Shahaji S/O Lingram Bhosale vs Chief Administrative Officer, ...
2003 Latest Caselaw 728 Bom

JUDGMENT

B. H. Marlapalle, J.

1. On obtaining his B. Sc., M.B.A. (Marketing and General Management) degrees, the petitioner came to be selected and appointed as Sales Supervisor in Hindustan Photo Films (a Central Government enterprise) in 1974 and he was subsequently promoted as Sales Officer as well as Assistant Manager. He came to be selected and appointed as Marketing Officer Class-I in June, 1982 at the Bhabha Atomic Research Centre -Department of Atomic Energy, Government of India and was confirmed in the said post. He was promoted to the higher post of senior grade i.e. Scientific Officer. The respondent Corporation i.e. CIDCO had invited applications for the post of Administrative Officer for its office at Nanded in 1990 and in response to the same he came to be appointed on 31st October, 1990 to the said post. The appointment order stated that he would be on probation for a period of one year. By a communication dated 17th March, 1992 the Chief Administrator (New Town), CIDCO, Aurangabad directed the petitioner to hand over his charge and proceed on leave. The petitioner submitted representations on 4th May, 1992 and 18th May, 1992 regarding payment of his salary from March, 1992 onwards. However, by order dated 5th June, 1992 he came to be informed that his service was terminated as per the directions of the Vice Chairman and Managing Director with effect from 5th June, 1992. He also received, on 7th June, 1992, a copy of the order dated 29th May, 1992 extending his probationary period up to 11th June, 1992 on the ground that his work was not satisfactory. This petition has challenged the order of termination dated 5th June, 1992.

2. While granting rule a Division Bench of this Court, by order dated 11th June, 1992, had stayed the operation of the order of termination dated 5th June, 1992 and in view of the said order the petitioner was reinstated. The respondent corporation moved Civil Application No. 4407 of 1992 for vacating the stay granted on 11th June, 1992. This application was rejected by a reasoned order and more so by noting that the terms of the appointment order dated 31st October, 1990 were in conflict with Rule No. 13 of the City and Industrial Development Corporation of Maharashtra Ltd. Service Regulations (for short, Service Regulations). When the petition was taken up for final hearing on 22nd April, 2003 this Court noted down the order of stay as well as the order rejecting the civil application and called upon the respondent corporation to consider the withdrawal of the order of termination dated 15th of June, 1992 and thus allowed the petitioner to continue in service. In response, the learned counsel for the Corporation has presented before us an additional affidavit emphasizing that the decision to pass the impugned termination order was in keeping with the service regulations and on reaching a satisfactory opinion that the petitioner was unfit to be continued in service any further. In addition, it has been pointed out that after the petitioner was reinstated, pursuant to the interlocutory order passed by this Court, he was charge-sheeted for manipulation of record under Sections 167, 218, 418, 468 and 511 read with 34 of the Indian Penal Code and the Judicial Magistrate, First Class at Vashi held the petitioner guilty of the offences punishable under Sections 167 and 218 of the said Code. It has, however, further been admitted that the said order of conviction was challenged in an appeal and the learned Additional Sessions Judge was pleased to set aside the order of conviction and the petitioner was acquitted.

3. We are, therefore, required to consider the following two issues :

(i)     The legality of the impugned order of termination; and
 

(ii)    The retention of the petitioner in service pursuant to the order of reinstatement issued on account of the interlocutory order passed by this Court. 
 

4. Shri Mandlik, the learned counsel for the petitioner submitted that the petitioner had a clean service record while he was on probation and on completion of one year of the probationary period on 31st October, 1991 he was deemed to have been confirmed. However, some bold actions taken by the petitioner invited the displeasure of his seniors and, therefore, by office order dated 17th of March, 1992 he was called upon to hand over the charge to Shri P. M. Tambade before going on leave. The subsequent action of the respondent Corporation in not releasing the petitioner's salary, for which he had submitted representations on 4th May, 1992 and 18th May, 1992, also indicated that the management of the respondent Corporation was prejudiced against the petitioner and they were waiting for an opportunity to get rid of him. While he was awaiting reply, on his representations, the impugned termination order dated 5th of June, 1992 was served on him and, thereafter, the communication dated 5th June, 1992 extending the probationary period till 11th of June, 1992 was received by the petitioner. Shri Mandlik referred to the provisions of Rules 13 and 16 of the service regulations and submitted that, the order of termination was stigmatic and it was issued after the petitioner had completed his probationary period and attained the status of a permanent employee and, therefore, the termination order ought to have been preceded by a proper departmental inquiry in keeping with the service regulations.

