S. Mukherjee v. L. B. Thanga — 1974 DIGILAW 453 (ALL)

ORDER R.L. Gulati, J. - The petitioner was appointed stenographer in the office of the Commissioner for Linguistic Minorities at Allahabad on 8th May, 1967. He was out on two years probation. The period of probation expired on 8th May, 1969. After about two months on 11th July, 1969 an order was passed by the first respondent, the Deputy Commissioner for Linguistic Minorities, extending the period of probation by six months. A similar order extending his period of probation by another six months was passed on December 3, 1969 by the first respondent. Finally by an order dated 19th October, 1979 his services were terminated on payment of one month's salary in lieu of notice. The petitioner has challenged this order in the present writ petition under Article 226 of the Constitution. 2. The impugned order purports to have been passed in pursuance of the proviso to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Services) Rules, 1965 under which the services of a temporary employee can be terminated on one month's notice or on payment of one month's salary in lieu of notice. The contention of the petitioner is that the impugned order, even though it purports to have been passed in pursuance of the relevant rules regulating the service conditions of temporary employee, yet in reality it is an order of punishment for misconduct and for several adverse entries made in his character roll. His second contention is that after the expiry of the initial period of probation of two years he had become permanent and his services could not be terminated under the aforesaid Rules, and the last submission is that he had been appointed by the Commissioner for Linguistic Minorities and the first respondent who was Deputy Commissioner for Linguistic Minorities, had no jurisdiction to terminate his services. The plea in other words is that only the appointing authority could terminate his services. 3. I shall deal with the last contention first. The order of appointment dated 24th April, 1968 is Annexure 'A' to the writ petition and reads :- "The Commissioner for Linguistic Minorities in India is pleased to appoint Shri S.M. Mukherjee against the permanent post of stenographer in the scale of Rs. 210-10-290-15-320-EB-425/- with effect from 8th May, 1967 (forenoon). He will be on probation for a period of two years. Sd. G.N. Dike. 210-10-290-15-320-EB-425/- with effect from 8th May, 1967 (forenoon). He will be on probation for a period of two years. Sd. G.N. Dike. Deputy Commissioner." The appointment clearly had been made by the Commissioner for Linguistic Minorities and the termination order has been passed by the Deputy Commissioner. In my opinion, such a course was not permissible. It is only the appointing authority which could terminate his services, unless the powers of the appointing authority had been delegated to some other officer or authority. It is not the case of the respondents that the powers of the Commissioner had been delegated to the Deputy Commissioner. What is stated in the counter-affidavit is that the appointment letter had wrongly been issued in the name of the Commissioner for Linguistic Minorities, which ought to have been issued in the name of Deputy Commissioner. In my opinion, this plea cannot be sustained. Rightly or wrongly the appointment was made by the Commissioner for Linguistic Minorities and it is nobody's case that the Commissioner did not have the powers of making the appointment of a stenographer. In these circumstances it was only the Commissioner who could have terminated the petitioner's services. 4. The next contention of the petitioner is that he had already become permanent when the impugned order was passed and his services could not have been terminated treating him to be a temporary hand. Initially he was put on probation for two years. The period of probation was extended twice for six months each. The extended period of probation also expired on 3rd June, 1970, while the impugned order was passed on 19th October. 1970. The question is as to whether on the expiry of the period of probation the petitioner h,ad become permanent. The answer to this question will depend upon the terms and conditions of his service. The terms and conditions of his service are contained in a memorandum, and the following extract from it is relevant:- "Sri S.M. Mukherjee is offered permanent appointment of Stenographer in the Office of the Commissioner for Linguistic Minorities, subject to the following conditions :- 1. ........... 2. His appointment is substantive, The period of probation is two years. In case his work is found to be unsatisfactory his services can be terminated during the period of probation." (Underlining mine). ........... 