Shri Vikram Bakshi vs Union Of India
2001 Latest Caselaw 49 Del

ORDER

Dr. M.K. Sharma, J.

1. Challenge is made in this writ petitioner to the office order of the respondents issued by the Executive Director of the respondent dated 9.6.1998 terminating the services of the petitioner with immediate effect.

2. Pursuance to a selection process the petitioner was appointed as a Manager in the respondent Organisation by letter dated 2.4.1997. The said order was issued under signature of the Executive Director of the respondent. The terms and conditions of the appointment of the petitioner were stipulated in the Memorandum dated 2.4.1997. By the aforesaid memorandum dated 2.4.1997 an offer of appointment was made to the petitioner for appointment to the post of Manager in National Centre for Trade Information (hereinafter referred to as NCTI for short). It was stipulated therein that the petitioner would be on probation for a period of one year from the date of appointment and based on his performance and/or conduct he would be considered for confirmation in the company. It was also stipulated therein that the period of probation could be extended at the discretion of the competent authority, and the during the period of probation his services could be terminated without assigning any reason subject to one months' notice or pay and disallowance thereof for the like period. The aforesaid offer was accepted by the petitioner and the appointment order was issued wherein it was stated that he was appointed on the terms and conditions stipulated in the said memorandum dated 2.4.1997.

3. After joining duties the petitioner served with the respondent during the course of which certain lapses on his part were brought to his notice by the respondents. Even warning letters and show cause notices were issued to the petitioner for various lapses on his part. The respondent, by the aforesaid office order dated 9.6.1998 terminated the services of the petitioner with immediate effect further mentioning in the said office order that he shall be paid one months' pay and allowances in lieu of one months' notice as provided in clause 2 of his letter of appointment subject however, to settlement of dues, if any. The aforesaid order of termination is challenged in this petitioner mainly on two counts. The first limb of argument is that the Executive Director was not the appointing authority of the petitioner and therefore, he had no jurisdiction to pass the impugned order and as such the impugned order is bad and illegal whereas the second limb of argument was that on expiry of a period of one year from the date of his appointment the petitioner should be deemed to have been confirmed in the post of Manager and therefore, his services could not have been terminated in the manner it had been done.

4. According to the learned counsel the petitioner was placed on probation for one year from one date of his appointment i.e. 2.4.1997 and on expiry of the aforesaid period of one year he should be deemed to have been confirmed and the order of termination which was issued on 9.6.1998 on the premises that he was working on probation was bad in law and illegal.

5. Let me now scrutinise and consider the aforesaid submissions made on behalf of the petitioner by his counsel. The offer of appointment to the post of Manager was sent under the signature of the Consultant. On acceptance of the terms of conditions of the aforesaid offer the petitioner was appointed under order dated 2.4.1997. The said order was issued by the Executive Director of the respondent who incidently had also issued the termination order. There is a set of rules governing the services conditions of the petitioner which is an admitted position., The said service rules are named NCTI Service Rules, 1998. Rule 4 there of names the authorities who are empowered to appoint. It provides that appointment to the service of the Centre shall be made by the appointing authority as indicated in the Recruitment Rules. Rules 9, 10, 11 & 12 dealing with probation, confirmation, resignation & termination of services, having a bearing, are extracted below:-

9. All employees of the Centre on their first appointment to a regular post whether by direct recruitment or promotion will be appointment on probation for a period of twelve months and on successful completion of probation they will be confirmed in the service of the Centre in writing with the approval of the Competent Authority. The probationary period will be considered to have bene automatically extended until an order of confirmation is issued to the employee concerned.

10. During the probationary period, the service of an employee can be terminated with one months's notice by the Competent Authority. The employees on probation may also leave the service of the Centre by giving one months' notice.

11. After confirmation, unless otherwise agreed upon in the letter of appointment, an employee shall be at liberty to resign from the service of the Centre at any time by giving the Centre three months' notice in writing or his/her desire to do so or on surrendering three month's salary in lieu thereof subject to acceptance by the Competent Authority. However, this condition may be waived by the Executive Director in respect of suitable cases.

