Mitul Goel vs Food Corporation Of India & Ors.
2019 Latest Caselaw 2008 Del

$~1
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Reserved on:        25.02.2019
                                       Pronounced on:      12.04.2019

+      W.P.(C) 1135/2012
       MITUL GOEL                                          ..... Petitioner
                          Through:     Mr. Udhav Pratap and Mr. Vijay
                                       Kumar Kaushal, Advocates.

                          versus

       FOOD CORPORATION OF INDIA & ORS.        ..... Respondents
                   Through: Ms. Anjna Masih, Advocate for FCI.

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                                   JUDGMENT

1. Vide the present petition, the petitioner seeks quashing of the

impugned discharge order No. E-1/6(5)/M(QC)/Confirmation/2011/NZ/

4003, dated 18.11.2011, served to the petitioner on 04.01.2012.

Consequently, directing the respondents to reinstate the petitioner, in service

with full back wages as Manager (QC).

2. The brief facts of the present case are that the petitioner was selected

as Management Trainee after passing the written examination, group

discussion and the interview, conducted by the respondent No.1- The Food

Corporation of India (hereinafter referred to as „Corporation‟). Accordingly,

an order viz. Order No. E.VI/37(2)/2007/NZ/614, dated 22.10.2008 was

issued from the office of the Executive Director (North) of the respondent

No. 2 for undergoing training for the period of one year. On the successful

completion of the period of training, the petitioner was given the regular

appointment as Manager (QC) and posted in Punjab Region under the

Administrative Control of the respondent No. 3 vide letter dated 05.11.2009

as per the terms and conditions, stipulated in the Offer of Appointment,

which expressly provides that the petitioner would be appointed on

probation for a period of one year, which will commence from the date of

joining of the service and may be further extendable for a period not

exceeding, one year. In case, probation period of one year is found to be

unsatisfactory, the petitioner will be liable, to be discharged from the service

of the Corporation, without assigning any reason, by serving him a notice of

30 days or pay and allowance in lieu, thereof. However, on satisfactory

completion of the probationary period of one year as per the expressed terms

and conditions in the offer of appointment, the petitioner will be considered

for confirmation, to the post of Manager (Q.C.). Accordingly, the petitioner

had submitted the joining report to the regional office of Punjab at

Chandigarh on 20.11.2009. Thus, his probation period had started from

20.11.2009 and completed on 19.11.2010.

3. Learned counsel appearing on behalf of petitioner submitted that

during the probation period of one year, the petitioner was never served with

any notice, pin-pointing any adverse complaint against the petitioner,

showing dissatisfaction of the petitioner‟s performance or shortcoming, if

any, was ever communicated to him, to give him an opportunity to rectify

himself. That even his probation period as required as per the rules of the

service, was also not extended any further, beyond 19.11.2010. Therefore,

the petitioner has concluded the probation period of one year, satisfactorily.

4. It is further submitted that after joining to the post of Manager (Q.C.)

on 20.11.2009 at the regional office, the petitioner was allocated duties to

perform at different dates and places, within the Punjab Region. The

petitioner was also entrusted with the additional charge of Sadulgarh and

Talwandi Sabo, in addition to his work at Raman due to his meritorious

contribution of work. The petitioner was thus required to work at three

centres i.e. Raman, Sadul Garh and Talwandi Sabo which are 75 Km, apart

which the petitioner performed effectively to the best satisfaction of

superiors without any adverse whatsoever noted against the petitioner. The

respective Rice Miller offered their consignment of Rice, consisting of 27

MT stock i.e. 540 bag of 50 kg each and dumped them in Varandah of

godowns. Whereafter, the Technical Assistant inspect the same under the

effective supervision of the petitioner only, for the acceptance or rejection of

the stocks. In some cases, the petitioner had to do this exercise of inspection

of rice stocks alone, without any assistance. The said stocks having been

accepted and found fit for acceptance, was stocked and stored in the godown

by the depot staff. As petitioner was posted at other place, there could have

been instances of some mischief by the rice miller with the connivance of

depots staff of Punjab State Warehouse Corporation but the petitioner

handled the same diplomatically without any complaint, whatsoever.

