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2004 DIGILAW 180 (GAU)

Piyush Sharma v. Food Corporation of India

2004-03-15

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. The Writ Petitioner Shri Piyush Sharma was appointed as the Deputy Manager, Food Corporation of India, hereinafter referred to as Corporation and accordingly, the Petitioner joined his duties on 5.6.2000. The Petitioner was placed on probation for one year but before completion of the period of one year, the period of probation was extended for further period of one year in terms of the Regulation 15(2) of the Food Corporation of India (Staff) Regulation, 1971, in short, the Regulation. 2. On 28.7.2001, a show cause notice was issued to the Petitioner under Regulation 58. The Petitioner filed a written statement/defence on 22.9.2001 denying the charges. The concerned authority thereafter decided to hold the departmental enquiry and appointed an Inquiring Officer. However, before the enquiry could start, the Petitioner was served with impugned order dated 21.5.2002 terminating his services with immediate effect as per Regulation 15(2) of the Regulation. 3. In this writ petition, the Petitioner has challenged the impugned order of termination mainly on the ground that once the Authority had initiated a departmental proceeding making serious allegation against the Petitioner, they are bound to complete the same and take action as per the Regulation of the departmental proceeding. It is further alleged that the impugned order of termination has put a stigma and as such it is required to be quashed. 4. The Respondent Corporation has filed an affidavit in opposition where the broad facts of the case are not disputed. It is submitted that the performance of the Writ Petitioner during the 1st year of service was found un-satisfactory and hence the period of probation was extended as provided under the rules. It is also admitted that the departmental proceeding was initiated and show cause notice was issued and an Inquiry Officer was also appointed but thereafter the Corporation decided to resort to the provisions of Clause 53 of the Regulation and terminated the services of the Petitioner. It is submitted that the maximum period of probation is two years and as the enquiry was not expected to be completed within the said period, the Petitioner would deem to have been confirmed on completion of 2 years. Hence, considering unsatisfactory performance of the Petitioner during the probationary period, the impugned order was passed terminating the services which is an order of termination simpliciter and no stigma is involved. 5. Hence, considering unsatisfactory performance of the Petitioner during the probationary period, the impugned order was passed terminating the services which is an order of termination simpliciter and no stigma is involved. 5. In view of the above, we find that there is no dispute at the bar that the Petitioner was under probation and the said period of probation was extended under Regulation 15, which reads as follows: 15. PROBATION: (a) 1. Every person regularly appointed to any post in the Corporation under Sub-clause (a) of Clause (1) of Regulation 7 shall be required to be on probation for a period of one year from the date of appointment. Provided further that there will be no probation for a person promoted from one grade to another grade within the same category except where the promotion involves a change in the category of post in the same cadre e.g. if an Asstt. Grade III is promoted as Asstt. Grade II there will be no probation whereas if a Messenger (Category IV official) is promoted as Asstt. Grade III (Category III) or an Asstt. Grade-1 (Category III) is promoted as Asst. Manager (Category-II) normal probation period shall be applicable. Similarly if an Asstt. Manager (Category II) is promoted as Deputy Manager (Category-II) there will not be any probation. 2. The appointing authority may in his discretion extend the period of probation by a further period not exceeding one year. 3. During the period of probation an employee directly recruited shall be liable to be discharged from service without assigning any reason by giving him a notice of 30 days or pay and allowances in lieu thereof. An employee promoted from a lower post to a higher post shall be liable to be reverted to the lower post without notice and without assigning any reason. 4. An employee who has satisfactorily completed his probation in any post shall thereafter be confirmed. 5. Where an employee has rendered continuous temporary service or continuous service on deputation in any post immediately preceding his regular appointment to such post, the period of service so rendered temporarily or on deputation maybe counted against the period of probation if the appointing authority so directs. 6. 5. Where an employee has rendered continuous temporary service or continuous service on deputation in any post immediately preceding his regular appointment to such post, the period of service so rendered temporarily or on deputation maybe counted against the period of probation if the appointing authority so directs. 6. The question has been raised by the Petitioner is whether in case of a probationary employee, when disciplinary proceeding is once initiated, the employer has any discretion to abandon the same and terminate the service. 7. In the case of Benjamin (A.G.) v. Union of India (1967) I LLJ 718 (S.C.), a show cause notice was issued to the employee and Inquiring Officer was appointed, but before completion of the enquiry, the services of the employee was terminated. The Constitution Bench upheld the order of termination. In a later case of State of U.P. v. Kaushal Kishroe Sukla (1991) 1 SCC 691 , Apex Court held that the mere fact that prior to the issue of the order of termination, an enquiry was held against the employee by the authority, does not make the order of termination into one of punishment. 8. In the case of Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002 1 SCC 520 , a summary enquiry was held against the employee and even a report was submitted by the Inquiry Officer after completion of the enquiry but instead of proceeding in accordance with the enquiry report, a termination order was passed. The Apex Court held: We are also not prepared to hold that the enquiry held prior to the order of termination turned this otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A charge-sheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the Appellant than an inability to meet the requirements for the post. None of the three factors catalogued above for holding that the termination was in substance punitive exists here. 9. A charge-sheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the Appellant than an inability to meet the requirements for the post. None of the three factors catalogued above for holding that the termination was in substance punitive exists here. 9. In the P.N. Verma case the Apex Court further held that "One of the judicially evolved test to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld." 10. Coming to the facts of the present case, we find that although a show cause notice was issued and an Inquiring Officer was appointed, the departmental proceeding did not commence and the impugned order was passed. We, therefore, find that there is no full scale formal enquiry and it did not culminate in finding of guilt. Thus, the two factors as stated above are missing. 11. Further, we find that as per Sub-clause 3 of Clause 15 of the Regulation as quoted above, an employee recruited directly can be discharged from service without assigning any reason. Moreover, as per Sub-clause C of Clause 54 of the Regulation "termination of service or reversion to a lower category or post of an employee appointed or promoted on probation either during or at the end of the period of probation does not constitute a penalty within the meaning of the Regulation. 12. In view of the above, we have no hesitation to hold that the termination of service of the Writ Petitioner cannot be termed as illegal. As regards the plea that the termination order amounts to a stigma, we may reproduce the order of termination- OFFICE ORDER On his appointment to the post of D.M. (Genl.) Shri Piyush Sharma was placed on probation for a period of one year w.e.f. 22.5.2000. His probation was extended for a further period of one year w.e.f 22.5.2001 vice office order of even number dated 13.7.2001. His probation was extended for a further period of one year w.e.f 22.5.2001 vice office order of even number dated 13.7.2001. The probation of Shri Piyush Sharma, D.M. (Genl.) is hereby terminated with immediate effect in terms of Regulation 15(3) of FCI (Staff) Regulations, 1971 and he is discharged from the services of Food Corporation of India. 13. On bare perusal of the Impugned order dated 21st May, 2002, we find that it is an order of termination simpliciter and there is no stigma attached and the Petitioner will be at liberty to try for a career elsewhere. 14. In view of the above, we find no merit in this Writ Petition. Accordingly, the writ petition is dismissed. Petition dismissed.