that these pilots will not be able to handle the high pressure flying of Dauphin.
Appropriate directions may please be passed from your office."
42. On perusal of letter dated 13.04.2011 in the light of aforesaid
submission, advanced from the side of counsel for the writ petitioner, one
would invariably find that the claim of appellants that since the
performance of the petitioner was rated as "below average", his service was
advised to be utilised in "on shore" area of NR which is said to be relatively
less hazardous zone as far as flying of Helicopter is concern is also without
any truth.
43. Such revelation, in our considered opinion, completely demolishes
the claim of appellants that the service of the writ petitioner could not be
utilised in "of shore" area for his being found not proficient in flying
machine in such area which., in turn, fortifies more and more the claim of
the writ petitioner that the service of the petitioner was terminated ------not
for bona fide reason------ but for some other ulterior considerations.
44. We have found that one of the grounds on which termination order
in question was challenged was that the petitioner was not given an
opportunity to contest the allegations leveled against him. According to the
learned Sr. counsel for the writ petitioner, not giving an opportunity to
deny the allegations, leveled against him, in the peculiar facts and
circumstances of the case in hand , is nothing but flagrant violation of the
principles of natural justice and on this count alone, the termination order
is liable to be quashed and set aside.
45. The learned counsel for appellants, however, contends that so long
the termination in question is a termination simpliciter, the writ petitioner,
as being a probationer, has no right to claim hearing before being
terminated from service. Since the termination in question is a termination
simpliciter, the petitioner cannot claim violation of principles of natural
justice when he was terminated from service without an enquiry.
46. We are aware of the fact that in normal situation, a probationer
cannot claim hearing before he being terminated from service provided
such termination is a termination simpliciter. However, our foregoing
discussions vividly show that one of the documents, same being letter
12
dated 27.08.2010, on the basis of which decision to terminate the
petitioner from service was taken, appears to be not a genuine one.
47. Equally important, we have also found that though the service of
petitioner was reportedly advised to be utilized in "off shore" area in NR for
his not being able to handle the flying machine aptly, yet, his service was
utilized ---- not in "on shore" area-------but in "off shore" area instead
which is believed to be more hazardous sector as far as flying of helicopters
is concerned.
48. Such conduct on the part of appellants not only shows the lack of
truth in the allegations that the performance of petitioner was found to be
'below average' but it also raises a serious doubt about the authenticity
about the entire exercise which ultimately resulted in issuance of
termination order in question. Situation being such, in our considered
opinion, in the facts and circumstances of the present case, appellants
could not have terminated the service of the writ petitioner without
affording him an opportunity of being heard against the allegation brought
against him.
49. This is more so, when the petitioner had been asked to submit
explanation against the alleged lapses on his part. Since that was not done,
there cannot be any escape from the conclusion that there was blatant
violation of principles of natural justice and on that ground alone, the
termination order in question is liable to be quashed.
50. It may be noticed here that learned Single Judge held that the
decision to terminate the writ petitioner from service was taken in haste
since without waiting for the probationary period to come to an end, the
appellants had terminated the writ petitioner from service when he was
hardly completing 4 months as probationary pilot. In the facts and
circumstances stated above, the decision of the learned Single Judge that
the service of the petitioner was terminated in haste is found to be quite
reasonable and proper.
51. We have also found that the petitioner claims that termination order
in question is not a termination simpliciter but a stigmatic one and as
such, without holding an inquiry, the petitioner could not be terminated
from service. But then , learned counsel for the appellants submits that
the termination order in question is a termination simpliciter and as such ,
the writ petitioner is not entitled to any hearing before issuance of the
termination order .
52. In support of such contention, the learned counsel for the petitioner
has relied on the decision of the Apex Court in the case of Rajesh Kohli Vs.
High court of Jammu and Kashmir and Anr reported in (2010) 12 SCC
783 and several others which we have mentioned herein above.
13
53. Since the question when a termination can be said to be stigmatic
one has been discussed in detail in Rajesh Kohli (supra), we find it
necessary to concentrate on the decision in Rajesh Kohli (supra) instead
of going through all other decisions relied on, most of which deal with the
same question of law. For ready reference, relevant part of the same is
reproduced below: ----
"2. The petitioner herein was recommended by the High Court of Jammu & Kashmir for
appointment as the District and Sessions Judge on a temporary basis. This aforesaid
recommendation of the High Court was accepted by the Government of Jammu & Kashmir
and an order of appointment was issued to him appointing him as the District and Sessions
Judge on a temporary basis. It was clearly mentioned in the said order of appointment
issued by the State Government that the petitioner would remain on probation for a period
of two years as provided under the Jammu & Kashmir Higher Judicial Service Rules.
