Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 93 (PAT)

Upendra Prasad Roy v. Food Corporation Of India

2003-01-22

CHANDRAMAULI KR.PRASAD

body2003
Judgment Chandramauli Kumar Prasad, J. 1. In all these writ applications, common questions of law, with little variation on facts, arise for consideration and as such they are being disposed of together. 2. Upendra Prasad Roy, petitioner in CWJC No. 13076/02 was working as Technical Assistant Grade-l and by order dated 9.10.2000 he was promoted to the post of Assistant Manager, Technical on probation for a period of one year with effect from the date he assumed charge of the post. According to the order of promotion the period of probation can be extended for a further period not exceeding one year. Similarly Arjun Choudhary and Suresh Prasad, petitioners of CWJC Nos. 13375 and 13375 of 2002 were holding the post of A.G.I. (Depot) and by order dated 5.10.2000 promoted to the post of Assistant Manager, Depot on probation for a period of one year with effect from the date they assumed charge to the post. According to the order of promotion, the period of probation can be extended for a further period not exceeding one year. In pursuance of the aforesaid orders of promotion petitioner Upendra Prasad Roy joined on the promoted post on 13.10.2000 and petitioner Arjun Choudhary on 16.10.2000. It is relevant here to state that by order dated 10.10.2000, petitioner Suresh Prasad was posted at PSD, Digha but his date of joining has not been stated. Period of probation of all the petitioners was extended by one year from the date of joining. During the extended period, all of them were visited with one or the other minor penalty By the impugned orders the probation period of the petitioners have been terminated and they have been reverted to their original posts. In these applications prayer of the petitioners is to quash those orders by which their probation have terminated and reverted to the original post. 3. Mr. Banwari Sharma appears on behalf of petitioners Upendra Prasad Roy and Arjun Choudhary whereas petitioner Suresh Prasad is represented by Mr. Subodh Kumar Sinha. Respondents are represented by Mr. Arun Kumar Singh and Mr. Jagdish Prasad. 4. Learned counsel for the petitioners submits that before passing the impugned orders no notice was given and this renders the impugned orders terminating the probation illegal in the eye of law. Subodh Kumar Sinha. Respondents are represented by Mr. Arun Kumar Singh and Mr. Jagdish Prasad. 4. Learned counsel for the petitioners submits that before passing the impugned orders no notice was given and this renders the impugned orders terminating the probation illegal in the eye of law. In support of the aforesaid submission reliance has been placed on decision of the Supreme Court in the cases of V.P. Ahuja V/s. State of Punjab and others [ 2000 (3) SCC 239 ] and Chandra Prakash Shahi V/s. State of U.P. and others [ 2000 (5) SCC 152 ]. Neither on principle nor on precedent I am inclined to accept the submission of the learned counsel. Petitioners promotion on probation has been extended for a further period of one year, which is in terms of the order of promotion itself. Promotion to a post on probation gives to the person promoted no right to the post, hence termination of probation without imputation resulting into reversion to the original post is no punishment. Once it so the principle of natural justice is not attracted and as such no notice is required to be given. 5. Now reverting to the authorities of the Supreme Court in the case of V.P. Ahuja (supra), the Court on fact found the order terminating probation to be stigmatic and punitive in nature and in the back ground of the said fact it was observed that holding a regular departmental enquiry was sine qua non. Similarly in the case of Chandra Prakash Shahi (supra) the order was held to be punitive in nature and in that context it was observed that regular enquiry is necessary. Thus the Supreme Court in the cases referred to above has not held as proposition of law that before terminating the probation notice or regular enquiry is required to be held. Hence the authorities are clearly distinguishable. 6. Learned counsel, then to overcome the aforesaid difficulty, relying on these authorities contend that the order terminating the promotion is punitive in nature and in that view of the matter it was incumbent upon the respondents to hold enquiry and then to revert the petitioners to the original post. It is well settled that probationer has no right to the post and probation can be terminated during or at the end of probation on account of general unsuitability for the post in question. It is well settled that probationer has no right to the post and probation can be terminated during or at the end of probation on account of general unsuitability for the post in question. If for determination of suitability of the probation an enquiry is held and on the basis of that enquiry decision is taken to terminate the probation, the order will not be punitive in nature. However, when an enquiry is held to find out the truth of misconduct and probation is terminated on the basis of finding of misconduct, the order would be punitive in nature. When I apply this principle I do not find that the order terminating probation is punitive in nature. Probation of the petitioners has not been terminated on the basis of the result of the enquiry. True it is that during the period of probation, petitioners have been visited with the penaity but their probation has not been terminated on that count. 