Prasanna Kumar.V. vs Uoi & Ors.
2011 Latest Caselaw 1882 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Date of Decision : 31st March, 2011

+                      W.P.(C) No. 334/2009


        PRASANNA KUMAR.V.                            ..... Petitioner
                     Through:        Mr.Hari Kumar, Advocate
                versus

        UOI & ORS.                                   .... Respondents
                         Through:    None.


        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?
     3. Whether the judgment should be reported in the Digest?

PRADEEP NANDRAJOG, J. (Oral)

1. Regulation 35 of the Border Roads Organization reads as under:-

"Probation

35. The initial appointment of Officers Supervisory and other personnel will be temporary. The Officers, Supervisory and other personnel will be on probation for the first two years of appointment and on completion of probation, the competent authority will assess their suitability for continued appointment and pass appropriate orders either confirming the successful completion of probation or extending the probationary period for not more than one year at a time, provided that the aggregate period of probation does not, save for exceptional reasons, exceed 4 years. If on the expiry of or at any time during the period of probation, the appointing authority does not consider any member, suitable for continuance, he shall be discharged from GREF and no notice will be given therefor. Where, however, it is found that member is suitable only for lower appointment or lower stage in the time scale applicable to him, the

appointing authority may offer him the appropriate grade or stage in the time scale as the case may be. If the individual is not willing, he will be permitted as special case to resign his appointment or will be discharged from service and no notice will be given therefor."

2. It is apparent that employees of Border Roads Organization are on probation for a period of 2 years which may be extended by 2 terms of 1 year each; total probation not to exceed 4 years. Thus, unless confirmed by an expressed order within the first 4 years of service, none can claim to be a permanent employee of Border Roads Organization.

3. On 05.10.1995 the petitioner was appointed as a driver (MT) with Boarder Roads Organization, expressly stating that he would be on probation.

4. By a non stigmatic order dated 30.06.1998 the petitioner was discharged from service i.e. probation was not confirmed.

5. Reason why respondents have taken the action is, as conveyed to the petitioner in response to his notice dated 11.07.1998 vide respondents reply dated 20.08.1998. The response, containing the reasons, reads as under:-

"DISCHARGE FROM SERVICE

1. Reference you application dated 11th Jul 98.

2. It is intimated that, your case has been examined. Keeping in view of your discipline in general and questionable ability to profession, your retension/continuance in service is not at all in Govt. interest. In this connection, your attention is drawn on the following incident/accident for which you were wholly responsible during your extended probationary period:-

(a) On 22 Nov 98, vehicle accident took place at Ziro-Daporijo road due to lack of your driving knowledge, resulting in damage to vehicle BA No.91E-59622. As per the findings of the Court of Inquiry, you were held responsible for damage of said vehicle.

(b) Absented yourself from Unit line on 24 Oct 96 while deployed with 119 RCC and reported voluntarily on 07 Nov 96. For this offence, you were charged and awarded 07 days pay fine under Army Act Section 39 (a).

(c) Due to depression 311 (V-67) you were placed in low medical category GREF-III (ty) for 6/12 years wef 04 Aug 97. Accordingly, you were directed to report SMO 756 BRTF for medical review on 04 Feb 98. But, you have deserted enroute, for which apprehension roll was also issued vide 528 SSTC letter No. 1166/528/192/E1 dated 26 Feb 98, which was later cancelled when you reported voluntarily to EWB Tezpur on 28 Feb 98. In this connection, you were served a show cause notice vide 528 SSTC No.1703/528/15/E1C dated 07/10 Mar 98.

(d) It has also been noticed that, being a MT Driver, you were always lacked confidence, which is likely to lead accident at any time.

(e) Your discipline in general was also not upto the standard of this well disciplined organisation.

(f) You have also failed to improve your professional knowledge as required for a MT Driver as per Recruitment and Promotion Rules for which you were cautioned occasionally.

3. In view of the above, your retension/continuance in service was detrimental to the interest of the Department. In order to avoid further loss/damage of Govt. property and human life, your retention/continuance in service during probation period was not at all desirable. Hence, termination of service as recommended by OC 528 SSTC was sanctioned wef 30 Jun 98 while accepting the recommendation of Courts of Inquiry."

6. It is not in dispute that the petitioner had written a letter in Malayalam in which he had himself sought discharge from service with effect from 30.04.1998, in respect whereof the respondents have, in para 3.6 of the counter affidavit, pleaded said fact, to which, in rejoinder, the petitioner has pleaded as under :-

"That in reply to para 3.6 of the counter affidavit, it is

submitted that Petitioner had submitted a representation on some coercion exercised by his colleague."

7. It is apparent that the petitioner could not adjust to the hilly terrain where Border Roads Organization carries on its activities. He himself wanted to be discharged. His stand taken in the rejoinder affidavit that he submitted the representation on coercion exercised by his colleague is a ruse. Besides, who coerce the petitioner? Under what circumstances did the petitioner's friend coerce him? Where and when did his friend coerce him? None have been disclosed.

8. That apart, the service profile of the petitioner during probation is far from satisfactory. The reasons for discharge sought by the petitioner, and as disclosed to him, brings out that the petitioner lacks confidence as an MT driver and probably for the said reason he could not be found on duty or was found having deserted the unit lines. The petitioner met with an accident while driving in the hilly terrain.

9. Respondents are fully justified in not confirming the services of the petitioner and discharging him from service while on probation.

10. We find no merit in the writ petition which we dismissed but without any order as to cost.

PRADEEP NANDRAJOG, J

SURESH KAIT, J MARCH 31, 2011 mr