Champalal Gupta v. State of Rajasthan — 1974 DIGILAW 300 (RAJ)

MODI, J.—This is a writ petition under Art. 226 of the Constitution of India challenging the legality of the order terminating the petitioners services. 2. It is common ground between the parties that the petitioner on being selected by the Selection Commission constituted under sec. 86(6) of Rajasthan Panchayat Samitis and Zila Parishads Act, 1959, was appointed as Lower Division Clerk on probation for two years in the Panchayat Samiti Baitu, vide order dated 3-7-67. The petitioner joined the post on the same day. By resolution dated 5-8-69 the Finance, Taxation and Administration Standing Committee of the Panchayat Samiti, Baitu, extended the period of probation of the petitioner upto 5-8-69 and by the same order terminated his services. The relevant portion of the resolution dated 5-8-69 is in these terms :— ^^¼v½ Jh pEikyky xqIrk dfu"V fyfid dh ifjfo{kk/khudky fnukad 3-7-63 dks lekIr gksrk gSA ijUrq mudh lsok,W dk;kZy; dh fjiksVZ ds vuqlkj vlUrks"ktud ,oa lUnsgkRed dk;Z ifjfo{kk/khudky esa jgk gSA vr% fnukad 5-8-69 rd ifjfo{kk/khudky c<k;k tkdj rRdky lsokvksa ls fuoZr djuk loZ lfefr ls ia- la- ftyk o lsok fu;e 1959¼1½ ds vuqlkj fu.kZ; fy;k x;kA^^ Pursuant to the above resolution, the Vikas Adhikari communicated the resolution passed by the said standing Committee to the petitioner vide order dated 6-8-69. The order of the Vikas Adhikari runs as under : ^^ipka;r lfefr dh fordj ,oa izkk"kk LFkkbZ lfefr dh cSBd fnukad 5-8-69 ds izLrko 3¼1½ ds vuqlkj Jh pEikyky x qIrk dfu"V fyfid dh lsok,W ifjfo{kk/khudky esa vlarks"kizn o bekunkjh lUnsgtud gksus ls iapk;r lfefr ,oa ftyk ifj"kn fu;e 1959¼1½ ds /kkjk 226¼1½ ds vuqlkj bl lfefr lsokvksa ls fnukad 6-8-69 ds vijkUg ls lsok eqDr fd;s tkus ds vknsk ikfjr fd;s tkrs gSA^^ Aggrieved by the aforesaid order, the petitioner preferred a revision petition to the Government but without any success. The revision petition was dismissed by the Government vide order dated 25/26-10-71 which runs as under : ^^fusnsZkkuqlkj ys[k gS fd Jh pEikyky xqIrk HkwriwoZ dfu"V fyfid dk dk;Z izkscsku dh vof/k esa vlUrks"ktud ik;k x;k tks izkIr jsdkMZ ls Li"V gS vkSj ;g ekeyk dkQh iqjkuk gS vr% jktLFkku iapk;r lfefr ,oa ftyk ifj"kn vf/kfu;e dh /kkjk 85 ds vUrZxr iapk;r lfefr ds vknsk fnukad 6-8-69 ds fo:} fuxjkuh ij fopkj fd;k tkuk mi;qDr izrhr ugh gksrk gSA d`I;k Jh pEikyky dks lqfpr djnsA lgk;d lfpoA^^ Ultimately, the petitioner presented this writ petition challenging the order terminating his services on the ground that the order is penal in character and tantamounts to dismissal or removal of the petitioner from service. The petitioner also complained against the order on the ground that he could be dismissed or removed only in accordance with the procedure laid down in Rule 7 of the Rajasthan Panchayat Samitis and Zila Parishads Services (Punishment and Appeal) Rules, 1961 Since no enquiry as contemplated under R. 7 was conducted before terminating his services, the order was liable to be quashed. 3. The Panchayat Samiti, Baitu, has opposed the writ petition. In its reply, it has contended that the impugned order is not one of dismissal, but an order of discharge from service at the end of the probation period on the ground that the petitioners work was found unsatisfactory during the probation period. It has further contended that there was no question of holding an enquiry in the matter as R. 7 of the Rajasthan Panchayat Samitis and Zila Parishads Services (Punishment and Appeal) Rules, 1961 did not apply to a probationer whose services have been discharged at the end of the period of probation on the ground of unsatisfactory work. In its additional pleas, the Panchayat Samiti has pointed out certain instances which show that the work of the petitioner during the period of probation was unsatisfactory. It was pleaded that the petitioner was asked to mend himself from time to time but with no result. On 14-2-69 the petitioner had quarrelled with Rampratap, an Upper Division Clerk, in the Panchayat Samiti and had abused him. The Vikas Adhikari therefore called upon the petitioner to explain his conduct but the petitioner did not submit his explanation. It was pleaded that the petitioner was asked to mend himself from time to time but with no result. On 14-2-69 the petitioner had quarrelled with Rampratap, an Upper Division Clerk, in the Panchayat Samiti and had abused him. The Vikas Adhikari therefore called upon the petitioner to explain his conduct but the petitioner did not submit his explanation. Again, the petitioner did not put before the Standing Committee cases of those teachers whose