2. His appointment is substantive, The period of probation is two years. In case his work is found to be unsatisfactory his services can be terminated during the period of probation." (Underlining mine). It is clear that the appointment offered to the petitioner was permanent subject only to the condition that he had to undergo a period of probation of two years. If his work was found unsatisfactory services could be terminated within the period of probation. After the period of probation no separate order of confirmation was necessary because he had been given a permanent appointment to begin with. There is no stipulation for the extension of the initial period of probation of two years and, as such, the extension of the period of probation twice was also not strictly valid. But assuming that the period of probation could be extended, the extended period of probation had already expired when the impugned order came to be passed. In my opinion, the petitioner had acquired the status of a permanent servant and he should not have been dealt with the under the Rules pertaining to temporary employees. 5. It is true that in every case an employee does not become permanent on the expiry of the period of probation and unless a specific order is passed making him permanent he can be considered to continue on probation. But whether or not an employee would become permanent on the expiry of the period of probation would depend upon the service conditions. It is not unusual to provide in the terms and conditions of service that on the successful completion of the period of probation the employee concerned will be confirmed in writing and unless a written confirmation is issued he shall continue to be on probation. Kedar Nath Bahl v. State of Punjab, AIR 1972 SC 873 = (1972 Lab IC 433) is a case of that nature. There Kedar Nath was appointed on probation in the Government of East Punjab to a temporary post. The post was continuing from time to time by specific orders and' was subsequently abolished whereupon he was reverted, to his substantive post. The Supreme Court repelled the contention of Kedar Nath that he had automatically become permanent on the expiry of his period of probation. The post was continuing from time to time by specific orders and' was subsequently abolished whereupon he was reverted, to his substantive post. The Supreme Court repelled the contention of Kedar Nath that he had automatically become permanent on the expiry of his period of probation. It was held that where a person is appointed as a probationer in any post and a period of probation is prescribed, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if no order is passed in that behalf. It was further observed that unless the terms dearly indicate that confirmation would automatically follow at the end of the specified period, or there is a specified service rules to that effect, the expiration of the probationary period does not necessarily lead to confirmation. It has been shown above that in the case of the petitioner no order of confirmation was necessary at the end of the probationary period because the appointment offered to him was permanent subject to the condition of his undergoing a successful period of probation for two years. As soon as the period of probation was over, he became automatically permanent. The case which is more akin to the case of the petitioner is that of State of Punjab v. Dharam Singh, AIR 1968 SC 1210 = (1968 Lab IC 1409) where the Supreme Court has held that where the service rules fix a certain period of time beyond which probationary period cannot be extended an employee appointed or promoted to a post on probation "could be deemed to have become permanent on the expiry of the period of probation. 6. In view, of the above finding it is not necessary to deal with the last contention of the petitioner that the impugned order has been passed against him as a measure of punishment without complying with the requirements of Article 311(2) of the Constitution. It may be observed that the impugned order is innocuous in term and does not cast any stigma on the petitioner. But as held by the Supreme Court in the case of State of U.P. v. Sughar Singh, AIR 1974 SC 438 = (1974 Lab IC 3513) the language of an order of termination is not conclusive and if the circumstances show that the order in fact had been passed as a measure of punishment. But as held by the Supreme Court in the case of State of U.P. v. Sughar Singh, AIR 1974 SC 438 = (1974 Lab IC 3513) the language of an order of termination is not conclusive and if the circumstances show that the order in fact had been passed as a measure of punishment. Article 311(2) of the Constitution is attracted. However, it is not necessary to express any final opinion on this issue because the petition succeeds on the two grounds already mentioned. 7. In the result, the petition succeeds and is allowed. The order dated 19th October. 1970 terminating the petitioner's services (Annexure 'M') as also the orders dated 11th July, 1969 and 3rd December, 1969 (Annexures 'D' and 'E' to the writ petition) are quashed. The respondents are directed to treat the petitioner as still in service and to pay him emoluments to which he is entitled. The petitioner is entitled to his costs.