Sh. Dinesh Kumar Mishra vs Union Of India & Anr
2011 Latest Caselaw 2657 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision: 18th May, 2011

+                              W.P.(C) 3352/2011

%        SH. DINESH KUMAR MISHRA                 ..... Petitioner
                      Through: Mr. Hanu Bhaskar, Advocate

                                         Versus

         UNION OF INDIA & ANR.                  ..... Respondents
                      Through: Ms. Sukhbeer Kaur Bajwa, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                   Yes

2.       To be referred to the reporter or not?                  Yes

3.       Whether the judgment should be reported           Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the Office Order dated 14 th December, 2010 of

the respondent No.2 Kendriya Bhandar according sanction for extending

the probation of the petitioner for a period of one year with effect from

16th July, 2010, for the reason of some complaints against the petitioner

being under investigation in Vigilance Division.

2. The petitioner was appointed to the post of Assistant Manager in the

respondent No.2 vide appointment letter dated 1 st July, 2008, Clause 2

whereof was as under:

"2. You will be on probation for a period of two years in the first instance, which will be extendable at the discretion of the Management during which one month notice from either side will be necessary before leaving / termination of the services. After satisfactory completion of the probation period, your services will be confirmed in the grade / post and thereafter three months notice will be necessary from either side before leaving / terminating the services."

3. The contention of the petitioner is that he completed the period of

probation of two years on 16 th July, 2010; that he has very good ACR; that

he was not communicated prior to 16 th July, 2010 or immediately

thereafter of extension of his probation; that he is thus deemed to have

been confirmed and the order dated 14th December, 2010 extending his

probation by one year retrospectively with effect from 16 th July, 2010,

issued six months after the expiry of two years of probation period is mala

fide. He contends that the notice of the petition should be issued and the

respondents should be asked to explain as to why the period of his

probation has been extended, that too after six months of completion of

initial period of two years and as to why he has not been confirmed.

Reliance is placed on Rajinder Singh Chauhan Vs. State of Haryana

(2005) 13 SCC 179 and on the Office Memorandums dated 15 th April,

1959 and 30th August, 2010 of the Ministry of Home Affairs and Ministry

of Personnel respectively of the Government of India, relating to

"probation".

4. The question whether there can be any automatic / deemed

confirmation pursuant to the completion of probation period has recently

been revisited in Kazia Mohammed Muzzammil Vs. State of Karnataka

(2010) 8 SCC 155 which judgment also formed the basis for issuance of

the Office Memorandum dated 30th August, 2010 (supra). The Apex Court

noticed that though jurisprudence has for sometime past recognized

automatic or deemed confirmation after an employee has completed the

maximum probation period provided under the Rules whereafter his

entitlement and conditions of service are placed at parity with the

confirmed employee but there would be no deemed confirmation after

completion of maximum probation period if not so provided under the

Rules governing the employee. It was held that the period of probation

remains in force till a written document of successful completion of

probation is issued by the competent authority. It was further held that

where the Rules require a definite act on the part of the employer before an

officer on probation can be confirmed, there can be no deemed or

automatic confirmation. Deemed / automatic confirmation was held to be

applicable where the Rules do not contemplate issuance of such specific

order in writing but merely require the probationer to take an exam or clear

some other test for being confirmed, upon passing / clearing the said test.

5. Seen in the aforesaid light, the term of appointment in the present

case clearly provided for extension of probation "after the period of two

years in the first instance" and also provided for confirmation after

satisfactory completion of probation period. In the present case,

admittedly there has been no act of confirmation till now.

6. As far as the judgment in Rajinder Singh Chauhan (supra) relied

upon by the counsel for the petitioner is concerned, the same was a case of

continuing even after the maximum period of probation. In the present

case, the petitioner had not completed the maximum period of probation

and the appointment letter itself provided for extension after the probation

of two years in the first instance, in the sole discretion of the employer.

