| SooperKanoon Citation | sooperkanoon.com/360981 |
| Subject | Service |
| Court | Mumbai High Court |
| Decided On | Nov-10-1994 |
| Case Number | Writ Petition No. 2713 of 1986 |
| Judge | Ashok Agarwal and ;K.K. Baam, JJ. |
| Reported in | 1995(2)BomCR477 |
| Acts | Constitution of India - Article 227; CIDCO Services Regulations - Regulations 10, 13(1), (2) and 29 |
| Appellant | The Cidco Engineers Association and anr. |
| Respondent | The City and Industrial Development Corporation of Maharashtra Ltd. |
| Appellant Advocate | A.V. Bukhari and ;I.A. Saiyed, Advs. |
| Respondent Advocate | C.J. Savant and ;R.M. Savant, Advs. |
| Disposition | Petition dismissed |
Ashok Agarwal, J.
1. An order passed on 7th January, 1986 reverting the petitioner No. 2 from the post of Assistant Engineer to the post of Junior Engineer is impugned in the present petition. The order, inter-alia, recites :-
'The overall performance of Shri Pawar during the probation period is found to be unsatisfactory and as such he is reverted to the lower cadre of Junior Engineer with immediate effect....'
The petitioner at the material time was working as an Assistant Engineer on probationary basis. The order by which the petitioner was promoted was passed on 23rd November, 1984. The same, inter-alia, provides that conditions governing the promotion are as per the annexure to the said order. The condition No. 1 of the annexure provides :
'He shall be on probation for a period of one year and subject to the provisions of CIDCO Service Regulations and these conditions he will be confirmed in the service of the Corporation on satisfactory completion thereof.'
2. Based on the above condition which provides for a probationary period of one year it is firstly contended that on expiry of period of one year from the date on which the petitioner assumed charge as an Assistant Engineer, he is deemed to have been confirmed. The petitioner took charge of his promotional post on 30th November, 1984. Hence on expiry of period of one year i.e. with effect from 30th November, 1985 the petitioner will be deemed to have been confirmed. Hence the impugned order of reversion passed thereafter carries alongwith it civil consequences. It amounts to punishment. The punishment which is inflicted without following principles of natural justice is liable to be vitiated.
3. In our judgment the argument overlooks the phrase 'and subject to the provisions of CIDCO Service Regulations' and 'he will be confirmed in the services of Corporation on satisfactory completion thereof.' It is, therefore, apparent that the CIDCO Service Regulations are made part of the conditions of promotion. Let us therefore see what the service regulations in this respect are. Regulation 2 deals with the extent and application of the regulations. Under sub-clause (a) of Regulation 2 it is provided that unless it be expressly provided otherwise and only to the extent to which it is so provided, these regulations shall apply to all employees of City and Industrial Development Corporation of Maharashtra Limited.
Regulation 5(e) defines employee to mean ;
'Employee means any person employed in the Corporation to do any skilled, unskilled, manual, supervisory, technical, clerical or managerial work for hire or reward whether the terms of his employment be express or implied, but does not include any such person who is not employed continuously for more than a month.'
Regulation 5(i) defines probationer as;
''Probationer' means an employee who has been appointed to a permanent post on probation and who has not completed the probationary period fixed for him.'
Regulation 10 on which reliance is placed on behalf of the petitioner to urge that the order or reversion amounts to a punishment provides as under;
'10. Transfer to a post carrying less pay.
No employee shall, except for reasons of proved inefficiency or misconduct, be transferred substantively to a lower post carrying less pay.'
Then comes Regulation 13 which is relevant on the issue at hand. It provides as under:
'13. Appointment on probation and confirmation.
1. An employee shall be liable to be appointed on probation for such period as may be fixed by the Managing Director and may be confirmed on the completion of such probationary period.
2. The probationary period of an employee may be extended by the Managing Director without assigning any reasons. An employee shall be deemed to have completed his probationary period either initial or extended and confirmed in his post when he is so intimated. In the absence of such an intimation, his probationary period shall be deemed to have been extended.'