5. The corporation has filed return and submitted that the order of termination was in keeping with the provisions of the service regulations and the petitioner continued to be on probation in view of the provisions of Regulation No. 15. In support of these contentions reliance has been placed on the following decisions:

(i) Oil and Natural Gas Commission and Ors. v. Md. Iskander Ali, ; (ii) The Kayastha Pathshala, Allahabad and Anr. v. Rajendra Prasad AND State of U.P. and Anr. v. Rajendra Prasad and Anr., ; and (iii) Municipal Corporation, Raipur v. Ashok Kumar Misra, .

6. Shri Shah, the learned counsel appearing for the respondent Corporation along with Shri Bajaj has submitted before us the file pertaining to the assessment of the petitioner's performance while he was on probation and the confidential reports for the period 1994-95 to 1999-2000.

7. Regulations 13 and 16 of the service regulations read as under :

"13. Appointment on probation and confirmation -- (1) An employee shall be liable to be appointed on probation for such period as may be fixed by the Managing Director and may be confirmed on the completion of such probationary period.

(2) The probationary period of an employee may be extended by the Managing Director without assigning any reasons. An employee shall be deemed to have completed his probationary period either initial or extended and confirmed in his post when he is so intimated. In the absence of such an intimation, his probationary period shall be deemed to have been extended."

16. Notice for termination of service with the Corporation.

The services with the Corporation may be terminated as follows :

"(a) Services of a confirmed employee with the Corporation may be terminated by three calendar months' written notice or payment of pay and allowances in lieu thereof by either side.

(b) Services of a probationer or temporary employee with the Corporation may be terminated by one month's written notice or payment of pay and allowance in lieu thereof by either side."

8. Clause No. 2 of the appointment order dated 31st October, 1990 reads thus:

"Your initial appointment on probation will be for one year. Subject to satisfactory completion of the probation period, you will be eligible to draw your first increment in the prescribed scale on the first of the month in which you complete one year's service. Other conditions of your appointment are embodied in the annexure to this letter."

9. The abovesaid clause of the appointment order did indicate that the initial appointment was on probation for one year but it indeed indicated that satisfactory completion of probation was pre-requisite to draw even the first increment in the prescribed scale. Regulation 13(2) of the service regulations leaves no doubt in anybody's mind that the petitioner could not be deemed to have completed his probationary period on completion of one year on 31st October, 1991. The said regulation clearly states that an employee shall be deemed to have completed his probationary period either initial or extended or confirmed in his post when he is so intimated and in the absence of such an intimation, his probationary period shall be deemed to have been extended. Even if we accept the contentions of Shri Mandlik that the respondent Corporation had simultaneously issued another communication dated 5th June, 1992 extending the probationary period upto 11th June, 1992 illegally, that action by itself would not, in any way, affect the provisions of Regulation 13(2) and so long as the petitioner was not informed in writing about his successful completion of probationary period or he was not issued a letter of extension, it is deemed that his probationary period was extended.

10. Rule 4(4)(iv) of the Bombay Judicial Service Recruitment Rules, 1956, which reads as under, had fallen for consideration before a Division Bench of this Court in the case of Rangnath Banduji Salve v. State of Maharashtra, 1994(1) Mh.L.J. 310.

"(iv) unless otherwise expressly directed, every person appointed under the last foregoing sub-rule shall be on probation for a period of two years and on the expiry of such period he may be confirmed if -

(a) there is a vacancy, and

(b) his work is found satisfactory."

This Court held, by referring to the case of State of Maharashtra v. Veerappa R. Saboji, , that the probation period could not be deemed to have been automatically brought to an end and the officer on probation could not contend that he had successfully completed the probationary period in the absence of an order extending the initial period of probation.

