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2012 DIGILAW 1061 (HP)

Nand Kishore v. Himachal Pradesh Road Transport Corporation

2012-12-31

DHARAM CHAND CHAUDHARY

body2012
JUDGMENT Dharam Chand Chaudhary, J. (Oral): By means of this writ petition, the following relief has been claimed: “(a) That a writ of certiorari may kindly be issued and the impugned order dated 6.4.2009 Annexure P-3 may kindly be quashed and set-aside and writ of mandamus may kindly be issued by directing the respondents to reinstate the services of the petitioner with all consequential benefits.” 2. The only grouse brought to this Court by filing the present writ petition is that the petitioner vide impugned order dated 17.6.1992, Annexure A-5/2 has been discharged from service arbitrarily and without holding any inquiry. 3. The petitioner, admittedly, was appointed as Conductor in the respondent-Corporation on 17.10.1990. Respondent-Corporation has produced the record. The original appointment letter, dated 17.10.1990 available on record reveals that at the time of appointment, the petitioner was to be placed on probation for a period of two years in the first instance with further stipulation that during this period his work and conduct would be reviewed by the competent authority in terms of Rule 9 of Recruitment and Promotion Regulations. As per own admission of the petitioner, during the period of his probation, he was found to have involved in five cases of ticketless travelling on different occasions. Out of these five cases, four were already settled and when his involvement was found in 5th case of similar nature, it was decided to serve him with a show cause notice. Reply submitted thereto dated 4.6.1992 is Annexure P-1 (colly). The record produced today reveals that the same was diarized and dealt with appropriately and was placed before the competent authority for perusal and orders. The order passed by the competent authority in the matter reads as follows:- “I have considered the reply of Shri Nand Kishore conductor dated 4.6.1992 in response to show-cause notice No.1937 dated 21.5.1992. He has only taken the plea that the amount was collected by the Inspectorate staff and was not collected by him earlier. I have fully considered the reply and the same is not found satisfactory. Shri Nand Kishore conductor is on probation and I have reviewed his work and conduct which has not been found satisfactory at-all. In view of clause-12 of his appointment order and in terms of Rule-9 of Recruitment & Promotion regulation of HRTC, his services are terminated as no longer required with immediate effect. Orders be issued accordingly”. Shri Nand Kishore conductor is on probation and I have reviewed his work and conduct which has not been found satisfactory at-all. In view of clause-12 of his appointment order and in terms of Rule-9 of Recruitment & Promotion regulation of HRTC, his services are terminated as no longer required with immediate effect. Orders be issued accordingly”. Consequently, office order dated 17.6.1992, Annexure P-1 (colly) came to be issued and thereby the services of the petitioner while on probation being no longer required by the respondent-Corporation, were dispensed with. Aggrieved thereby, no doubt, he preferred appeal/revision dated 15.7.1992 and 14.8.1992, Annexure P-1 (colly), however, the same were rejected vide order dated 15.9.1992, again Annexure P-1 (colly). He preferred a review application also on 28.9.1992 and ultimately Original Application in the erstwhile Administrative Tribunal, which on its abolition was transferred to this Court and registered as CWP(T) No.2116 of 2008. This Court vide order dated 25.2.2009, Annexure P-2, no doubt quashed the impugned order, however, with a direction to the appellate authority to hear the appeal, the petitioner preferred afresh and decide the same by a speaking order. Consequently, 1st respondent has decided the appeal vide order Annexure P-3 arriving at a conclusion that the services of the petitioner were legally dispensed with by the competent authority after reviewing his work and conduct while on probation under Rule 9 of Recruitment and Promotion Regulations, 1983. It is this order, which has been assailed in this writ petition being illegal and violative of the principles of natural justice. 4. In reply, the stand of respondent-Corporation, in a nutshell, is that since the work and conduct of petitioner was not found satisfactory during the period when he was on probation, therefore, he has rightly been removed from service as per rules by the competent authority after reviewing his work and conduct. 5. Having gone through the record and the submissions made on both sides and also the law laid down by the Apex Court and this Court, cited on both sides, the only issue that needs adjudication in this petition is whether the impugned order suffers from any illegality or irregularity and is violative of the principles of natural justice. 