4. The above regulation makes it clear that there can be no automatic confirmation at the completion of a probationary period. Confirmation can only be by an intimation to that effect. If there is no intimation, the probationary period continues. Hence there can be no automatic confirmation. Since there has been no intimation in regard to the confirmation the probationary period of the petitioner will be deemed to have been continued even after the 30th November,1985. The petitioner, in the circumstances, cannot be said to be holding a substantive post of Assistant Engineer on the date of the passing of the order of reversion. He still continued to be on probation. Hence, it cannot be said that the impugned order has been passed by way of punishment and is, therefore, liable to be struck down as having been passed in violation of principles of natural justice. The first contention raised on behalf of the petitioner, therefore, stands rejected.
5 .It is next contended that the services of the petitioner during the probationary period were satisfactory. No adverse remarks were passed in his confidential report. In any event no adverse remarks were communicated to the petitioner. Hence, the order of reversion is passed mala fide and without application of mind and is, therefore, liable to be quashed. In this connection reliance is placed on a Circular dated the 15th February, 1980 issued by the respondents relating to instructions for guidance of a Reporting Officers and Reviewing Officers in connection with confidential reports of the CIDCO employees. Reliance has been placed on Clause 13 of the Circular which provides ;
'An employee should at no time be kept ignorant of the Reporting Officer's opinion when his work is not considered satisfactory. Adverse remarks relating to the character are not to be communicated to an employee unless the defects in his character become so bad as to interfere with his efficiency. Only the remediable defects should be brought to the notice of the employee. Thus, defects in character which do not interfere with the employee's efficiency and the defects which are not remediable are not to be communicated to him. Adverse remarks in respect of relations with non-officials and public reputation should, however, invariably be communicated to the employee.'
Based on the circular it is contended that since no adverse remarks are communicated the order of reversion is based on no material and is, therefore, liable to be quashed.
6. In this connection the respondent have filed an affidavit in reply of Shri Vijay Damodhar Gupte who is the Manager (Personnel) of CIDCO. In the affidavit he has stated as under:
'vi. The second petitioner was due on 30th November, 1985 to be considered for his confirmation as an Assistant Engineer. By my Memo No. PERS/EST/B-821 dated 11th October, 1985 addressed to the Additional Chief Engineer, I set in motion the process of eliciting the appraisal of the performance, qualitative and quantitative and the general conduct of the second petitioner during his probationary period. I received on 10th December, 1985 the report dated 15th November, 1985 of the Executive Engineer as endorsed on 5th December, 1985 by the Additional Chief Engineer. A copy of this report is annexed hereto as Exhibit No. 1. Both the Executive Engineer and the Additional Chief Engineer reported adversely about the performance of the second petitioner. Neither of them was impressed with the performance to commend his confirmation.
iv. With reference to paragraph 4 of the writ petition herein, it is submitted that the evaluation of the work and conduct of the second petitioner as recorded by his immediate superiors was not baseless and was the honest and candid expression of their opinion as to the desirability of confirming the second petitioner as a Assistant Engineer. The second petitioner was found in their estimation to be unfit for confirmation as an Assistant Engineer but to be fit for continuation as a Junior Engineer. They recorded truly and honestly taken evaluation of the performance of the second petitioner as an Assistant Engineer. There is no allegation in the writ petition herein attributing mala fides or want of bona fides to them. It is submitted respectfully that the reliance placed by the petitioners on the circular issued by the respondent-Corporation is misconceived and misplaced as the circular is intended to instruct and guide the senior officers rating and reporting upon their Junior Officers from year to year for the purpose of maintaining confidential reports. This circular has no application to the evaluation of the performance of a probationer. ......There is no warrant to suggest that this circular bears out the measure of trust and confidence reposed in the second petitioner or the degree of exultation of his performance.'
Exhibit No. 1, which is referred to in the aforesaid sub-paragraph (vi) reads as under:
'CONFIDENTIAL CIDCO/PERSONNEL No. PERS/EST/B-821 11-10-1985
Sub : Confirmation in the post of Assistant Engineer of Shri P.G. Pawar
Shri P.G. Pawar promoted as Assistant Engineer vide Office Order No. PERS/RTC/Promotion/8/WS/dated 23-11-1984 had joined the said post in New Towns at A'bad w.e.f. 30-11-1984 and will complete the probation period of one year on 30-11-1985.
