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2014 DIGILAW 743 (CAL)

Sanjib Kumar Banerjee v. Union of India

2014-08-08

SAMBUDDHA CHAKRABARTI

body2014
JUDGMENT : The petitioner was a Constable in the Central Industrial Security Force (CISF, for short). During the period of probation on the charge of unauthorised absence a departmental proceeding was initiated against him. During the pendency of the proceeding, the petitioner was served with a letter of termination by the Deputy Commandant, CISF Unit, BRPL, in terms of the agreement executed by him under Rules 15 & 19 of the CISF Rules. 2. The petitioner filed an appeal which was rejected by the Inspector General, North Eastern Sector (NES) of the CISF. This was followed by an attempt for unsuccessful review. 3. The petitioner has challenged the order of termination on two grounds, viz, the respondents had taken a short-cut method of terminating the service of the petitioner without completing the disciplinary proceeding and the DIG was not the competent authority to terminate petitioner’s service during the period of probation as he was not the appointing authority. 4. That a proceeding was initiated against the petitioner does not take away the right of the appointing authority to terminate him during the period of probation. An enquiry was held against the petitioner on a specific charge and after the submission of the enquiry report holding the petitioner guilty the respondents decided not to proceed further with it, and terminated him from service. 5. It is trite to say that during the period of probation, an employee does not acquire any substantive right to a post and he cannot also complain if his service is terminated without any disciplinary proceeding being initiated against him at all. A probationer before confirmation is always at a fluid state. His right actually accrues on confirmation and not before that. 6. It appears from the communication of the Deputy Commandant that the service of the petitioners was not found satisfactory and that is why the period of probation was extended for a period of one year. That is the whole purpose of providing a period of probation so that an incompetent or inefficient public servant is not imposed upon an employer. In the case of Ajit Singh Vs. State of Punjab, reported in AIR 1983 SC 494 , the Supreme Court had observed that a new recruit is generally put on test before he is absorbed in service to guard against any error of human judgment in selecting suitable personnel for service. In the case of Ajit Singh Vs. State of Punjab, reported in AIR 1983 SC 494 , the Supreme Court had observed that a new recruit is generally put on test before he is absorbed in service to guard against any error of human judgment in selecting suitable personnel for service. The period of probation gives to the employer an opportunity to judge and if he is found wanting in this essential attributes an employer without anything more may dispense with his services during the period of probation. 7. Mr. Mahapatra, the learned Advocate for the petitioner, alleged that the petitioner’s service was terminated during the extended period of probation after the charge sheet was issued to him. But if during the original or extended period of probation, an employee is found unsuitable, the employer can definitely terminate the appointment and put an end to the relationship of master and servant. 8. Upon expiry of the period of probation a probationer does not acquire the status of a permanent employee. For confirmation a very specific order of confirmation is necessary. In the absence of any provision to the contrary either in the rules governing the employment or in the appointment letter that on the expiry of probation an employee would be deemed to have been confirmed, merely because his service was not terminated before that period does not entitle him to claim any implied confirmation. The law on the point is well settled. After the period of probation expires the probationary period can still be extended and the services of the probationer can be terminated during the extended period. In Verghese Vs. Union of India, reported in AIR 1963 Cal 421 , this Court had held that there is no bar to extending the period of probation retrospectively. Thus, even if the petitioner’s period of probation was subsequently extended retrospectively he would still have been on probation and I do not find any infirmity in extending the period of probation after the original period of probation had expired. 9. It further appears from the order issued by the DIG, NES that in terms of the agreement executed by the petitioner, the petitioner had undertaken that his service could be terminated by the Deputy Inspector General at any time during the period of probation on issue of a notice or one month’s salary by the appointing authority without notice. 