MAHENDER SINGH v. CENTRAL WAREHOUSING CORPORATION — 1995 DIGILAW 94 (DEL)

C. M. Nayar ( 1 ) THE present Appeal arises out of the judgment dated 20thoctober, 1984 of Additional Senior Sub Judge, Delhi. The learned Judge allowed theappeal of the respondent and set aside the judgment and decree dated 3/10/1983, passed by Sub Judge 1st Class, Delhi. ( 2 ). The brief facts of the case are that the appellant was appointed to the post ofsuperintendent of the respondent Corporation vide order dated 4th May, 1978. Hewas put on probation and it was specified in the letter of appointment that theservices of the appellant will be governed by Central Warehousing Corporation (Staff) Regulations, as in force from time to time. The relevant provisions ofregulations, which are necessary for the purpose of decision of this appeal areregulations 7 and 10. Regulation 7 deals with probation and Regulation 10 dealswith termination of service and the same may be reproduced as follows: "7. PROBATION (i) Every employee shall, on appointment to any post, be on probation inthat post for a period of one year. commencing from the date ofappointment. Provided that such period may be further extended for a period notexceeding one year in all at the discretion of the appointing authority. Provided further that any continuous sc. vice rendered by an employeeimmediately before being placed on probation in a post may be countedtowards the probationary period. (ii) Nothing in this regulation shall apply to the post of Managing Directoror persons employed on deputation from the Central Government orany State Government or an Institution. 10. TERMINATION OF SERVICE BY THE CORPORATION; (1) The Corporation may, at any time and without assigning any reasons,terminate the services of any temporary employee after giving onemonth s notice or one month s pay in lieu thereof. p=09 (2) The Corporation may terminate the services of any regular employeeafter giving three month s notice or three months pay in lieu thereof. (3) The Corporation may terminate the services of an employee other thanthe Managing Director by giving notice for a period less than thatspecified in sub-regulations (1) and (2):provided that the Corporation shall give to an employee whose servicesare so terminated, pay for the period by which the notice actually givenfalls short of the specified period. (4) The power to terminate the services of employees under sub-regulation (1) or sub-regulation (2) shall be exercised by the respective appointingauthorities. (4) The power to terminate the services of employees under sub-regulation (1) or sub-regulation (2) shall be exercised by the respective appointingauthorities. (5) Nothing contained in this regulation shall effect the right of the Appointing Authority to retire, remove or dismiss an employee withoutgiving notice or pay in lieu of notice in accordance with the provisionsof Chapter-V. " ( 3 ). The appellant, as stated above, was appointed on probation on 4/05/1978. He was to work on probation for a period of one year from the date ofappointment which was extendable for a period not exceeding one year, as providedin Regulation 7. The appellant was put on probation for a period of one year w. e. f. 24/06/1978, when he joined the service. It was averred in the plaint that there wasa theft in the warehouse at Dasna. It was further alleged that the appellant himselflodged the necessary F. I. R. under intimation to the Department. The case was closedfor lack of evidence. It was reported by the Regional Manager that the appellant wasinvolved in this theft of 47bags of wheat and the Superintendent of Police also statedin his report that the appellant was responsible for this loss. The respondentextended the period of probation by order dated 5/03/1980. This order isreproduced as under: "central WAREHOUSING CORPORATION (A GOVT OF INDIA UNDERTAKING) deepali 92, Nehru Place,new Delhi-110 019no. CWC/i-4874/estt. Dated 5/03/1980memorandumthe undersigned is directed to inform Shri Mahendra Singh, Superintendent,central Warehouse, Dasna as his performance has not been found satisfactory,his probation period is extended by one year i. e. upto 23. 6. 80. He is advised toshow improvement in his work and conduct. 387sd/- (D. N. Sagar)Deputy Manager (Personnel)Toshri Mahendra Singh,superintendent,central Warehouse,dasna. Copy to: The Regional Manager, CWC, RO, Lucknow. "the appellant on the same date was also communicated adverse remarks in thespecial confidential report for the period ending 23/06/1979. The impugnedorder of termination was passed on 19/06/1980 and the same reads asfollows: "no. CWC/i-4874/estt. dated 19/06/1980orderthe services of Shri Mahendra Singh, Supdt. Central Warehouse, Dasna arehereby terminated under Regulation 10 (1) of the Central Warehousing Corporation (Staff) Regulations, 1966 with immediate effect. 