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Madhya Pradesh High Court · body

2010 DIGILAW 153 (MP)

PHOOL SINGH KUSHWAHA v. FOOD CORPORATION OF INDIA

2010-02-05

R.K.JAISWAL

body2010
Judgment P.K.Jaiswal, J. ( 1. ) The core issue in this writ petition under Article 226 of the Constitution of India is whether the reversion of a probationer-petitioner from the promotional post of Assistant Manager (Depot) to the post of Assistant Grade- 1 (Depot) was for unsatisfactory services or for a misconduct and is punitive in nature. ( 2. ) The petitioner while working on the post of AG-I (Depot) was promoted to the post of Assistant Manager (D) vide order dated 25/7/2001 (Annexure-R/1) and was posted in the Sagar Division vide order dated 20/8/2001 (Annexure-P/1). The promotion will be effective from the date he assume charge of the post at the station where he is posted on promotion. Clause-8 of the promotion order reads as under : "8. The above officials will be on probation for a period of ONE YEAR with effect from the date they assumed the charge of the new post and this is extendable as per the provision of FCI (Staff) Regulations, 1971." ( 3. ) The petitioner accordingly reported for duties at Sagar Plinth, Sagar Division. The petitioner was served with a show cause notice for certain irregularities committed by him vide letter dated 2/6/2002 (Annexure-P/3). The petitioner submitted his reply to the said show cause notice vide letter dated 5/6/2002 (Annexure-P/4). Since the reply was not found satisfactory, he was placed under suspension vide order dated 5/8/2002 (Annexure-P/7). ( 4. ) In exercise of powers conferred by Section 45 of the Food Corporation Act, 1964, the Food Corporation of India with the previous sanction of the Central Government, framed the Regulations known as "Food Corporation of India (Staff) Regulations, 1971" (hereinafter referred to as the Regulations). As per provisions contained in sub-para-(l) of Regulation-15 of the Regulations, the officials promoted from category-Ill to category-II post are placed under probation for a period of one year and are confirmed in promotional post subject to satisfactory completion of the probation period. Regulation-15 is relevant 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 one year from the date of appointment. Regulation-15 is relevant 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 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 involved a change in the category of post in the same cadre e.g.if an Asstt. Grade-Ill is promoted as Asstt. Grade-II (Category-Ill) or an Asstt. Grade I (Category III) is promoted as Asstt. Manager (Category-II) normal probation period shall be applicable. Similarly if an Asstt. Manager (Category II) is promoted as Deputy Manager (Category I) there will be normal period of probation and for persons promoted from Deputy Manager onwards, 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 arty 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)............................................ ( 5. ) The petitioner was placed on probation for a period of one year w.e.f. 24/8/2001. The services of the petitioner were not found satisfactory as his promotion reports were not satisfactory. Moreover, he was also not free from vigilance angle and, therefore, vide order dated 19/12/2002 (Annexure-P/8), the competent authority decided to extend his probation period for a further period of one year more w.e.f.24/8/2002 under Regulation 15(2) of the Regulations and, therefore, his probation period was extended. Relevant part of order dated 19/12/2002 reads as under : On promotion to the post of Am(Depot) Shri P.S. Kushwaha was placed on probation for a period of one year w.e.f. 24/8/2001. On consideration of his case for confirmation, it is observed that his Probation Reports were not satisfactory. Moreover he was also not free from vigilance angle. Relevant part of order dated 19/12/2002 reads as under : On promotion to the post of Am(Depot) Shri P.S. Kushwaha was placed on probation for a period of one year w.e.f. 24/8/2001. On consideration of his case for confirmation, it is observed that his Probation Reports were not satisfactory. Moreover he was also not free from vigilance angle. The competent authority has therefore decided to extend his Probation for a period of one year w.e.f.24/8/2002. The probation period of Shri P. S. Kushwaha, AM(D) is therefore extended for a further period of one year w.e.f 24/8/2002 in terms of Regulation 15(2) of FCI (Staff) Regulation, 1971." ( 6. ) The petitioner was suspended on 5/8/2002 but no disciplinary action was initiated against him nor any memorandum of charge sheet was issued and, therefore, respondent No.3 vide order dated 3/2/2003 (Annexure-P/9) revoked the order of suspension and posted him in District Office, Satna. Vide letter dated 16/7/2003, the petitioner was communicated adverse remarks for the period ending 2002 and was asked to submit his representation within a period of six weeks vide letter dated 18/7/2003. The petitioner immediately on 30th August, 2003 submitted his representation before the competent authority of respondent No. 1. ( 7. ) During the probation period, the petitioners services were not found satisfactory and since he was not free from vigilance angle also and, therefore, the respondents vide order dated 22/8/2003 (Annexure-P/13) decided to terminate the probation period of the petitioner and, accordingly, while terminating the probation period, he was reverted to the post of AG-I (D) and the same was communicated to the petitioner vide order dated 23/8/2003 (Annexure-P/14) which reads as under : "In pursuance of Z.O(W), Mumbai FAX 0/order No.ESTT/6(2)/2003/MP/WZ dated 22.8.2003 Shri P.S. Kushwaha, Asstt. Manager (Depot), DO, Satna stands reverted to the post of AG-I(D) with immediate effect due to his involvement in vigilance and unsatisfactory probation reports. On reversion he is posted to DO, Satna. The said original O/order meant for the officer is enclosed herewith." ( 8. ) The law with regard to termination of the