The Addl. Chief Engineer is, therefore, kindly requested to offer his remarks regarding confirmation of Shri P.G. Pawar in the post of Assistant Engineer w.e.f. above date.
sd/-
Manager (Personnel)
To,
The Addl. Chief Engineer,
CIDCO.
Forwarded DE (Aurangabad) for his remarks. A report from DE Shri Deokhedkar may also be asked for.
sd/-
Addl. C.E.
16-10-
I am not satisfied with the work of Shri Pawar. Following are the reasons.
1. Not punctual in work.
2. Not quality conscious.
3. Has no much control over subordinates and the contractors.
Addl. CE may takes suitable decision in the matter please.
sd/-
K.G. Waghmare
D.E. (Aur)
15-11-
A.C.E.
I agree with D.E. (Aur). The time period should be extended by one year of Shri Pawar and we should inform him that if he does not improve within one year he will be reverted to lower post.
Even if it is possible at this stage I have no objection to the above.
Personnel (Manager)
sd/-
Addl. C.E.
5-12-
A.P.O. please put up his file alongwith C.R.
sd/-
Personnel Manager
10-12-
7. Placing reliance on office notings dated the 11th October, 1985 it was pointed out that during probation the petitioner has worked under Divisional Engineer Shri Deokhedkar during the period November, 1984 to May, 1985 and under the Divisional Engineer Shri Waghmare during the period June, 1985 to December, 1985. As far as the Additional Chief Engineer is concerned he has called for the remarks of Shri Deokhedkar also which remarks have not been obtained and only the remarks of Shri Waghmare are obtained. As far as remarks of Shri Waghmare are concerned it is contended that they are adverse in nature. The remarks provide that petitioner was not punctual in work, not quality conscious and has no much control over subordinates and the contractors. According to the learned Counsel the observations are vague and perfunctory and lack particulars and details. Even though the Additional Chief Engineer had directed to obtain the remarks of Shri Deokhedkar under whom the petitioner had worked during the major portion of probationary period this was not done. As far as Additional Chief Engineer is concerned, he has no doubt agreed with the observations of Shri Waghmare but he has merely recommended the extension of the probationary period. If recommendation was to extend the period of probation the order of reversion passed by the Managing Director is in excess of the said recommendation and, therefore, deserves to be set aside. In our judgment, the argument overlooks the observation in the endorsement of the Additional Chief Engineer:
'Even if it is possible at this stage I have no objection to the above.'
Which obviously means that even if the petitioner is reverted back to his substantive post at that very stage Additional Chief Engineer is agreeable to the same. It is not, therefore, possible to subscribe to the contention that the order of the Managing Director is liable to be vitiated on the ground that it exceeds recommendation made by the Divisional Engineer and Additional Chief Engineer.
8. It is no doubt true that the remarks of Shri Deokhedkar under whom the petitioner has had an occasion to serve as probationer has not been called for. This is so despite the Additional Chief Engineer had called for his remarks. However, in our view, the impugned order cannot be assailed on this ground alone without anything more. We are not a Court of appeal. The impugned order has been passed on an overall assessment of the performance of the petitioner during the probationary period. We do not find that the observations ;
'Not punctual in work, Not quality conscious and has no much control over the subordinates and contractors'
would amount to an aspersion on the character of the petitioner and can, therefore, be termed as a punitive action taken without holding a departmental enquiry. As we read the observations we find that the petitioner is not found suitable to be confirmed to the promotional post and is, therefore, found liable to be reverted back to his substantive post of Junior Engineer.
9. The respondents on an overall assessment of the performance of the petitioner have found that the petitioner was not fit to be continued in the promotional post and, therefore, is reverted to the substantive post of Junior Engineer. The said order, therefore, cannot be successfully assailed.