2. He is being paid one month s pay in lieu of one month s notice. Sd/- (A. N. LALLER)For Managing Director19. 6. 1980 ( 4 ). CWC/i-4874/estt. dated 19/06/1980orderthe services of Shri Mahendra Singh, Supdt. Central Warehouse, Dasna arehereby terminated under Regulation 10 (1) of the Central Warehousing Corporation (Staff) Regulations, 1966 with immediate effect. 2. He is being paid one month s pay in lieu of one month s notice. Sd/- (A. N. LALLER)For Managing Director19. 6. 1980 ( 4 ). The appellant felt aggrieved by the impugned order of termination and fileda suit in the court of Senior Sub Judge Delhi for declaration that the order oftermination dated 19/06/1980 is illegal and ultra vires and prayed for relief ofre-instatement with consequential benefits of salary etc. The suit was contested bythe respondents and written statement was filed. It may be relevant to refer to theplea of the respondents, as contained in paragraphs 6,9 and 11 of the writtenstatement and the same read as follows: "6. Allegations of para 6 of the plaint, as stated there, are denied. It issubmitted that during the extended period of probation, it was reportedby the Regional Manager that the plaintiff was involved in one theft caseof 47 bags at Dasna and the Superintendent of Police had also stated inhis report that Shri Mahendra Singh was responsible for the theft of 47bags of wheat. But due to insufficient evidence, the case could not befiled against him in the Court. He further recommended that thedepartment may take necessary action against him. All the allegationsof this para being false and distortions of fact are emphatically denied. 9. The allegations in paragraph 9 of the plaint are denied. It is, however,not denied that the plaintiff s services were terminated by an orderdated 19. 6. 80. It is submitted that the plaintiff being on probation,having been not found satisfactory for a highly responsible job, hisservices were terminated. The termination order is perfectly legal andvalid. The plaintiff is unncessarily, unjustifiably treating it as a wrongful dismissal just for the purpose of creating a cause of action. 11. The contentions raised in para 11 of the plaint are denied. The order oftermination of his services being without any stigma, is pefectly legaland valid. By no stretch of imagination order of termination of hisservices can be called as an order of dismissal. The plaintiff is himselfunnecessary and unjustifiable giving a colour to an order of terminationsimpliciter by falsely describing it as an order of dismissal just for thepurpose of making a case against the Corporation. By no stretch of imagination order of termination of hisservices can be called as an order of dismissal. The plaintiff is himselfunnecessary and unjustifiable giving a colour to an order of terminationsimpliciter by falsely describing it as an order of dismissal just for thepurpose of making a case against the Corporation. It is denied that theplaintiff had completed successfully the period of probation and thatthe plaintiff was the regular employee. "the suit was tried by the Court of Sub Judge 1st Class, Delhi and on pleadingsof the parties, the following issues were framed: "1. Whether the plaintiff was regular employee of the Defendants? If so, towhat effect? opp2. Whether the impugned order tantamounts to order of dismissal from serviceor it is termination of service simpliciter? Parties3. Whether the impugned order is null, illegal and ultra vires? OPP4. To what relief, the plaintiff is entitled? OPP" ( 5 ). The Trial Judge disposed of issues 1 and 2 and held that the appellant wasa regular employee of the respondents and the impugned order of terminationtantamounts to the order of dismissal from service. He has further held that therewas nothing on record to suggest that the appellant was in any way responsible forthe theft and his removal from service on this basis, without affording an opportunity of being heard, casts stigma and is against the principles of natural justice andis bad in law. The suit was decreed and the impugned order of termination dated 19/06/1980 was set-aside and the respondents were directed to re-instate theappellant to the post of Superintendent with all consequential benefits. The respondents felt aggrieved by this order and filed an appeal which was disposed of by theadditional Senior Sub Judge Delhi by order dated 20. 10. 