probation period had expired and whose confirmation had to be considered. The petitioner in this connection was warned by the letter dated 4-4-69 (Ex.A/2). The petitioner was also asked to furnish his explanation vide letter Ex. Ex. A/4 as he committed default in the preparation of the bill of Pitambardas teacher for his leave period from 1-3-67 to 21-3-67. Again, vide Ex. A/5 the petitioner was called upon to explain why he failed to send requisite information to Care Authorities in time. It was also pointed out that there are complaints against the petitioner from various teachers alleging harassment at the hands of the petitioner with ulterior motive. These facts have not been controverted before me by the petitioner. 4. The learned counsel for the petitioner has raised three grounds before me. Firstly, that the petitioner completed probation period of two years on 3-7-69 and on its completion he automatically stood confirmed on the most and acquired on status of a Confirmed a permanent employee. Secondly, since the impugned orders dated 5-8-69 and 6-8-69 visit the petitioner with evil consequences and cast an aspersion against his character and integrity, they must be considered to have passed by way of punishment, no matter whether the petitioner was a mere probationer. Thirdly, that the services of the petitioner could not be terminated without following the procedure laid down under R. 7 of the Rajasthan Panchayat Samitis and Zila Parishads Services (Punishment and Appeal) Rules, 1961. Ground No. 1—It is argued on behalf of the petitioner that the moment the period of probation expires, it is incumbent upon the authority either to terminate the services of the employee or to confirm him. This result, according to the learned counsel follows from the reading of Rules 25, 26 and 27 of the Rajasthan Panchayat Samitis and Zila Parishads Service Rules, 1959. This result, according to the learned counsel follows from the reading of Rules 25, 26 and 27 of the Rajasthan Panchayat Samitis and Zila Parishads Service Rules, 1959. These Rules are reproduced below for facility of reference :— "R. 25 Probation—All members of the Service other than those appointed on the initial appointment to the Service and those taken on transfer from the Government service shall, on appointment be placed on probation. The period of probation shall be two years for those appointed by direct recruitment and one year for those appointed by promotion. "R. 26 Unsatisfactory progress during probation —(1) If it appears to the Zila Parishad or Panchayat Samiti that a member of a Service has not made sufficient use of his opportunities or that he has failed to give satisfaction, the Panchayat Samiti or the Zila Parishad may remove him from Service, or in case he has a substantive post, revert him thereto. Provided that the Panchayat Samiti/Zila Parishad may extend the period of probation of any member of the Service by a period not exceeding one year in all. (2) A probationer reverted or removed from Service during or at the end of the period of probation under sub rule (1) shall not be entitled to any compensation. "R. 27 Confirmation—A probationer shall be confirmed in his appointment at the end of the period of his probation if the Panchayat Samiti or the Zila Parishad is satisfied that his integrity is unquestionable, his work is satisfactory and that he is otherwise fit for confirmation." A reading of Rule 26(1) leaves no doubt that it forbids extension of the period of probation exceeding 3 years. On completion of the two years period of probation prescribed under Rule 25, three courses of action were open to the appointing authority under R. 26 and 27. The authority could either (a) extend the period of probation but not exceeding three years or (b) dispense with the services of the petitioner if he had not made sufficient use of his opportunities or that he had failed to give satisfaction to the appointing authority or (b) confirm him if the appointing authority was satisfied that his integrity was unquestionable, besides his work being satisfactory and otherwise fit for confirmation. One of these three orders on completion of two years period of probation could be passed in respect of a probationer. One of these three orders on completion of two years period of probation could be passed in respect of a probationer. In the present case, none out of these three orders was passed. The order was passed in the present case after two years period of probation on 5-8-69 extending the period of probation upto that date and by the same order the petitioners services were dispensed with from 6-8-69. The question