Sh. Vijay Pal Singh vs The Oriental Insurance Co. Ltd. & ...
2013 Latest Caselaw 2120 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         W.P.(C) 2464/1998
%                                                               08.05.2013

SH. VIJAY PAL SINGH                                      ..... Petitioner
                          Through:       Ms. V. Mohana, Ms. Puja Singh,
                                         Advocates

                          versus

THE ORIENTAL INSURANCE CO. LTD. & ORS. ..... Respondents

Through: Mr. Vishnu Mehra, Advocate

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This writ petition is filed by the petitioner-Sh. Vijay Pal Singh, who is

an employee of the respondent No. 1/The Oriental Insurance Co. Ltd. By

the writ petition, petitioner seeks the relief being promoted to the post of

Development Officer Grade-I w.e.f 19.09.1990 and also that he should be

deemed to be confirmed after probation period on 19.9.1990.

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

Probationary Development Officer Grade-II by the respondent No. 1 vide

letter dated 29.08.1988 and which is also the date of his appointment.

Petitioner in the writ petition claimed that he achieved the targets which

were fixed for the two years of his service and, therefore, the petitioner was

entitled to confirmation as also promotion to the post of Development

Officer Grade-I immediately on probation period being completed on

19.09.1990. Petitioner claims that however he was not given confirmation or

promotion to the post of Development Officer Grade-I w.e.f 19.9.1990. The

writ petition thereafter makes reference to minor penalty proceedings being

initiated against the petitioner in terms of letter dated 09.03.1992. The

imputation of mis-conduct mentioned that the petitioner‟s agent had issued a

back dated cover note and exposed the company to an unwarranted liability,

due to which a motor accident case was pending with a claim of over `

5,50,000/- at Ghaziabad. The subject truck got involved in an accident on

21.04.1989 and, therefore, the charge was that the policy was wrongly

issued back dated i.e from 20.04.1989. Petitioner claims that he was

imposed the punishment of censure on 01.06.1992, petitioner thereafter in

the writ petition states that he earned the prescribed premium for the first

two years but he was surprised to receive a letter dated 05.05.1993 of the

Divisional Manager of the respondent No. 1 that the premium was not

sufficient and if the petitioner does not improve the business his claim for

regularization will not be considered. Petitioner was subsequently

confirmed to the post of Development Officer Grade-II w.e.f 01.10.1992,

and the petitioner claims that he should instead be confirmed from

19.09.1990. The writ petition is, therefore, filed for quashing of the

punishment of censure as the same is imposed without hearing and for

confirmation of the petitioner in the post of the Development Officer Grade-

II on 19.9.1990 and the immediate promotion thereafter from the same date

as Development Officer Grade-I w.e.f. 19.09.1990.

3. In the counter-affidavit filed by the respondent No. 1, it is stated that

once censure was awarded to the petitioner, there did not arise any issue of

his confirmation from completion of two years period. It is argued that

petitioner never challenged the censure order of 01.06.1992 except by filing

a writ petition in the year 1998 and, therefore, the censure order has become

final. In the counter-affidavit it is further stated that every Development

Officer has to meet certain norms and only thereafter could a Development

Officer would stand promoted. Norms have to be completed for a period of

two consecutive years after the said revised norms became applicable w.e.f

01.04.1993 for upgradation to Grade-I from Grade-II. Respondent No. 1

states that petitioner has failed to meet the eligibility criteria to upgrade to

Grade-I as the petitioner failed to meet the relevant target. This is stated in

para 7.13 of the counter-affidavit which reads as under:

"7.13 Thus eligibility of the petitioner for upgradation to Grade-I has

to be considered for the two consecutive years prior to 1.4.1993.

     PERFORMANCE               TARGET COMPLETION

     PERIOD                                 OF TARGET

     01.04.91 - 31.03.92       4,50,000/-   4,73,136/-

     01.04.92 - 31.03.93       5,50,000/-   5,07,000/-

     01.04.93 - 31.03.94       7,50,000/-   7,13,000

     01.04.94 - 31.03.95       8,00,000/-   9,60,000/-

     01.04.95 - 31.03.96       8,50,000/- 10,49,000/-

The respondents have therefore prayed for dismissal of the writ petition.

4. So far as the first relief claimed by the petitioner for automatic

completion of probation period after two years on 19.09.1990, in my

opinion, the argument is mis-conceived because pleadings on record show

that there is required a confirmation order after the probation period is

successfully completed. In the present case, the probation period was not

successfully completed because petitioner was found guilty of mis-conduct

and was imposed a minor penalty of censure. Therefore, the respondent No.

1 was justified in not confirming the petitioner after the period of two years

as claimed by the petitioner i.e. w.e.f 19.09.1990.

4(i). It is argued on behalf of the petitioner that petitioner met the targets

for the first two years of his probationary period and, therefore, petitioner is

deemed to have been confirmed in terms of appointment letter dated

29.08.1988. Reliance is placed upon sub-paras „a‟ and „b‟ of para 5 of the

appointment letter and which read as under:

"5(a) Confirmation in the services shall not be automatic on fulfilment of the above conditions, unless a letter of confirmation is specifically issued by the Company.

(b) Unless letter of confirmation or extension of probation is issued to you, your services shall stand automatically terminated after expiry of the period of probation."