1984. The learned Judge set-aside the order of the Trial court and dismissed the suit of the appellant. He hasreversed the findings of the Trial Court and held that the appellant cannot be saidto be a regular employee of the respondents and he was merely an employee onprobation. The impugned order of termination does not cast any stigma on theappellant and it was not an order of dismissal but was an order of terminationsimpliciter. The provisions of Article 311 of the Constitution of India were,accordingly, not attracted. The impugned order of termination does not cast any stigma on theappellant and it was not an order of dismissal but was an order of terminationsimpliciter. The provisions of Article 311 of the Constitution of India were,accordingly, not attracted. It is further held "that there is no evidence on the recordto prove that the termination was based on the report of the police and the appellanthimself has deposed that the termination came while the investigation of the policewas still pending. He has not deposed or produced any document to show that thepolice had returned a finding against him before the order of termination waspassed. " The Court considered the law on the subject and REFERRED TO to the judgmentsof the Supreme Court in The State of Bihar v. Gopi Kishore Prasad, AIR 1960 S. C. 689 Samsher Singh v. State of Punjab and Another, MR 1974 Supreme Court 2192;and 017 and Natural Gas Commission and Others v. Dr. Md. S. Iskanderali, AIR1980 Supreme Court 1242. ( 6 ). The appear of the respondents was, accordingly, allowed and the judgmentof the Trial Court was set-aside. The appellant felt aggrieved by the judgment of theappellate Court and has filed the present second appeal in this Court for restorationof the order passed by the Trial Court on 3. 10. 1983. The appeal was admitted byorder dated 19. 2. 1985 and the following substantial questions of law were framed: "1) Whether under the relevant regulations the appellant would be deemedto have become a regular employee on the expiry of the probationperiod of one year from the date of his joining service?2. Whether the-right to extend the probation period can be exercisedseveral months after the expiry of the original probation period?3. Whether the termination of service of the appellant was by way of punishment and against principles of natural justice and was liable to bequashed ?4. Whether on the evidence on the record the appellant would be deemedto have been dismissed from service by the Managing Director ? If not,its effect. " ( 7 ). The learned Counsel for the appellant has contended that the impugnedorder of termination dated 19/06/1980 was based on one incident of theft ofwhich the appellant was accused. The period of probation was subsequentlyextended by order dated 5/03/1980 before the impugned order of terminationwas passed. If not,its effect. " ( 7 ). The learned Counsel for the appellant has contended that the impugnedorder of termination dated 19/06/1980 was based on one incident of theft ofwhich the appellant was accused. The period of probation was subsequentlyextended by order dated 5/03/1980 before the impugned order of terminationwas passed. The adverse remarks were communicated to the appellant for the firsttime on 5/03/1980 and then in July, 1980 when the services of the appellant hadalready been terminated. In view of the background as stated, the learned Counselhas contended that the order of termination is stigmatic in nature and the samecannot be sustained in the eyes of law. He has further REFERRED TO me to paragraph 6of the written statement which has already been cited in the earlier part of thejudgment wherein it is conceded by the respondents that the termination was as aresult of the charge of theft which was levelled against the appellant and the samewas based on a police report. He has argued that the police subsequently cleared thename of the appellant and, in any case, the termination of the appellant is punitivein character and the order could not be passed without affording an opportunity tothe appellant to show cause. The counsel has strongly relied on the judgments of thesupreme Court as reported in Samsher Singh v. State of Punjab and Another AIR1974 Supreme Court 2192, Anoop Jaiswal v. Government of India and Another AIR1984 Supreme Court 636 and farnail Singh and others v. State of Punjab and Othersair 1986 Supreme Court 1626 to reiterate the proposition that since the impugnedorder of termination, which has been inflicted on the appellant, was on the basis ofthe charge of theft against him, the same is bad in law as no reasonable opportunityhas been given to the appellant to defend and the order of discharge is violative ofarticle 311 (2) of the Constitution of India. ( 8 ). The learned Counsel for the respondents, on the other hand, has contendedthat the services of the appellant were notterminated on the basis that the appellantwas involved in theft case and as that case could not proceed due to insufficientevidence he was proceeded against departmentally. He has argued that thefoundation of the impugned order of termination was the performance of theappellant, which was consistently bad. He has argued that thefoundation of the impugned order of termination was the performance of theappellant, which was consistently bad. In this situation it was open for therespondents to discharge the appellant