arises whether in these circumstances can it be inferred that there was automatic confirmation of the petitioner at the end of two years period of probation. The Supreme Court has held in various cases that when appointment or promotion is made on probation for a specific period in the first instance and the employee is allowed to continue on the post after the expiry of the period without, any specific order of confirmation, he should be deemed to continue in his post as a probationer only in the absence of any indication to the contrary in the original order of appointment or promotion or the Service Rules. In such a case, an express order of confirmation is necessary to give the employee a substantive right to the post and from the mere fact that he is allowed to continue in the post after the expiry of the specified period of probation, it is not possible to hold that he should be deemed to have been confirmed. See The State of Orissa vs. Narayandas(l), State of Uttar Pradesh vs. Akbrali Khan(2) and G. S. Rama-swami vs. The Inspector General of Police, Mysore State(3). In all these cases, the conditions of service of the employees permitted extension of the probationary period for an indefinite time, and there was no service rule forbidding its extension beyond a certain maximum period. 5. In Director of Public Instructions Punjab vs. Devraj(4), the petitioner was on probation in the first instance for one year. The maximum period of probation fixed by the rules was three years and that period expired on 1-10 60. The petitioners continued to hold then post after 1-10-60 and no formal orders confirming them in their posts were passed. By two separate orders dated 10-2-63 and 4-4-63 the services of the petitioner were terminated. In both the orders, it was specifically stated that the services were deemed terminated in accordance with the terms of their employment. The petitioners continued to hold then post after 1-10-60 and no formal orders confirming them in their posts were passed. By two separate orders dated 10-2-63 and 4-4-63 the services of the petitioner were terminated. In both the orders, it was specifically stated that the services were deemed terminated in accordance with the terms of their employment. The High Court held that in view of the rules governing the petitioners, after the period of probation was over either their services should have been terminated or they should have been confirmed, and if no formal order was passed terminate their services or confirming them, they should be deemed to have been impliedly confirmed on the date the period of probation expired. On appeal to the Supreme Court, their lordships observed : "The employees referred to in R. 6(1) held their posts in the first instance on probation for one year commencing from October 1. 1957. On completion of the one year period of probation of the employee, four courses of action were open to the appointing authority under R. 6(3). The authority could either (a) extend the period of probation provided the total period of probation including extensions would not exceed three years, or (b) revert the employee to his former post if he was promoted from some lower post, or (c) dispense with his services if his work or conduct during the period of probation was un-satisfactory, or (d) confirm him in his appointment It could pass one of these orders in respect of the respondents on completion of their one year period of probation. But the authority allowed them to continue in their posts thereafter without passing any order in writing under R. 6(H) In the absence of any formal order, the question is whether by necessary implication from the proved facts of these cases, the authority should be presumed to have passed some order under R. 6(3) in respect of the respondents, and if so, what order should be presumed to have been passed. The respondents were not promoted from lower posts and there was no question of their reversion to such posts at any time under R. 6(3). The initial period of probation of the respondents ended on October 1, 1958. The respondents were not promoted from lower posts and there was no question of their reversion to such posts at any time under R. 6(3). The initial period of probation of the respondents ended on October 1, 1958. By allowing the respondents to continue in their posts thereafter without any express order of confirmation, the competent authority must be taken to have extended the period of probation upto October 1, 1960 by implication. But under the proviso to R. 6(3), the probationary period could not extend beyond October 1, 1960. In view of the proviso to R. 6(3), it is not possible to presume that the competent authority extended the probationary period after October 1, 1960, or that thereafter the respondents continued to hold their posts as probationers. Immediately upon completion of the extended period of probation on October, 1, 1960, the appointing authority could dispense with the services of the respondents if their work or conduct during the period of probation was in the opinion of the authority unsatisfactory." 