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2007 DIGILAW 206 (CAL)

MANJIT SINGH BAWA v. FOOD CORPORATION OF INDIA

2007-03-22

ARUNABHA BASU, PRANAB KUMAR CHATTOPADHYAY

body2007
PRANAB KUMAR CHATTOPADHYAY, J. ( 1 ) THIS appeal has been preferred at the instance of the writ petitioner who filed the writ petition before the learned single Judge challenging the order dated 25th January, 1990 passed by the managing Director, Food Corporation of India discharging the said writ petitioner from the service of the said Corporation with immediate effect. ( 2 ) FROM the records it appears that the appellant/writ petitioner was offered appointment to the post of Joint Manager (General) in the Food Corporation of india in terms of office order dated 11th January, 1988 on the basis of certain terms and conditions as mentioned in the said office order. The appellant/writ petitioner joined the service pursuant to the aforesaid office order on 29th january, 1988. In the said office order it was specifically provided that the appellant/writ petitioner shall be on probation for a period of one year from the date of his appointment which may be extended by a further period of not exceeding one year. It was also mentioned in the said office order that on completion of the period of probation, the writ petitioner will be considered for confirmation in that post. The probationary period of the appellant, however, was extended from time to time upto the maximum period of two years i. e. till 28th January, 1990. ( 3 ) SINCE the performance of the writ petitioner was allegedly not found satisfactory even during the extended period of probation, the Managing Director of the said Corporation in exercise of the powers conferred by Regulation 15 (3)of Food Corporation of India (Staff) Regulations, 1971 discharged the said writ petitioner from the service of the Corporation with immediate effect upon issuing the office order dated 25th January, 1990 which according to the said writ petitioner was received at the zonal office of the respondent No. 1 on 29th january, 1990. ( 4 ) FROM the records it appears that the order of discharge was intended to be served on the appellant and was allegedly pasted on the doors of the residential quarter of the said appellant in the afternoon of 29th January, 1990. It has been urged on behalf of the appellant that the said appellant was deemed to have been confirmed in service immediately on expiry of the maximum two years period of probation. It has been urged on behalf of the appellant that the said appellant was deemed to have been confirmed in service immediately on expiry of the maximum two years period of probation. It has also been submitted on behalf of the appellant that the status of the said appellant after the expiry of the maximum period of probation of two years i. e. after 28th January, 1990 was that of a regular employee since the said appellant ceased to be a probationer w. e. f. 28th January, 1990. The learned Counsel of the appellant submits that the said appellant was in regular employment of the Corporation at least upto the afternoon of 29th January, 1990 when the impugned order of discharge was allegedly pasted on the door of the residential quarter of the said appellant. The learned Counsel of the appellant further submits that since the appellant was in regular employment of the Corporation after 28th January, 1990 i. e. beyond the maximum period of probation, the said appellant should be deemed to have been confirmed in service upon expiry of the maximum period of probation i. e. from the forenoon of 29th January, 1990 and therefore, the Managing Director of the respondent Food Corporation of India had no authority to discharge the appellant from the service of the Corporation in exercise of the powers conferred by Regulation 15 (3) of the F. C. I. (Staff) Regulations, 1971. ( 5 ) THE learned Counsel of the appellant submits that the impugned order of discharge issued to the appellant herein cannot be treated as an order of discharge simpliciter during probation. Mr. Malay Chakraborty, learned Counsel of the appellant also urged that this Court should lift the veil in order to see under what circumstances the order of termination has been passed in the present case. Mr. Chakraborty submits that the order of termination issued to the writ petitioner was punitive in nature and the observation of the Managing director regarding the performance of the appellant attaches stigma and therefore, this Court should ascertain the real character of the impugned order of termination even though it is innocuously framed. Mr. Chakraborty submits that the order of termination issued to the writ petitioner was punitive in nature and the observation of the Managing director regarding the performance of the appellant attaches stigma and therefore, this Court should ascertain the real character of the impugned order of termination even though it is