5. It is further submitted that some stocks of rice accepted by the

petitioner were further checked by different squads, sent by regional office/

alleged to have found the rice stock/wheat Beyond Rejection Limit (BRL)

under the supervision of the petitioner and for such instances petitioner was

made the scapegoat for doing nothing and proceeded with the minor penalty,

which are as follows:-

"Minor penalty cases in respect of Mitul Goel, Manager (QC) Petitioner / probationer SI. No. Memo / Date Date of Centre Penalty Date of SCN declared imposed Vigilance case BRL finalised

1. 6052 12/8/10 26/6/10 Budhlada Censure 31/1/11

2. 6171- 20/11/10 25.8.10 Budhlada 2 stage 23.4.11 6149 1/12/10 lower 23.5.2011 increment without cumulative effect.

     3.        6840     15/5/11     10.3.11   Talwandi    Rs.2000/-     28.11.11*
                                                Sabo      recovery
     4.        6578     17/6/11               Talwandi    Censure        15.11.11
                                                Sabo
     5.        6623    25/26.7.11   23.5.11    Raman       1 stage    15/12/2011**
                                                            lower
                                                         increment
                                                           without
                                                         cumulative
                                                           effect.
     6.        6590    25/26.7.11   15.4.11   Talwandi    Pending
                                                Sabo
     7.        6600      4/8/11     12.5.11   Talwandi   Rs.5000/-    12.12.2011***
                                                Sabo     recovery
     8.       QC:68     4/5.8.11    24.5.11   Talwandi   Pending
                                                Sabo
     9.        Wc-     12/18.8.11              Raman      Warning       28.9.2011

     10.       6747     11/10/11    20.7.11   Talwandi   Pending"
                                                Sabo

6. Learned counsel, further submitted that in these cases no inquiry has

ever been conducted before imposing minor penalties upon the petitioner.

Some of the penalties were passed/imposed after 18.11.2011, when the

petitioner was very on the corporation rolls i.e. 04.01.2012. It would not be

erroneous to mention here that as required the petitioner has submitted his

self-appraisal to the Management for his Annual Confidential Report (ACR)

for January 2010 to December, 2010 and on receipt of the same, the

Management vide its letter dated 20/23.08.2011, conveyed to the petitioner,

the overall grading analysed as "Good" for the year ending 2010, which is

annexed as Annexure-P-4.

7. It is further submitted that the probation report of the petitioner is also

good and satisfactory, which entitled the petitioner, to be confirmed to the

post of Manager (QC), as nothing adverse has ever been reported against the

petitioner during the probation period nor the period of probation was

extended beyond 19.11.2010. Accordingly, the petitioner would be deemed

to have been confirmed for the concerned post w.e.f. 19.11.2010. However,

to a great surprise, the petitioner was abruptly served with a Memorandum

dated 29.08.2011/01.09.2011, with other two officers of the Depot Cadre

namely Chandrabhan Manager (Depot), District Ludhiana and Sita Ram

Meena Manager (Depot) District Bhatinda with proposal to hold an inquiry

against the petitioner and other two officers under Regulation 58 read with

Regulation 50 of the FCI (Staff) Regulations, 1971. The inquiry proceedings

were initiated against the petitioner alongwith the aforementioned two

officers, by duly appointing the inquiry officer. The inquiry was attended by

petitioner on two dates i.e. 14.11.2011 and 03.12.2011 but thereafter the

petitioner was suddenly restrained from attending the inquiry, by stating that

the petitioner was no more the employee of the respondent Corporation.

Thereafter, on 04.01.2012, the petitioner was abruptly served with the

impugned order dated 18.11.2011 whereby discharged the petitioner from

the services of the respondent-Corporation, indicating therein, that the

petitioner is discharged from the services of the Food Corporation of India

with immediate effect, due to non-completion of probationer period

satisfactorily.

8. Learned counsel appearing on behalf of petitioner further submitted

that the respondent-Corporation issued discharging order dated 18.11.2011

whereas the petitioner got full salary for the months of November and

December, 2011. Copies of the salary slips for the months of November,

2011 and December, 2011 are annexed and marked as Annexure-P-7

(Colly).