12. After confirmation the 'Competent Authority' shall be entitled to terminate the service of an employees after giving him/her three month's notice or salary in lieu thereof.

The intent of the aforesaid provision is clear and apparent. It is provided that during the probationary period and even after confirmation the services of a person could be terminated by the Competent Authority after complying with the requirements enumerated therein. In the annexure annexed to the said Services Rules,persons who are held to be competent authorities have been indicated. For the purpose of Rule 9 the Competent Authority is the Executive Director, whereas for Rules 10, 11, & 12 it is the Executive Director/Chairman.

6. In the counter affidavit filed the respondents it has been stated that Board of Directors of NCTI in its meeting held on 29.6.1995 passed a resolution delegating powers to the Chairman/Executive Director of the Centre. The said resolution dated 29.6.1995 is reproduced below:-

"RESOLVED THAT the chairman and the Executive Director of the Company be and are hereby severally authorised to take necessary decision on the day to day functioning and to incur expenditure both on capital and revenue accounts as per the guidelines of the Government of India applicable to the company and the provisions of the Companies Act, 1956 and any other Statute as applicable."

RESOLVED FURTHER THAT the Chairman and the Executive Director be and are hereby severally authorised to defend any suit or any legal proceedings against the Company in any Court, Tribunal or any other judicial, quasi judicial or constitutional and/or administrative authority and that they be and are hereby severally authorised to recruit staff including the Company Secretary as may be required on the IDA pattern of pay scales etc. as prevalent in ITPO (Ex-TFAI) for its staff or rules in vogue in other Public Sector Undertakings where ITPO rules are silent till such time the Company framed its rules and regulations for its won staff."

The aforesaid factual position when read with the contents of the letter of appointment of the petitioner would make it crystal clear that the Executive Director is the appointing authority for the petitioner. Therefore, the Executive Director being the appointing authority could terminate the services of the petitioner, in terms of the aforesaid resolution as also the rules referred to above. The grievance of the petitioner on that count, therefore, is misplaced.

7. Having concluded thus I may proceed to examine the second limb of arguments made on behalf of the petitioner. According to the counsel appearing for the petitioner immediately after expiry of the period of one year from the date of appointment of the petitioner on 2.4.1997 he should be deemed to be confirmed in the past of Manager. In support of his contention the counsel appearing for the petitioner relied upon the ratio of the decision in Karnataka State Road Transport Corporation and Others Vs. S. Manju Nath etc. . Counsel appearing for the respondent on the other hand for the aforesaid purpose relied upon the decisions in a Kedar Nath Bahl Vs. The State of Punjab and others, ; Municipal Corporation, Raipur Vs. Ashok Kumar Misra, ; Life Insurance Corporation of India and another Vs. Raghavendra Sheshagiri Rao Kulkarni, ; Redhey Shyam Gupta Vs. U.P. State Agro Industries Corporation Ltd. and another, . I have perused the aforesaid decisions carefully. The aforesaid catena of decisions clearly lay down the principles as to how and when a probationer could be deemed to be confirmed in the post held by him. It is held by the Supreme Court that if in the rule or order of appointment a period of probation is specified and a power to extend probation is also conferred and the officer is allowed to continue beyond the prescribed period of probation he cannot be deemed to be confirmed and there is no bar on the power of termination of the officer after the expiry of the initial or extended period of probation. The Supreme Court came to the aforesaid conclusion because at the end of the probation the officer becomes merely qualified or eligible for substantive/permanent appointment. It was also held that where even though there is a provision in the Rules for initial probation and extension thereof, and a maximum period for such extension is also provided beyond which it is not permissible to extend probation, on expiry of the said period a person would be deemed to be confirmed. It was held that presumption about continuing beyond the period of probation as a probationer would stand negatived by the fixation of a maximum time limit for probation and consequently, in such cases the termination after expiry of the maximum period up to which probation could be extended was held to be invalid, inasmuch as the officer concerned must be deemed to have been confirmed.