6. In the present case, the services of the petitioner were terminated within the maximum period of probation, namely, three years provided under R. 26, The appointing authority passed the order on 5-8-69 extending the period of probation upto that date and also terminated his services from the same date. No question, in the circumstances, arises that at the end of the period of probation of two years the petitioner got confirmed automatically Consequently, I find no merit in the argument urged by the learned counsel for the petitioner. Ground No. 2—The short argument of the learned counsel for the petitioner is that use of the words ^^vlUrks"kizn ,oa bekunkjh lansgtud^^ (unsatisfactory and doubtful integrity) and ^^vlUrks"ktud ,oa lUnsgkRed dk;Z^^ (unsatisfactory and doubtful work ) in Ex. 2 dated 6-8-69 and Ex. 3 dated 5.8.69 respectively attach a stigma to the petitioner and cast an aspersion against his character and integrity. The orders must therefore be considered to have been passed by way of punishment, no matter whether the petitioner was a mere probationer. In support of this contention, reference has been made to The State of Bihar vs. Gopikishore Prasad(5) Jagdish Mitter vs. The Union of India(6), State of Punjab vs. Darshansingh (7), S. Sukhbanssingh vs. The State of Punjab(8), and Harishchandra vs. Deputy Director of Education, Bikaner(9). In support of this contention, reference has been made to The State of Bihar vs. Gopikishore Prasad(5) Jagdish Mitter vs. The Union of India(6), State of Punjab vs. Darshansingh (7), S. Sukhbanssingh vs. The State of Punjab(8), and Harishchandra vs. Deputy Director of Education, Bikaner(9). Before dealing with these authorities, it will be desirable to recapitulate that the order Ex. 2 dated 6 8 69 was passed by the Vikas Adhikari in pursuance of the resolution Ex. 3 dated 5 8-69 passed by the Finance Taxation and Administration Standing Committee of the Panchayat Samiti, Baitu. A perusal of the resolution Ex. 3 dated 5.8.69, the relevant portion of which has been reproduced above, would show that there is no mention as to the doubtful integrity of the petitioner. The Vikas Adhikari who was empowered to communicate the resolution passed by the said Committee exceeded his authority and went beyond the scope of the resolution Ex. 3 when he used the words "doubtful integrity" in his order dated 6-8-69. The words "doubtful integrity" having not been used in the resolution passed by the said Committee deserve to be ignored all together. 7. The main question that arises therefore is whether the words "unsatisfactory and doubtful work" used in the resolution Ex. 3 attach a stigma to the petitioner and whether these words tantamount dismissal or removal from service calling for the compliance of the provisions of Rule 7 of the Rajasthan Panchayat Samiti and Zila Parishads Services (Punishment & Appeal) Rules, 1961. 8. In Parshotamlal Dhingra vs. Union of India (10), the Supreme Court by majority held that if an officer holding an officiating post had no right under the rules governing his service to continue in it and such appointment under the general law being terminable at any time on reasonable notice, the reversion of the public servant to his substantive post did not operate as a forfeiture of any right; that order "visited him with no evil consequences" and could not be regarded as a reduction in rank by way of punishment. In that case, Das J. in delivering the judgment of the majority, entered upon an exhaustive review of the law applicable to the termination of the employment of the public servant at page 49 and summarised it as follows : "Any and every termination of service is not a dismissal removal or reduction in rank. In that case, Das J. in delivering the judgment of the majority, entered upon an exhaustive review of the law applicable to the termination of the employment of the public servant at page 49 and summarised it as follows : "Any and every termination of service is not a dismissal removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satishchander Anand vs. Union of India (AIR 1953 S C. 250). Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Art. 3i 1(2), as has also been held by this Court in Shyamlal vs. State of U.P. ( AIR 1954 S.C. 369 ...... ... ... In short, if the termination of service is founded on the right flowing from contract or the service rules, then prima facie, the termination is not a punishment and carries with it no evil consequences and so Art. 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Art. 311 must be complied with ...........As already stated if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency - or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Art. 311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affectting his future career... A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Art. 311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affectting his future career... But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences... ... ... ... ... The use of the expression "terminate" or "discharge" is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2; whether he has been visited with evil consequences of the kind hereinbefore referred to ? If the case satisfies either of the two less then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service.... ... ... ..." 9. The petitioner, in the present case, being a probationer, had no right to the post held by him. Again, since no terms of employment were settled between the parties at the time of his appointment, it is not in dispute that the petitioners case is governed exclusively by the Rajasthan Panchayat Samities and Zila Parishads Services (Punishment and Appeal) Rules, 1961 and the Rajasthan Panchayat Samitis and Zila Parishads Services Rules, 1959. Rule 6 of the Rules of 1961 enumerate seven types of punishments which may be imposed on the officers and servants of the Panchayat Samitis and Zila Parishads. Rule 6 of the Rules of 1961 enumerate seven types of punishments which may be imposed on the officers and servants of the Panchayat Samitis and Zila Parishads. Clause (vi) of the Explanation attached to Rule 6 provides that the termination of the services of an employee appointed on probation shall not amount to a penalty or punishment within this rule if his services are terminated during or at the end of probation provided it is in accordance with the terms of his appointment or the rule and order governing the probation. It is thus clear that if the services of an employee appointed on probation are terminated during or at the end of the probation period in accordance with the rule or order governing probation, it will not amount to a penalty, that is, punishment. 10. The relevant rules governing probation, in the present case, are Rules 26 and 27 of the Rajasthan Panchayat Samitis and zila Parishads Services Rules, 1959 which have already been reproduced above. Rule 26(1) provides that if a probationer has not made sufficient use of his opportunities or that he has failed to give satisfaction to the appointing authority, the latter may remove him from service. Again, Rule 27 provides that a probationer shall be confirmed in his appointment at the end of the period of his probation if the appointing authority is satisfied that his integrity is unquestionable, his work is satisfactory and that he is otherwise fit for confirmation. It is contended by Mr. Parikh, the learned advocate for the respondent Panchayat Samiti, Baitu, that in case the services of a probationer are terminated on the grounds mentioned in Rule 26 or on the grounds on account of noncompliance with the requirements of Rule 27, such removal or termination of services does not come within the purview of penalty or punishment under Rule 6 of the Rajasthan Panchayat Samitis and zila Parishads Services ( Punishment and Appeal ) Rules, 1961. It is emphasised that discharge of the petitioner from service on the ground of "unsatisfactory and doubtful work" being in accordance with the Rules 26 and 27 governing a probationer, to which class the petitioner belonged, it does not amount to a punishment. It is emphasised that discharge of the petitioner from service on the ground of "unsatisfactory and doubtful work" being in accordance with the Rules 26 and 27 governing a probationer, to which class the petitioner belonged, it does not amount to a punishment. It is argued that the petitioner could be confirmed only Champalal Gupta vs. State of Rajasthan ( Modi J.) RLW 1975if at the end of the period of his probation, his integrity was found unquestionable and his work satisfactory and if he was found otherwise fit for confirmation. He was not liable to be confirmed if any of the above requirements was lacking in him. Mr. Parikh laid considerable stress on the fact that the petitioner was liable to be removed from service if it appeared to the appointing authority that he had not made sufficient use of opportunities or had failed to give satisfaction to the appointing authority. In view of the above requirements of the rules, it is maintained that the words "unsatisfactory and doubtful work" used in the resolution Ex. 3 do not operate as punishment much less they carry a stigma. Reliance is placed on The State of Orissa v. Narayandass case (supra). 