Consequent upon the aforesaid temporary appointment, the petitioner was appointed as
3rd Additional District Sessions Judge, Srinagar by order dated 28.08.2000. Thereafter he
was transferred and posted as Additional District and Sessions Judge, Jammu by issuing an
order dated 05.06.2001.
Petitioner was also given his increments in terms of the rules. However, while the
petitioner was so serving as an Additional District and Sessions Judge, a complaint was
received against him, filed by one Mr. Babu Ram, which was duly supported by an affidavit
dated 06.08.2001, contending inter alia that the petitioner while acting as a counsel for him
fraudulently withdrew an amount of Rs. 2.6 lacs deposited with the Registrar [Judicial],
High Court of Jammu & Kashmir which was payable to the complainant - Babu Ram.
The aforesaid complaint was enquired into by the Chief Justice of the High Court
through the Registrar [Vigilance] of the High Court. On conclusion of the enquiry, a report
was submitted stating inter alia that Mr. Rajesh Kohli, the petitioner herein, who was
engaged by Mr. Narain Dutt - the attorney holder of Babu Ram, identified someone else as
Babu Ram before Registrar [Judicial], Jammu & Kashmir High Court and received an account
payee cheque in the name of Babu Ram. In the said report, it was also alleged that the
petitioner besides identifying the impersonator as Babu Ram, also introduced him to Vijay
Bank at the time of opening of the Bank account and thereby managed to unlawfully
receive an amount of Rs. 2.6 lacs, while the real beneficiary - Babu Ram neither appeared
before the Registrar [Judicial] or before Vijaya bank nor did he receive the said amount. The
aforesaid report of the Registrar [Vigilance] dated 24.12.2001 was placed before the Chief
Justice of the Jammu & Kashmir High Court who directed that the matter be referred to the
Chairman, Disciplinary Committee for necessary action. The Registrar [Judicial] of the High
Court was asked to file a criminal complaint against the petitioner before the SHO of the
concerned police station.
6. Further, during the period when the petitioner was posted to District - Kargil as
Principal District & Sessions Judge, he did not join there, w.e.f., 24.12.2001 to 18.01.2002
and an explanation was sought from him in that regard. Even thereafter, a complaint from
a judicial employee of District Kargil was received wherein it was alleged that the petitioner
had been abusing the employees and had created lot of problems at the District Kargil.
These matters are recorded in the personal records of the petitioner. After completion of
the initial two years of his probationary period, his records and his case were required to be
placed before Full Court for consideration of his case for confirmation or extension of period
of probation or otherwise. Consequently his records were considered by the High Court in its
full court meeting held on 26.04.2003 at Jammu, wherein it was resolved as under: -
"..........................
Resolved that services of Shri Rajesh Kohli, District and Sessions Judge are not
found satisfactory and thus the probation of the officer is not extended..................
His services are dispensed with............ ..."
The aforesaid resolution of the full court meeting with the recommendation was forwarded
to the State Government and the State Government passed an order on 03.07.2003,
14
whereby the services of the petitioner was dispensed with as recommended by the Hon'ble
High Court. This action was taken in exercise of the powers vested on the competent
authority under sub Rules 3 and 4 of Rule 15 of the Judicial Service Rules.
7. Being aggrieved by the issuance of the aforesaid order dated 03.07.2003 dispensing with
his service, the petitioner filed the present Writ Petition before the apex Court alleging that
the aforesaid order issued by the Government of Jammu & Kashmir of 03.07.2003 is illegal
and without jurisdiction as the said order was not issued by the Governor but was issued by
the Government of Jammu & Kashmir. He also submitted that the recommendation of the
High Court as communicated under letter dated 05.05.2003 is also illegal and liable to be
set aside as the High Court terminated the service of the petitioner under the aforesaid
order for which no power is vested on the High Court to dispense with the service under its
own order. It was also submitted by him that he had completed his two years' probation
period on 23.08.2002 and since there was no order of extension of his probation period
prior to and immediately after 23.08.2002, he should be deemed to have been confirmed in
the judicial service and therefore his service could not have been terminated on the ground
that he was on probation.