10. Shri Bukhari has next contended that the impugned order of reversion amounts to a punishment which according to him, could not have been imposed without holding due enquiry as contemplated under CIDCO Service Regulations. He has relied upon chapter IV of the Regulations which deals with the conduct and discipline. Under Regulation 26(17) habitual late attendance and under 26(19) inefficiency or incompetence in the performance of duties, are treated as acts of misconduct. Regulation 27 deals with punishment. Under Clause (d) of Regulation 27 delinquent found guilty of misconduct is liable to be demoted or reduced in grade or pay. Before such an action is taken the procedure as contemplated in Regulation 29 is required to be followed. Regulation 29 provides that before a punishment as provided under Clause (1) of Regulation 27 is imposed an enquiry as contemplated under Clause (2) is required to be conducted by the competent authority in accordance with Regulation 29. Regulation 29(a) provides:
'An employee charged with misconduct of a nature which (if established) is likely to lead to the imposition of any of the punishments (d), (e) or (f) under Clause 1 of Service Regulation 27 shall be given a charge sheet in writing clearly setting forth the circumstances appearing against him and requiring explanation, and the date and time at which the case will be heard, which date shall not be less than two days after the service of the charge sheet. At the hearing of the case, he shall be given an opportunity to answer the charge and permitted to be defended by another employee of the Corporation. Except for reasons to be recorded in writing by the officers holding the enquiry, the employee shall be permitted to produce witnesses on whose evidence the charge rests. A concise summary of the evidence led on either side and the employee's plea shall be recorded.'
Based on the above provisions of the Service Regulations Shri Bukhari contended that the order of reversion is an order of punishment and since the said order is passed without holding an enquiry the same is liable to be quashed.
11. In our judgment, the argument is devoid of merit as it proceeds on an erroneous hypothesis that the order of reversion is an order of punishment. Before an order of reversion can be said to be an order of punishment the employee concerned should be holding a post substantively. If the post is held on probation the provision of Regulation 10 will have no application. In the instant case it will be provisions of Regulation 13 which will apply. Once it is found that petitioner was a mere probationer, he has no right to the post and hence the impugned order of reversion cannot successfully be assailed on the erroneous hypothesis that the same amounts to be a punishment. The contention of Shri Bukhari therefore deserves to be rejected.
12. We will now make reference to certain decisions which have been relied upon the learned Counsel for the contending parties in support of their respective contentions. Shri Bukhari, learned Counsel appearing on behalf of the petitioner, has first relied on a case of Utkal Machinery Ltd. v. Santi Patnaik, 1965. 28 F.J.R. 131 where the Supreme Court has observed :-
'In the absence of standing orders, unsatisfactory work of an employee may be treated as misconduct and where an employee who is on probation is discharged for unsatisfactory work, the discharge would be tantamount to punishment for misconduct which cannot be effected by the employer without holding a proper enquiry. Where there is no proof of any misconduct and there is complete absence of evidence in regard to unsatisfactory work, the discharge of the employee would be mala fide.'
In our view, the observations ought to be read in the context in which they are made. The facts of the case are reproduced in para 2 of the Judgment which reads as follows :-
'The respondent-Miss Santi Patnaik took her degree of Master of Arts (Political Science) in 1961. At that time, Major General Pratap Narain was the General Manager of Utkal Machinery Ltd. (hereinafter referred to as the `Management'). On 9th December, 1961, Major General Pratap Narain appointed the respondent as his secretary on monthly salary of Rs. 400/-. She was thereafter transferred to the Personnel Department of the Company as an assistant. It appears that Shri A.L. Sarin joined as Personnel Officer on 2nd January, 1962. The respondent alleges that on 30th April, 1962 she was given notice for termination of her service. On her representation, she was informed on 30th May, 1962, that the decision of the management to dispense with her service was final. The allegation of the respondent is that, taking advantage of her subordinate official position, Mr. Sarin misbehaved with her to which she offered resistance. The respondent asserted that the termination of her service was improper, mala fide and an act of victimisation. The respondent prayed that the order of termination should be set aside and she should be reinstated with full arrears of pay.'