11. In my opinion, the contention of Mr. Parikh must prevail. In the present case, there was no enquiry as envisaged under Rule 7, that is, issue of charge-sheet, calling explanation, orders for departmental enquiry etc. With a view to punish the petitioner. The petitioners over-all performance during the period of probation was considered by the appointing authority at the end of the period of probation with a view to judge suitability or otherwise of the petitioner for the purpose of his confirmation or discharge from service as required under Rules 26 and 27. While judging the performance of the petitioner, the appointing authority came to the conclusion that the services of the petitioner should be dispensed with on the ground of unsatisfactory and doubtful work. This act of the appointing authority was, in my opinion, inconformity with the provisions of the rules governing a probationer. The action of the appointing authority being in consonance with the rules cannot be treated as having been taken by way of punishment. This act of the appointing authority was, in my opinion, inconformity with the provisions of the rules governing a probationer. The action of the appointing authority being in consonance with the rules cannot be treated as having been taken by way of punishment. The testing of the performance of the probationer by the appointing authority is the essential requirement of the rules and if the probationer does not fulfil the essential conditions required under the rules at the end of the period of probation, the only proper order which the appointing authority ought to pass is to terminate the services of the petitioner. Such an order in no case be deemed to have been passed by way of punishment. If the order is not by way of punishment, it is not possible to hold that there is any stigma in the order which involved deprivation of the right of the petitioner to hold any office or that it visited him with any evil or penal consequences. It does not seem necessary to over-burden this judgment with the discussion of all the cases cited at the bar because the Supreme Court in Union of India vs. R. S. Dhaba (11) furnishes the complete answer to the contention of the petitioner. The only distinction between the present case and the decision, referred to above, is that, in the present case, the services were terminated after the completion of the period of probation whereas in that case the respondent R. S. Dhaba who was officiating Income-tax Officer was reverted to his substantive rank with a finding that he was unfit. It was held by the Supreme Court that the use of the word unfit did not attach any stigma. I think the same principle should be applied to the present case. I see no reason that an authority after judging the work of a probationer cannot come to a conclusion that his work is unsatisfactory and doubtful and therefore unfit for confirmation specially when the Service Rules governing him envisage such a declaration. I think the same principle should be applied to the present case. I see no reason that an authority after judging the work of a probationer cannot come to a conclusion that his work is unsatisfactory and doubtful and therefore unfit for confirmation specially when the Service Rules governing him envisage such a declaration. Ground No. 3—Since I have come to the conclusion that the order terminating the services of the petitioner was not passed by way of punishment and further that the order did not tantamount to removal or dismissal from service, it was not necessary for the appointing authority to follow the procedure laid down in Rule 7 of the Rajasthan Panchayat Samitis and zila Parishads Services ( Punishment and Appeal ) Rules, 1961. The procedure laid down therein has to be followed only where major penalties specified in Clauses (iv) to (vii) in Rule 6 of the said Rules, namely, reduction to a lower grade, compulsory retirement, removal from service and dismissal from service, are imposed. 12. Since none of the grounds raised by the learned counsel for the petitioner has any merit, the writ petition is dismissed. 13. No order as to costs.