services of a probationer is well settled and it has been repeatedly held that such a power lies with the appointing authority which is at liberty to terminate the services of a probationer if it finds the performance of the probationer to be unsatisfactory during the period of probation. ) The law with regard to termination of the services of a probationer is well settled and it has been repeatedly held that such a power lies with the appointing authority which is at liberty to terminate the services of a probationer if it finds the performance of the probationer to be unsatisfactory during the period of probation. The assessment has to be made by the appointing authority itself and the satisfaction is that of the appointing authority as well. Unless a stigma is attached to the termination or the probationer is called upon to show cause for any shortcoming which may subsequently be the cause for termination of the probationers service, the management or the appointing authority is not required to give any explanation or reason for terminating the services except informing him that his services have been found to be unsatisfactory. ( 9. ) The question for my consideration is on the facts and circumstances of this case, was the reversion of the petitioner punitive or a simpliciter ? On reading of the order of reversion, it is clear that it is a reversion simpliciter, but Smt. Shobha Menon, learned senior counsel for the petitioner submits that if we read the order as a whole, it amounts to a stigmatic reversion and did not amount to reversion simpliciter. The said acts amounting to serious misconduct for which neither enquiry was held nor was any procedure contemplated under the Regulations adopted. Heavy reliance was placed on Pavanendra Narayan Verma V. Sanjay Gandhi PGI of Medical Sciences and another, (2002) 1 SCC 520 . ( 10. ) On the other hand, Shri S.K. Rao, learned senior counsel for the respondents, drew my attention to clause-8 of promotion order and submitted that petitioner was promoted on probation and he was remain on probation for the specified period. The original probation period was extended because during that period his work and conduct had not been found to be satisfactory but there was no improvement during extended period of probation and his probation report for the extended period was not found satisfactory. Moreover, he is also not free from vigilance angle and he was suspended for the period from August, 2002 to 3rd February, 2003, the impugned order of reversion was passed which is neither a stigmatic nor a punitive in nature. Moreover, he is also not free from vigilance angle and he was suspended for the period from August, 2002 to 3rd February, 2003, the impugned order of reversion was passed which is neither a stigmatic nor a punitive in nature. In support of the said contention he referred to Regulation 15(1), (2) and (3) of the Regulations and added that such order could be passed without a full-fleshed departmental enquiry. With the aforesaid submission, he prayed for dismissal of the writ petition. ( 11. ) Law in this question by now is well settled. The Apex Court in the case of Krishnadevaraya Education Trust and another V. L.A. Balakrishna, (2001) 9 SCC 319 , while considering the similar situation in held thus : "5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reasons, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, naturally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say that such a contention will succeed. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated. 6. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. 6. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. The probation is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services." ( 12. ) It is clear from the above that if the order of termination indicates that it is a termination simpliciter and does not cast any stigma on the employee by the said order of termination the mere fact that there was an inquiry into his conduct earlier would not by itself render the termination invalid. Applying the said principle, I see that the order of reversion in the present case is an order of reversion simpliciter. As per suspension order dated 5/8/2002, it reveals that earlier the respondent found some lacuna in the working of the petitioner and, therefore, he was suspended, but based on that no charge-sheet was served nor enquiry was conducted. However, the respondents came to the conclusion that his suspension from service is no longer necessary and, therefore, the order of suspension was revoked on 3/2/2003 with immediate effect against him and was posted at Satna. From the order of promotion, it is very clear that promotion was subject to satisfactory completion of probation period. Successful completion of probation is a condition precedent for confirmation as envisaged in Clause 15(2) and (3) of the Regulations. Since the petitioner failed to complete the satisfactory completion of probation period and, therefore, the period of probation was extended for a further period of one year and his probation report for the extended year was not found satisfactory and there was no satisfactory improvement, his probation was terminated and he was reverted to the post of AG-I (D) and while passing the order of reversion, it is observed that he was under suspension for a period of six months and he is also not free from vigilance angle. In the background, the mere fact that the petitioner was suspended for a period of six months and he is not free from vigilance angle which was not inquired into ipso facto does not lead to the conclusion that the order of reversion is colourable and in fact is a punitive order. ( 13. ) In H.F.Sangati V. Registrar General, High Court of Karnataka, (2001) 3 SCC 117 , the Apex Court while considering the discharge of a probationary Munsif held as under : "The impugned order does not cast any stigma on the appellants. All that has been said in the impugned order is that the appellants were unsuitable to hold the post of Munsif. The impugned order of discharge has