Kamal Ahmad vs Union Of India & Anr.
2013 Latest Caselaw 5842 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         WP(C) 8049/2013
%                                                     18th December, 2013

KAMAL AHMAD                                                ......Petitioner
                          Through:       Ms. Kamlesh Jain, Advocate.


                          VERSUS

UNION OF INDIA & ANR.                                ...... Respondents
                   Through:              Ms. Sweety Manchanda, CGSC with
                                         Mr. Debashis Mukherjee, Adv. for R-
                                         1.
                                         Mr. S.Nanda Kumar, Mr. Parivesh
                                         Singh and Mr. R.Satish Kumar,
                                         Advocates for R-2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

CM No.17015/2013 (Exemption)

      Exemption allowed subject to just exceptions.

      CM stands disposed of.

W.P(C) 8049/2013 & CM No.17014/2013 (Stay)

1.    By this writ petition, the petitioner, a probationary officer, impugns

the order of the respondent no.2/employer dated 27.11.2013 terminating his

services. This order dated 27.11.2013 reads as under:-
WPC 8049/2013                                                                 Page 1 of 10
             "SA.15/549/33221                      27 November 2013
                                ORDER

Whereas, Sri Kamal Ahmad, appointed as Programme Officer vide letter no.SA.15/549/19494 dated 11 March 2011 in the Head Office, Sahitya Akademi at New Delhi for a period of two years under probation.

Whereas, a Departmental Promotion Committee constituted on 10 May 2013 noticed that "After deliberating on the work done by the officer and also considering the Annual Confidential Reports (APAR), the Committee found that the officer lacks initiative and always needs to be pushed for the work which is assigned to him. It is also noticed that he doesn‟t take timely follow-up action wherever required and does not follow a protocol in his official dealings. Besides this, he has been irregular in attending office and lacks proper coordination with the subordinates. The Committee, therefore, recommended that his probation period may be extended for one year vide letter no.SA15/549/11688 dt. 14.06.2013.

Whereas, even after the DPC recommendation and after the extension of probation from 14th June 2013 for a period of one year for the purpose of his improvement, the Officer has not improved himself.

Now, therefore, the Sahitya Akademi decided to terminate his probation with immediate effect without any notice and without assigning any reason as per the terms and conditions in the appointment order no.SA.15/549/19494 dated 11 March 2011 issued to him and as per rule 6(1)(2)(a) of the Service Bye-Laws of the Sahitya Akademi which states that if he was appointed through direct recruitment, shall cease to be an employee of the Akademi. Therefore, he is terminated with immediate effect and he should hand over all the charges to Officer In Charge, Sales Section where he is presently working and relieved.

(K.Sreenivasarao) Secretary"

2. A reference to the aforesaid order shows that the petitioner-

probationary officer was not confirmed and his services terminated because

of the reasons of lacking initiative, having to be pushed for the work, not

taking timely follow-up action, not following the protocol in his official

dealings, irregularity in attending office and lacking proper coordination

with his subordinates.

3. At the outset, it must be noted that it is the employer who decides the

suitability of an employee for confirmation in services. A probation period

is meant to achieve the purpose of deciding the suitability of the employee.

Courts do not substitute their views for that of the employer with respect to

suitability of services of an employee, unless it is found that the action of the

employer in not confirming the probationary employee is wholly arbitrary

and perverse. Courts are ill-equipped to sit in the arm-chair of the

competent authority which decides the suitability or otherwise of an

employee with respect to his confirmation to the job/post in question.

4. The facts of the case are that petitioner was appointed as a Programme

Officer by the respondent no.2 vide offer of appointment dated 11.3.2011.

The appointment of the probationer was initially for probation of two years

and in which period, the services could be terminated without notice and

without assigning any reason.

5. The period of probation was of two years in the first instance i.e the

probationary period could be extended and it was not necessary that after a

period of two years the probationary officer should be confirmed.

