Shri A.K.Srivastava vs Min. Of Finance And Ors.
2013 Latest Caselaw 1985 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No. 4023/1993
%                                                          May 01, 2013

SHRI A.K.SRIVASTAVA                                              ......Petitioner
                  Through:               Mr. G.D.Gupta, Sr. Adv. with Mr. Vikram
                                         Singh, Advocate.


                            VERSUS

MIN. OF FINANCE AND ORS.                                   ...... Respondents

                  Through:                   None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?       Yes


VALMIKI J. MEHTA, J (ORAL)

1. This writ petition is filed by Mr. A.K.Srivastava who was appointed as a

Consultant (Electronics) by the Haryana Delhi Industrial Consultant Limited (for

short 'HARDICON') challenging the order of his termination of service dated

14.6.1993. By the order dated 14.6.1993, the petitioner was informed that his

services on probation were terminated with immediate effect.

2. The facts of the case as per the writ petition are that the petitioner was

appointed as a Consultant (Electronics) in HARDICON in terms of the

appointment letter dated 16.11.1990. Petitioner states in para 1 of the writ petition

that the petitioner was placed on probation for a period of two years which

stood completed on 13.12.1992. It is further pleaded that the petitioner in the

period of probation carried out work to the satisfaction of his superiors. It is also

pleaded that petitioner was entitled to increment due on 1.12.1992 which was

stopped and not included in the salary of December, 1992 causing harassment to

the petitioner and showing the malafide intent of the employer. It is further pleaded

that petitioner's probationary period was extended by six months by the letter

dated 17.12.1992. It is then pleaded that the petitioner was never informed during

the period of his probation that he was lacking in any manner and he was not

cautioned or warned in writing or orally about the deficiencies. Challenge is thus

laid to the termination in terms of letter dated 14.6.1993 on the ground that it is

malicious, illegal, arbitrary and violative of the relevant rules of HARDICON and

that the petitioner's service in fact ought to have been regularized. Petitioner, it be

noted, was permitted by allowing his CM No. 8835/1997 to raise additional

grounds. The additional ground which is argued before me on the basis of the said

application is that the letter dated 17.12.1992 of continuation of probation for six

months was issued by an authority who had no power to issue the same, and

therefore, the petitioner's extension of probation is illegal. Another additional

ground which is pleaded is that petitioner was not a probationary employee even

from inception inasmuch as the appointment of the petitioner on probation stood

waived by appointing authority in terms of the Regulation 18 of the Service

Regulations of HARDICON and hence petitioner was a regular employee since

inception. It is then argued on behalf of the petitioner that HARDICON ought to

have complied with the requirement of giving notice to the petitioner with respect

to his alleged inefficiency and since there was no communication to the petitioner,

the alleged inefficiency or bad conduct of the petitioner as stated in different paras

of the counter-affidavit cannot be a basis for termination of service of the

petitioner.

3. Let me deal each of the arguments which have been urged on behalf of the

petitioner. The first aspect is that whether petitioner cannot be said to have been at

all appointed on probation and he was in fact a permanent employee from day one.

Petitioner has placed reliance upon Regulation 18(i) of the Regulations in support

of this argument. In order to appreciate the argument urged on behalf of the

petitioner, it will be necessary to reproduce Regulations 18 and 20 and which

Regulations read as under:-

18. Employees in Group II An employee in Group II directly recruited to HARDICON's services shall be required to be on probation for a period which shall not be less than one year and not more than two years as may be fixed by the appointing authority at the time of his appointment.

(i) Provided that the appointing authority may at his discretion waive, in special case, the period of probation of any individual employee directly required to HARDICON'

(ii) Provided that where an employee is appointed to a Group II post by promotion or selection in a permanent vacancy, he shall be deemed to be holding that post in an officiating capacity, until he is confirmed in that post and shall not, unless otherwise specifically provided, be deemed to be on probation.

20. Power to Extend Period of Probation Notwithstanding anything contained in Regulation 18 & 19, the period of probation of an employee may be extended at the discretion of the authority competent to appoint, but in no case, may this period exceed three years."

4. In my opinion, petitioner's reliance upon Regulation 18(i) is misconceived

for various reasons. The first and the most important reason is that the petitioner

was appointed only on probation becomes clear from the fact even in the writ

petition, the petitioner has in repeated paragraphs mentioned about his appointment

on probation and continuation of probation. Petitioner therefore, cannot blow hot

and cold at the same time and take a mutual destructive case in the additional

ground in the rejoinder-affidavit on additional affidavit. The admission in the writ

petition of the petitioner being appointed on probation clearly dislodges the

argument of the petitioner having not been appointed on probation.

5. Secondly, before Rule 18(i) comes into play, in my opinion, there will be

required to be a specific order showing that discretion has been exercised to waive

the period of probation of an employee. No order of waiving of the period of

probation has been filed and nor could have been filed because in fact and reality

petitioner was appointed on probation initially for a period of two years and his

probation was thereafter extended for a period of six months in terms of Rule 20

which permits HARDICON to extend the period of probation up to the period of

three years.

6. Therefore, I reject the case argued before me that the petitioner was never on

probation and he was in fact a permanent employee from the beginning.

7. A related argument is the argument that the petitioner's extension of

probation by six months in terms of the letter of HARDICON dated 17.12.1992 is

illegal because the Chairman of the Board had to give prior approval for extension

of period of the probation and which procedure was not followed. In this regard,

on behalf of the petitioner reliance is placed upon Regulations 8 and 20 of the

Regulations. Regulation 20 has already been reproduced above and Regulation 8

is reproduced as under:-

8. Authorities Empowerd to make Appointments Appointment to the service of HARDICON may be made as follows:-

(a) to the post of Managing Director in group-I by the Chairman of the Board with prior approval of the Board and IFCI.

