Jaya Raina v. Gujarat Livelihood Promotion Company Ltd.
2014-07-07
R.P.DHOLARIA, V.M.SAHAI
body2014
DigiLaw.ai
JUDGMENT : VIJAY MANOHAR SAHAI, J. 1. We have heard Mr. T.R. Mishra, learned advocate appearing for the appellant and Mr. H.S. Munshaw, learned advocate appearing for the respondents. 2. This Letters Patent Appeal has been preferred by the appellant-original petitioner challenging the judgment dated 01.04.2014 passed by the learned Single Judge in Special Civil Application No. 474 of 2001. In the writ petition, the order dated 9.03.2001 terminating the service of the appellant was challenged before the learned Single Judge and it was urged that as per condition No. 3 of the contract of service (appointment), she had not satisfactorily completed the probation period. 3. Learned counsel for the appellant has urged that the probation was only for three months and contractual appointment for a period of three years, it was not written that the probation period could be extended and therefore, she would have been deemed to be confirmed after expiry of three months. 4. Mr. T.R. Mishra, learned advocate has further urged that the all the employees are engaged on contract basis to which, learned counsel for the respondents has informed the Court that the respondents are carrying on various schemes from time to time and therefore, persons are appointed on contract basis till the scheme is over. 5. The learned Single Judge has dealt with the question and recorded his findings in paragraph Nos. 13 to 18, which are reproduced as under: “13. In light of the above principles laid down by various judgments by the Hon'ble Supreme Court, if the terms of contract for employment are considered, it is not possible to read automatic confirmation of the petitioner to complete the full term of employment. Simply because the petitioner was continued after a period of probation of three months, it could not be said that the petitioner had successfully completed probation period and became entitled to serve for three years under the contract. As stated above, time and again the petitioner was informed by different letters to improve her performance. Such letters would to go show that her performance was being watched and assessed right from beginning. Therefore, there was no conclusion by the respondents that the petitioner had successfully completed her probation period.
As stated above, time and again the petitioner was informed by different letters to improve her performance. Such letters would to go show that her performance was being watched and assessed right from beginning. Therefore, there was no conclusion by the respondents that the petitioner had successfully completed her probation period. If the performance of the petitioner was not found satisfactory after she was appointed and no positive order of confirmation was passed to permit her to complete the entire term of employment, it was always open to the respondents to terminate the service of the petitioner. When the contract does not provide for automatic confirmation of the petitioner on expiry of the probation period and if the respondents have been asking the petitioner to improve her performance, it was a clear indication that the petitioner had not successfully completed probation period and in absence of positive act of the respondents of confirming the petitioner, the probation of the petitioner continued. 14. Learned advocate Mr. Thakkar however submitted that the review of the performance of the petitioner could have been made by the concerned authorities only during the probation period and if not made, the petitioner could be said to have completed the probation period satisfactorily. Such contention cannot be accepted. What appeared to be intended by Clause 3 was to review and assess the performance of the petitioner for the probation period. The above clause could not be read to say that the review of performance was to be done only during probation period. If such assessment and review was possible to be made on the basis of the dates/materials available with the concerned authorities for the period of three months, the concerned authorities could have acted upon such assessment and could have further assessed and examined the performance of the petitioner to confirm whether the petitioner had successfully completed probation. In absence of any deeming clause or term in the contract for automatic confirmation of the petitioner on expiry of probation and in absence of positive act of the respondents to confirm the petitioner to serve for full term of employment, the respondents could have continued the petitioner on probation so long as her performance was not found satisfactory and successful. 15.
15. The order dated 21.3.2012 (Annexure-C) clearly records that the performance of the petitioner was assessed and such performance was since not found satisfactory, her services were required to be terminated with effect from 31.3.2012. In the said order, it is stated that as per the decision taken by H.R. Committee and approved by the Board of Directors in its meeting dated 26.3.2012, it was not found proper to continue the petitioner in service. The Court had called for the original files and found that the decision was taken by the superior authorities. The Court will have limited judicial review against such decision of the expert body and the competent authorities. In the facts of the case, the Court does not find any violation of the terms of the contract. 16. In the case of C.M. Rathod (supra), Dayaram Dayal (supra) and the State of Punjab (supra), relied on by Mr. Thakkar, Hon'ble Courts in the context of statutory rules, held that when the rule provides for maximum period of probation beyond which it cannot be extended, there will be deemed confirmation. However, the employment of the petitioner was governed by the terms of contract where-from no such deeming effect on expiry of the probation period could be read, therefore, above judgments relied on by the learned advocate for the petitioner will have no application to the facts of the case. 17. In the case of Rekha Rani (supra) relied on by the learned advocate Mr. Munshaw, the question was about terminating services of temporary or ad-hoc appointees and about regularisation of their services. The Court held that before terminating services of such employees simplicitor, no hearing was required to be afforded. The Court also held that such employees did not get right to be regularized. Since the above such are not the issues involved in the present case, said judgment will have no application to the facts of the case. 18. Similarly, judgment in the case of Krupesh Ramakant Vora (supra), relied on by Mr. Munshaw, where the Court was examining the case of Fast Track Ad-hoc Additional District Judge and held that they have no right to hold the post, will also have no application to the facts of the present case.” 6. The learned Single Judge has held that the appellant is a contractual employee and her service could be terminated at any time.
The learned Single Judge has held that the appellant is a contractual employee and her service could be terminated at any time. Further in paragraph No. 15, the finding is recorded that the performance of the appellant was assessed and such performance was since not found satisfactory, her services were required to be terminated with effect from 31.03.2012. It is further recorded that as per the decision taken by H.R. Committee and approved by the Board of Directors in its meeting dated 26.03.2012, it was not found proper to continue the appellant in service. The appellant would not automatically become a confirmed employee. Therefore, we are in full agreement with the view taken by the learned Single Judge. 7. In view of the above, we do not find any illegality in the order passed by the learned Single Judge and therefore, the appeal fails and is accordingly dismissed. 8. In view of the dismissal of the present Letters Patent Appeal, Civil Application No. 6887 of 2014 also stands disposed of. Appeal dismissed.