6. Petitioner‟s period of probation was extended upto 19.6.2014 in view

of the decision of the DPC of the respondent no.2 dated 10.5.2013. The

Minutes of this DPC Meeting dated 10.5.2013 reads as under:-

"Sahitya Akademi 10 May 2013 A DPC has been constituted by the Secretary with DSC, DSRMB and Librarian as members. The DPC had a meeting today to review the work done by the officer and also considering the Annual Confidential Reports (ACRs), the Committee found that Sri Kamal Ahmad lacks initiative and always needs to be pushed for the work which is assigned to him. It is also noticed that he doesn‟t take timely follow-up action wherever required and does not follow a protocol in his official dealings. Besides this, he has been irregular in attending office and lacks proper coordination with his subordinates. The Committee, therefore, recommended that his probation period may be extended by at least one year in the first instance."

7. In terms of the aforesaid recommendation of the DPC dated

10.5.2013, petitioner‟s services were extended for one year till 19.6.2014

vide letter dated 14.6.2013 of the respondent no.2. Extension was on the

same terms and conditions as stated in the original appointment letter dated

11.3.2011. Petitioner‟s services were however not confirmed and, as already

stated above, by the impugned order dated 27.11.2013, petitioner‟s services

were terminated. Hence the present petition.

8. On behalf of the petitioner, before me, the following arguments are

advanced to question the impugned termination order dated 27.11.2013:-

(i) Petitioner has never been communicated any adverse remarks during

his probationary period and no hearing was given to the petitioner either for

improving his services or before passing the termination order. The

termination order is thus hit by the violation of the principles of natural

justice.

(ii) There is a case of manipulation of the ACR documents/APAR of the

petitioner by the employer, inasmuch as, how can DPC dated 10.5.2013

consider an APAR dated 15.5.2013 and which APAR dated 15.5.2013 was

considered by the employer at the time of extension of probationary period.

(iii) There has been harassment and incidence of vindictiveness against the

petitioner in the probationary period including with respect to his being

denied two days extra leave and also of wrongly taking away LTC benefit.

9. Let me take up firstly the second argument which is argued on behalf

of the petitioner which is that there is a manipulation of the APAR of the

petitioner because how can APAR dated 15.5.2013 be considered by DPC

for extension of the probationary services on 10.5.2013.

Initially the argument of the petitioner seemed to have substance,

however, on a deeper examination it is found that the argument lacks

substance because the DPC dated 10.5.2013 would have considered the

APAR for the year ending 2011 and not of the year ending 2012. In the

APAR for the year 2011 dated 14.8.2012, the following remarks have been

noted against the petitioner.

"Needs to be motivated at each step and is to be pulled up to do good work."

"The officer needs lot of improvement in the work. Has to be guided at every step to work hard"

10. It is these remarks which have been translated into the remarks made

by the DPC in the Minutes of Meeting dated 10.5.2013. The remarks which

are found in the subsequent APAR for the year ending 2012 are different and

they read as under:-

"He does not need to be sent for training, but does need lot of motivation and is very casual in his attitude."

"Officer needs to improve himself to be more initiative in his work and also maintain cordial relationship with his colleagues or subordinates in an institute like Sahitya Akademy which has a cultural environment"

11. I may also state that DPC held for deciding the issue of extension of

probationary services is entitled to consider not only the APARs but also other

aspects which are not necessarily confined to APARs, and which can be

done/looked into for deciding whether or not to extend the probation period.

Also, the mere fact that the DPC Minutes of Meeting uses the expression

ACRs in plural cannot be read strictly to mean that many ACRs would have

been considered inasmuch as the expression „ACRs‟ is generally used with

respect to performance appraisals in the plural although it is possible that

only one year‟s ACR was actually considered. The minor flaw in language

of DPC dated 10.5.2013 does not persuade me to hold that DPC in the

Minutes of Meeting dated 10.5.2013 would have considered the APAR

dated 15.5.2013 as is sought to be argued on behalf of the petitioner. I

therefore, reject the argument that the APARs of the petitioner are

manipulated and the DPC of 10.5.2013 has considered a non-existent APAR

dated 15.5.2013.