9. In case of Pradip Kumar vs. Union of India and Ors. 2012 (12)

Scale 592 whereby held that nonetheless, the order of discharge cannot be

upheld, as it is stigmatic and punitive in nature, if the period of probation is

not extending within a reasonable period, from the expiry of one year, then

the officer continued in service.

10. In case of State of Punjab & Anr. vs. Shri Sukh Raj Bahadur 1968-3

SCR 234 whereby it is held that if there be a full-scale departmental enquiry

envisaged by Article 311 i.e. an Enquiry Officer is appointed, a charge sheet

submitted, explanation called for and considered, any order of termination of

service, made thereafter, will attract the operation of the said article.

11. Counsel further submits that when this was the situation, then, how

the petitioner shall be treated to have been discharged from the services of

the respondent-Corporation on 18.11.2011 and as to how the petitioner is not

confirmed in the post of Manager (QC) having the Annual Confidential

Report for the year 2010 being "Good" and the Probation report quite

satisfactory.

12. As per circular No. EP-04-2001-03 dated March, 26, 2001, which was

reiterated by FCI, Headquarters vide circular No. EP-04-2011-19 dated

September 9th, 2011, made it clear that the first probation report, covering

the service for the initial year, should be written on the basis of the

performance of first 10 months and sent to the appointing authority within

15 days of completion of 10 months. The instructions issued by the

department itself stipulate that in case, the probation report is not

satisfactory, the probation period has to be extended to the maximum period

of one year. It is also stipulated that the officer on probation, will be

simultaneously informed about the shortcomings noticed in the working of

the probationer concerned, so that there could be suitable opportunity for the

improvement in the performance. It shall be ensured that the officer is

placed under various controlling /reporting/reviewing officers, during the

extended period, to the extent possible, unless there is an extension of the

probation period, there is no necessity of conveying any remarks of

shortcomings, to the concerned officer.

13. It is further submitted that the petitioner has been subjected to hostile

discrimination, whereas, vide order dated 11.05.2010, the probation period

of 5 Manager (QC) was extended by the respondents as under:-

S.No.         Name of       D.O.B.        Place of     Date of         Date from
              the Officer                 Posting      Joining         which PP
              S/Shri                                                   extended.
1.            Ravinder      19.11.54      SGR          29.08.08        29.08.09
              Singh.
2.            Mohan Lal     04.02.55      GSP          13.10.08        13.10.09
              Kazal.
3.            Ramesh        11.01.51      BTD          30.08.08        30.08.09
              Kumar
              Goel
4.            Baldev Raj    28.06.51      HSP          08.09.08        08.09.09
5.            Param         30.11.54      FDK          17.09.08        17.09.09
              Hans
              Singh

14. Accordingly, the impugned order is only colourable exercise, to

deprive the petitioner from the opportunity of proper defence, in the above

mentioned inquiry proceedings. Thus, the impugned order is punitive in

nature, issued with malafide intent.

15. On the other hand, learned counsel for the respondent submits that the

action taken by the competent authority is justified and in consonance with

the Regulation 15(3) of F.C.I. (Staff) Regulation, 1971 and Para (2) of the

offer of appointment:

"He will be on probation for a period of one year from the date of his joining which may be further extended for a period not exceeding one year and in case of his unsatisfactory performance, he will be liable to be discharged from the service of the Corporation without assigning any reason by giving him a notice period of 30 days or pay and allowance in lieu thereof. However on satisfactory completion of the period of probation, he will be considered for confirmation to the post of Manager (QC)."

16. Learned counsel further submits that the probation report of the

petitioner was sent by RO Punjab, with delay (due to administrative reasons)

i.e. in the month of Jan, 2011. Whereas, the probation period was ending on

19.11.2010. Due to late receiving of probation report of the petitioner, the

confirmation case could not be processed within time and as such, there was

no question of informing the petitioner, about any adverse remark within his

probation period. Moreover, as an employee of Corporation, he was aware

about the vigilance cases/disciplinary proceedings pending against him, and

he should have been more careful towards his duties. As per instructions

available "under any circumstances, it will not be treated that the official is

deemed to have been confirmed for want of receipt of probation report. The

present case is not only based on poor probation report, but also on the non-

satisfactory completion of probation period, as observed by the competent

authority hereunder:-

"The Petitioner had joined F.C.I. on 20.11.2009 on fresh recruitment and was under probation for one year i.e. upto 19.11.2010. On perusal of his vigilance profile, received on 11.10.2011, it transpires that he was involved in vigilance case from 12.08.2010 onwards during his actual probation period and thus his probation may be treated as extended for next one year i.e. upto 20.11.2011."