(b) to the post of Group-II by the Managing Director subject to prior approval of the Chairman of the Board with a report to Board.

(c) to the posts of group-III and IV by Consultant/Secretary Subject to the prior approval of the Managing Director and a report to Chairman of the Board.

8. On the basis of Regulations 8 and 20, it is argued that since probation can

only be extended by the appointing authority and the appointing authority for

Group-II post in which the petitioner was appointed is the Managing Director

subject to approval of the Chairman of the Board, and since the respondent/

HARDICON has failed to establish the approval of the Chairman with a report to

the Board, therefore, petitioner is to be taken to have been confirmed in the post

after the period of two years by holding the extension of probation to be illegal.

9. The argument urged on behalf of the petitioner appeared at the first blush to

be attractive because the respondent/ HARDICON had failed to file any reply to

the additional grounds, however, one cannot overlook the fact that the petitioner

himself has acted upon the extension of probation by six months given vide letter

dated 17.12.1992. Petitioner having accepted the extension of probation and

served for the extended period of probation in terms of letter dated 17.12.1992,

cannot thereafter suddenly urge that he was not on probation pursuant to the letter

dated 17.12.1992. If the petitioner had to challenge the letter dated 17.12.1992, it

was immediately after the same was issued and the petitioner at that stage ought to

have challenged the extension of probation and ought to have urged that he was a

confirmed employee because probation period has not been extended by the

competent authority. On the principle of estoppel therefore petitioner is estopped

from urging that the extension of six months given by the letter dated 17.12.1992

was not given by the competent authority.

10. In my opinion, there is another reason to reject the argument of automatic

confirmation and holding of the letter of extension dated 17.12.1992 as illegal

because a reference to Regulation 18(ii) (last line thereof) clearly shows that a

person holding Group-II post until he is confirmed to that post will be deemed to

be on probation i.e there is specifically required an order of confirmation of a

person in a Group-II post and there is no deemed confirmation of a person after

completion of a period of two years only. I may note that the petitioner was

employed w.e.f 14.12.1990 and therefore, the case of deemed confirmation can

only at best come into effect after 3 years on 14.12.1993 in terms of Regulation 20,

the 3 years being the maximum period of the probationary period. In this case,

petitioner's services were admittedly terminated before the end of the three year

period on 14.6.1993. Therefore, on a conjoint reading of the relevant parts of

Regulations 18 and 20, I am not agreeable to the argument that the extension letter

dated 17.12.1992 is illegal and petitioner stands confirmed to the post as a

permanent employee.

11. The next argument which is urged on behalf of the petitioner is that the

petitioner was denied the increment firstly in December, 1992 but was thereafter

given the same, and therefore, it should be held that there were no deficiencies on

the part of the petitioner and it could not be said by HARDICON that petitioner's

services were unsatisfactory in the probationary period. In support of this

proposition, reliance is placed upon para 10 of the judgment in the case of Ajit

Singh and others Vs. State of Punjab and another 1983(2) SLR 1.

12. In my opinion, even this argument urged on behalf of the petitioner lacks

substance because when we refer to the counter-affidavit, it is found that the

respondent / HARDICON has stated that though the petitioner was denied

increment initially, however, when it was found that increment has to be given

even in cases of poor performance, petitioner was restored the increment with full

arrears of the increment from the date it was due. Once that is so, in my opinion,

petitioner cannot rely upon the judgment in the case of Ajit Singh (supra) to

contend that grant of increment takes away any argument of unsatisfactory

services. In my opinion, the judgment in the case of Ajit Singh (supra) also does

not apply in the facts of the present case because in the facts of Ajit Singh (supra)

the issue was of completion of probation period after one year, and after one year

of probation, increment was granted, and which facts in the said case of Ajit Singh

(supra) were hence held as a basis of holding that probationary period stood

satisfactorily completed. In the facts of the present case, we are not governed with

the rule as was the question in the case of Ajit Singh (supra) and further, the facts

of the present case are also different because not only increment was given in spite

of poor performance, but the fact of the matter is that the respondent/HARDICON

had further opportunity from December, 1992 to judge the performance of the

petitioner till June1993, when the impugned order dated 14.6.1993 was passed

terminating the services of the petitioner. I, therefore, reject this argument urged

on behalf of the petitioner.

13. That takes me to the next argument on behalf of the petitioner that the

petitioner should have been informed of the deficiency of his services during the

period of probation and since that has not been done, terminating services of the

petitioner are illegal. Learned senior counsel for the petitioner could not point out

to me any judgment where a person has to be given a show cause notice during the

period of probation to improve his performance, and only judgment which was

relied upon was communication of adverse remarks in an ACR and which

judgment with respect to communication of adverse remarks in an ACR cannot

have application with respect to unsatisfactory services of a probationary

employee. There is not any law that probationary employee has to be given a

specific show cause notice in writing of unsatisfactory service during the period of

probation. Also, no such rule of the respondent/organization has been pointed out

to me that a show cause notice has to be served upon the probationary officer with

respect to unsatisfactory services. This argument therefore urged on behalf of the

petitioner is also misconceived and hence rejected.

14. It cannot be disputed that impugned order dated 14.6.1993 is a non stigmatic

order of termination. Once the services of probationary officer are terminated by

non-stigmatic order, the same cannot be challenged by the probationer whose

services are terminated. In view of the above, there is no merit in the petition for

setting aside or quashing of the impugned order dated 14.6.1993 whereby the

service of the petitioner was terminated by non-stigmatic order.

15. In view of the above, the petition is accordingly dismissed, leaving parties to

bear their own costs.

MAY 01, 2013                                        VALMIKI J. MEHTA, J.
ib