12. So far as the first argument urged on behalf of the petitioner that no

notice was given of his shortcomings and that no hearing/principles of

natural justice followed before termination of his services is concerned, it

may be noted that the law in this regard is well settled that there is no

requirement of following the principles of natural justice with respect to

termination of services of a probationary officer. This has been held by the

Supreme Court in a catena of decisions, and two of which are in the cases of

Muir Mills Unit of NTC (U.P.) Ltd. Vs. Swayam Prakash Srivastava &

Anr. (2007) 1 SCC 491 and Rajesh Kumar Srivastava Vs. State of

Jharkhand and Ors. (2011) 4 SCC 447.

(i) The relevant para of Muir Mills Unit of NTC (U.P.) Ltd. Vs.

Swayam Prakash Srivastava & Anr. (2007) 1 SCC 491 is para 45 which

reads as under:

"45. This Court's decision in the case of P.N. Verma v. Sanjay Gandhi PGI of Medical Sciences can be referred to in this context, where it was held by this Court that, the services of a probationer can be terminated at any time before confirmation, provided that such termination is not stigmatic. This Court in State of Madhya Pradesh v. Virendera Kumar Chourasiya also has held that in the event of a non-

stigmatic termination of the services of a probationer, principles of audi alteram partem are not applicable." (emphasis added)

(ii) In Rajesh Kumar Srivastava Vs. State of Jharkhand and Ors.

(2011) 4 SCC 447 Supreme Court has held that while taking a decision to

terminate the services of the probationer, no notice is required to be given to

the probationer nor is the probationer required to be given any opportunity

of hearing. Para 10 of the said judgment reads as under:-

"10. The aforesaid decision to release him from service was taken by the Respondents considering his overall performance, conduct and suitability for the job. While taking a decision in this regard neither any notice is required to be given to the Appellant nor he is required to be given any opportunity of hearing. Strictly speaking, it is not a case of removal as sought to be made out by the Appellant, but was a case of simple discharge from service. It is, therefore, only a termination simpliciter and not removal from service on the grounds of indiscipline or misconduct. While adjudging his performance, conduct and overall suitability, his performance record as also the report from the higher authorities were called for and they were looked into before any decision was taken as to whether the officer concerned should be continued in service or not."

(emphasis added)

Therefore, even the first argument urged on behalf of the petitioner of

the shortcomings having not been brought to his notice and consequently

that principles of natural justice have not been followed is not an argument

which is correct in the light of the observations of the Supreme Court in the

aforesaid two judgments.

13. The third and final argument urged on behalf of the petitioner is that

petitioner has been harassed and victimized during his tenure and which is

shown from the fact that he was not given an extra leave of two days

although his elbow was displaced and also that LTC benefit given to him

was wrongly withdrawn. In my opinion, these factors would not have any

bearing on the decision with respect to confirmation of probationary services

because the issue of confirmation of probationary services has nothing to do

with other aspects of the petitioner‟s performance in his service. The

impugned order does not go on these aspects of petitioner taking

unnecessary leaves or unnecessary LTCs, and for which reasons the

probationary services have been terminated. I also note that the admitted

position is that petitioner had been taking unnecessary leaves because he had

already taken till 30.5.2013 sixty days of earned leaves and 29 days of

commuted leaves. For a probationary officer surely the effect of taking of a

particular number of days of leave could have been a relevant aspect,

however, I note that it is not an aspect which has been considered in the

impugned letter of termination of services dated 27.11.2013. Even with

respect to the LTC issue respondent no.2 sought to take back the LTC

benefit because details of LTC utilization had to be provided within 30 days

of availing the benefit but the petitioner did not inform the details of the

LTC travel as per the rules of the respondent no.2. In any case this issue of

LTC benefit is not relevant with respect to the termination of services of a

probationary employee because it is not a ground which has been stated for

termination of the probationary services of the petitioner.

14. In view of the above, I do not find any illegality in the action of the

employer for not continuing the probationary services of the petitioner, and

terminating the services in terms of the order dated 27.11.2013.

15. In view of the above, there is no merit in the petition, and the same is

therefore dismissed, leaving the parties to bear their own costs.

DECEMBER 18, 2013                             VALMIKI J. MEHTA, J.
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