from service and this does not, in anymanner, cast stigma nor the action is punitive. He has relied upon the judgments ofthe Supreme Court as reported in Oil and Natural Gas Commission and Others v. Dr. Md. S. Iskander Ali, AIR 1980 Supreme Court 1242; The Union of India andothers v. P. S. Bhatt, AIR 1981 Supreme Court 957; Unit Trust of India and Othersv. T. Bijaya Kumar and Another, JT 1992 (6) S. C. 82 and M. Venugopal v. The Divisionalmanager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradeshand Another JT 1994 (1) S. C. 281. These cases have been cited to reiterate and canvassthe proposition that the termination simpliciter of probationer for unsatisfactoryperformance is not an order of punishment which will attract Article 311 of theconstitution of India. There was no question of giving a hearing before thetermination of service in this situation. The services of the probationer can beterminated after making an overall assessment of his performance during the periodof probation and no notice is required to be given before termination of such service. ( 9 ). I may now deal with the first question, as to whether, the appellant can betreated as a regular employee of the respondents. The statutory Regulations of thecorporation have been produced before me. Regulation 7 deals with probation andit is stated in the proviso to Sub-section (1) that the probation period may be furtherextended for a period not exceeding one year in all at the discretion of theappointing Authority. The appellant was placed on probation in the first instanceon 24/06/1978, when he joined his duty. The subsequent extension was made on 5/03/1980, for a further period of one year. The learned Additional Senior Subjudge is quite correct to hold that the amendment which was made on 20/11/1974, giving powers to the Appointing Authority to extend period of probation wasinadvertently not noticed by the Trial Judge and he only perused the incompleteregulation which did not provide for such extension. The probation of the appellantwas rightly held to be extendable by a further period of one year. The appellant,therefore, could not be said to have been confirmed unless a specific order waspassed to this effect. The probation of the appellantwas rightly held to be extendable by a further period of one year. The appellant,therefore, could not be said to have been confirmed unless a specific order waspassed to this effect. In this connection, reference may be made to the judgment ofthe Supreme Court in Municipal Corporation, Raipur v. Ashok Kumar Misra, (1991)3 Supreme Court Cases 325 which has clearly held that there cannot be any deemedconfirmation after the expiry of initial period of one year. The Court was consideringthe provisions of Rule 8 of the M. P. Government Servants General Conditions ofservice Rules, 1961, and the relevant portion of this Rule may be reproduced asunder: "8. Probation- (1) A person appointed to a service or post by direct recruitmentshall ordinarily be placed on probation for such period as may be prescribed. (2) The Appointing Authority may, for sufficient reasons, extend theperiod of probation by a further period not exceeding one year. Note: A probationer whose period of probation is not extended under this sub-rule, but who has neither been confirmed nor discharged from service at theend of the period of probation shall be deemed to have been continued inservice, subject to the condition of his service being terminable on the expiry ofa notice of one calendar month given in writing by either side. "the findings of the Court are contained in paragraph 6 of the judgment. Therelevant portion can be reproduced as follows:"exercise of the power to extend the probation is hedged with the existence ofthe rule in that regard followed by positive act of either confirmation of theprobation or discharge from service or reversion to the substantive post withina reasonable time after the expiry of the period of probation. If the rules do notempower the Appointing Authority to extend the probation beyond theprescribed period, or where the rules are absent about confirmation or passingof the prescribed test for confirmation of probation then inaction for a very longtime may lead to an indication of the satisfactory completion of probation. Butin this case Rule 8 expressly postulates otherwise. The period of probation issubject to extension by order in writing for another period of one year. Passingthe prescribed examinations and successful completion of probation and tomake an order of confirmation are condition precedent. Butin this case Rule 8 expressly postulates otherwise. The period of probation issubject to extension by order in writing for another period of one year. Passingthe prescribed examinations and successful completion of probation and tomake an order of confirmation are condition precedent. Mere expiry