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2007 DIGILAW 217 (CAL)

Sudhin Kumar Ghosh v. Damodar Valley Corporation

2007-03-23

ARUNABHA BASU, K.CHATTOPADHYAY

body2007
Judgment :- P.K. CHATTOPADHYAY, J. (1) THIS appeal has been preferred by the writ petitioner and is directed against the judgment and order dated October 1, 2004 passed by the learned Single Judge in VV. P. No. 15661 (W) of 2004 whereby and whereunder the said learned Single Judge dismissed the writ petition. (2) THE appellant was initially offered appointed as corporate Secretary and Legal Advisor of the Damodar Valley Corporation and a letter was issued in this regard by the respondent-Director (HRD) to the said appellant on 4th May, 2001 bearing No. PL-30/716-2033. The appellant thereafter reported to the Secretary of the respondent Damodar Valley Corporation for joining the duty on 16th May, 2001 when the said appellant was advised to join an Officer-on-Special Duty since the designation of the said appellant was yet to be decided by the Board of the respondent-Corporation. The said appellant joined as Officer-On-Special duty and duly filled up the attestation form which was also filed to the Secretariat Department on the same day. In terms of the appointment offer dated 4th May, 2001, appellant was placed on probation initially for six months. (3) BY the office order dated 26th June, 2001, the appellant was informed by the respondent No. 2 that his designation would be Additional Secretary (Corporate and Legal). The main functions and job responsibilities of the appellant in the said post of additional Secretary (Corporate and Legal) were also mentioned in the aforesaid Office Memorandum dated June 26, 2001. Subsequently, by the letter dated 12th November, 2001, the period of probation of the said appellant was extended for a further period of six months w. e. f. 16th November, 2001. (4) BEFORE expiry of the aforesaid period of probation, service of the appellant was terminated by the order dated 10th May, 2002 issued by the respondent No. 3 under Regulation 12 of the Damodar Valley Corporation Service Regulations. The said order of termination dated 10th May, 2002 is set out hereunder: "no. PL-30/716-3001 Dated: 10. 5. 02 order Shri Sudhin Kumar Ghosh had joined Damodar valley Corporation as Officer-On-Special Duty, Secretariat Department, Kolkata on 16th May, 2001. He was placed oh probation for a period of six months initially and subsequently his designation was Additional Secretary (Corporate and Legal) and his probation period was further extended for six months with effect from 16. 11. 2001. 5. 02 order Shri Sudhin Kumar Ghosh had joined Damodar valley Corporation as Officer-On-Special Duty, Secretariat Department, Kolkata on 16th May, 2001. He was placed oh probation for a period of six months initially and subsequently his designation was Additional Secretary (Corporate and Legal) and his probation period was further extended for six months with effect from 16. 11. 2001. Now, under Regulation -12 of DVC Service Regulations the services of Shri Sudhin Kumar Ghosh are terminated with immediate effect. This issue with the approval of the competent authority. (A. R. Chhandhuri)Director (HRD)" The aforesaid order was challenged by the appellant in the writ petition which was dismissed by the learned Single Judge by the judgment and order under appeal. The said decision of the learned single Judge has been challenged in this appeal; Mr. Milan Bhattacharyya, learned Counsel of the appellant submits that the appellant herein never joined the Damodar Valley Corporation as Officer on-Special Duty and therefore, the said appellant cannot be terminated from the service of the Damodar Valley Corporation treating the initial appointment as Officer-on-Special Duty. Mr. Bhattacharya further submits that there is no scope to extend the probationary period of the appellant under Regulation 12 of the Damodar Valley Corporation Service Regulations although the respondent authorities extended the probationary period of the appellant while posted as Additional Secretary (Corporate and Legal) in an illegal manner and terminated the service during the said extended period of probation. Mr. Bhattacharyya also submits that the impugned termination order issued to the appellant casts a stigma on the appellant and therefore, the said order of termination cannot be treated as termination simpliciter during probation. Mr. Bhattacharyya urged before this Court that the order of termination issued to the appellant was really punitive in nature and casts stigma on the appellant and therefore, this Court should ascertain the real character of the impugned order of termination even though the same is innocuously framed. The learned Counsel of the appellant referred to the following decisions in support of his arguments:(1) Anoop Jaiswal v. Government of India, 1984 (48) FLR 258 (SC). (2) Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd. and others, (2003) 3 SCC 263 : 2003 (96) FLR 1166 (SC) (Paragraph 11) (3) V. P. Ahuja v. State of Punjab; 2003 (3) JT (SC) 1: 2000 (85) FLR 197 (SC). (2) Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd. and others, (2003) 3 SCC 263 : 2003 (96) FLR 1166 (SC) (Paragraph 11) (3) V. P. Ahuja v. State of Punjab; 2003 (3) JT (SC) 1: 2000 (85) FLR 197 (SC). (Paragraphs 7 and 8) (4) Registrar, Appellate Side, High Court, calcutta and others v. Jayanta Kumar Dasgupta and others, 2005 (3) CHN 52 (Paragraphs 9 and10) (5) Chandra Prakash Shahi v. State of U. P and others, (2000) 5 SCC 152 (Paragraphs 12 and 30). (5) IN our opinion, the learned Counsel of the appellant was totally confused and could not even appreciate the facts properly. It has been specifically admitted by the appellant in the writ petition that initially the said appellant joined as Officer-On-Special Duty as the designation of the said appellant was not decided initially by the Board of the respondents. The paragraph 5 of the writ petition is quoted hereunder: "5. On 16th