HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 4 Case :- SERVICE BENCH No. - 873 of 2015 Petitioner :- Dr. Anupam Kumar Respondent :- Sanjay Gandhi P.G. Institute Of Medical Sciences & 3 Others Counsel for Petitioner :- Dr. L.P. Mishra,Karunanidhi Yadav Counsel for Respondent :- Vinayak Saxena,I P Singh,Sanjay Bhasin Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Attau Rahman Masoodi,J.
(By Hon'ble A.R. Masoodi, J) This writ petition questions the legality of the decision taken by the respondent-Institute through its President to discharge the petitioner from his services who was on probation for two years as Assistant Professor in the Department of Biostatistics and Health Informatics.
Dr. L.P. Mishra, learned counsel for the petitioner, submits that the petitioner was appointed vide order dated 24.5.2013 and according to Regulation 46 of the Sanjay Gandhi Post Graduate Institute of Medical Sciences First Regulations, 2011, the petitioner's period of probation ought to have been assessed in terms thereof by the competent authority before issuing any order of discharge or even continuing and extending the period of probation. This, according to him, has not been done in the present case and on a mere endorsement of the initial of a signature by the appointing authority, namely, the President of the Institute does not reflect any application of mind, recording of reasons or expressing a satisfaction to discharge the petitioner from service. He further submits that if the veil is lifted the action can also extend to a punitive measure having been undertaken, and in that event a mere order of discharge is a camouflage for dispensing with the services of the petitioner. Even otherwise on merits he contends that the consideration of the documents would clearly reflect, that as a matter of fact, the file has been casually handled and the President of the Institute has not complied with an objective assessment that was required to be made in terms of Regulation 46 by the Appointing Authority himself. He, therefore, submits that the action of dispensing with the services of the petitioner is unlawful, malafide and is not for any bonafide consideration.
Replying to the said submissions Sri I.P. Singh, learned counsel for the respondents accompanied by Sri Bhasin contend that the entire records indicate a total appraisal of the career of the petitioner and in view of the aforesaid facts that exist on record the appointing authority has taken all due precaution to assess the candidature of the petitioner and denied him extension of his services that is fully justified. The discharge order, therefore, requires no interference.
Learned counsel for both sides have relied on judgments to contend that the law relating to a probationer is well settled and even otherwise the decision making process even by endorsement of a signature according to the respondents is sufficient to construe that the satisfaction has been recorded by the appointing authority for discharging the petitioner while on probation.
Dr. L.P. Mishra, learned counsel for the petitioner, has further submitted that the communications which are on record further indicate that every effort was made to put the petitioner to all disadvantages including the protection of his lien in the Mizoram University where he was already holding the post of a Lecturer in a permanent capacity. He, therefore, submits that the said action also being malafide the impugned order cannot be sustained.
The decisions which have been relied upon by the learned counsel for the petitioner are as follows :-
1. 2008(3) SCC Page 310, Progressive Education Society & another Vs. Rajendra & another, paragraph 15 and 16
2. 2011 (5) SCC Page 142, Chairman-cum-Managing Director, Coal India Ltd. & others Vs. Ananta Saha & others, paragraph 30
3. 2013 (1) SCC Page 501, Rajesh Awasthi Vs. Nand Lal Jaiswal & others, paragraph 49
4. 2015 (4) SCC Page 609, Sunil Bharti Mittal Vs. CBI, paragraphs 53 and 54.
Dr. Mishra has further relied on the judgments cited at the Bar to indicate that principles of natural justice have not been complied with and that the order is stigmatic in nature. For this he submits that if there is an assessment of lack of integrity then in that event the same being a misconduct, inquiry should have been held and the impugned discharge order would not be sustainable in law. A separate compilation of the judgments has been handed over to the Court.
On the other hand, learned counsel for the respondents have relied on the judgment of the Apex Court in the case of Tafcon Projects (I)(P) Ltd. Vs. Union of India & others, (2004) 13 SCC Page 788, paragraphs 12 and 13 in particular, to contend that if the signature of the authority has been endorsed the same would be construed to mean that there is an approval of the competent authority to the reports relating to the period of probation submitted by the Head of the Department and the Director.
We have given our thoughtful consideration to the submissions raised and the scope of inquiry in a writ petition would be only to the extent of the decision making process and not the merits of the decision taken by the authority itself.
A provision in relation to a representation before the visitor under Section 36 of Sanjay Gandhi Post Graduate Institute of Medical Science Act, 1983 has been pointed out by the respondent to relegate the matter before a prescribed statutory forum. The said section indicates that a reference can be made to the visitor against any decision of any authority or body of the institute if it is not in conformity with the Act or Regulation and if a decision is taken by the visitor on such an issue referred then his decision shall be final. The ground of the existence f an alternative efficacious remedy has therefore been raised by the respondents.