From the above case it will be seen that the employee who was a lady secretary was terminated. The allegation of the secretary was that the Personnel Officer taking advantage of her subordinate official position misbehaved with her and the impugned order of termination was inflicted because of her resistance. The order of termination was, on these facts held to be improper, mala fide and an act of victimisation. The above observations, therefore, can have no application to the facts of the present case.
13. Further reliance is placed on a case of V.D. Damle, appellant v. State of Maharashtra, respondent 1989 Lab. IC. 1501 to which one of us (Agarwal, J.,) was a party. The case related to a compulsory retirement where adverse remarks for a period of 4-5 years which were not earlier communicated, were communicated to the employee with a condition that representation against adverse remarks will not be entertained. On the basis of those adverse remarks an order of compulsory retirement was passed. On these facts this is what has been observed :
'It would be unjust and unfair and contrary to principles of natural justice to retire prematurely a Government employee on the basis of adverse entries which are either not communicated to him or if communicated representations made against those entries are not considered and disposed of. The object of communicating to the employee adverse remarks is aimed at achieving two purposes. It gives an opportunity to the employee to make a representation against the said adverse remarks and it provides an opportunity to him to improve in his performance of his official duties. If the adverse remarks are not communicated periodically, the aforesaid objects are bound to be frustrated.
'Where the adverse remarks extending for the period of 4 to 5 years were communicated to the employee working as Farm Supervisor under Milk Commissioner at one stage by the Memorandum which contained a recital that no representation against the same would be entertained, the impugned order of premature retirement which had taken into account the adverse remarks communicated to the employee vide abovesaid memorandum would be bad in law. Moreover, in the memorandum though adverse remarks had been communicated to the employee, nothing was mentioned regarding the period, when a certificate of appreciation of his work with sincerity was given to the employee by the Dairy Development Commissioner. Further, the Department failed to produce the material placed before the Special Review Committee before passing impugned order though called upon, an adverse inference could be drawn against the department in that behalf. In such a case, it could not be contended that the Government had an absolute right to retire a Government servant if it was of the opinion that it was in public interest and it was not open to a Court to sit in a judgment over that order of compulsory retirement.'
In our view the above decision can have no application to the facts of the present case. The cited case deals with an employee holding a substantive post who has been compulsorily retired on the basis of adverse remarks contained in Confidential Report against which no opportunity was given to employee to make representation and hence order of compulsory retirement was found to be vitiated.
14. Further reliance is placed on the case of State of Uttar Pradesh and others, Appellants v. Sughar Singh, respondent 1974 Lab I.C. 353 where Supreme Court observed :
'Since we are concerned in this case with a case of reversion, we propose to confine our attention to the different circumstances in which an order of reversion may be made. An order of reversion is in its immediate effect bound always to be a reduction in rank. Even a reversion from a higher but temporary or officiating rank to a lower substantive rank is in a sense a reduction. But such orders of reversion are not always reduction in rank within the meaning of Article 311. If the officer is promoted substantively to a higher post or rank, he gets a right to that particular post or rank and if he is afterwards reverted to the lower post or rank which he held before, it is a 'reduction in rank' in the technical sense in which the expression is used in Article 311. The real test in all such cases is to ascertain if the officer concerned has a right to the post from which he is reverted. If he has a right to the post then a reversion is a punishment and cannot be ordered except in compliance with the provisions of Article 311. If, on the other hand, the officer concerned has no right to the post, he can be reverted without attracting the provisions of Article 311. But even in this case, he cannot be reverted in a manner which will show conclusively that the intention was to punish him. The order itself may expressly state that the officer concerned is being reverted by way of punishment. In fact the order may in various other ways cast a stigma on the officer concerned. In all such cases, the order is to be taken as a punishment. Sometimes again, the order of reversion may bring upon the officer certain penal consequences like forfeiture of pay and allowances or loss of seniority in the subordinate rank or the stoppage or postponement of future chances of promotion: in such cases also the government servant must be regarded as having been punished and his reversion to the substantive rank must be treated as a reduction in the rank. In such a case Article 311 will be attracted.'