9. The petitioner also submitted that his service was terminated on the ground of an alleged
misconduct, namely, pendency of a criminal complaint and his alleged behaviour with
subordinate staff and, therefore, the said order of termination of service was in the nature
of a punishment by casting a stigma on the petitioner and therefore illegal and without
jurisdiction as no opportunity of hearing was given to the petitioner prior to passing of the
order of his termination. He also submitted that since he was granted increments by the
respondent, it is proved that the Respondents were satisfied with his service and, therefore,
the order terminating his service is without jurisdiction.
10.Counsel appearing for the respondent, the High Court of Jammu & Kashmir, however,
refuted the aforesaid submissions and placed before us the records of High Court connected
with the service of petitioner and also the records leading to his termination from service.
He submitted that the petitioner continued to be on probation even after two years as no
order of his confirmation was issued or passed by the respondent and that his service was
terminated within the three years period of his probation on the ground of unsatisfactory
service. He denied that the impugned order is stigmatic or in any way punitive or that there
was any violation of the principles of natural justice. He submitted that since the service of
the petitioner was terminated on the ground of unsatisfactory service, there was no
question of drawing up of any departmental proceedings against him.
54. On the aforesaid facts, the Hon'ble Apex Court discussing various authorities held
as follows:--
"During the period of probation an employee remains under watch and his service and his
conduct is under scrutiny. Around the time of completion of the probationary period, an
assessment is made of his work and conduct during the period of probation and on such
assessment a decision is taken as to whether or not his service is satisfactory and also
whether or not on the basis of his service and track record his service should be confirmed
or extended for further scrutiny of his service if such extension is permissible or whether his
service should be dispensed with and terminated. The services rendered by a judicial officer
during probation are assessed not solely on the basis of judicial performance, but also on
the probity as to how one has conducted himself. "
"17.In the present case, two orders are challenged, one, which was the order of the High
Court based on the basis of the resolution of the full court and the other one issued by the
Government of Jammu & Kashmir on the ground that they were stigmatic orders.
18.In our considered opinion, none of the aforesaid two orders could be said to be a
stigmatic order as no stigma is attached. Of course, aforesaid letters were issued in view of
the resolution of the full court meeting where the full court of the High Court held that the
15
service of the petitioner is unsatisfactory. Whether or not the probation period could be or
should be extended or his service should be confirmed is required to be considered by the
full court of the High Court and while doing so necessarily the service records of the
petitioner are required to be considered and if from the service records it is disclosed that
the service of the petitioner is not satisfactory it is open for the respondents to record such
satisfaction regarding his unsatisfactory service and even mentioning the same in the order
would not amount to casting any aspersion on the petitioner nor it could be said that
stating in the order that his service is unsatisfactory amounts to a stigmatic order.
19.This position is no longer res integra and it is well- settled that even if an order of
termination refers to unsatisfactory service of the person concerned, the same cannot be
said to be stigmatic. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI Of Medical
Sciences reported in (2002) 1 SCC 520, this Court has explained at length the tests that
would apply to determine if an order terminating the services of a probationer is stigmatic.
On the facts of that case it was held that the opinion expressed in the termination order
that the probationer's "work and conduct has not been found satisfactory" was not ex facie
stigmatic and in such circumstances the question of having to comply with the principles of
natural justice do not arise. In this case court had the occasion to determine as to whether
the impugned order therein was a letter of termination of services simpliciter or stigmatic
termination. After considering various earlier decisions of this Court in para 21 of the
aforesaid decision it was stated by this Court thus: (SCC p. 528) "21. One of the judicially
evolved tests to determine whether in substance an order of termination is punitive is to see
whether prior to the termination there was (a) a full-scale formal enquiry (b) into
allegations involving moral turpitude or misconduct which (c) culminated in a finding of
guilt. If all three factors are present the termination has been held to be punitive
irrespective of the form of the termination order. Conversely if anyone of the three factors is
missing, the termination has been upheld."
In para 29 of the judgment, it further held thus: (SCC, p.529) "29. Before considering the
facts of the case before us one further, seemingly intractable, area relating to the first test
needs to be cleared viz. what language in a termination order would amount to a stigma?