5. Having gone through the record and the submissions made on both sides and also the law laid down by the Apex Court and this Court, cited on both sides, the only issue that needs adjudication in this petition is whether the impugned order suffers from any illegality or irregularity and is violative of the principles of natural justice. The answer to this poser in all fairness and in the ends of justice would be in the negative for the reason that as per the conditions in appointment letter, the petitioner was appointed on probation as Conductor for a period of two years. His work and conduct had to be reviewed during this period by the competent authority as provided under Rule 9 of the Recruitment and Promotion Regulations. During this period, he was found to have involved in five cases of ticketless travelling, out of which four were settled and on the 5th occasion after issuing show-cause notice and reviewing his over all work and conduct, it was decided to discharge him in view of his services no longer required by the respondent-Corporation. The order discharging him from service during the period of probation is neither punitive nor stigmatic and rather, an order simpliciter in nature. The law on the issue is no more res-integra because in a recent judgment of a co-ordinate Bench of this Court in CWP No.10889 of 2011, titled Tarsem Lal Vs. Himachal Road Transport Corporation, dated 3.12.2012, an order of discharge from service during the probation period in similar circumstances has been held legal and valid in view of the law laid down by the Apex Court. The only distinction in this case and that of Tarsem Lal’s case is that said Shri Tarsem Lal was driver in the respondent-Corporation, whereas, the petitioner in this writ petition is a Conductor. Said Shri Tarsem Lal during the period of probation was censured like the petitioner in the present case. Therefore, in view of this judgment, the issue in this writ petition is covered against the petitioner. 6. Said Shri Tarsem Lal during the period of probation was censured like the petitioner in the present case. Therefore, in view of this judgment, the issue in this writ petition is covered against the petitioner. 6. On behalf of the petitioner, reliance has been placed on a judgment of the Apex Court in V.P. Ahuja Versus State of Punjab and others, (2000) 3 SCC 239 and in view of the law laid down in this judgment, learned counsel submits that the impugned order Annexure P-3 discharging the petitioner from service during the period of probation being stigmatic and punitive should have not been up-held by the appellate authority and rather quashed. With due regard to the law so laid down, the same has no application in the facts and circumstances of this case for the reason that the order dated 17.6.1992, Annexure P-1 (colly) whereby the services of the petitioner have been dispensed with, does not contain the recitals “failed in the performance of his duties administratively and technically” and rather he has been discharged in view of his services no longer required by the respondent-Corporation. The case before this Court is thus on better footing as the competent authority in this case deemed it appropriate to issue show cause notice to the petitioner before resorting to dispense with his services. Not only this, but the reply to notice has been duly taken note of and without causing any aspersion on his work and conduct simply observed that on reviewing the work and conduct of the petitioner, the same was not found satisfactory. Such an observation in the impugned order, in my considered opinion was neither punitive nor stigmatic. The perusal of impugned order reveals that the appellate authority has taken note of all the necessary details and without causing any aspersion on the work and conduct of the petitioner has simply concluded that he has been rightly discharged from service after reviewing his work and conduct as per clause-12 of his appointment order and removed from service in accordance with Rule 9 of the Recruitment and Promotion Regulations, 1983. I find no illegality and infirmity in the impugned order Annexure P-3 and conclude that no interference is warranted in this matter. 7. In view of the above observations, there is no merit in this petition and the same is accordingly dismissed, so also the pending application(s), if any. I find no illegality and infirmity in the impugned order Annexure P-3 and conclude that no interference is warranted in this matter. 7. In view of the above observations, there is no merit in this petition and the same is accordingly dismissed, so also the pending application(s), if any. No order as to costs.