In the case of High Court of M.P. through Registrar and Ors. v. Satya Narayan Jhavar, (2001)7 SCC 161, the Apex Court dealt with Rule 24 of the M.P. Judicial Service (Classification, Recruitment and Conditions of Services) Rules, 1955. The said rule runs, thus :

"24. (1) Every candidate appointed to the cadre shall undergo training for a period of six months before he is appointed on probation for a period of two years, which period may be extended for a further period not exceeding two years. The probationers may, at the end of period of their probation, be confirmed subject to their fitness for confirmation and to having passed, by the higher standard, all such departmental examinations as may be prescribed.

(2)......

(3) If during the period of probation he has not passed the prescribed departmental examinations, or has been found otherwise unsuitable for the service, the Governor may, at any time, thereafter, dispense with his service."

By referring to a catena of its earlier decisions the Apex Court held that an order of confirmation is a positive act on the part of the employer which the employer is required to pass in accordance with the rules governing the question of confirmation subject to a finding that the probationer is, in fact, fit for confirmation and this being the position under Sub-rule (1) of Rule 24 it was difficult to accept the proposition, broadly laid down in the case of Dayaram Dayal v. State of M.P., and to hold that since a maximum period of probation has been provided thereunder, at the end of that period the probationer must be held to be deemed to be confirmed on the basis of the said judgment. It observed in para 37 as under :

"37. Ordinarily a deemed confirmation of a probationer arises when the letter of appointment so stipulates or the Rules governing service conditions so indicate. In the absence of such term in the letter of appointment or in the relevant Rules, it can be inferred on the basis of the relevant Rules by implication, as was the case in State of Punjab v. Dharam Singh, . But it cannot be said that merely because a maximum period of probation has been provided in the Service Rules, continuance of the probationer thereafter would ipso facto must be held to be a deemed confirmation which would certainly run contrary to the seven-Judge Bench judgment of this Court in the case of Samsher Singh v. State of Punjab, and the Constitution Bench decisions in the cases of Sukhbans Singh v. State of Punjab, ; G. S. Ramaswamy v. Inspector-General of Police, and State of U.P. v. Akbar Ali Khan, ."

In the case of The Commissioner of Police, Hubli and Anr. v. R. S. More, the Supreme Court considered the provisions of Rule 5(2) of the Karnataka Civil Services (Probation) Rules, 1997. The said Rule 5(2) runs, thus:

"(2) A probationer shall not be considered to have satisfactorily completed the probation unless a specific order to that effect is passed. Any delay in the issue of an order under Sub-rule (1) shall not entitle the probationer to be deemed to have satisfactorily completed his probation."

While reversing the view taken by the Karnataka High Court, the Supreme Court, by referring to its earlier decision in High Court of M.P. and Ors. v. Satya Narayan Jhavar (supra) stated that a probationer cannot be considered to have satisfactorily completed the probation period unless a specific order to that effect was passed and no specific order having been passed by any authority certifying the satisfactory completion of probationary period of the respondent the order discharging the respondent in exercise of powers under Rule 6 passed after the extended period of probation, could not be held to be illegal.

11. The provisions of Regulation 13 of the Service Regulations, in the instant case, are on the similar lines of the Regulations which fell for consideration before the Apex Court in the above cited cases and, therefore, it ought to be held that the petitioner had not attained the status of a confirmed officer under the respondent Corporation and he continued to be on probation even when he received the impugned order of termination dated 5th June, 1992 notwithstanding the extension letter, which he claims to have received thereafter.

12. The corporation has contended that the petitioner's performance, while on probation, was duly assessed and a reasoned conclusion was reached that he was not fit to be retained in service. We, therefore, called for the record and on its perusal we have noted the incidence in which the petitioner was involved on 16th March, 1992. The detailed note prepared by the Chief Minister, on 22nd May, 1992 and submitted to the Managing Director of the respondent Corporation makes out a case that the petitioner tried to act as a conduit on behalf of two intending purchasers so as to condone the order of penalty to regularize the allotment and the said amount came to Rs. 1,63,000/- which was required to be remitted to the Corporation by the said prospective purchasers. On 28th May, 1992 the Managing Director of the respondent Corporation recorded his opinion on the said note, thus:

"The confirmation of Shri Bhosale is already withheld. Following action is suggested.

i. To extend the probation upto 15-6-1992 or any other convenient date.

ii. To serve order of termination on Shri Bhosale before the expiry of the extended probation.

