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Madhya Pradesh High Court · body

2007 DIGILAW 181 (MP)

GIRVARSINGH RAWAT v. STATE OF M P

2007-02-14

J.K.MAHESHWARI

body2007
Judgment ( 1. ) PETITIONER has filed this petition challenging the order Annexure A-3 (a), dated 17-5-84, terminating his service by issuing one months notice. The appeal / representation submitted against such order has also been rejected vide order annexure A-1 (a), dated 17-8-98 and communicated on 28-8-98, vide Annexure a-2. However, this petition was filed before the M. P. State Administrative tribunal; on its abolition the case is relegated to this Court for final adjudication and renumbered as W. P. No. 6189/03. ( 2. ) IT is the case of petitioner that he was appointed as Revenue inspector on probation through direct recruitment vide order dated 22-6-82 annexure A-5. The appointment was in the regular scale of pay Rs. 195-5-240-6-252-EB-6-270-10-330/ -. As per the terms of appointment, petitioner was required to undergo training and to qualify the departmental examinations. He is required to submit a bond of surety amount Rs. 2,000/-, to serve the department upto three years, on completion of training. It is also mentioned in the order that on failure to serve upto three years, it is incumbent on his to deposit the said amount of Rs. 2,000/- in Treasury. ( 3. ) DUE to pre requisite conditions, petitioner was sent for training, which he has successfully completed, as apparent from the certificate of relieving Annexure A-6, dated 20-6-83. One rejoining his duties by 22-6-83 in the Office of Assistant Settlement Officer, Khandwa (M. P.), work was assigned to him. It is further his case, that the Settlement Officer, Khandwa was in occupation to threaten him of dire consequences, including removal from job; on account of non-fulfillment his undue demands, at the time of receiving the payment of salary. It is further stated in the petition that during the period of probation respondents have never asked for any explanation or issued any memo for unsatisfactory discharge of his duties. It is stated that during the period of service, he has performed his duties with utmost care, zeal, ability, faithfully and hard work. However, it cannot be said that his performance was not satisfactory at any point of time during the period of probation. Even the settlement Officer has not issued any memo to him to repose dissatisfaction of his work. ( 4. However, it cannot be said that his performance was not satisfactory at any point of time during the period of probation. Even the settlement Officer has not issued any memo to him to repose dissatisfaction of his work. ( 4. ) SURPRISINGLY, the services of the petitioner were put to an end by the settlement Officer as per order Annexure A-3 (a), dated 17-5-84, which is impugned herein, indicating that "during probation the work of the petitioner was found unsatisfactory". Against his termination, an appeal in the shape of representation Annexure A-4 was filed, wherein in Paras 7, 8 and 9 the allegations of malafide against the Settlement Officer has been pleaded. It is also pleaded that his performance was satisfactory and no explanation was ever sought from him, prior to passing the order of termination. On the representation Annexure A-4 and the reminders Annexures A-7, A-10, A-11 and A-12 the comments were asked by the Commissioner Land Records from the Settlement Officer, Khandwa, vide Annexure A-13, dated 31-5-93. The office of Settlement Officer has replied it vide letter dated 13-7-93 Annexure a-14 and said that the Commissioner, Land Records is the Appointing authority of Revenue Inspector. However, the action is required from your end. Vide Annexure A-15 (a), dated 12-9-97 the Commissioner, Land Records was asked the present position of employment of the petitioner. In reply thereto it was said by the Settlement Officer, Khandwa, that he is out of employment. Thereafter, Additional Secretary of the Revenue Department has passed the order dated 17-8-98 Annexure A-1 (a), rejecting the representation of petitioner, however, this petition has been filed, challenging the order annexure A-3 (a), dated 17-5-84 as well as the rejection of his representation, by the Additional Secretary dated 17-8-98 Annexure A-1 (a ). ( 5. ) IT is urged by the learned Counsel appearing for the petitioner that the order of termination of a probationer has been passed in exercise of arbitrary powers by the Settlement Officer with a malafide intention. It is further urged that the Commissioner, Land Records or the Collector concerned is the appointing Authority, but the order of his termination has been passed by the settlement Officer, with prejudice mind on account of non-fulfilling his demands. Therefore, by assigning frivolous reason of unsatisfactory performance, the order impugned has been passed. It is further urged that the Commissioner, Land Records or the Collector concerned is the appointing Authority, but the order of his termination has been passed by the settlement Officer, with prejudice mind on account of non-fulfilling his demands. Therefore, by assigning frivolous reason of unsatisfactory performance, the order impugned has been passed. Learned Counsel further submits that no material is available on record indicating his unsatisfactory performance. Therefore, termination of his services, during the period of probation, is