Generally speaking when a probationer's appointment is terminated it means that the
probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever
the language used in the termination order may be. Although strictly speaking, the stigma
is implicit in the termination, a simple termination is not stigmatic. A termination order
which explicitly states what is implicit in every order of termination of a probationer's
appointment, is also not stigmatic. The decisions cited by the parties and noted by us
earlier, also do not hold so. In order to amount to a stigma, the order must be in a language
which imputes something over and above mere unsuitability for the job."
20.In the case of Krishnadevaraya Education Trust v. L.A. Balakrishna reported in (2001) 9
SCC 319, the services of respondent-Assistant Professor were terminated on the ground that
his on the job proficiency was not upto the mark. This Court held that merely a mention in
the order by the employer that the services of the employee are not found to be satisfactory
would not tantamount to the order being a stigmatic one. This Court held in para 5 thus: -
"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,
normally 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
16
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."
21.In the case of Chaitanya Prakash v. H. Omkarappa reported in (2010) 2 SCC 623, the
services of respondent were terminated by the appellant company. During the period of
probation, his services were not found to be satisfactory and he was also given letters for
improvement of his services and his period of service was also extended and ultimately
company terminated him. Court after referring to a series of cases held that the impugned
order of termination of respondent is not stigmatic.
22.In the case of State of Punjab v. Bhagwan Singh reported in (2002) 9 SCC 636 this Court
at paragraphs 4 & 5 held as follows: -
"4. ............................. In our view, when a probationer is discharged during the period of
probation and if for the purpose of discharge, a particular assessment of his work is to be
made, and the authorities referred to such an assessment of his work, while passing the
order of discharge, that cannot be held to amount to stigma.
5. The other sentence in the impugned order is, that the performance of the officer on the
whole was "not satisfactory". Even that does not amount to any stigma."
23.In the present case, the order of termination is a fall out of his unsatisfactory service
adjudged on the basis of his overall performance and the manner in which he conducted
himself. Such satisfaction even if recorded that his service is unsatisfactory would not make
the order stigmatic or punitive as sought to be submitted by the petitioner. On the basis of
the aforesaid resolution, the matter was referred to the State Government for issuing
necessary orders."
55. When one reads the contention of writ petitioner that the
termination in question is a stigmatic one and as such, writ petitioner
could not have been dismissed without holding an inquiry, in the light of
our foregoing discussion as well as the decision in Rajesh Kohli (supra), he
would invariably would find that the termination in question is a stigmatic
one and as such, the writ petitioner is entitled to hearing before being
terminated from service. Since it was not done, the termination under
challenge is required to be held as bad on this count as well.
56. Situation being such, we have found no reason to interfere with the
judgment of the learned Single Judge.
57. Resultantly, this appeal is dismissed.
58. However, the parties are left to bear their own costs.
JUDGE JUDGE
Rupam
17
1.
2.
3. .G. Benjamin Vs. Union of India, reported in (1067) 1 LLJ 718 (SC)
4. High Court of Judicature at Patna Vs. Pandey Madan Mohan Prasad Sinha and
others, reported in (1997) 10 SCC 409,Pavanendra Narayan Verma Vs. Sanjay
Gandhi Pgi of Medical Sciences and another, reported in (2002) 1 SCC 520,,,
5. haitanya Prakash and another Vs. H. Omkarappa, reported in (2010) 2 SCC 623
6. Basavaiah (Dr.) Vs. H. L. Ramesh, reported in (2010) 8 SCC 372
7. Rajesh Kohli Vs. High Court of Jammu and Kashmir and another, reported in (2010)
12 SCC 783
8. Rajesh Kumar Srivastava Vs. State of Jharkhand and others, reported in (2011) 4 SCC
447
9. Deputy Commissioner, Navodaya Vidyalaya Samiti, Shillong and anr Vs. Hemraj,
reported in 2012 (3) GLT 258
10. Ratnagiri Gas and Power Private Limited Vs. RDS Project Limited and others,
reported in (2013) 1 SCC 524
20. It is also his claim that though his performance as pilot was to have assessed in "on shore
area" in NR, his performance was assessed in "off shore area" in huge violation of suggestions,
made by the authority concerned. According to the petitioner, both those matters clearly
demonstrate the hollowness of the claim of the respondents that the petitioner's performance during
the probation period was to have assessed as 'below average'.
23. One may note here that appellants herein claim that since the performance of the
petitioner was rated as "below average", his service was advised to be utilised in "on shore
area" of NR which is said to be relatively less hazardous zone as far as flying of Helicopter
is concerned. If that be so, contends the learned counsel for the writ petitioner, the service
of the petitioner must not have been utilised in "of shore area". But the record speaks
18
otherwise which shows that the service of the petitioner was utilised in 'Of shore area" and
in that connection, out attention has been drawn the letter dated..............