17. From the perusal of the vigilance profile, it is observed that the petitioner was continuously involved in the vigilance cases against him, during the probation period (one year) and the concerned vigilance cases (9 cases) continued during his extended period of probation. The details of the cases against the petitioner are as under:-

SI.No    Details of Charge sheet & Date                   Status
1        Vig.4(BTI-6052)/QC/PB/MNR/2010,                  Censured
         12/08/10
2        Vig.4(BTI-6171-6149/10/6021                      RIP in time scale of
         20/11/10                                         pay
3        Vig.4(BTI-6480)/QC/2011,                         Recovery
         15/05/11
4        Vig.4(BTI-6578)2011,                             Censure
         17/06/11





 5        Vig.4(BTI-6590)/QC/PB/11/9190,                   Pending
         26/07/11
6        Vig.4(BTI-6623)/QC/PB/11/MNR,                    Pending
         27/07/11
7        Vig.4(BTI-6600/PB/11,                            Pending
         09/08/11
8        Vig.4(BTI-6685)PB/DO/2011,                       Pending with IO
         01/09/11
9        Vig.4(BTI-6742)/PB/QC/11/10018,                  Pending
         10/10/11

18. Learned counsel further submitted in view of his track record of

probation period, the petitioner does not deserve to be in service. Thus, the

present petition may be dismissed.

19. I have heard learned counsel for the parties in length and perused, the

material on record.

20. Out of nine disciplinary cases, eight were minor and one major

vigilance case initiated against the petitioner in the said probation period of

2 years, four have been decided and five cases are still pending.

Undisputedly, the penalty has been imposed upon the Petitioner in the four

cases decided against him and he has not been exonerated, even in a single

case. It reflects on the performance of the petitioner and it can be concluded,

that the petitioner has not satisfactorily completed his probation period.

Thus, he was liable to be discharged from the services of F.C.I. in terms of

Regulation 15(3) of F.C.I. (Staff) Regulation, 1971 and Para (2) of his offer

of appointment, which is reproduced as under:

"He will be on probation for a period of one year from the date of his joining which maybe further extended for a period not exceeding one year and in case of his unsatisfactory performance, he will be liable to be discharged from the service of the Corporation without assigning any reason by giving him a notice period of 30 days or pay and allowance in lieu thereof. However on satisfactory completion of the period of probation, he will be considered for confirmation to the post of Manager (QC)."

21. The vigilance cases against the petitioner had brought disrepute to the

employer Corporation. As far as adverse remarks in the probation report are

concerned, the remarks of the counter signing officer are important whereby

observed as "In view of the Vig. Profile, probation period may be extended

further" which is attributable as "adverse." The position regarding reason for

non-extension of probation period, it is explained that a vigilance case dated

12.08.2010 was pending against the petitioner during his probation period

and thus assumed to be extended, though it could not be conveyed to the

petitioner timely, due to delay by the administration. As per headquarter

circular, dated 09.09.2011, vide which the circular dated 26.03.2001 has

been reiterated as "Under any circumstances, it will not be treated that the

official/ officer is deemed to have been confirmed for want of receipt of

probation report." Thus, he cannot be treated as deemed to have been

confirmed.

22. Late service of the discharge order, upon the petitioner, cannot be

relied upon for seeking any relief by the petitioner. The discharge order

dated 18.11.2011 had been issued from ZO (North) and after having it been

routed through proper channel which underwent postal delay and he had

acknowledged the same by 04.01.2012 and as such, in the meantime, he was

paid salary for December 2011 by his local office.