7. From perusal of the impugned orders it is evident that the work of the petitioners was not found satisfactory during the extended period of probation and taking into consideration the same their probation has been terminated and consequently they have been reverted to their original post. From the order impugned it cannot be said that the foundation of the order is by way of punishment and therefore an enquiry was necessary. In that view of the matter, I do not find any force in the submission of the learned counsel for the petitioners and the authorities relied on are clearly distinguishable. 8. Learned counsel for the petitioners then contend that while terminating the probation the respondents in the impugned orders have not indicated the reasons. This submission, in my opinion, has also no force. As stated earlier, petitioners were promoted on probation for a period of one year from the date of their joining and thereafter their probation was extended by one year from the date of their joining. During the extended period their work was not found satisfactory and while terminating the probation the respondents have stated so in the impugned orders. Thus the ground for terminating the promotion has been indicated i.e. non-compfetion of the extending period of promotion satisfactorily. I am of the opinion that the respondents are not required to give detailed reason in the orders impugned. 9. Thus the ground for terminating the promotion has been indicated i.e. non-compfetion of the extending period of promotion satisfactorily. I am of the opinion that the respondents are not required to give detailed reason in the orders impugned. 9. Learned counsel for the petitioners lastly invited my attention to the circular dated 29.11.2002 and contends that the action of the respondents in taking into account the minor penalty imposed on them while terminating the probation is illegal. It is highlighted that question ot confirmation ought to have been decided on the basis of performance record of service only. It is contended that their service record being good, their probation ought not to have been terminated and reliance has been placed on paragraph 2 of the said circular, which reads as follows : "All out efforts be made by disciplinary authorities to finalise the disciplinary proceedings during the extended period of probation and if the employee is exonerated from the charges levelled against him/her in disciplinary proceedings, his/her confirmation orders be issued immediately on such exoneration and on basis of his PRS for first year on probation. In other cases than exoneration the disciplinary proceedings should be decided for imposition of penalty on merits/gravity of the case without linking the confirmation proceeding. If major penalty or reversion, compulsory retirement removal and dismissal is imposed the penalty will come into force without linking of confirmation automatically. In case of other penalty, the confirmation case will be decided on the basis of performance as reflected in PRS and considering the gravity of charges and circumstances leading to the imposition of penalty." (Underlining mine) 10 It is not the case of the respondents that petitioners probation has been terminated on account of imposition of minor penalty, their case is that probation has been terminated due to non-satisfactory performance. True it is that in the counter affidavit the fact of imposition of minor penalty has been stated. 11. it is relevant here to state that the aforesaid circular was issued on 29.11.2002 whereas the impugned orders have been passed prior to that, in any view of the matter, even if I assume in favour of the petitioners that said circular applies, same, instead of supporting the case of the petitioners, goes against them. 11. it is relevant here to state that the aforesaid circular was issued on 29.11.2002 whereas the impugned orders have been passed prior to that, in any view of the matter, even if I assume in favour of the petitioners that said circular applies, same, instead of supporting the case of the petitioners, goes against them. As stated earlier, petitioners were promoted on probation which was extended fay one year from the date of their joining and during the extended period petitioners have been visited with one or the other minor penalty. Respondents in the counter affidavit have stated the said fact, although in the impugned orders no reference to the penalty imposed on the petitioners has been mentioned. From perusal of the impugned orders it is evident that the extended period of probation was not completed by the petitioners satisfactorily. Not only this, during the extended period they were visited with the minor penalty. In a case in which an employee working on probation is visited with the penalty, nothing prevents the respondents from considering the same while taking decision in regard to the confirmation of the employees. In fact in the circular relied on by the petitioners themselves it has been provided that in case of penalty other than reversion, compulsory retirement, removal and dismissal the case of confirmation shall be decided on the basis of the performance as reflected in PRS and considering the gravity of charges and circumstances leading to the imposition of penalty. In that view of the matter, I am of the opinion that the respondents did not err in considering the penalty imposed on the petitioners during the extended. Matter would have been different, had the reversion effected on account of infliction of penalty. 12. It has been pointed out that the petitioners have preferred appeal against the order imposing the penalty. This decision shall have no bearing on the same and the petitioners shall be free to request the respondents to consider the appeal on its own merit. 13. In the result, I do not find any merit in these applications and they are dismissed accordingly. No costs.