24. On perusal of letter dated ...........in the light of aforesaid submission, advanced
from the side of counsel for the writ petitioner, it is found that aforesaid contention from
the appellants bears no the writ petitioner truth whatsoever which, in turn, firmly shows
that everything is not hunky dowry when the appellants claim that the service of the writ
petitioner could not be utilised in "of shore" area for his being found not proficient in flying
machine in such area.
One may note here that appellants herein claim that since the performance of the
petitioner was rated as " below average" , his service was advised to be utilised in "on
shore area" of NR which is said to be relatively less hazardous zone as far as flying of
Helicopter is concerned. If that be so, contends the learned counsel for the writ petitioner,
the service of the petitioner must not have been utilised in " of shore area". But the
record speaks otherwise which shows that the service of the petitioner was utilised in 'Of
shore area" and in that connection, out attention has been drawn the letter dated..............
On perusal of letter dated ...........in the light of aforesaid submission, advanced from
the side of counsel for the writ petitioner, it is found that aforesaid contention from the
appellants bears no the writ petitioner truth whatsoever which ,in turn, firmly shows that
everything is not hunky dowry when the appellants claim that the service of the writ
petitioner could not be utilised in "of shore" area for his being found not proficient in
flying machine in such area .
Even if we believe the letter dated 27.08.2010 to be a genuine document, such a
document no way advanced the claim of appellants that the performance of the petitioner
as probationary Pilot was found far from satisfactory. This is because of the fact that the
probation of the petitioner as Helicopter Pilot for a period of 1(one) year commenced from
01.02.2011 which was to have come to an end on 31.01.2012. However, the letter dated
27.08.2010 reveals that his performance as Helicopter Pilot was judged when he was
serving the appellant company on deputation.
Such revelation clearly shows that performance of the petitioner was not assessed
while he was utilized has probationer. Being so, the letter dated 27.08.2010 totally belies
19
the claim of appellants that the performance of the petitioner as probationer was found
"below average". This also demonstrates the hollowness of the claim that the
respondent/petitioner performance during the probation period was not up to the mark.
For yet another reason the letter dated 27.08.2010 is to be viewed with suspicion.
If the performance of the writ petitioner on 27.8.2010 was found to be unsatisfactory and
if the appellants came to the conclusion that there was no possibility of his doing better in
future despite he being trained under qualified persons, there is no earthly reason as to
why the appellants chose him to appoint as Helicopter Pilot and put him on probation
w.e.f., 01.12.2011 to 31.01.2012. This is more and more testimony of the claim of
appellants that the performance of the writ petitioner is found to be 'below average' is
without any substance.
20
DATE : 27 AUG 2010
SORTIE REPORT
4. Capt. M K Gogoi flew an I R Test sortie with me on 27 Aug 2010. His sortie was of
below average standard for IR Test.
5. His Instrument flying was of below average standard and he was not clear about
the IF procedure. He did not know how to use Nav aid like 'VOR/NDB for diverting
to Daman. While returning to Juhu he did not use GPS to locate Airport in bad
weather.
6. He needs to be given further training for instrument flying and only after that he
should be put up for IR Test.
CAPT S CHANDER
DGM (TGR)WR
Pushpa
PAWAN HANS HELICOPTERS LIMITED
(A GOVT. OF INDIA ENTERPRISE)
CORPORATE OFFICE
21
INTER OFFICE MEMO
FROM: Offg.Gen.Manager(Ops) TO: DGM(P&HRD), CO
REF: PHHL: CO: OPS: 4019: CC: EA to CMD
DATE: 24/02/2011
1. Please refer to this Office letter No.PHHL:CO:OPS:4051:273 dated 10th Feb.,2011
addressed to WR (enclosed).
2. Capt. M.K. Gogoi & Capt. Patnaik were found weak in their performance during
their IR Test sorties with DGCA Examiner and FOI(H), DGCA respectively (Copy of
the report is enclosed).,
3. Both pilots have been interviewed and counseled by the undersigned. These pilots
were inducted under R-160 and had long break in their flying career before
inducting into the company. However, even after their type conversion they could
not be utilized adequately, therefore they feel that their flying performance was
effected due to the above fact.