innocuously framed. The learned Counsel of the appellant further submits that without holding a regular enquiry in the facts of the present case, disciplinary authority was not entitled to terminate the service of the writ petitioner specially when the said writ petitioner completed the maximum period of probation before issuance of the said order of termination. The learned Counsel of the appellant referred to and relied on the following decisions of the Hon'ble Supreme Court in support of the arguments: (1) AIR 1968 SC 1210 [state of Punjab vs. Dharam Singh] (Paragraphs 5, 8 and 9 ). (2) 1974 (2) SCC 831 [samsher Singh vs. State of Punjab] (Paragraphs 8, 69 and 70) (3) 1986 Supp. SCC 95 [om Prakash Maurya vs. U. P. Co-op. Factories federation and Ors. ] (Paragraph 5) (4) 1987 (4) SCC 482 (State of Gujarat vs. Akhilesh C. Bhargav] (Paragraph 8) (5) 1987 Supp. SCC 643 [m. K. Agarwal vs. Gurgaon Gramin Bank] (Paragraph 8) (6) 1998 (3) SCC 321 [wasim Beg vs. State of U. P. ] (Paragraph 15) (7) 2000 (5) SCC 250 [karnataka State Road Transport Corporation vs. S. Manjunath] (Paragraph 14 ). ( 6 ) IT has, however, been submitted on behalf of the respondents that during the probationary period, performance of the appellant/writ petitioner was assessed and evaluated. Mr. R. N. Das, learned Senior Counsel of the respondents submits that on the basis of such evaluation, the initial probationary period was extended twice and considering the unsatisfactory performance of the appellant/writ petitioner, the respondent Managing Director ultimately issued an order on 25th January, 1990 discharging the said appellant/ writ petitioner from the service of the respondent-Food Corporation of India with immediate effect. The learned Advocate of the respondent-Corporation also submits that the aforesaid order of termination was issued on 25th January, 1990 i. e. before the expiry of the maximum period of probation of the said appellant/writ petitioner and the same was sought to be served on the appellant on 29th January, 1990 but as the same could not be served, the said order was ultimately pasted on the door of the residential premises of the said appellant on 29th January, 1990. ( 7 ) IT is, therefore, to be decided now whether the order passed by the respondent Managing Director discharging the appellant/writ petitioner from service due to unsatisfactory performance during the period of probation and communicated to the said appellant/writ petitioner after expiry of the maximum period of probation can be declared as valid and proper. It is also to be decided whether any stigma has been attached to the appellant in view of recording unsatisfactory performance in the impugned order of discharge issued to the said appellant. ( 8 ) MR. R. N. Das, learned Senior Counsel representing the respondent authorities submits that the impugned order of termination issued to the appellant does not cast any stigma on the said appellant in view of recording unsatisfactory performance in the said impugned order. Mr. Das further submits that the service of the appellant herein cannot be confirmed automatically even after expiry of the maximum period of probation as Regulation 15 (4) of FCI (Staff) Regulations, 1971 provides that the service of an employee shall be confirmed subject to satisfactory completion of the probationary period and in the instant case, the appellant/writ petitioner since failed to complete the probationary period satisfactorily, question of automatic confirmation even after expiry of the maximum period of probation cannot and does not arise. ( 9 ) IT is well-settled that a probationer can be discharged before expiry of the period of probation by issuing a simple order of termination but the termination would be illegal if the same is issued in order to punish the employee for any misconduct or casts a stigma on the employee concerned. During the period of probation, however, the authorities are entitled to assess the performance of the probationer and record the finding of unsatisfactory performance on the basis of such assessment. ( 10 ) IN the case of Kunwar Arun Kumar vs. U. P. Hill Electronics Corporation ltd. During the period of probation, however, the authorities are entitled to assess the performance of the probationer and record the finding of unsatisfactory performance on the basis of such assessment. ( 10 ) IN the case of Kunwar Arun Kumar vs. U. P. Hill Electronics Corporation ltd. and Ors. , reported in 1997 (2) SCC 191 , the Hon'ble Supreme Court has specifically observed that during the period of probation, the authorities are entitled to assess the suitability of the candidates and are also entitled to terminate the service of the probationer due to the said unsatisfactory performance. In the said decision, Supreme Court has also observed that the aforesaid action of the authorities does not amount to any stigma. In the aforesaid case, Hon'ble Supreme Court observed in