K.C. Nangia vs Corporation And Ors.
1987 Latest Caselaw 239 Del

JUDGMENT

Malik Sharief-Ud-Din, J.

(1) RULE. D.B.

(2) The petitioner is aggrieved of an order pasted by the respondents reverting him to the post of accountant. The petitioner joined the service of the respondents in the month of January 1979 as an accountant. Thereafter, he was promoted to the post of Assistant Manager (Accounts) by an order dated 23rd January 1985 and was posted in the regional office at Bhopal The petitioner was initially put on probation for a period of one year as probationer from the date of his taking over charge of the post of promotion. During the period of probation he was charged with gross misconduct, dereliction of duty and failure to maintain absolute integrity. He submitted a reply to the charge-sheet. Consequently, the respondent corporation appointed one Shri P. G. Nair as Inquiry Officer, The probation period of the petitioner was extended by six months i.e. up to 10th of September 1986 on the ground that disciplinary action was in progress against him. There are two enquiry proceedings pending against the petitioner but in none of these any finding has been recorded so far. The petitioner states that no finding has been communicated to him.

(3) The case of the petitioner further is that despite the fact that here is no adverse finding against him, he has been reverted to the post of accountant by office order dated 30th September 1986. The petitioner states that no reasons were given in the order for his reversion and all that is stated is that, the Managing Director decided, not to regularise the petitioner on the post of Asst. Manager (Accts).

(4) The petitioner states that he has been given no opportunity to face the grounds of reversion. The petitioner has further challenged the vires of section 10(4) of the Staff Regulations of the respondent corporation. The challenge is on the ground that it confers unguided and unbridled powers to revert an employee without notice and without assigning any reason and thus leaving enough scope for the misuse of power. It is further challenged on the ground that it contravenes the principles of natural justice.

(5) In these assertions, the petitioner, to our mind, seems to carry an impression that as a probationer he is entitled to be confirmed on the post as a matter of right. This to us is a misconceived notion. In Dhanjibhai Ramjibhai V. State of Gujarat , the Supreme Court has clearly held that the function of confirmation implies the exercise of judgment by the confirming authority on the overall suitability of the employee for permanent absorption in service. A probationer's services can be terminated if on an overall appreciation of his record of service he is found unsuitable for being absorbed in the service. If the order of termination does not contain any stigma or refer to any charge of misconduct on the part of the probationer, there is no obligation to afford him an opportunity of being heard before terminating his services. There is no right in the probationer to be confirmed merely because he had completed the period of probation.

(6) In the present petition, the petitioner states that the order reverting him has been passed after he had successfully crossed the period of probation and without there being any further extention of the period of probation. It would be seen that in the present case under the provisions of Staff Regulations, the petitioner could be put on probation for a period of one year which could be extended by another year but, in fact, after successfully completing the period of one year it was extended by another six months. An overall reading of the petition indicates that according to the petitioner the order of reversion has been passed against him only due to the disciplinary proceedings and since it contains a stigma, in the absence of an opportunity to explain having been afforded to him, the order stands vitiated. In response to show cause notice, Mr. K. C. Mittal argued on behalf of the respondents without submitting a written reply. At this stage we may notice the contents of the order of reversion dated 30th September 1986 which reads as under :-

"WHEREAS Shri K. C. Nanaia, was promoted as Assistant Manager (AICs) vide office order No. CWC/1-27/ AM(A/Cs)/Promotion/Estt. dated 23-1-1985 and was placed under probation initially for a period of one year which was, extendable further up to one year. Whereas the Managing Director by virtue of the authority vested in him under sub-Regulation (4) of Regulation 10 read with Appendix-1 of Central Warehousing Corporation (Staff) Regulations, 1986, have carefully considered this case and decided not to regularise Shri K. C. Nangia in the post of Assistant Manager (Accounts). Managing Director has, therefore, in exercise of powers vested in him, reverts him to the post of Accountant which he was holding prior to his promotion, with immediate effect. On his reversion, Shri K. C. Nangia, will work as Accountant as Regional Office, Bhopal against an existing vacancy until further orders. d.00 V. K. Parthasarathy Personal Manager for Managing Director." We may also notice the Staff Regulation No. 10(i) and 10(ii) which read as under :- 10(i) PROBATION

"EVERY person regularly appointed to any post either by direct recruitment or by promotion shall be on probation for a minimum period of one year from the date of assumption of charge. 10(ii) The Appointing Authority may, in its discretion, extend the period of probation up to a further period not exceeding one year. The relevant Staff Regulation No. 10(iii) reads as under : -- 10(iii) "A departmental candidate appointed to any higher post through direct recruitment shall durin' the period of probation be liable to be reverted to the original post held by him prior to such appointment, without any notice and without assigning any reason." Staff Regulation No. 10(iv) reads as under :-

"During the period of probation, an employee promoted to a higher post from a lower post shall be liable to be reverted to the lower post without notice and without assigning any reason."

(7) On consideration of the contentions and the counter contentions raised before us we find that the following points arise for our consideration :-

1. Whether the Staff Regulation 10(iv) of the Corporation is ultravires of the Constitution ?

2. Whether there is a light in an employee to be confirmed after his successfully covering the period of probation ?

3. Whether the Competent Authority is bound to give reasons for not regularising the probationer at a permanent post ?

4. Whether in the presence of disciplinary proceedings pending against the probationer, the Competent Authority is deprived of his normal authority to assess the suitability of an employee for confirmation on the basis of overall performance of an employee ?