May, 2001, the petitioner went for joining and reported to the Secretary of the respondent. The Director, HRD Department informed the petitioner on the same day that the designation of the petitioner was yet to be decided by the board of the respondent, therefore, petitioner was advised to join as Officer-On-Special duty. The petitioner joined as Officer-On-Special duty. The petitioner duly filled up the Attestation form and on the same day filed it to the Secretariat Department. " (6) IT is true that the appellant was offered the post of Corporate Secretary and Legal Advisor by the written communication relating to appointment offer dated 4th May, 2001 but as a matter of fact, the appellant was advised to join initially as officer-On-Special Duty and pursuant to such advise the said appellant joined the Damodar Valley Corporation as officer-On-Special Duty. However, it is not in dispute that the said designation of the appellant was subsequently changed to Additional Secretary (Corporate and Legal). (7) IT has been urged on behalf of the appellant that the probationary period cannot be extended under regulation 12 although we do not find any restriction in this regard in the aforesaid Regulation 12 of the Damodar Valley Corporation Service Rules. The said Regulation 12 of the Damodar Valley Corporation Service Rules runs as under: "12. (7) IT has been urged on behalf of the appellant that the probationary period cannot be extended under regulation 12 although we do not find any restriction in this regard in the aforesaid Regulation 12 of the Damodar Valley Corporation Service Rules. The said Regulation 12 of the Damodar Valley Corporation Service Rules runs as under: "12. Unless otherwise provided in any individual contract all appointments except officiating appointments shall be on probation for such period as may be determined by the Corporation, during which time, the service of any employee can be terminated without notice. " (8) IT has been specifically provided in the aforesaid regulation 12 that all appointments excepting officiating appointments shall be on probation for such period as may be determined by the Corporation. In the present case, the probationary period of the appellant was initially for six months, which was extended by the competent authority for a further period of six months w. e. f. 16th November, 2001. We do not find any illegality and/or irregularity in the aforesaid extension of the probationary period of the appellant as in terms of Regulation 12, any employee shall be on probation for such period as may be determined by the respondent-Corporation. (9) NOW, it is to be decided whether the impugned order of termination casts any stigma on the appellant herein. The learned Counsel of the appellant urged before this Court for lifting the veil in order to find out whether the impugned order of termination is based on any misconduct. Undisputedly, the appellant did not even allege either in any representation after receiving the order of termination or even in the writ petition that the respondents herein issued the aforesaid order of termination due to some undisclosed reasons or on account of any alleged misconduct. The appellant did not refer to any incident and/or any undisclosed reason as the real basis and/or foundation of the impugned order of termination during probation and therefore, question of lifting the veil in the facts of the present case cannot and" does not arise. (10) FOR the reasons discussed hereinbefore, we are satisfied that the impugned order of termination issued to the appellant herein was neither stigmatic nor punitive. In our considered opinion, the respondent-Damodar Valley Corporation Authorities terminated the service of the appellant before expiry of the period of probation by way of simpliciter termination. (10) FOR the reasons discussed hereinbefore, we are satisfied that the impugned order of termination issued to the appellant herein was neither stigmatic nor punitive. In our considered opinion, the respondent-Damodar Valley Corporation Authorities terminated the service of the appellant before expiry of the period of probation by way of simpliciter termination. (11) IN the case of Anoop Jaiswal v. Government of India (supra), the report/recommendation of the superior authority was the real basis or foundation for the order of discharge but in the instant case, the appellant did not even refer to any incident and/or undisclosed reasons as the basis and/or foundation of the impugned order of discharge. Therefore, the aforesaid decision of the Supreme Court cannot be of any help to the appellant herein. (12) IN the case of V. P. Ahujav. State of Punjab and others (supra), the Supreme Court specifically held that the order of termination was unsustainable as the same was ex facie stigmatic and punitive. The aforesaid decision cannot be made applicable in the facts of the present case as the impugned order of termination passed herein is not stigmatic or punitive. We also fail to understand how the other decision of the Supreme Court in the case of Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd. and others (supra) can be of any help to the appellant herein in the facts of the present case. The decision of this Honble Court in the case of Registrar, Appellate Side, High Court, Calcutta and others v. Jayanta Kumar Dasgupta and others, 2005 (3) CHN 52 and the decision of the Supreme court in the case of Chandra Prakash Shahi v. State of U. P. and others, 2005 5 SCC 152 are also not applicable in the facts of the present ease. (13) HAVING regard to the facts and circumstances of this case and for the reasons stated hereinabove, we do hot find any illegality and/or irregularity in the impugned order of termination. Accordingly, we decline to interfere with the judgment and order under appeal and affirm the decision of the learned single Judge. (14) THIS appeal is, therefore, dismissed being devoid of any merit. There will be, however, no order as to costs. Appeal Dismissed.