4. It is suggested that Capt. M.K. Gogoi and Capt. Patnaik should be given another
opportunity to fly on-shore with Instructor / Examiner at NR in order to re-asses
their performance. Their monthly progress report should be forwarded to
GM(Ops) for monitoring. The company has already spent large amount in their
training and conversion and should not go waste without being reassessed for
further action. During this reassessment period, both pilots will be utilized as Co-
pilots, therefore there will not be any revenue loss to the company. Capt. M.K.
Gogoi and Capt. Patnaik may be posted to NR.
5. This has also been discussed with Shri A. K. Chopra, Principal. NIASS.
............................................................................................................................................................
CONFIDENTIAL INTER OFFICE MEMO PAWAN HANS HELICOPTERS LIMITED 22 PORT BLAIR FROM: Sr. Mgr(Ops), NR TO: GM(NR) Date: 13/04/2011 CC TO: GM(Ops), CO GM(P&HRD), CO DGM(Ops), WR SUB: PERFORMANCE REPORT: CAPT M.K. GOGOI & CAPT. S.P. PATNAYAK 3 Please refer office order no. PHHL/CO/PERS/1371 dated 22.03.2011, vide which both Capt M.K. Gogoi and Capt S.P. Patnaik have been transferred from Western Region to Northern Region.
4 As briefed by GM (Ops), that these pilots have been transferred to Northern Region as they were not able to cope up wwll in offshore operations of WR. Hence, they were checked and assessed by both the examiners of Dauphin Stream of NR at Port Blair during Revenue (OJT) flying sorties. Their performance was assessed as given below:-
c) Capt. M.K. Gogoi: He puts in a lot of effort but was found to be slow and unable to cope up. His performance in flying, RT communication and general awareness was assessed as 'Below Average'.
d) Capt. S.P. Patnaik: He lacks in proper efforts and preparation for flying duties and was also found to be quite slow. His performance in flying, aircraft knowledge, checks procedures and general handling was assessed as 'Below Average'.
3. It is felt that these pilots will not be able to handle the high pressure flying of Dauphin. Appropriate directions may please be passed from your office.
................................................................................................................................................
Sir,
2. With due respect the following facts are submitted for your kind consideration.
232. I had under gone Instrument Rating training at Madurai with effect from 09 to 12 Aug 2010 with DGCA Examiner Capt AP Singh. The IR training sorties went fairly well.
3. Thereafter I was put up for IR Test with DGCA Examiner Capt. S. Chander.
The IR Test with Capt. S. Chander on 27 Aug 2010 could not be carried out due to bad weather condition when we had to return to Mumbai. The above sortie was subsequently converted by Capt. S. Chander to Proficiency Check. As my 42 days ON period was coming to an end. I was apprised by DGM (Operation & Support) Maj (retd) Nimetullah to complete my IR Test prior to my OFF period. On 44th day. I again approached Maj (retd) Nimettullah for the IR Test when he asked me to approach DGM (OPS), Capt. A. K. Govil, who then asked me to go on OFF period and that the IR Test will be done later.
4. In this connection it is submitted that I had not flown any IR sortie with FOI (H), DGCA as has been mentioned in your letter under reference.
5. The aforesaid IR Test sortie on 27th Aug 2010 with Capt. S. Chander, was done during my deputation tenure with PHHL, which was to come to an end on 31st January 2011 on my superannuation from the Army. I was at no time apprised / counseled by DGM (OPS) (WR) or DGM (Trg) (WR) that my carrier at flying at PHHL was to come to an end due to the above IR Test or otherwise.
6. I had applied for permanent absorption to PHHL vide my letter No 34550P/Pers/01 dt 24 Aug 2010. The same was personally handed over to DGM (OPS) (WR) Capt AK Govil and on my return from OFF period I was apprised by Capt AK Govil that above mentioned application for permanent absorption has been forwarded duly recommended by him.
7. In this connection it is submitted that any such adverse appraisal would have facilitated me to apply for a re-employment tenure in my parent organization to which I was entitled to for a period of four years, before my superannuation / completion of my deputation with PHHL.