of theinitial period of probation does not automatically have the effect of deemedconfirmation and the status of a deemed confirmation of the probation. Anexpress order in that regard only confers the status of an approved probationer. We are of the view that note to sub-rule (2) read with sub-rule (6) of Rule8 manifests the legislative intent that confirmation of the probation of the. respondent would be made only on successful completion of the probation andthe passing of the prescribed examinations. It is not the respondent s case thathe passed all the examinations. He shall be deemed to be continued onprobation. Before confirmation the Appointing Authority is empowered toterminate the service of the probationer by issuing one calendar month s noticein writing and on expiry thereof the service stands terminated without anyfurther notice. . . . . . . "the same proposition of law has been stated in the judgments of the Supremecourt in Partap Singh v. Union Territory of Chandigarh and Another, AIR 1980supreme Court 57 and Dhanibhai Ramjibhai v. State of Gujarat, AIR 1985 Supremecourt 603. ( 10 ). There is, therefore, no infirmity in the findings of the Appellate Court thatthe appellant cannot be said to be a regular employee of the respondent Corporationand he was an employee merely on probation. The finding of the Trial Court in thisregard was correctly reversed. ( 11 ). The next question, which arises is as to whether the termination of theappellant was stigmatic in nature and was not an order of termination simpliciter. I have carefully perused the judgments, which have been cited by learned Counselfor the parties. ( 12 ). In Samsher Singh v. State of Punjab and Another, (supra) the factsindicated that the Inquiry Officer was nominated by the Director of Vigilance and herecorded the statement of witnesses behind the back of the appellant, a member of the subordinate judicial service. The enquiry was to ascertain the truth of allegationsof misconduct. Neither the report nor the statements recorded by the Enquiryofficer reached the appellant. The enquiry was to ascertain the truth of allegationsof misconduct. Neither the report nor the statements recorded by the Enquiryofficer reached the appellant. The High Court accepted the report of the Enquiryofficer and wrote to the Government that in the light of the report the appellant wasnot a fit person to be retained in service. The order of termination on these facts washeld to be clearly by way of punishment as the services of the appellant wereterminated on the basis of the report of the Enquiry Officer with which he was neverconfronted with. The order of termination was held to be violative of Article 311 andwas, accordingly, set-aside. ( 13 ). The Supreme Court in Anoop Jaiswal v. Government of India and Another (supra) also laid down the proposition that the order of discharge may be noncommittal, the cause for the order cannot be ignored. In that case there was someincident and the appellant was considered to be one of the ring leaders and it washeld that the discharge was based on the said incident. In that context, the order ofdischarge was held to be punitive in character and "the court reached the conclusionthat the alleged act of misconduct was the cause of the order and that but for theincident it would not have been passed then it was inevitable that the order ofdischarge will fall to the ground as the appellant had not been afforded a reasonableopportunity todefend himself, as provided in Article 311 (2) of the Constitution. Thelaw as laid down in Jarnail Singh and others (supra) reiterates the same proposition. ( 14 ). I may now advert to the facts of the present case. The appellant was put onprobation for a period of one year on 24/06/1978. The said period expired on 23/06/1979. The record has been produced before me and there is no doubt that one ofthe Regional Managers had recommended that his probation be closed. There wasno report from the concerned officer of the Corporation for the period beginningfrom June 26, 197 8/03/1979 as the appellant had worked under the saidregional Manager. The said report was called for on 28/08/1979 and wassubmitted on 6/12/1979. On consideration of the report the period ofprobation of the appellant was extended for a further period of one year by orderdated 5/03/1980. The appellant was also communicated certain adverse remarkson the same date. The said report was called for on 28/08/1979 and wassubmitted on 6/12/1979. On consideration of the report the period ofprobation of the appellant was extended for a further period of one year by orderdated 5/03/1980. The appellant was also communicated certain adverse remarkson the same date. The extended period of probation was to expire on 23/06/1980and another report was called for to assess the appellant. The respondents did notfind any improvement in the performance