G.K. Malik vs Hindustan Petroleum Corporation ...
1998 Latest Caselaw 292 Del

JUDGMENT

Dr. M. K. Sharma, J.

1. The present writ petition is directed against the order dated 15.7.1993 passed by the respondents terminating the services of the petitioner effective from 20.7.1993. The petitioner was appointed as a Trainee Officer with the respondent No.1 on 21.1.1991. The said appointment letter dated 19.11.1990 stated that the petitioner would be on training for a period of one year from the date of his joining as an Officer Trainee and that the said period of training might be extended or terminated depending upon the performance of the petitioner, his application, attendance and bearing. It was also stipulated in the said appointment letter that on successful completion of training the petitioner would be absorbed in the regular service of the Corporation and that he would be on probation for a period of 6 months and that the said period of probation could be extended at the discretion of respondent No.1 or could be determined if considered necessary depending upon the overall performance of the petitioner during the probationary period. It was further stated that on satisfactory completion of probation the petitioner would be confirmed in writing as a regular employee of the Corporation and till such time the petitioner would be deemed to be on probation.

2. Having accepted the aforesaid terms and conditions of appointment the petitioner joined service of respondent No.1 as Officer Trainee. His period of training, after the period of one year, which expired on 20.1.1992, was extended initially for a period of six months which was again extended by another period of 6 months from 21.7.1992 and the said period expired on 20.1.1993. After expiry of the aforesaid period the petitioner who was working as Officer Trainee was absorbed as Operations Officer by respondent No.1 and he was put on probation for a period of six months effective from 21.1.1993. On 26.5.1993 a show cause notice was issued to the petitioner which is annexed as Annexure P-2 to the writ petition asking the petitioner to show cause against certain acts of omission and commission on the part of the petitioner. It was stated that the said lapses on the part of the petitioner amounted to misconduct and are of serious nature and warrant a disciplinary action against him. It was also mentioned that in terms of the appointment letter dated 21.1.1991 he is liable to be terminated from service of the Corporation. The petitioner was asked to show cause as to why his services be not terminated. On receipt of the aforesaid show cause notice the petitioner desired that he be furnished with some documents and sought for time to submit reply by way of show cause. It is stated that instead of waiting till the petitioner could file his show cause the respondent terminated the services of the petitioner by the impugned letter dated 15.7.1993. By the said letter the petitioner was intimated that his services were reviewed and that it was found that his performance/service in the Corporation during the period of probation was not satisfactory and therefore, the decision had been taken to terminate the services of the petitioner effective from 20.7.1993 and hence the present writ petition.

3. Mr. B.S. Charya, Counsel appearing for the petitioner contended that the termination of services by the petitioner is not a termination simplicitor but by way of punishment as would be established from the very fact of issuance of a show cause notice to the petitioner which mentioned some incidents and some alleged acts of omission and commission on the part of the petitioner. He also submitted that the aforesaid fact would also be borne out from the very fact of the respondent mentioning about the nature of punishment in the show cause notice itself. He submitted that both motive and foundation for terminating the services of the petitioner in the instant case is certain alleged misconduct which the petitioner could have disproved and established as false provided he had been given an opportunity to rebut the same in a formal departmental proceedings, if initiated. In support of his contention the learned Counsel relied upon the decisions of the Supreme Court in Anoop Jaiswal Vs. Government of India & Another, and in Shamsher Singh Vs. State of Punjab . It was further contended by Mr. Charya that the petitioner was given an increment during the period of his probation which speaks of satisfactory service of the petitioner and according to him, the respondent could not have terminated the services of the petitioner on the ground of unsatisfactory service particularly when he was granted increment in proof of his satisfactory service. In support of his contention the learned Counsel relied upon the case of Ajit Singh & Others Vs. State of Punjab and Others, . The Counsel for the petitioner also relied upon the decision of Om Prakash Goel Vs. Himachal Pradesh Tourism Development Corporation, .

4. Mr. Raj Birbal appearing on behalf of the respondent however, submitted that the present is purely a case of termination simplicitor and not by way of punishment. According to him the foundation of the impugned order terminating the services of the petitioner is 'unsatisfactory service' and the very fact that the petitioner was completing his probation period of six months on 11.7.1993, his performance and ability was considered by the respondents as it is the practice that when an appointment is made on probation the conduct, performance and ability of the individual has to be watched and examined during the period of probation and since he is to be confirmed after expiry of the probation period the respondent is duty bound to consider whether his services are satisfactory or not and only when the probationer satisfies the suitability criteria then only he could be confirmed by the respondent. He also placed the original records containing the assessment reports of the petitioner to support his submission that the services of the petitioner were not satisfactory. He further stated that the performance and ability of the petitioner was considered at three different levels and then his services having been found to be not satisfactory by each one of them a decision was taken to erminate his services in pursuance of which the impugned order was issued.