Dr. Mishra contends that the said provision is not available here, inasmuch as the President of the Institute is the ex-officio Chief Secretary of the Government of Uttar Pradesh. He is neither an officer nor an authority under the definition of Section 36 so as to maintain a reference against the impugned action. For this he points out that Section 4 of the Act defines the 'Institute', Section 9 defines an 'Officer' and Section 17 defines an 'Authority'. The 'President' is defined under Section 2 (f) of the Act. Section 11 defines that the Chief Secretary to the Government of Uttar Pradesh shall be the President of the Institute and Chairman of the Governing Body. He is also defined as an Officer of the Institute. He is, therefore, according to Sri Misra not included within the definition of 'Authority' as provided for Section 17 of the Act. The contention is that the order of an officer is not referable to the Visitor under Section 36 as the word 'Officer' has not been used in Section 36 of the Act.
The question is if the President is passing an order in relation to the services of an Assistant Professor of the Institute discharging him from service, will the same be not an action amenable to scrutiny of the Visitor under Section 36 merely because the word 'officer' has not been used in Section 36. This has to be construed in accordance with the 1983 Act and the nature of the powers conferred that are to be exercised by the authorities as entailed in Schedule 1.
The power to confirm an employee on completion of probation is provided under item no.2 and the power to confirm a faculty and an officer of Group A is given to the President under column 6 Schedule 1. Thus, the President exercises a power which is as an authority of the Institute. The President in his capacity is an officer but while exercising such a power of conformation he is also acting as an authority. Such action is amenable to scrutiny and for that purpose it would not be erroneous to construe that the order of the President can be subjected to scrutiny by the Visitor who in the present case is His Excellency the Governor of the State of U.P. To further clarify the same what we find is that the word 'authority' has been used categorically in Section 36. In the present case the matter relates to confirmation during the period of probation or discharge which is governed by Regulation 46. Regulation 46 in turn clearly recites that the appointing authority has to take a decision. Thus, the word 'authority' is used in the regulations in the context of the appointing authority of an employee. It is undisputed that the President is the appointing authority of the petitioner and, therefore, the President acts as an authority while passing an order in relation to a matter of probation under Regulation 46. Thus, Section 36 is clearly attracted and any order passed of the nature impugned herein can be subjected to scrutiny before the visitor under Section 36. The argument of Dr. Mishra, therefore, does not hold water and is accordingly rejected.
The question then is as to whether in the present case the petitioner should be relegated to the aforesaid remedy or not. On this Dr. L.P. Mishra, learned counsel for the petitioner, has invited the attention of the Court to the affidavits that have been exchanged between the parties and the documents which have been brought on record to contend that there is a clear breach of the provisions of Regulation 46 of the 2011 Regulations and since the same is clearly established on the own showing of the respondents, it would not be necessary to relegate the petitioner to the alternative remedy before the Visitor.
We have perused the records in the light of the above and we are of the opinion that the submission of Dr. Mishra on the facts of the present case allow us to invoke our discretion under Article 226 of the Constitution of India without relegating the petitioner to the said remedy as the facts of this case are exceptionally clear as would be evident from the findings recorded hereinafter.
The discharge order clearly recites that the work and conduct of Dr. Anupam Kumar-the petitioner has not been found to be satisfactory. It is no doubt true that the law in relation to probationers is settled and the decisions which have been referred to hereinabove clearly indicate that the assessment and satisfaction has to be by the appointing authority and if the material is available and the satisfaction has been recorded then in that event the courts would not be justified in interfering with the same.
Applying the aforesaid principles and considering the submissions of the respondents on the strength of the judgment in the case of Tafcon Projects (I) (P) Ltd.(supra), this is undisputed that two sets of documents exist on record. One is with regard to the maintenance of the annual confidential rolls of the petitioner which is maintained in a service book as per Regulations 49, 50 and 51. The Annual Confidential Roll has to be maintained by the immediate supervisor of the employee and has to be finalized by the competent authority. It is not in dispute that in relation to an Assistant Professor the immediate supervisor being Head of the Department communicates it to the Director which is the reviewing authority and the entries are ultimately accepted by the appointing authority who is the President of the Institute in the present case. Needless to mention that the President is the appointing authority as defined under Regulation 52 of the 2011 Regulations.
