Dr. Veena Chaudhary vs The Director, Iit, Delhi And Anr.
2013 Latest Caselaw 4999 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) No. 12183/2009 & CM Nos. 12398/2009 & 12712/2009 (Stay)

%                                                      30th October, 2013

DR. VEENA CHAUDHARY                                .... Petitioner
                 Through: Ms. Jasvinder Kaur, Advocate.


                          Versus



THE DIRECTOR, IIT, DELHI AND ANR.                 ..... Respondents

Through: Mr. Abhinav Mukherji and Ms. Purnima Krishna, Advocate for respondent No. 1.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. The petitioner by this writ petition impugns the action of the

respondent no. 1/IIT Delhi/employer in terminating her probationary

services. The probationary services of the petitioner were terminated by the

order dated 16.9.2009. Before me the following arguments have been urged

on behalf of the petitioner to question the action of the respondent in

terminating the services of the petitioner:

(i) The first ACR with respect to the first period of work of the petitioner

from 23.3.2007 till 31.12.2007 and extended upto 22.3.2008, which gives

the remark of „unsatisfactory‟ with respect to the services of the petitioner,

was not a valid remark because as per the service rules of the respondent no.

1 at least three months period of service under the officer is required for the

concerned officer to prepare an assessment report/ACR report qua an

employee, and which requirement was not complied with in the present case

because Dr. S.K. Agarwal, Chief Medical Officer who wrote the ACR was

not the person under whom petitioner had served at least for three months

prior to 22.3.2008.

(ii) The respondent had without any basis taken opinion of other doctors

as is shown from the handwritten draft note annexed to the internal circular

dated 29.9.2008, and which draft note showed comments of other doctors

with respect to assessment of the work of the petitioner, and more

experience and services required from the petitioner, before her confirmation

was done.

(iii) Principles of natural justice ought to have been followed but have not

been followed before terminating services as petitioner was not put to notice

during her probationary period of unsatisfactory services assessed as per the

ACRs and the note dated 29.9.2008 signed by certain doctors.

(iv) Respondent no. 1 has tried to wrongly buttress the issue of termination

of probationary services by referring to fresh facts in the additional affidavit

dated 12.7.2010, although, no such aspects find mention in the ACRs of the

petitioner.

2. Before I turn to the arguments urged on behalf of the petitioner the

scope of this Court while hearing a petition under Article 226 of the

Constitution of India challenging the order of termination of services of a

probationary employee is required to be noted and this legal position is that

the scope of challenge is limited because this Court ordinarily will not

substitute its own opinion for that of the employer and the competent

authority to decide satisfactory nature of services or otherwise of a

probationary employee. Unless and until there is clear cut illegality or quite

clear mala fides for termination of services of the probationary employee

who has rendered satisfactory services, Courts do not set aside the orders of

termination of probationary services. Further, the Supreme Court in a catena

of judgments has held that principles of natural justice have not to be

followed before terminating the services of a probationary employee. Two

judgments are in the cases 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 wherein it is

has been held that principles of natural justice have not to be followed before

terminating the services of a probationary officer.

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)

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."

3. So far as the first argument of the petitioner is concerned, no doubt

petitioner may have in the opinion of this Court made out a case with respect

to the Chief Medical Officer Dr. S.K. Agarwal having not supervised the

work of the petitioner for three months, however, what cannot be ignored by

the Court is that subsequently thereafter also there are additional ACR

reports which state that the petitioner‟s services were not satisfactory. These

are the reports for the period from 24.3.2008 to 21.9.2008, 24.9.2008 to

23.3.2009 and from 24.3.2009 to 23.9.2009. Therefore, in view of the

additional ACRs showing remarks of „unsatisfactory‟, even if we do not

look at the ACR report for the period ending 22.3.2008, the same will not

make any difference in the facts of the present case for terminating the

services of the petitioner‟s probationary services. In the

additional/subsequent ACRs there is mention of lack of care on behalf of the

petitioner in treating patients as also not changing the wrong attitude and

knowledge in this regard in spite of being pointed out by the CMO as also

other doctors. The ACR report for 24.3.2009 to 23.9.2009 shows that

though there was some improvement, still further improvement was required

in clinical and therapeutic knowledge. The aforesaid position thus resulted in

the recommendation made with respect to the unsatisfactory services and

which was approved by the reviewing authority as also the final competent

authority. I therefore hold that petitioner‟s argument based only on one

ACR for the period ending 22.3.2008 cannot help the petitioner as the

totality of all the ACRs have to be seen.

4. I may note that at one stage it was sought to be argued that there is no

rule of respondent no. 1 requiring preparing of ACRs of probationers, but

this argument I have found to be without any substance because what

matters is not the terminology of calling reports as ACRs but the fact that the

reports were reports prepared for assessment of the nature of services of the

petitioner as a probationary employee.

5. The argument urged on behalf of the petitioner that opinions of other

doctors could not be taken with respect to her services, is an argument once

again without merit, because surely for finding out the satisfactory nature of

services which is seen by the reporting and reviewing authority such officers

undoubtedly also can take comments of the other doctors who had seen the

working of the petitioner and interacted with her during the probationary

service period. Such views of other doctors can definitely be taken to

determine the nature of satisfactory services or otherwise of the petitioner in

the probationary period. I have failed to understand as to how opinion of

other doctors who are working with the petitioner and who have observed

her with respect to her capability, conduct and dealing with patients, can in

any manner be said to be irrelevant for deciding the satisfactory nature of the

services or otherwise of the petitioner as a probationary employee. This

argument on behalf of the petitioner is accordingly rejected.

6. The third argument on behalf of the petitioner that respondent no. 1

did not comply with the principles of natural justice cannot be accepted in

view of the ratio of the judgments of the Supreme Court reproduced above

holding that there is no requirement of following of principles of natural

justice before terminating the services of a probationary employee.

7. The final argument urged on behalf of the petitioner that additional

facts which have been stated in the additional affidavit dated 12.7.2010 are

wrong facts, is only an argument for overlooking the contents of the

additional affidavit, however, those contents even if overlooked, yet, the

assessments which were done with respect to the petitioner- probationary

officer during her period of probation in terms of various ACRs show non-

satisfactory services, and therefore, there existed the entitlement of

respondent no.1 to discontinue the probationary services of the petitioner.

This argument therefore urged on behalf of the petitioner is also rejected.

8. In view of the above, there is no merit in the writ petition and the

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

pending applications are accordingly disposed of.

OCTOBER 30, 2013                                    VALMIKI J. MEHTA, J
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