7. I am also of the opinion that once the terms between the employer

and the employee are governed by the contract, there cannot be judicial

review of whether the employer should have confirmed the employee or

should have extended the period of probation. The writ remedy cannot

also be used to commence a roving and fishing enquiry as the petitioner is

seeking to do, by calling upon the respondent to disclose reasons for not

confirming him and for extending his probation. The Full Bench of this

Court in Prakash Vir Shastri Vs. UOI AIR 1974 Delhi 1 refused an

application seeking production of documents to find out if there had been

any violation of Article 14 and held that the petition should be decided on

the material on record and under Article 226 of the Constitution, the Court

should not embark upon a roving enquiry. The Division Bench of this

Court recently also in A.G.R. Investment Ltd. Vs. Additional

Commissioner of Income Tax 176 (2011) DLT 703 held that to make a

roving enquiry does not come within the ambit and sweep of exercise of

power under Article 226. The Apex Court also in A. Hamsaveni Vs. State

of T.N. (1994) 6 SCC 51 held that the petition can succeed only if the

petitioners make out a case but not to give a chance to establish a claim.

8. The respondent in the present case has in any case given reason for

extending the probation, i.e. "complaints against the petitioner being under

investigation". The petitioner himself has filed an Office Memo dated 7 th

January, 2011 and other documents showing inquiry into complaints being

underway. There was thus sufficient reason for the respondent to extend

the probation of the petitioner. The Supreme Court in Oswal Pressure Die

Casting Industry Vs. Presiding Officer (1998) 3 SCC 225, a matter

relating to probation held that it is not open to the High Court to sit in

appeal over the assessment made by the employer of the performance of

the employee and once it is found that the assessment made by the

employer was supported by some material and was not mala fide, it is not

proper for the High Court to interfere and substitute its satisfaction with

the satisfaction of the employer. The Supreme Court also held the

approach of the High Court in holding that in order to support its

satisfaction it was necessary for the employer to produce evidence to show

that the performance of the employee was below the expected norms to be

wrong. The petitioner, as aforesaid, has failed to establish any mala fides

in the decision for extension of his probation and without a prima facie

case of mala fides or arbitrariness being made out, there can be no judicial

review of the right vested in the respondent under the terms of appointment

of the petitioner to extend the probation.

9. Reliance by the petitioner on the Office Memorandums of the

Government of India is also found to be misconceived. Kendriya Bhandar

is admittedly a Multi State Cooperative Society. The said Office

Memorandums govern the probations under the All India and Central

Services; the petitioner was not employed under any All India and Central

Services.

10. It has been held in the judgment dated 1st July, 2010 in

W.P.(C) No. 1433/1992 titled Central Government Employees Consumer

Cooperative Society Ltd. Workers Union Vs. UOI that the employees of

Kendriya Bhandar are not civil servants or government employees.

11. The counsel for the petitioner has contended that the discretion to

extend the probation could have been exercised only prior to 16 th July,

2010 and not thereafter. I am unable to agree. The term of appointment of

the petitioner required a positive act of confirmation and till the said

positive act takes place, the petitioner would remain on probation and the

probation could be extended at any time. The Supreme Court in Rajesh

Kohli Vs. High Court of J&K (2010) 12 SCC 783 reiterated that if a rule

permits probation to be extended, in the absence of an order of

confirmation, the employee would be deemed to be continuing on

probation. It was further held that during probation the employee is to be

assessed not only on the basis of performance but also on the probity and

conduct. Similarly in Dhanjibhai Ramjibhai Vs. State of Gujarat (1985) 2

SCC 5 it was held that there is no right in the probationer to be confirmed

merely because he had completed the probation of two years and that no

distinction can be drawn between a probationer who has completed the

normal span of two years and a probationer whose services are terminated

sometime later after he has put in further period of service. It was held that

it is possible that during the initial period the confirming authority may be

unable to reach a definite conclusion on whether to confirm or terminate

the service and 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. Moreover, in the present case, no unreasonable

time is found to have elapsed between the date of expiry of the first

instance of two years of probation and the sanction of the competent

authority for extension of probation. It cannot be lost sight of that the

order impugned is merely of sanction and which also conveys that the

proposal for extension of probation was mooted prior thereto.

12. Before parting with the case, I may clarify that the aforesaid order

has been made without in any manner adverting to the question whether

the remedy of a writ petition at all is available to the employees of the

respondent No.2 Kendriya Bhandar or not and the present order be not

treated as this Court having adjudicated on the said aspect.

13. There is no merit in the petition. The same is dismissed. No order

as to costs.

RAJIV SAHAI ENDLAW (JUDGE) MAY 18, 2011 „gsr‟