He may in the meanwhile be paid leave salary as admissible."

13. We have also gone through the detailed report made by the Senior Planner (New Towns) on 2nd April, 1992 setting out details of the petitioner's action on 16th March, 1992. The respondent being a Public Sector Undertaking, reached to a very prudent decision that the petitioner was not fit to be retained in service and we, therefore, uphold the said decision. The petitioner was on probation as on 5th June, 1992 and the impugned order of termination does not cast any stigma against him and only states that his services were no more required by CIDCO and this order was in compliance with the provisions of Regulation 16(b) of the Service Regulations. Under the circumstances, we uphold the impugned order of termination dated 5th June, 1992 and the challenge to the said order thus fails.

14. Coming to the second issue regarding the retention of the petitioner under the respondent Corporation, as has been noted by us that the application to vacate the stay order dated 11th June, 1992 was rejected by a reasoned order dated 18th March, 1993 and it received its finality as the respondent Corporation did not challenge the same. Secondly, the petitioner continued in service and he has been in service right from 18th June, 1992 uninterruptedly. In the additional affidavit the Corporation has, in support of its contentions regarding the unsatisfactory service record of the petitioner, cited the conviction order passed by the Judicial Magistrate, First Class and further stated that the said order was set aside by the lower Appellate Court and he was acquitted. A copy of the judgment rendered by the learned Additional Sessions Judge was placed before us and we have noted that it was a clean acquittal on account of no evidence and, therefore, the Corporation cannot rely upon the order passed by the Judicial Magistrate, First Class and it cannot, in any way, taint the service record of the petitioner. The acquittal was not on account of benefit of doubt or laxity in investigations.

15. The confidential reports for the period from 1994-95 to 1999-2000 were placed before us and the reporting authority as well as reviewing authority have assessed the petitioner as an officer of undoubtful integrity, generally satisfactory record of service, a willing person to take more responsibilities and fit for promotion. For most of the period he has been rated positively good and only for the last six months of 1999-2000 he has been rated to be good. On the basis of these confidential reports, as maintained by the respondent Corporation, we must record that there is nothing adverse against the petitioner and the said assessment itself indicates that he was found to be fit for promotion. There is no adverse whisper regarding his integrity and on the other hand he has been found to be an officer of good character and integrity. If regards be had to these confidential reports, it is not possible for us to hold that the petitioner is not worthy of being retained in the employment of the Corporation any further. It is evident that he learnt a lesson and distanced himself from all types of lures. At the same time, he cannot be held to be in the employment of the Corporation right from 31st October, 1990 when we have already upheld the order of termination dated 5th June, 1992. We went through the confidential reports keeping in mind the fact that the respondent Corporation is a Public Sector Undertaking and officers of doubtful integrity or known to be inefficient should not be foisted on it and the service record, after his reinstatement, as assessed by us, does show that he is a capable officer, willing to shoulder more responsibilities, a good supervisor and hard worker. Even the Joint Managing Director of the respondent Corporation, who acted as the Reviewing Authority for these confidential reports, has not recorded any adverse finding and, in fact, held the petitioner to be fit for promotion in the confidential report of 1994-95, the year in which a criminal complaint was lodged against the petitioner. We, therefore, hold that the petitioner is required to be retained in service but from 18th June, 1992 i.e. from the date he was reinstated pursuant to the interlocutory order passed by this Court.

16. In the result, the challenge to the termination order dated 5th June, 1992, thus, fails and the petitioner is directed to be continued in service consequent to the interlocutory order passed by this Court and his initial date of joining shall be treated to be 18th June, 1992 (a fresh appointment consequent to the order passed by this Court) and his service shall be counted from the said date for all purposes.

17. Petition is disposed of accordingly with no order as to costs. For any other grievance, in this tenure of re-employment, he may submit a representation to the employer which shall consider the same as per rules.