The aforesaid distinction has been succinctly brought out in the decision in Karnataka State Road Transport Corporation (supra.) in paragraph 10 as follows:-

"This court had an occasion to review, analyses critically and clarify the principles on an exhaustive consideration of the entire case law in two recent decisions reported in Dayaram Dayal's (supra). One line of cases has held that if in the Rule or Order of appointment, a period of probation is specified and a power to extend probation is also conferred and the officer is allowed to continue beyond the prescribed period of probation, he cannot be deemed to be confirmed and there is no bar on the power of termination of the officer after the expiry of the initial or extended period of probation. This is because, at the end of probation he becomes merely qualified or eligible for substantive permanent appointment. The other line of cases are those where even though there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The Constitution, Bench which dealt with the case reported in State of Punjab Vs. Dharam Singh, , while distinguishing the other line of cases held that the presumption about continuation, beyond the period of probation, as a probationer stood negatived by the fixation of a maximum time limit for the extension of probation. Consequently, in such cases the termination after expiry of the maximum period up to which probation could be extended was held to be invalid, inasmuch as the officer concerned must be deemed to have been confirmed".

Therefore, in the light of the aforesaid decision of the Supreme Court it would be necessary to examine the facts of the present case on the basis of the provision of the Services Rules governing the case of the petitioner.

8. I have extracted the relevant provisions of the Services Rules governing the Services conditions of the petitioner, particularly relating to probation, confirmation and termination. A reading of the same would indicate that in the said Rules a period of probation is specified and a power to extend the probation is also conferred. It is also provided that an officer could be said to be confirmed only when a specific order of confirmation is issued to the employee concerned. Therefore, the present case, in my considered opinion, would fall in line with the first line of cases as stated in paragraph 10 of the aforesaid decision of Supreme Court in Karnataka State Road Transport Corporation (Supra). The Constitution Bench in State of Punjab Vs. Dharam Singh, has also held that if in the Rule or order of appointment a period of probation is specified and the power of extending period of probation is conferred and if the officer is allowed to continue beyond the prescribed period of probation, there is no bar on the power of termination of the officer after expiry of the initial or extended period of probation. The effort of the counsel appearing for the petitioner to bring his case within the four corners of the second line of cases as mentioned in paragraph 10 of the decision in Karnataka State Road Transport Corporation (supra), in my considered opinion is misplaced.

9. A feeble attempt was also made by the learned counsel appearing for the petitioner to show that the order of termination was punitive in nature and that it was passed by way of punishment. According to him show cause notices were issued to him for various lapses with a threat to initiate disciplinary proceedings against the petitioner and that instead of initiation of departmental proceedings the respondents illegally resorted to the short-cut method of terminating the services of the petitioner by sending an innocuous order.

10. I have given my anxious consideration to the aforesaid submission of the learned counsel for the petitioner also. It is true that various lapses of the petitioner during his services tenure were pointed out to the petitioner and a show cause notice was also issued to the petitioner stating therein that a departmental proceeding could be initiated against him. Where a person is appointed as probationer in any post and the probation is specified, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if no order is passed in that behalf particularly when a power to extend the probation is also conferred. At the end of the period of probation the officer becomes merely qualified or eligible for substantive/permanent appointment and at that stage necessarily the respondent could consider the suitability of the person concerned. If on appreciation of the same the respondent comes to the conclusion that he is not a person who could be confirmed in his post on expiry of the period of probation, his services could be terminated. The rules governing the services conditions also provides that the petitioner was required to be considered for confirmation by the respondent based on his performance and/or conduct. So if any assessment was made by the respondent based on is performance and/or conduct for the purpose of taking a decision as to whether he should be retained and confirmed or should be relieved after expiry of the period of probation, no adverse view could be taken against taking of such a decision on the basis of such assessment. The petitioner completed his period of probation of one year on 1.4.1998 and his services were terminated on 9.6.1998 i.e. within 9 weeks of one year of probation. In my considered opinion, the termination of the petitioner who continued to be on probation, was in accordance with the terms of the letter of appointment and the same did not amount of imposition of any stigma nor it could be said that the same was issued by way of punishment.

11. In the light of the aforesaid discussion, I find no merit in all the submission of the learned counsel appearing for the petitioner. There is no merit in this writ petition and the same is dismissed but without any costs.