of the appellant and, accordingly, hisservices were terminated vide clause 10 (1) of the Regulations on 19/06/1980. Therecord does not indicate that the impugned order of termination was passed by wayof punishment. There was an incident of theft in which the appellant was initiallyimplicated and it is now stated that subsequently he was cleared. The respondentshave, however, stated that the said incident was not the foundation of the order oftermination. The respondents have contended in the written statement that theappellant was on probation and having been not found satisfactory for a highlyresponsible job, his services were terminated. The finding that there was noevidence on the record to prove that the termination was based on report of thepolice does not suffer from any illegality which calls for interference in secondappeal. ( 15 ). In Unit Trust of India and Others v. T. Bijaya Kumar and Another (supra) thesupreme Court held that where the facts are simple, namely, during the probationperiod the performance of the employee was watched and was not found to besatisfactory, despite he having been given an opportunity to show improvement andthe Management was constrained to put an end to his service there was no occasionfor the Court to interfere as the Authorities had acted within the framework of therules and law. In the subsequent judgment M. Venugpal v. Divisional Manager (supra) the Court also reiterated the same proposition. Paragraph 15 of thisjudgment reads as follows: "even under general law, the service of a probationer can be terminated aftermaking overall assessment of his performance during the period of probationand no notice is required to be given before termination of such service. Thisaspect has been examined by this Court in the case of The Governing Councilof Kidwai Memorial Institute of Oncology, Bangalore v. Dr. Thisaspect has been examined by this Court in the case of The Governing Councilof Kidwai Memorial Institute of Oncology, Bangalore v. Dr. Pandurang Godwalkar, AIR 1993 SC 392 , where it has been pointed out that if the performance ofthe employee concerned during the period of probation is not found to besatisfactory on overall assessment, then it is open to the competent authorityto terminate his service. " ( 16 ). The Appellate Court has strongly relied on the judgment of the Supremecourt as reported in 017 and Natural Gas Commission and Others v. Dr. Md. S. Iskander Ali, AIR 1980 Supreme Court 1242. In that case, the probationer wasappointed in a temporary post and his short history of service showed that his workhad never been satisfactory and he has not been found suitable for being retained inservice. The Authorities even started an enquiry against him which was subsequently dropped. The order of termination was not held to be punitive in nature. ( 17 ). In Union of India and Others v. P. S. Bhatt (supra) the facts indicated thateven if the conduct of the employee in indulging in loose talks and filthy and abusivelanguage may be considered to be the motive or the inducing factor which influenced the authorities to pass the impugned order, that order cannot be said to be byway of punishment. The proposition that the services of the probationer can beterminated in accordance with the rules as the very purpose of placing a person onprobation is to try him during probation period and assess him suitably to a job inquestion has been reiterated in the above mentioned cases. ( 18 ). The present second appeal has been filed to impugn the judgment of theappellate Court. The learned Judge has given his clear findings that the probationperiod was extended for want of satisfaction of the work of the appellant. There areletters on the record showing that even in the confidential reports, the report abouthis work was not satisfactory . I have also summoned the file of the respondents andperused the relevant documents including the confidential rolls. There is no doubtthat there was a police case relating to theft in which the appellant on re-appraisalwas ultimately held to be not involved but an overall assessment as made by therespondent leaves no manner of doubt that the work of the appellant was found notsatisfactory. There is no doubtthat there was a police case relating to theft in which the appellant on re-appraisalwas ultimately held to be not involved but an overall assessment as made by therespondent leaves no manner of doubt that the work of the appellant was found notsatisfactory. It will also not be open for this Court to re-assess the finding of fact andcome to a contrary conclusion by re-appraising the assessment made by the respondents in respect of the work and performance of the appellant. Therefore, it cannotbe said that the police case was the foundation of the order of termination. The appeal as a consequence is dismissed. There will be no order as to costs.