paragraph 5 as follows: "5. . . . . . . . . . . During the period of probation, the authorities are entitled to assess the suitability of the candidates and if it is found that the candidate is not suitable to remain in service they are entitled to record a finding of unsatisfactory performance of the workand duties during the period of probation. Under these circumstances, necessarily the appointing authority has to look into the performance of the work and duties during the period of probation and if they record a finding that during that probation period, the work and performance of the duties were unsatisfactory, they are entitled to terminate the service in terms of the letter of appointment without conducting any enquiry. That does not amount to any stigma. . . " ( 11 ) IN the case of State of Punjab and Ors. vs. Bhagwan Singh, reported in 2002 (9) SCC 636, Hon'ble Supreme Court has specifically held that assessment of work of a probationer by the authorities concerned for the purpose of discharge would not amount to stigma. The relevant portion of paragraph 4 of the aforesaid decision is quoted hereunder: "4. . . . . . . . . . In our view, when a probationer is discharged during the period of probation and if for the purpose of discharge, a particular assessment of his work is to be made, and the authorities referred to such an assessment of his work, while passing the order of discharge, that cannot be held to amount to stigma. . . . . . In our view, when a probationer is discharged during the period of probation and if for the purpose of discharge, a particular assessment of his work is to be made, and the authorities referred to such an assessment of his work, while passing the order of discharge, that cannot be held to amount to stigma. " ( 12 ) IN view of the aforesaid decisions of the Supreme Court recording of unsatisfactory performance of the appellant during the period of probation by the Managing Director of the Food Corporation of India in the impugned order of discharge does not amount to any stigma. ( 13 ) UNDISPUTEDLY, the appellant joined the post of Joint Manager (General)as probationer on 29th January, 1988 and the maximum period of probation was for a period of two years i. e. upto 28th January, 1990 (forenoon ). Therefore, it is required to be examined what would be the status of the appellant after 28th January, 1990 (forenoon ). Mr. Chakraborty, learned Counsel for the appellant contended that the status of the appellant should be of a regular employee after 28th January, 1990 since the said appellant ceased to be a probationer w. e. f. 28th January, 1990 (forenoon ). ( 14 ) MR. Das referring to the decision of the Supreme Court in the case of high Court of M. P. through Registrar and Ors. vs. Satya Narayan Jhavar reported in 2001 (7) SCC 161 , submits that in the present case, appellant herein cannot acquire the status of confirmed employee on the principle of deemed confirmation as the said appellant did not complete the probationary period satisfactorily. According to Mr. Das, appellant herein cannot be confirmed without complying with the specific procedure mentioned in Regulation 15 (4) of the FCI (Staff)Regulations, 1971 whereby and whereunder an employee who has satisfactorily completed his probation in any post can be confirmed. Mr. Das also submits that in view of Regulation 15 (4) of FCI (Staff) Regulations, 1971, inference of deemed confirmation on the expiry of maximum period of probation cannot be drawn in the present case. The service of the appellant during the probationary period was governed by Regulation 15 (4) of the FCI (Staff) Regulations, 1971, which reads as under: "15. Das also submits that in view of Regulation 15 (4) of FCI (Staff) Regulations, 1971, inference of deemed confirmation on the expiry of maximum period of probation cannot be drawn in the present case. The service of the appellant during the probationary period was governed by Regulation 15 (4) of the FCI (Staff) Regulations, 1971, which reads as under: "15. Probation.- (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. (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 proceeding his regular appointment to such post, the period of service so rendered temporarily or on deputation may be counted against the period of probation if the appointing authority so directs. Explanation.