5. It is an admitted position that the probation period of the petitioner as fixed by the respondent was expiring on 11.7.1993 and therefore, in terms of the appointment letter the respondent was required to consider whether the petitioner could be confirmed in service or his probation is to be extended or not. It is true that the petitioner was also given an increment while he was on probation but according to the learned Counsel for the respondent the same was due to the petitioner on time scale and therefore, the same was extended to the petitioner. The show cause notice issued to the petitioner on which much reliance is placed by the Counsel for the petitioner mentions some acts of omission and commission on the part of the petitioner. The said letter, after narrating the nature of the incidents of omission and commission on the part of the petitioner brought to the notice of the petitioner that the said incidents amount to misconduct and also warrant disciplinary action. The said notice also brought to the notice of the petitioner the terms of appointment letter dated 21.1.1991 in terms of which his services could be terminated and directed him to show cause why his services would not be terminated.' The aforesaid letter ' therefore, discloses that the petitioner was informed by the respondent that two courses are open to them to take action against the petitioner and he was asked to show cause as to why action be not taken under any of the two i.e. to proceed against the petitioner in the departmental proceeding or to terminate his services in accordance with the terms of appointment. In State of U.P. and Another Vs. Kaushal Kishore Shukla, , the Supreme Court has held that a temporary Government Servant has no right to hold the post and that whenever the Competent Authority is satisfied that the work and conduct of a temporary servant is not satisfactory or that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate the services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against a temporary Government servant. It was further held that if the services of a temporary Government servant are terminated in accordance with the terms and conditions of service it would not visit him with evil consequences. It was also held that before terminating the services of a temporary servant or reverting the person officiating in a higher post to a lower post the Government may hold a preliminary enquiry to form the requisite satisfaction for the continuance of the officiating Government servant. My attention was also drawn to the decision of the Supreme Court in Ravinder Kumar Mishra Vs. U.P. State Handloom Corporation, reported in 1987 (Suppl.) SCC 739. In the said decision it was held that for finding out the effect of the order of termination the concept of 'motive' and 'foundation' has to be kept in mind. If the delinquency of the officer in temporary service is taken as the operating motive in terminating the service, the order is not considered as punitive while if the order of termination is founded upon it, the termination is considered to be as punitive action.

Therefore, the relevant consideration in a case like this would be as to what is the actual foundation for the order passed. In the said case the Supreme Court also held that there may be cases where an enquiry is undertaken and prima facie material and serious charges are found and after such steps have been taken the employer/Appropriate Authority decides not to continue with the departmental proceedings and instead terminates the services. Even in such a case it was held that the order of termination cannot be said to be punitive.

6. In order to find out the foundation of the order it would be necessary to tear the veil to ascertain the real nature of the order. In that context scrutinised the show cause notice issued to the petitioner and on analysis thereof I am of the considered opinion that the intention in issuing the aforesaid letter was to bring to the notice of the petitioner the lapses on his part in performance of his duties. It was issued more in the nature of a fact finding enquiry bringing to the notice of the petitioner that it would be open to the respondent to proceed through any one of the modes mentioned therein. The records placed before me disclose that the performance and suitability of the petitioner was considered by the respondent at different levels. The Manager (Installation) sent a report on the performance and working of the petitioner to the Chief Regional Manager contending inter alia that the services of the petitioner were not satisfactory. The aforesaid report was considered by the Chief Regional Manager and found that the petitioner was not performing satisfactorily despite several opportunities given to him during his training period and accordingly, he recommended that his services be terminated before his probation period comes to an end on 20.7.1993. The General Manager (NZ) also considered the performance of the petitioner and held that there was a serious evidence of deterioration in performance in the case of the petitioner and in view of the fact that the employee had again deteriorated in performance it would be better if his services are terminated. The matter went upto the General Manager (HRD) who had recorded that since the Officer is due for confirmation a performance report has been given by the Manager (Installation) which confirms that the performance of the petitioner during the period of probation was totally unsatisfactory, which fact is also confirmed by the Regional Manager and General Manager (NZ). The recommendation of the General Manager (HRD) was also placed before the Director (P&A) who agreed with the recommendations.

7. In pursuance of the aforesaid appraisals of the performance and suitability of the petitioner the impugned order terminating the services of the petitioner was apparently issued. On evaluation of the record and materials placed before me I find that the foundation for terminating the services of the petitioner in terms of the letter of appointment is based on his unsatisfactory performance. It is true that while appraising the performance of the petitioner his lapses as mentioned in the show cause notice were also taken note of apart from other facts. The mere mention of some of those lapses cannot amount to holding that the order of termination has been passed by way of penalty. In Governing Council of Kidwai Memorial Institute of Oncology, Bangalore Vs. Dr. Pandurang Godwalkar and Another, it was held by the Supreme Court that whenever the services of an employee are terminated during the period of probation or while his appointment is on temporary basis by an order of termination simplicitor after a preliminary enquiry it cannot be held that as some enquiry has been held against him before issuing an order of termination it really amounts to termination of his services on a charge and as such penal in nature. Ratio of the decision in Ravindra Kumar Mishra (supra) also supports the aforesaid view. To the same effect is the decision of the Supreme Court in Unit Trust of India and Others Vs. T. Bijaya Kumar and Another, reported in 1992(5) SLR 855. In the said decision the Supreme Court after taking note of the decision of the Apex Court in State of Orissa Vs. Ram Narayan Dass, , Madan Mohan Prasad Vs. State of Bihar, 1973(l) SLR 630 (SC), Shamsher Singh Vs. State of Punjab, 1974 (2) SLR 701, Anoop jaiswal Vs. Government of India, 1984(l) SLR 426 (SC), held that an order of discharge is not an order of punishment and that the services of a probationer can be terminated in accordance with the Rules because a probationer has no right to the post held by him.

8. On perusal of the records placed before me I find that the obvious reason on which the respondents terminated the services of the petitioner was his unsatisfactory work and failure to perform to the expectation. The aforesaid view is borne out from the notes of the various authorities at different' levels. Confidential assessment reports have been submitted by responsible officers to assess his suitability for the job. On going through the aforesaid records I am satisfied that no extraneous or irrelevant considerations entered into the decision making process.

9. In that view of the matter, I do not find any infirmity in the impugned order issued by the respondent terminating the services of the petitioner and consequently I hold that the present writ petition has no merit and is accordingly, dismissed but without any costs.