been passed in strict compliance with the requirements of Rule 6. It does not cast any stigma on the appellants nor is it punitive. There was, thus, no requirement to comply with the principles of natural justice, much less to hold any formal proceedings of inquiry before making the order." ( 14. ) This law laid down by a three-Judge Bench of the Apex Court also shows that if an employer discharges the services of a probationer on the ground that his services are unsuitable, it does not cast any stigma on the employee nor is it punitive, in such cases even the principle of natural justice does not apply and there is no need for formal proceedings of enquiry before making such order. ( 15. ) In Pavanendra Narayan Verma V. Sanjay Gandhi PGI of Medical Sciences and another (supra), the Apex Court while considering a similar case in para-21 held as under : "21. One of the judicially evolved tests 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 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." ( 16. 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." ( 16. ) From the above, it is seen that in the absence of the three facts as mentioned therein, namely - a) a full-scale formal enquiry b) into allegations involving moral turpitude ormisconduct which c ) culminated in a finding of guilt the termination cannot be held to be bad. ( 17. ) The Apex Court in the said case of Pavanendra Narayan Verma V. Sanjay Gandhi PGI of Medical Sciences and another (supra), further held : "It cannot be held that the enquiry held prior to the order of termination turned the 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 in the present case. An affidavit cannot be relied on to improve or supplement an order. Equally, an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order." ( 18. ) As noticed above in the instant case, the petitioner having been promoted as a probationer and his working having been found not to the satisfaction of the employer. It was open to the management to revert his services. Assuming that there was an incident of misconduct or incompetency prior to his reversion from the post of Assistant Manager, the same cannot ipso facto be termed as misconduct requiring an inquiry. It may be a ground for the employers assessment of the petitioners efficiency and efficacy to retain him to the promotional post, unless, of course, the petitioner is able to satisfy that the management for reasons other than efficiency wanted to revert him by exercising its power of reversion. ( 19. It may be a ground for the employers assessment of the petitioners efficiency and efficacy to retain him to the promotional post, unless, of course, the petitioner is able to satisfy that the management for reasons other than efficiency wanted to revert him by exercising its power of reversion. ( 19. ) From the aforesaid, it is clear that the performance of the petitioner was not found to be satisfactory. During probation period his probation was extended for further period of one year w.e.f.24/8/2002 and the matter regarding irregularities committed at Sagar Plinth, Sagar Division during the suspension of the petitioner was under examination as such his suspension was revoked on 3/2/2003. The petitioner was suspended on account of the supervisory lapses on his part causing huge losses to the Corporation by way of misappropriation of food-grains stocks. Since the matter was under thorough examination which requires time, accordingly, keeping the case against the petitioner under contemplation, his suspension was revoked on 3/2/2003. The adverse remarks of the petitioner pertains to the annual confidential report in the year 2002 which was written by the District Manager, Sagar and has no bearing in his confirmation. As per procedure of the respondent- Corporation, in order to have a fair assessment of the performance of the petitioner, he was posted under the supervision of another officer, i.e. District Manager, Satna, who too vide his probation, report for the priod from 24/8/2002 to 23/8/2003, reported that the performance of the petitioner was not up to the mark/satisfactory which resulted into his reversion to the post of AG-I (D) from the post of Assistant Manager (D). It is not in dispute that even in absence of any vigilance case, the competent authority can revert any employee to the lower post without any notice as per Regulation 15.3 of the Regulations. The petitioner was informed about his deficiency from time to time and the period cf probation was extended for a further period of one year so that he may improve himself but there was no improvement and, therefore, the competent authority of respondent No. 1 was decided to revert him from the post Assistant Manager (D) to the post of AG-I (D) under the provisions of Regulation 15.3 of the Regulations. ( 20. ( 20. ) The petitioner was promoted on probation for a particular period is only in order to test whether his conduct is good and satisfactory so that he may be retained. The remark in the assessment roll, merely indicate the nature of the performance put in by the officer for the limited purpose to determining whether or not his probation should be extended. These remarks were not intended to cast any stigma. ( 21. ) This Court has carefully considered all the circumstances and after reading the impugned order as a whole came to the conclusion that the petitioners work was under observation during the probationary period and he was given repeated opportunity to improve his performance for which purpose his probation was extended for a further period of one year. The competent authority did not find him fit for confirmation on the promotional post because during probation period his services were unsatisfactory. ( 22. ) For the aforesaid reasons, I am of the view that there is no substance in this writ petition nor it can be said that the impugned order is punitive in nature. Nor does the impugned order of reversion carry any stigma. ( 23. ) The writ petition filed by the petitioner has no merit and is, accordingly, dismissed. No costs. Petition dismissed.