The first set of documents relating to the petitioner are his annual confidential rolls. It is undisputed that the petitioner was still under probation and his annual confidential rolls for the years 2013-14 and 2014-15 were being maintained and at the same time performance appraisal reports were being prepared in relation to recommendations for confirmation or otherwise during the period of probation. The first set of documents prepared for maintaining the annual confidential rolls has been filed along with the counter affidavit which indicates that on 14.5.2015 the Head of the Department initiated the requisite assessment and comments with regard to annual confidential rolls for both the years, namely, 2013-14 and 2014-15. In this assessment by the initiating authority on 14.5.2015 in relation to both the years, so far as integrity is concerned, the endorsement is that "it was not tested". There are other adverse comments against the petitioner. The confidential reports in respect of 2013-14 and 2014-15 respectively were assessed by the reviewing authority i.e. Director on 27.5.2015 and 28.5.2015 and on being forwarded, the same were concurred by the appointing authority, namely, the President on 1.6.2015. These documents leave no room for doubt that the appointing authority concurred with the aforesaid entries made in the annual confidential reports which clearly indicate that the integrity of the petitioner had not been tested. The concurrence of the appointing authority is clearly recorded in the words 'I concur with the above'. and 'I concur' in both the above reports'.
The other set of documents is in relation to probation assessment of the petitioner which started with the letter of the Head of the Department addressed to the Director dated 2.5.2015 wherein it has been commented that the integrity of the petitioner is poor. The Director submitted this report on 29.5.2015 to the appointing authority for approval. The appointing authority has simply put his signatures on 1.6.2015 without any endorsement of any other word of approval or satisfaction having arrived at to accept the said report. It is absolutely non-speaking. Apart from this, there is no endorsement similar to that used on the annual confidential rolls indicating concurrence when both set of documents appear to have been signed by the President on 1.6.2015 itself.
It is here that Dr. L.P. Mishra contends that Regulation 46 has not been complied with at all and therefore the entire action is vitiated and the petitioner should not be relegated to the alternative remedy. We agree with the said submissions in view of the submissions and conclusions drawn hereinafter.
Regulation 46 is extracted hereinunder :-
46. (i) A person on substantive appointment to a post against a permanent vacancy by direct recruitment shall be placed on probation for a period of two year;
(ii) The appointing authority may, for reasons to be recorded in writing extend the period of probation in individual cases specifying the date up to which the extension is made, provided that the total period of extension shall, in no circumstance, exceed one year.
(iii) An order extending the period of probation shall be issued before the expiry of the original period of probation; if such an order is not issued before the expiry of original period of probation, the individual will be deemed to have successfully completed the period of probation.
(iv) A probationer who is reverted or whose services are dispensed with shall not be entitled for any compensation.
(v) A probationer shall complete his period of probation successfully if
(a) his work and conduct are found to be satisfactory;
(b) his integrity is certified; and
(c) the appointing authority is satisfied that he is otherwise successfully and satisfactory completed his period of probation.
Sri Mishra contends that the said regulation in relation to extension of the period of probation requires recording of reasons in writing by the appointing authority. He therefore submits that in a lesser adverse situation where the period of probation is to be extended the regulation provides for recording of reasons. Therefore, while discharging a probationer such recording of reasons are all the more necessary as discharge is a harsher measure than extension of probation. For this, the guidelines are provided in Regulation 46(v) where the satisfaction has to be recorded by indicating as to whether the work and conduct of an employee is satisfactory or not. In addition thereto, the requirement is certification of integrity and the third criteria is that the appointing authority should be satisfied that the employee has otherwise successfully and satisfactorily completed his period of probation. Dr. Mishra contends that there is only one recital in the communication that the work and conduct was not found to be satisfactory. He submits that this recital in the communication is not born out from any such endorsement or expressed opinion having been recorded by the appointing authority. He contends that on the submission of a report for approval the appointing authority has to independently apply his mind and record his satisfaction may be in a very few words to maintain brevity. In the instant case the appointing authority has not even chosen to do that and has simply put his initials. He, therefore, submits that Regulation 46 has not been complied with and the judgment relied on by the learned counsel for the respondents had only an endorsement of signatures certifying approval cannot be a ratio applicable in the present case as there is a different statutory provision with a clear requirement of recording satisfaction.
Before we proceed to deal with the aforesaid submission of Dr. Mishra it would be apt to comment upon the status of the records as indicated above. We find that the letter of the Head of the Department dated 2.5.2015 in relation to appraisal of performance for the period of probation recites that the integrity of the petitioner was poor and this letter finds mention in the report dated 29.5.2015 submitted by the Director for approval that has been counter signed with the initials of the President. In our considered opinion, if this is treated to be a concurrence then it also certifies concurring with the endorsement of a poor integrity of the petitioner in the letter dated 2.5.2015. However, at the same time in simultaneous proceedings relating to the endorsement in the ACR, the Head of the Department endorses the column of integrity as having not been tested. This ACR is also dittoed by the reviewing authority on 27.5.2015 and is concurred expressly by the President who is the appointing authority on 1.6.2015 which is the same date on which he has put his initials on the probation report dated 29.5.2015.