arbitrary and malafide; however, such order is liable to be quashed. ( 6. ) PER contra, respondents have filed their return, wherein the averments as made in the petition in Paras 6-A and 6-N have not been specifically denied. In Para 6-0 it is said that petitioner has worked under the settlement Officer, however, he is having power to pass the order of termination during the probation period. It is said that while passing the order of termination of a probationer inquiry is not necessitated, the employment of the probationer remains on the discretion and satisfaction of the immediate officer; however, on found unsatisfactory performance, the order of termination maybe passed. It is further said that petitioner was a probationer and having no right to remain continue in the employment. The Apex Court in the cases of High Court of judicature at Patna Vs. Pandey Madan Mohan Prasad Sinha and others, reported in (1997) 10 SCC 409 , and in another judgment, State of Punjab and others Vs. Sukhwinder Singh, reported in (2005) 5 SCC 569 and in the case of Muir Mills unit of NTC (U. P.) Limited Vs. Swayam Prakash Srivastava and another, reported in (2007) 1 SCC 491 laid down the principles to interfere in such cases on the basis of said judgments it is submitted by respondents that petition filed by petitioner is liable to be dismissed. ( 7. ) IN the case of Pandey Madan Mohan Prasad Sinha (supra), the honble Supreme Court has held as under:- "a probationer does not have a right to hold the post during the period of probation. The position of a probationer cannot be equated with that of an employee who has been substantively appointed on a post and has a right to hold that post. The position of a probationer cannot be equated with that of an employee who has been substantively appointed on a post and has a right to hold that post. An order terminating the services of a probationer can be questioned only if it is shown that it has been passed arbitrarily or has been passed by way of punishment without complying with the requirements of article 311 (2) of the Constitution. Since a probationer has no right to hold the post on which he has been appointed on probation, he cannot claim a right to be heard before an order terminating his services is passed. The obligation to communicate the adverse material to a person before taking action against him on the basis of the said material is a facet of the principles of natural justice. But principles of natural justice have no application in the case of termination of the services of a probationer during the period of probation since he has no right to hold the post. It is, therefore, not possible to hold that there is an obligation to communicated the adverse material to a probationer before a decision is taken on the basis of the said material that he is not fit for being retained in service. Such material can be relied upon to show that such a decision does not suffer from the vice of arbitrariness and is not capricious. Even with respect to persons who have been substantively appointed on a post and have right to hold that post, it has been held that the failure to communicate the adverse remarks in the service record would not vitiate the order of compulsory retirement. " ( 8. ) IN the judgment of Sukhwinder Singh (supra), the Honble Supreme court has held as under:- "where a Superior Officer, in order to satisfy himself whether the employee concerned should be contained in service or not makes inquiries for this purpose, it would be wrong to hold that the inquiry which was held, was really intended for the purpose of imposing punishment. The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. A probationer is on test and a temporary employee has no right to the post. In the present case, neither any formal departmental inquiry nor any preliminary fact-finding inquiry had been held and a simple order of discharge had been passed. The respondent was no probation having been appointed about eight months back. The period of probation gives time and opportunity to the employer to watch the work, ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserves a right to dispense with his services without anything more during or at the end of the prescribed period, which is styled as period of probation. The mere holding of preliminary inquiry where explanation is called from an employee would not make an otherwise innocuous order of discharge or termination of service punitive in nature. Therefore, the High Court was clearly in error in holding that the respondents absence from duty was the foundation of the order, which necessitated an inquiry as envisaged under Rule 16. 