- The term 'allowances' used in this Regulation means and includes Dearness Allowance and Additional Dearness Allowances only and does not include any compensatory or other allowances. " ( 15 ) WHILE considering the status of a probationer after the maximum period of probation, Supreme Court in the case of High Court of M. P. vs. Satya Narayan jhavar (Supra) observed as hereunder: "35. In the case on hand, correctness of the interpretation given by this court to Rule 24 of the Rules in the case of Dayaram Dayal is the bone of contention. In the case on hand, correctness of the interpretation given by this court to Rule 24 of the Rules in the case of Dayaram Dayal is the bone of contention. In the aforesaid case, no doubt, this Court has held that a maximum period of probation having been provided under sub-rule (1) of rule 24, if a probationer's service is not terminated and he is allowed to continue thereafter it will be a case of deemed confirmation and the sheet anchor of the aforesaid conclusion is the Constitution Bench decision of this court in the case of Dharam Singh. But, in our considered opinion in the case of Dayaram Dayal, Rule 24 of the Rules has not been interpreted in its proper perspective. A plain reading of different sub-rules of Rule 24 would indicate that every candidate appointed to the cadre will go for initial training for six months whereafter he would be appointed on probation for a period of 2 years and the said period of probation would be extended for a further period not exceeding 2 years. Thus, under sub-rule (1) of Rule 24 a maximum period of 4 years probation has been provided. The aforesaid sub-rule also stipulates that at the end of the probation period the appointee could be confirmed subject to his fitness for confirmation and to his having passed the departmental examination as may be prescribed. In the very sub-rule, therefore, while a maximum period of probation has been indicated, yet the question of confirmation of such a probationer is dependent upon his fitness for such confirmation and his passing of the departmental examination by the higher standard, as prescribed. It necessarily stipulates that the question of confirmation can be considered at the end of the period of probation, and on such consideration if the probationer is found suitable by the appointing authority and he is found to have passed the prescribed departmental examination then the appointing authority may issue an order of confirmation. It is too well-settled that an order of confirmation is a positive act on the part of the employer, which the employer is required to pass in accordance with the rules governing the question of confirmation subject to a finding that the probationer is in fact fit for confirmation. It is too well-settled that an order of confirmation is a positive act on the part of the employer, which the employer is required to pass in accordance with the rules governing the question of confirmation subject to a finding that the probationer is in fact fit for confirmation. This being the position under sub-rule (1) of Rule 24, it is difficult for us to accept the proposition, broadly laid down in the case of Dayaram Dayal and to hold that since a maximum period of probation has been provided thereunder, at the end of that period the probationer must be held to be deemed to be confirmed on the basis of the judgment of this Court in the case of Dharam singh. "37. Ordinarily a deemed confirmation of a probationer arises when the letter of appointment so stipulates or the rules governing service conditions so indicate. In the absence of such term in the letter of appointment or in the relevant rules, it can be inferred on the basis of the relevant rules by implication, as was the case in Dharam Singh. But it cannot be said that merely because a maximum period of probation has been provided in the service Rules, continuance of the probationer thereafter would ipso facto must be held to be a deemed confirmation which would certainly run contrary to the seven-Judge Bench judgment of this Court in the case of Samsher singh and the Constitution Bench decision in the cases of Sukhbans Singhs. G. S. Ramasmamy and Akbar Ali Khan. " ( 16 ) IN the aforesaid decision, Hon'ble Supreme Court considered various earlier decisions including the case of State of Punjab vs. Dharam Singh, reported in AIR 1968 SC 1210 , Samsher Singh vs. State of Punjab, reported in 1974 (2) SCC 831 and other decisions cited on behalf of the appellant herein. ( 17 ) IN the present case, sub-regulation (4) of Regulation 15 specifically provides that an employee shall be confirmed subject to satisfactory completion of the probation and such satisfaction has admittedly, not been recorded by the competent authority in respect of the appellant. Therefore, continuance of the appellant even after expiry of the maximum period of probation would not confer the status of deemed confirmation to the appellant herein. Therefore, continuance of the appellant even after expiry of the maximum period of probation would not confer the status of deemed confirmation to the appellant herein. ( 18 ) FOR the aforementioned reasons, we are of the opinion that the learned single Judge was justified in dismissing the writ petition filed by the appellant herein and we affirm the judgment and order under appeal passed by the learned single Judge. ( 19 ) THIS appeal is, therefore, dismissed being devoid of any merit. There will be, however, no order as to costs. Appeal dismissed. .