23. In case of Suresh Chand Jain vs. Director General & Anr decided

by Double Bench of this Court in W.P.(C) 5603/2013 vide its judgment

dated February 11, 2015 had referred the decision of the Supreme Court in

case of Abhijit Gupta vs. S.N.B. National Centre, Basic Sciences: (2006) 4

SCC 469, wherein a similar letter was issued to the concerned employee

intimating that his performance was unsatisfactory and therefore, he is not

suitable for confirmation, negating the contentions raised by the employee

that the termination on the ground of alleged misconduct was stigmatic, the

Hon‟ble Supreme Court held that the order of termination due to

unsatisfactory performance is a termination „simpliciter‟ and not „punitive‟

in nature.

24. In view of above discussion and the aforesaid legal positions, it can be

concluded that this issue is no more res integra, that an order of termination

due to unsatisfactory performance of the probationer, cannot be ipso facto

termed as „stigmatic‟ or „punitive‟ in nature. During the probation period, an

employee has to be extra careful and diligent while discharging his assigned

duties, so that he can successfully complete his probation period to get

confirmation against the post he has been selected for and he does not give

any chance or reason to his superiors to terminate his services. If during the

period of probation, the performance of a probationer is not found

satisfactory or suitable for a particular job, as per the assessment of the

employer, he may be terminated from the service and such termination

would be termed as termination „simpliciter‟ and cannot be held to be

„punitive‟ in nature.

25. The petitioner joined at the regional office Punjab at Chandigarh on

20.11.2009 and probation period for the petitioner was one year.

Admittedly, petitioner was not confirmed and in that case, he cannot claim,

on the expiry of one year, he is deemed confirmed. On the contrary, if the

order for extension of the probation is not issued, the probation is deemed

extended. No doubt, the extension of probation cannot be more than the

double of the probation period. In the present case, the petitioner was on

probation from 20.11.2009, admittedly, neither conformation order has been

issued nor period of probation is extended. In such case, it is deemed that the

probation is extended. It is not in dispute that after joining on 20.11.2009,

the petitioner continued to face the vigilance cases against him, during the

probation period (one year). Furthermore, nine cases were continued during

his extended period of probation. Out of nine disciplinary cases initiated

against the petitioner in the probation period of 2 years, four have been

decided and five cases are still pending against the petitioner. The penalty

has been imposed on the petitioner, in all the four cases mentioned above.

Accordingly, as per the performance of the petitioner, it cannot be concluded

that the petitioner has satisfactorily completed his probation period.

26. It is pertinent to mention here that the letter dated 22.10.2008 issued

by respondent No. 2 to the petitioner, was for undergoing one year training.

On successful completion of the training, the petitioner was given the

regular appointment as Manager (QC) and posted in Punjab Region under

the Administrative Control of respondent No. 3 vide letter dated 05.11.2009

on the expressly provided terms and conditions that the petitioner would

remain on probation for a period of one year from the date of joining, which

may be extendable for a further period, not exceeding one year. In case,

probation period of one year is found to be unsatisfactory, the petitioner will

be liable to get discharged from the service of the Corporation, without

assigning any reason. It was made clear that on satisfactory completion of

one year period of probation, the petitioner will be considered for

confirmation to the post of Manager. Thus, his probation period of one year

started from 20.11.2009 and ends on 19.11.2010. It can be ascertained that

the probation period of the petitioner was not confirmed. Therefore, it was

deemed extended.

27. As discussed above, the petitioner had joined on 20.11.2009 and

discharge from the services vide order dated 18.11.2011 i.e. within two

years of the service rendered on the post of Manager(QC), on probation. It is

not in dispute that during probation an employees without assigning any

reason can be discharged from the service. In the present case, the track

record of the petitioner under the post concerned here, had been negative.

Thus, in any sense, he cannot claim that his probation period is completed

on 09.11.2010. Moreover, the petitioner has received the salary for the

services rendered by him as Manager (QC) in the probation period

concerned.

28. In view of the above facts and observations, I find no merit in the

present petition.

29. The same is, accordingly, dismissed with no order as to costs.

(SURESH KUMAR KAIT) JUDGE APRIL 12, 2019/rhc