24 (ix) of the Rules. " ( 9. ) IN the case of Muir Mills Unit of NTC (U. P.) Ltd. (supra), the honble Supreme Court has held as under:- "an employee who is on probation can be terminated from services due to unsatisfactory work. The services of a probationer can be terminated at any time before confirmation, provided that such termination is not astigmatic. In the event of a non-astigmatic termination of the services of a probationer, principles of audi alteram partem are not applicable. Even if the termination order of the probationer refers to the performance being "not satisfactory", such an order cannot be said to be astigmatic and the termination would be valid. " ( 10. ) I have heard the learned Counsel appearing for the parties and perused the record. It is not in dispute that the services of the petitioner was on probation, as per the terms and conditions mentioned in his order of appointment Annexure A-5. " ( 10. ) I have heard the learned Counsel appearing for the parties and perused the record. It is not in dispute that the services of the petitioner was on probation, as per the terms and conditions mentioned in his order of appointment Annexure A-5. It is not the case of the respondents that the petitioner has not passed training and departmental examination, during the period of probation. On the other hand, the document Annexure A-6 indicates that he has passed the departmental examination and training within the specified period. On successful completion of training he has joined his duties in the Office of the Settlement Officer, Khandwa. Since joining till passing the order of termination he had worked under the Assistant Settlement Officer. While performing the duties during the period of probation neither any memo, nor explanation was sought from him, indicating unsatisfactory performance. In the writ petition Para 6-H it is specifically averred by petitioner, that he has performed his duties with utmost care, zeal, ability, faithfully and hard work, but the said averments are denied due to lack of knowledge. In Para 6-1 it is averred by the petitioner that the Settlement Officer was having ill-will with him due to malafide intention; but in reply mere denial has been made by them. In view of the said pleadings the validity of the order of termination of petitioner is required to be adjudged by this Court. ( 11. ) IN all the judgments the Apex Court has laid down the law that if the order of termination of probationer is non-astigmatic then he is having no right to get an opportunity of hearing and principle of natural justice is having no application. The probationer is having no right to hold he post and his service may be terminated at any time as per law. Mere mention of unsatisfactory performance, does not cast stigma against the employee. But, the astigmatic order may be challenged, by seeking protection of Article 311 of the constitution, or the interference may be made by the Court on the ground of arbitrary exercise of the powers. There cannot be any doubt to the principle of law laid down by the Honble Supreme Court. ( 12. ) IN the present case the order of termination of a probationer has been passed due to his unsatisfactory performance. There cannot be any doubt to the principle of law laid down by the Honble Supreme Court. ( 12. ) IN the present case the order of termination of a probationer has been passed due to his unsatisfactory performance. In the pleadings, petitioner has specifically alleged malice against the Settlement Officer,who has passed the order of termination. Those pleadings have not been specifically denied in the return; however, such pleading deserves to be admitted. As discussed above, petitioner has successfully completed his training. On joining the duties he has performed his duties with utmost care, zeal, ability, faithfully and hard work; these averments have not been denied by the respondents in their return. The averment made in the petition, that during probation no explanation with respect to unsatisfactory performance has been sought from him by any of the officer; has also not been denied by the respondents. It is further pleaded that the Settlement Officer was having ill-will against him and threatened him dire consequences even up to terminate him. Those facts too have not been denied by the respondents in their return. No document has been filed or produced before the Court to demonstrate that the order of termination of a probationer is based upon the valid reason. However, in absence of specific denial of the pleadings and in absence of any material available on record, it cannot be held that the reason for his termination is supported by the material available on record. In absence of such material and in view of the pleadings of the case it is to be held that the Settlement Officer has exercised his powers arbitrarily with intent to terminate the petitioner without any adverse material available against him. Thus, in view of the discussions made herein above the action of respondent No. 3 is arbitrary and the order of termination is liable to be quashed. The Appellate Authority, while deciding the representation, has not considered the said facts, as discussed herein above. Consequently, the order passed by the appellate Authority is also liable to be quashed. ( 13. ) ACCORDINGLY, this petition succeeds and is hereby allowed. The order of termination of the petitioner dated 17-5-84 Annexure A-3 (a) as well as the order of Appellate Authority Annexure A-1 (a), dated 17-8-98 are hereby quashed. The respondents are directed to reinstate the petitioner, without any back wages with other benefits. ( 13. ) ACCORDINGLY, this petition succeeds and is hereby allowed. The order of termination of the petitioner dated 17-5-84 Annexure A-3 (a) as well as the order of Appellate Authority Annexure A-1 (a), dated 17-8-98 are hereby quashed. The respondents are directed to reinstate the petitioner, without any back wages with other benefits. Needful be done within the period of two months from the date of communication of the order. In the facts and circumstances of the case there is no order as to costs. Writ Petition allowed.