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1988 DIGILAW 453 (ALL)

Guru Adhin v. Pradeshiya Industrial and Investment Corporation of U. P. Ltd

1988-04-24

B.L.LOOMBA, K.C.AGRAWAL

body1988
JUDGMENT K.C. Agrawal, J. - In pursuance of an advertisement made by the Pradeshiya Industrial and Investment Corporation of U.P. Limited, Lucknow (respondent No. 1) on February 25, 1984, the petitioner applied for being appointed as Legal Assistant. The petitioner was subsequently given a letter dated April 29, 1985, for indicating his acceptance to the offer by the Deputy Administrative Officer. The petitioner indicated his acceptance and was thereafter appointed on May 6, 1985. Letter dated April 29, 1985, indicated, "You will be placed on probation for a period of one year with effect from the date of joining the Corporation." 2. The petitioner joined the Corporation on May 5, 1985. Subsequently his probation was extended by an order of Sri D.K. Mittal, Deputy Managing Director, dated June 28, 1986, for a period of three months. While he was on probation on the extended term of probation, he was discharged on July 10, 1986. The order passed on the file, according paragraph 10 of the supplementary counter affidavit of S.P. Singh, is quoted below : "Seen all the papers. Mr. Adhin is not suitable for the post of L.A. Hence his services are terminated w.i.e. He may be given required pay in lieu of notice 3. The petitioner was intimated about the discharge through Annexure-4 to the writ petition. Relevant portion of Annexure-4 is as under: "In terms of Rule 12 of the PICUP Service Rules and also in terms of the letter of offer of appointment No. SEC/4/344/76/1465 dated April 29, 1985, the services of Sri Guru Adhin, Legal Assistant, are no longer required and the same are terminated with effect from today (July 10, 1986) afternoon. Sri Guru Adhin may be paid one months pay including allowances in lieu of the notice required under Rule 12 of the PICUP Service Rules." 4. After discharge/termination, the petitioner tiled the present writ petition and has submitted that as the extension of probationary period was made beyond one year of probation, he stood automatically confirmed, therefore, he could not be terminated under Rule 12 of the PICUP Service Rules. His contention was that the PICUP could resort to Rule 40, but as the same was not done, his termination is illegal. 5. We are unable to find substance in this submission. His contention was that the PICUP could resort to Rule 40, but as the same was not done, his termination is illegal. 5. We are unable to find substance in this submission. Before dealing with the same, we may clear oft the cloud, which has been created by the petitioner by asserting that the order extending his probation was passed by Sri D.K. Mittal on June 28, 1985, when he was not even in the service of the PICUP. The explanation given in the supplementary counter affidavit of S.P. Singh in its paragraph 6, which appears to us convincing, is that there was a typographical error in the letter sent to the petitioner extending his probation, His probation was extended on June 28, 1986, for a period of three months, but by mistake it was typed as June 28, 1985. The petitioner joined the post on May 6, 1985, therefore, there was no occasion for having passed any order of extension of probation period on Jane 28, 1985, In fact, Sri D.K. Mittal joined as Deputy Managing Director in March/April, 1986, as such, there was no occasion for him to have extended the probationary period of the petitioner on June 28, 1985. 6. Next the petitioners counsel urged that whereas he received the termination order dated July 10, 1986, at about 9.30 in the morning, he got the letter for extension of his probation period up to August 6, 1986, on the same day at 2. 45 p.m. Paragraph 9 of the supplementary counter affidavit of S.P. Singh indicates that the letter extending the probationary period of the petitioner was issued and dispatched on June 28, 1986, itself by courier service to the Regional Office of the respondent Corporation in Delhi. Therefore, it appears to us that the Corporation first extended the period of probation of the petitioner on June 28, 1986, and thereafter terminated him on July 11, 1986 through the office order contained in Annexure-4 of the writ petition. 7. It is true that the extension of the probationary period was not made within one year of the joining of the petitioner on May 6, 1985, but that by itself would not vitiate the impugned termination. Rule 11 confers power on the appointing authority to extend the period of probation without assigning any reason. 7. It is true that the extension of the probationary period was not made within one year of the joining of the petitioner on May 6, 1985, but that by itself would not vitiate the impugned termination. Rule 11 confers power on the appointing authority to extend the period of probation without assigning any reason. The petitioners probation period expired on May 5, 1986, and immediately thereafter on June 28, 1986, the period was extended till August 6, 1986. There is nothing in the Rules providing for automatic confirmation on the expiry of the probationary period. Rule 13 required a positive order to be passed by the appointing authority after the completion of the period of probation. No order under Rule 13 had been passed. Consequently, under the law the petitioners probationary period continued up to August 6, 1986. Before that date the petitioner was terminated on July 10,1986. The termination is in accordance with Rule 12 of the PICUP Service Rules, which provides that an employee appointed on progun could be discharged by the appointing authority on one months notice in writing. The petitioner admitted in paragraph 12 of the writ petition that he had received the termination order along a cheque of one months salary. 8. In Chief Conservator of Forest v. D.A. Lvall, AIR 1961 All. 450 , a Full Bench of this Corn t held that probationary period can be extended even after its expiry. Reliance has been placed by the petitioner's caused on a decision of this Court reported in Laxman Ram Kushwaha v. Committee of Management, 1986 (4) Lucknow Law Journal 256, in support of his submission, laying down that regulation fixed period of two years probation, the person in employment having been continued beyond the same was to be deemed to be confirmed on the post by implication. For this proposition the petitioner has also relied on State of Punjab v. Dharam Singh, AIR 1968 SC 1210 . None of these cases supports the petitioner. In Laxman Ram Kushwaha's case (supra) there was a maximum period up to which probation could be made. In those circumstances the Bench held that the petitioner, had since been continued after the maximum period, would be deemed to be confirmed on the post by implication. None of these cases supports the petitioner. In Laxman Ram Kushwaha's case (supra) there was a maximum period up to which probation could be made. In those circumstances the Bench held that the petitioner, had since been continued after the maximum period, would be deemed to be confirmed on the post by implication. In Dharam Singh's case (supra) Rules 6 (3) of Punjab Educational Service (Probationalised Cadre) Class 3 Rules, 1961, forbids extension of the period of probation beyond three years. In the background of the said fact, the Supreme Court held that Dharam Singh would be deemed to have been confirmed. Kedar Nath Bahl v. State of Punjab and ors., AIR 1972 SC 873 is the decision, which applied to the facts of the present case. There could be no automatic confirmation when there was any maximum period prescribing for that purpose. From the facts and in the circumstances of the present case we find that there being a requirement of an order of confirmation, the petitioner's argument has no merit. 9. The second argument of the petitioners counsel was that the Deputy Managing Director was not authorised to terminate the petitioner as neither was any power delegated by Board on him nor it could be so done under the law. The submission is incorrect. Paragraph 4 of the supplementary counter affidavit of S.P. Singh has quoted office memo, dated September 1, 1983, indicating that the existing delegation of power made by the Board to the various officers in respect of creation of the posts, continuation of Selection Committee, appointment, removal cerebra was reiterated to apply to the new pay scales with effect from March 30, 1983. The Deputy Managing Director had the power conferred on March 30, 1983, in respect of appointment and removal and as the said resolution was continued despite the rise in pay scale, the Deputy Managing Director was fully competent to pass the impugned order of termination against the petitioner on July 10, 1986. Through the resolution dated May 17, 1986, in the 93rd meeting of the Board of Directors, Sri D.K. Mittal was appointed as Deputy Managing Director of the respondent Corporation. 10. For what we have said above, the writ petition dismissed. The interim stay order is vacated.