While adjudicating the legitimacy of the order for the discharge of an employee, the court noted that if after a certain time period, no order for confirmation or disengagement is passed by the authority then the person on probation would be deemed to be a confirmed employee
Brief Facts:
The petitioner applied for the post of engineer (electrical) on a regular basis as per the advertisement issued by the National Institute of Technology (NIT), Rourkela. He was then selected for the same and accordingly joined the post on 09.01.2012. he was on probation for a period of one year as per the terms of the appointment, but his employment was not confirmed even after the expiry of one year. Then the director, who is the opposite party no. 2 constituted two committees, one was a technical committee to account for the efficiency of three machines and the other was to investigate the arrangement for the operation of the diesel genset. The petitioner was supplied with certain questionnaires and he answered the same.
Then as per the committee, the data recorded in the log book had been grossly fabricated in order to gain financial benefits. The Committee then fixed the responsibility on the petitioner. Then according to the report, the board of governors decided to discharge the petitioner from the service of the institution. The petitioner approached the chairman for the appeal and then preferred an appeal before this court. The court ordered the chairman to dispose of the appeal and accordingly, the chairman of the board of governors allowed the appeal and directed NIT to reinstate the petitioner immediately. Then when the petitioner went to join in his duty, the director did not allow him and when the appeal was kept in the 50th meeting of the petitioner, it was rejected.
The side of NIT has contended that the petitioner was involved in serious financial irregularities to the tune of Rs. 10 lakhs through dishonest transactions, which was proved in the fact-finding inquiry. They also contended that the chairman allowed the appeal when he had no power to do so. Then in the 50th meeting, the Board took into consideration all relevant documents along with the statement of the petitioner recorded during the personal hearing and held that his discharge from service was justified and found no merit in the appeal.
Contentions of the Petitioner:
The learned counsel for the petitioner has contended that the probation period could not have been extended for more than a year and if no order confirming, discharging, or reverting the officer is issued within eight months after the expiry of double the normal period of prescribed probation, an employee is deemed to have successfully completed the probation period. Therefore, the petitioner could not have been removed without following the procedure laid down in the service rules and further that the report of the fact-finding inquiry cannot be the basis for taking such drastic action The appeal was rightly allowed by the chairman, and was revoked by the board of governors without any justified reason.
The Contentions of the Respondent:
The opposite counsel has submitted that there is no question of any automatic confirmation of service, the non-issuance of any order implies that the services of the petitioner were not found satisfactory enough for confirmation. And further, the report of the committees was justified by the counsel.
Observations of the Court:
The Hon’ble Court first noted the questions that must be answered, first whether the petitioner was a probationer at the relevant time and second, whether the impugned disengagement order is legal or justified. Then it was noted that for the purposes of appointment, the rules applicable to the Central Government shall apply. Then after noting the rules, the court held that the petitioner is deemed to have confirmed his service since no order relating to confirmation or discharge of duties was issued. Now since, it has been held that the petitioner is deemed to be a confirmed employee, the services of the petitioner can only proceed in accordance with the relevant rules. Now, as per the rules of the Central Civil Services (Conduct) Rules, 1964, Clause-5 of statute-26 which lays down the penalties, the confirmed employee can only be visited with penalties of removal or dismissal after an inquiry has been held and the petitioner has been given a reasonable opportunity to be heard. It was held that no rules laid down in the CCS(CCA) Rules, 1965 were followed, but instead, the fact-finding report of the committee was accepted and acted upon, which is not in accordance with the law. The court then noted that the penalty imposed on the petitioner was a major penalty and the principles of natural justice as embodied under Rule-14 of CCS(CCA) Rules, 1965 cannot be given a go-bye.
The court then held that a full-fledged disciplinary proceeding ought to have been conducted with strict adherence to the procedure laid down under rule – 14 of the CCS(CCA) Rules, 1965. And the court was of the view that the petitioner cannot be considered a probationer and since there was no inquiry the disengagement of the petitioner cannot be sustained in the eye of the law.
The Decision of the Court:
The writ petition was allowed and the impugned order of the board of governors was quashed, the opposite party was then directed to reinstate the petitioner in service with immediate effect but without any back wages.
Case Title: Debendranath Behera v. Government of India and others
Coram: Justice Sashikanta Mishra
Case No.: W.P.(C) No. 13766 of 2016
Advocates for the Petitioners: Mr. S.K. Das, S.K. Mishra & P.K. Behera, Advocates.
Advocate for the Respondents: Mr. S.P. Mishra, Sr. Advocate with M/s. S. Mishra, S.K. Samantray, E.Agarwal, A. Mohanta & L.K. Mohapatra, [ O.P. No.2]
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