8. I was not interviewed or counseled by General Manager (OPS) on any occasion to improve my performance. In fact I had apprised General Manager (OPS), PHHL that I am not getting adequate flying, as early as end of 2009 and since there was no improvement I had applied for a posting to PHHL (NR) vide my letter No 34550P/Pers/01 dt 04 Mar 2010. I had again approached GM (OPS) during middle of 2010 during his visit to PHHL (WR) regarding my request for posting to PHHL (NR), when GM (OPS) had apprised me that he can help me only if I get a licence. Subsequently I had cleared all my ground subjects to appear and qualify for a licence. The about was also communicated to GM (OPS) in Feb 2011 during my stay at PHHL, New Delhi.
249. With my tenure after superannuation, with PHHL wef 01st Feb 2011, I had undergone a Proficiency Check with Capt AP Singh, DGCA Examiner on 03rd Feb 2011 and thereafter, I was cleared to fly. No adverse remarks were communicated by Capt AP Singh. In fact during the pre flight briefing before the Proficiency Check, Capt AP Singh had asked me as to why my IR Test has not been done so far to which I had apprised him that I had appeared for the same but due to bad weather the same could not be carried out.
10. After the Proficiency Check, I was apprised by DGM (Operation & Support) Maj (retd) Nimetullah that I should be ready for a IR Test to which I had requested that I need about two to three days to prepare and also one or two sorties to handle the controls prior to the IR Test since more than six months ha elapsed since the IR training. Later I had also requested the General Manager, Western Region for one or two sorties prior to the IR Test with the above stated reasons to which he had agreed to help me out.
11. It is also submitted that prior to visit of CMD, PHHL to PHHL, WR in Feb 2011, I was called by DGM (Trg) WR to the office of DGM (OPS), WR, Prior to my entering the office, Maj (retd) Nimetullah had come out of the office of DGM (OPS), WR. On my6 entering the office I was asked by Capt S Chander as to when was my IR Test was done. I had apprised that the sortie was on 27th Aug 2010 but however due to bad weather the IR Test could not be carried out and the same was converted into a Proficiency Check. It was then he told DGM (OPS), WR that the IR Training needs to be done again and that he can give the same in writing. After the above, DGM (OPS), WR asked me to go from his office. I would like to mention here that during my stay at PHHL, New Delhi I saw the letter written by Capt S Chander which however was back dated to 27th Aug 2010. I was never told earlier prior to the incident mentioned in this para that the IR training needs to be carried out again and I believe even my instructor Capt AP Singh was not apprised about it, as otherwise he would not have broached the subject as mentioned in para 9 of this letter.
12. On night of 16th Feb 2011, I was apprised by DGM (Operation & Support), Maj (retd) Nimetullah that I am required to go to PHHL, New Delhi. I reached New Delhi on 17th Feb 2011. From there, I was sent to Port Blair for flying duties and I did a detachment there wef 06th Mar to 05th Apr 2011. I did a Route Check with Capt. JJ Singh, DGCA Examiner on 12th March 2011 and a sortie with Capt. B. Badani, DGCA Examiner on 29th March 2011. No adverse points on flying aspects were brought out to me by both the DGCA Examiners. Capt. JJ Singh during the e-brief had apprised me that flying aspects were o.k.
13. Most importantly. I have been utilized as a co-pilot only so far. Even in Port Blair, besides the two sorties with the DGCA Examiners the entire detachment was done as a co-pilot when one does very less handling of 25 the controls. It would have been fairer if I was given some exposure as Pilot-in-Command under supervision.
14. It is earnestly requested that the above stated facts which are all Truth be weighed with due consideration before arriving at any decision under clause 2 of appointment letter as stated in para 2 of your above quoted letter under reference.
26. On considering the submissions aforesaid in the light of averments made in letter dated 13.04.2011. We have also found that the performance of the petitioner was not assessed in an area where his performance was advised to be assessed by the concerned authority. Rather his performance was assessed in "off shore" area in gross disregard the advice of the concerned trainer. In such a scenario, one cannot but presume that the petitioner was not given fair chance to prove his capability, more so, when no reason was assigned as to why the zone where his performance was to be tested was change.
27. One of the grounds on which termination order was challenged was that such revelations clearly establish that no IR test was done as claimed by the respondent authorities on 27.08.2010. Instead due to bad weather such test was converted to proficiency check and in such proficiency check, the petitioner had done well. Such facts, coupled with the fact that the petitioner was not allowed to assess his performance in "on shore" area, despite there being the advise in that regard, firmly show that the letter dated 27.08.2010 is a bogus document, seemed to have manufactured for the purpose of condemning the petitioner. On this count alone, the proceeding in question is required to be allowed.