If the President has concurred with the endorsement of the entry that the integrity of the petitioner has not been tested as per the ACRs, then it bewilders us as to how his initials on 1.6.2015 on the report dated 29.5.2015 can be construed as a concurrence to the report of poor integrity in the letter dated 2.5.2015. If the integrity of the petitioner had been adjudged as poor on 2.5.2015 then how could an endorsement of integrity not having been tested, been concurred with simultaneously. The President while recording concurrence with the ACR report that records integrity not tested has not chosen to form any satisfaction about the integrity of the petitioner being poor. If the integrity of the petitioner had not been tested as per the endorsement on 14.5.2015 then it is not understood as to how it had already been adjudged to be poor on 2.5.2015 with which concurrence can be presumed by the appointing authority even if he has not written anything except putting his signature on 1.6.2015. Thus, this decision making process, particularly, by the President who is the appointing authority does not appear to reflect any application of mind as it is alleged that all the documents were there before the Director.
It is also to be noted that integrity is one of the ingredients that has to be considered while recording satisfaction as per Regulation 46 (v). In our considered opinion, the President if he has concurred with the ACRs that record the integrity has not been tested then there cannot be any presumption to the effect that he has agreed with the report of a poor integrity as contained in the letter dated 2.5.2015. This situation therefore is clearly anomalous and leads us to infer that there is a non-application of mind and a total non-consideration of the ingredients for recording satisfaction while passing an order in refusing to extend the probation and discharging a person from service under Regulation 46. We are of the clear opinion that the provisions of Regulation 46 which is clearly applicable in this case do require the application of mind and the recording of reasons in brief by the appointing authority on an assessment to be made by himself. There is no provision under Regulation 46 for giving any approval to any opinion formed by the subordinate authorities. At the best the report of the authorities can be placed before the President, who has to independently express his opinion in writing indicating his mind about the satisfaction that has been arrived at by him. There cannot be a substitute for this function as per Regulation 46.
It is here that the judgments relied upon by Sri Mishra on this score come to his aid. The President has simply put his initials on the report submitted by the Director in relation to discharge proposal. This does not, in our opinion, suffice to sustain the proceedings as per Regulation 46. Consequently, the communication sent by the Institute discharging the petitioner during his period of probation indicating that his work and conduct was not satisfactory is not an outcome of any independent application of mind and recording of reasons and satisfaction by the appointing authority. His endorsement of signature is not recording of a satisfaction as envisaged under Regulation 46 and, therefore, the communication cannot reflect any such satisfaction on its own.
In view of the aforesaid findings having been arrived at we find that the decision making process is clearly vitiated. We accordingly quash the impugned communication dated 2.6.2015 Annexure 1 to the writ petition.
It shall, however, be open to the President who is the appointing authority, namely, the respondent no.2 to independently consider the material on record and then take a fresh decision on the issue relating to the period of extension of probation or discharge of the petitioner in accordance with Regulation 46.
We should not be construed to have expressed any opinion on the performance appraisal of the petitioner by the authorities or the material in relation thereto, inasmuch as we have only indicated that the appointing authority has not proceeded to apply his mind to the material on record and formed an opinion for recording of satisfaction as per Regulation 46, as such the quashing of the impugned communication will not automatically entitle the petitioner for any reinstatement in service. The reason is that the respondents through the counter affidavit have indicated existence of material which can be subject matter of consideration for assessing the continuance or otherwise of the petitioner. It is, therefore, open to the authority concerned, namely, the respondent no.2 to take an appropriate decision in this regard after recording his opinion in the light of the observations made herein above.
So far as the issue of his lien before the Mizoram University is concerned, that being a separate subject matter is not a subject matter of this petition. It shall be open to the petitioner to raise any such dispute before the appropriate forum in case he is prejudiced by any such action. The writ petition is, therefore, partly allowed to the aforesaid extent. There was an interim protection vide order dated 21.7.2015 to allow the petitioner to retain his accommodation during the pendency of the writ petition. We extend this benefit to the petitioner under the interim order dated 21.7.2015 to the aforesaid extent to be available till a fresh decision is taken by the President as indicated hereinabove. The President may proceed to decide the issue within a period of six weeks from the date a certified copy reaches before him to be served either by the petitioner or by the learned counsel for the SGPGI who shall be issued certified copy of the same on payment of usual charges.
Order Date :- 5.11.2015 Anand Sri./-