(8) The fate of this writ petition, in fact, essentially depends on the nature of answer to the aforesaid issues. In the case supra the Supreme Court has dearly indicated that there is no right in the probationer to be confirmed merely because he had completed the period of probation of two years and had passed the requisite test and completed the prescribed training. In that case the initial period of probation was two years but the rule made provision for its further extension. In the present case the initial period of probation is one year extendable by another year but the petitioner was put on a further probation of six months after completing his probation against one year. The Supreme Court in the case supra has further held that the function of confirmation implies the exercise of judgment by the confirming authority on the overall suitability of the employee for permanent absorption in service. A probationer's services can be terminated if on an overall appreciation of his record of service he is found unsuitable for being absorbed in the service. The Supreme Court has further held that on distinction can be drawn between a probationer whose services are terminated on the expiry of the period of two years and a probationer who has completed the normal span of two years and whose services are terminated some time later alter he has put in a further period of service. it is possible that during the initial period of probation the conforming authority may be unable to reach a definite conclusion on whether the candidate should be confirmed or his services should be terminated. Such candidate may be allowed to continue beyond the initial period of two years in order to allow the confirming authority to arrive at a definite opinion.

(9) In the present case the petitioner was put on probation of one year which could be extended by another year. In the case of the petitioner, he was put on a further period of probation for six months. Thereafter, he was reverted even though he could get an. extention by another six months in the period of his probation. It was thus within this permissible period of probation that the orders regarding the petitioners' reversion were passed. In our view, the entire case of the petitioner is based on a misconceived belief that he has a right to be confirmed after completing the period of 1" years of his working on the post of probationer. We find nothing wrong with the Staff Regulation 10(iv) and the question of opportunity of being heard does not arise particularly when there does not exist any vested right to be confirmed. Of course, if the order contains any stigma then alone the petitioner could legitimately invoke the principles 3f natural justice but, this in turn will depend upon the content and the nature of the order.

(10) Mr. Suhrawardy contended that the order reverting the petitioner to the post of accountant gives no reason for passing the same. The Staff Regulation of Corporation does not in terms cast any obligation on the competent authority to give any reason. It may, however, be argued that despite the expression used in the Staff Regulation 10(iv) all administrative actions must necessarily be informed with reason to avoid any accusation of the action being high-handed or arbitrary. With this in mind, we sent for the records and the nothings of the Corporation in regard to the petitioner's case and, Mr. Mittal produced the same before us. We have perused the said record. The nothings have been initiated on 14-8-86 wherein it has been clearly stated that the performance of the petitioner has not been found up to mark even dining the extended period of probation. The noting, however, recommended further extention of the period of probation up to 10-3-87. The nothing further revealed that the pendency of the disciplinary proceedings were also brought to the notice of the competent authority. The competent authority after applying its mind passed the following order :-

"TAKING an overall view of the three reports that we have, I do not think he is fit to be retained in the higher post on which he is on probation. No useful purpose would be served in extending the probation period again. Accordingly, I agree with G.M. and revert him to his lower post of Accountant

2. I find that there are some disciplinary cases pending against him. These should be finalised within a month and position reported to me." Managing Director"

(11) The aforesaid noting clearly shows that the office recommenced extention of probation period informing the competent authority about his non-performance and also about the disciplinary cases. The General Manager recommended against it. The Managing Director on an overall assessment of the petitioners' performance based of three service reports of the petitioner found that it was a case beyond redemption and ordered reversion. The judgment was arrived at on the basis of the petitioner's service records though the Managing Director was also aware of the disciplinary proceedings pending against him. Thr order obviously is founded on some reason and can by no standards be said to be arbitrary. It may be that in passing the order of reversion he was influenced by the disciplinary proceedings but he has not made it the basis of his judgment. The only material considered by the competent authority in this case is the overall performance of the petitioner based on three reporte. Neither the noting in the file nor the impugned Older contains any stigma. In the case (supra) the Supreme Court has clearly said that if the order does not contain any stigma or refer to any charge of misconduct on the part of the Petitioner, there is no obligation to afford him an opportunity of being heard before terminating his services. We have further gone through the service records of the petitioner. Depending entirely upon the entries made therein we find the impugned order is based on very reasonable and just considerations and is neither motivated by any extraneous consideration nor is it based on the fact of disciplinary proceedings being in existence against the petitioner.

(12) The last contention by Mr. Suharwardy that .since disciplinary proceedings are pending enquiry against the petitioner, it must be assumed that the impugned order is based on these, dues not find support from the records as referred to above. Indeed disciplinary proceedings were also pending against the petitioner but the record shows that competent authority did not allow his judgment to be clouded by this fact. In arriving at the decision he has only taken into consideration the overall performance of the petitioner based on, his service records and found him unsuitable for the post. It will be absolutely wrong to deprive the competent otherwise, suitability of a probationer on relevant considerations simply because of the pendency, of disciplinary proceedings against a probationer. The power has to be exercised on relevant considerations during and on the expiry of probation period. Of course, if the order turn reversion contains a stigma it can only be passed after affording the probationer an opportunity to explain. In the prevent case the order does not contain any stigma and there is no right in the probationer to be heard.

(13) On the basis of the aforesaid Observations, we are of the view that Staff Regulation 10(iv) of the respondent Corporation is constitutionally valid. There is no right in an employee to be confirmed after be successfully passes the period of probation when it could admittedly be extended by a further period. We also find that even though .under the Regulation the competent authority is not bound to give reasons for not regulating a probationer on the permanent post, in the present case reasons have been given in the nothings passed by the Managing Director. We are also. of the view that mere pungency of disciplinary proceedings against the probationer does not deprive the competent authority of its power to judge the suitability for confirmation or otherwise of a probationer on the relevant condisderations.

(14) For the reasons stated above, the petition is dismissed.