(ii) It is argued in the alternative that actually period of two years was not

required to be completed for probation and the same was reduced to one

year vide letter dated 30.07.1990 of the General Insurance Corporation of

India (GICI) and, therefore, subsequent minor penalty proceedings cannot be

allowed to stop confirmation of the petitioner w.e.f 19.09.1990, and from

which date petitioner ought to have got the Grade-I pay. The relevant para

of the letter of GICI dated 30.07.1990, which is relied upon, reads as under:

"4. Past cases may be dealt as under :-

(i) xxx xxx xxx

(ii) A Development Officer who has completed probation period of one year or more but less than two years on or before 14th May, 1990 and has reached the target for the first year, may be confirmed as Development Officer Grade-II effective 14th May, 1990."

(iii) In my opinion, both the arguments urged of automatic confirmation

after two years and of entitlement to confirmation after one year because of

letter of GICI dated 30.07.1990 are misconceived. This is because sub-paras

„a‟ and „b‟ of the para 5 of the appointment letter relied upon by the

petitioner go against the petitioner inasmuch as the law is that once there is

required a specific letter of confirmation after completion of probationary

period, a person cannot be deemed to be confirmed automatically after the

probation period and which is two years in the present case. The only

reason whereby there can be deemed confirmation would be if there were

some rules/staff regulations of the respondent No.1 providing automatic

confirmation after two years against language of the para 5 of the

appointment letter, however, admittedly there are no pleadings or documents

or rules/regulations of the respondent No. 1 relied upon to show that there

would be automatic confirmation after two years of probationary period.

There is no inconsistency between sub-paras „a‟ & „b‟ as argued on behalf of

the petitioner and even if there is any assumed inconsistency I must apply

the principle of harmonious construction to give effect to the language of

para 5 that there shall not be an automatic confirmation unless confirmation

letter is specifically issued by the respondent No. 1- company. The argument

on behalf of the petitioner that since targets for first two years have been met

and thus nothing further stood in the way of the confirmation of the petition

w.e.f 19.9.1990 is a misconceived argument because not only targets have to

be met but a confirmation letter of successful completion of probation had to

be issued and which admittedly was not issued. It is illogical to argue that

merely because targets are met, then confirmation is automatic because an

employee may be guilty of a major or minor misconduct and thus such a

person cannot claim confirmation simply because targets in probation period

have been achieved. It is for this reason therefore that a confirmation be

successful completion of probation period is required. I, therefore, hold that

there was no automatic confirmation of the petitioner after a period of two

years from the date of appointment.

(iv) So far as the argument of the petitioner on the basis of the letter of

GICI dated 30.07.1990 is concerned, I may state that sub-para (ii) of para 4

relied upon use the expression "may," and which shows that it is

discretionary for the respondent No. 1, and not mandatory upon the

respondent No. 1 to confirm the services after one year. This discretion

would be rightly given because there may be many cases where for different

reasons the record of a Probationary Officer may not be good enough for

automatic confirmation after one year such as the employee being guilty of

minor or major misconduct as stated in the para above. Therefore, in the

facts of the present case I hold that even the letter of GICI dated 30.07.1990

cannot be read to mean that there is automatic confirmation of the officer on

probation after one year of probationary period.

5. The second relief claimed by the petitioner is for grant of a higher

grade i.e. Grade-I instead of Grade-II w.e.f. 19.09.1990 inasmuch as the

petitioner claims that petitioner had met the requisite target. The fact of the

matter, however, is that petitioner was only confirmed to the post of a

Development Officer Grade-II w.e.f. 01.10.1992 and, therefore, there does

not arise the issue of claiming benefit of Grade-I post from prior date of

19.09.1990. After 01.10.1992 as per the relevant norms which came into

being, the same required each Development Officer‟s targets to be

considered for the two consecutive years and which is stated in para 7.13 of

the counter-affidavit which is reproduced hereinabove. Petitioner has not

given any requisite rejoinder to the factual averments made in para 7.13 of

the counter affidavit, and the petitioner has only made a general denial

without giving actual figures by which the petitioner achieved his targets for

two consecutive years. Therefore, the contents of para 7.13 of the counter-

affidavit have to be believed and which shows that the petitioner satisfied

the norms of upgradation of Grade-I Officer for two consecutive years only

on completion of the financial year 1995-1996. Petitioner accordingly was

given upgradation w.e.f. 01.04.1996. Petitioner therefore is not entitled to

the relief that he was entitled to upgradation to Grade-I w.e.f. 19.09.1990 as

claimed in the writ petition.

6. So far as the challenge to the censure order dated 01.06.1992 is

concerned, the same is hopelessly barred by delay laches because a censure

order dated 01.6.1992 cannot be challenged by filing a writ petition six years

later on 12.05.1998. If the petitioner had a grievance against the censure

order of 1992 he should have come within a period of about three years

(being the ordinary limitation period), however, the writ petition was filed

much later in May 1998. No doubt Limitation Act does not apply to writ

proceedings but the period prescribed in the Act has to be ordinarily

observed except for grant and exceptional reasons. Therefore, the challenge

to censure order dated 01.06.1992 is dismissed as being barred by delay and

laches, especially because the change was of issuing a back dated policy and

the respondent no.1 therefore being involved in litigation in Gaziabad

courts.

7. In view of the above, there is no merit in the writ petition, which is

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

                                             VALMIKI J. MEHTA, J
MAY       08, 2013
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