9. It further appears from the order issued by the DIG, NES that in terms of the agreement executed by the petitioner, the petitioner had undertaken that his service could be terminated by the Deputy Inspector General at any time during the period of probation on issue of a notice or one month’s salary by the appointing authority without notice. I find substance in the reasoning given by the DG, NES, that no reason was specifically required to be assigned for the termination of service during probation as the same was determined in accordance with the express condition of appointment by giving him one month’s pay in lieu of notice. 10. The second point taken by Mr. Mahapatra is not borne by the records of the case. The stand of the petitioner has been belied by the fact that the order of termination was issued by the Deputy Inspector General, NES. The form of agreement that the petitioner had to execute at the time of appointment clearly contained an undertaking that the DIG would be competent to terminate the service during the probation of period upon fulfillment of the conditions contained therein. 11. It was lastly argued by Mr. Mahapatra that DIG being a very superior authority and the petitioner not being posted directly under him, it was not possible for him to assess the performance of the petitioner. Such submission also appears to be misplaced. The DIG while disposing of the appeal filed by the petitioner had very specifically said that he had gone through the records, including the files and the documents from which it was revealed that the termination was entirely due to the poor performance of the petitioner and the order was passed, as held by the DIG, by the appropriate authority. The order having been passed by the appropriate authority the petitioner cannot question the validity of the same. 12. Mr. Mahapatra has relied on the case of Mr. Pravanda Narayan Verma Vs. Sanjoy Gandhy PGI of Medical Service, reported in AIR 2002 SC 23 , for a proposition that one of the judicially evolved test to ascertain whether an order of termination is punitive is to see whether prior to the termination there was a full scale formal enquiry into the allegations involving moral turpitude or misconduct or whether it culminated in a finding of guilt. The Supreme Court held that if all these factors are present, the termination had to be held punitive irrespective of the form of termination order. Conversely if any of the three factors was missing the termination is to be upheld. The Supreme Court in that case relied on the case of Samsher Singh Vs. State of Punjab, reported in AIR 1974 SC 2192 where the Supreme Court held that the authority may in some cases be of the view that the conduct of the petitioner may result in dismissal or removal after an enquiry. But in those cases, the authority may not hold the enquiry and may simply discharge the probationer with a view to giving him a chance to make good in other works of life without a stigma at the time of termination of probation. In the case of State of Punjab and ohters –Vs.- Sukhwinder Singh, reported in (2005) 5 SCC 569 , the Supreme Court has held that mere holding of preliminary enquiry where explanation is called from an employee would not make an otherwise innocuous order of discharge or termination of service punitive in nature. 13. Mr. Mahapatra next relied on a Single Bench judgment of this case in the case of Prabhat Kumar Patra Vs. West Bengal Surface Transport Corporation Ltd. & Ors., reported in 2004(2) CHN 411 , for a proposition that when the respondents framed charges of misconduct against the petitioner it was their duty to conclude the disciplinary proceeding in accordance with law as the real reason for terminating the service of the petitioner was the alleged misconduct. This Court had further held that without concluding the proceeding, the respondents could not invoke the provisions of termination of service of the probationer. 14. This judgment is not applicable to the facts of the present case. Here the charge-sheet was issued and the Enquiry Officer also in his report found that the charges were proved. Therefore, it is not a case where the authorities merely stopped at issuing the charge-sheet or left the proceeding in the middle apprehending that the charges would not be proved. That apart, in view of what has been held in the case of Sukhwinder Singh (Supra), the order of termination cannot be called a punitive one merely because a charge-sheet was issued against him and the enquiry report had found him guilty. That apart, in view of what has been held in the case of Sukhwinder Singh (Supra), the order of termination cannot be called a punitive one merely because a charge-sheet was issued against him and the enquiry report had found him guilty. Termination after a full-fledged enquiry is bound to put some stigma on a probationer and that is why the Supreme Court had protected a probationer so that he may start his life afresh without any insinuation at the time of departure from his erstwhile employer. 15. Mr. Mahapatra raised doubt that the enquiry might not have resulted in a finding up guilt. This submission is a misplaced one. The Enquiry Officer had found the charges to have been proved. Thus there is no scope for such a speculative submission. 16. Thus, I find no infirmity in the order passed. The writ petition is dismissed. 17. However, there will be no order as to costs.