'In the instant case we have no doubt in our mind that the peculiar circumstances that from out of a group of about 200 officers most of whom are junior to the respondent, the respondent alone has been reverted to the substantive post of Head Constable makes it absolutely clear that there was no administrative reason for this reversion. In fact there was no suggestion at any time made on behalf of the appellant that the post had been abolished or that the respondent was, for administrative reasons, required to go back to his own post of Head Constable. This circumstance only corroborates what the learned Standing Counsel for the State admitted before the High Court that the foundation of the order of reversion is the adverse entry made in his character roll. In this view of the matter, we have no doubt that the order was passed by way of punishment, though all outward indicia show the order to be a mere order of reversion. Even if it were not so, we have no doubt that the order would be liable to be quashed on the ground of contravention of Articles 14 and 16 of the Constitution.'
In our view, the above decision goes against the contention of the petitioner rather than in his favour. The observation that 'even a reversion from a higher but temporary or officiating rank to a lower substantive rank' is in a sense a reduction, but such orders of reversion are not always reduction in rank within the meaning of Article 311. If one applies the test laid down in the aforesaid case, it is apparent that the petitioner has no right to the post of Assistant Engineer from which he is reverted. If he had such a right then the reversion would amount to a punishment and could not have been ordered except in compliance with the principles of natural justice. The petitioner in the instant case has no right to the post and, therefore, he can be reverted without attracting the mischief of Article 311.
15. Next case relied upon on behalf of the petitioner is a case decided by the Calcutta High Court State of West Bengal and others, appellants v. Phanindra Kumar Das, respondent 1992 Lab. I.C. 1563 wherein Justice A.M. Bhattacharjee speaking for the Bench has observed :
'Even a temporary servant or a probationer or one temporarily officiating in a higher post cannot be discharged or reverted back at pleasure, if the foundation of the order of discharge or reversion is some alleged inefficiency, incapacity or any other blameworthy conduct of the servant, without giving the servant concerned an opportunity of being heard against the proposed action. It may be very difficult to ascertain with exact precision as to whether, when a temporary servant is discharged by an innocuous order of termination, the factor which led the employer to order termination was merely a motive or really the foundation. Motive is what induces a person to take certain action. Foundation is the basis or the ground on or for which an action is taken. The motive for the action and the ground or basis for the action may very often have no appreciable distinction and may be inextricably intertwined as to defy any differentiation, except by indulging in legal verbiage or logomachy.
If two views are possible, whether of the facts or the laws, the view in favour of the weaker or the poorer should be accepted, so that our Constitutional resolve to secure and our Constitutional mandate to promote Socio-Economic Justice are fruitfully and effectively carried out. A retired employee locked up in battle with the State obviously be regarded to be the weaker and the poorer, and therefore, even if two views are possible, one holding the alleged misconduct to be the foundation, and the other holding the same to be the mere motive, the former, being favourable to the employee, must be accepted.'
The above observations are made on the following facts :
'Where after the delinquent replied to a show cause notice he was told nothing until the impugned reversionary order was passed and in fact the enquiry was not at all dropped and there were communications between the Superior Officers and certain adverse comments also were made in those communications which led up to the recommendation for reversion, the adverse opinion was the foundation for the order of reversion. Since the reversion order was passed without affording an opportunity of being heard to the delinquent, as it cast a stigma on him, it was unsustainable.'
The above facts reveal that after the delinquent had replied to the show cause notice no steps were taken to hold departmental enquiry and the impugned order of reversion was passed. The order was based on adverse comments exchanged between the Superior Officers. The adverse comments on which the order of reversion was passed was not communicated to the delinquent and no opportunity was afforded to the delinquent to show cause and therefore order was set aside. In the circumstances, we do not find that the aforesaid case also can aid or assist the petitioner.
16. Shri Bukhari lastly relied on the case Jagdish Mitter v. Union of India, 1964 L.L.J. 418 where the Supreme Court observed :
'The order impugned in the instant case stated that the concerned employee (who was a temporary Government servant) having been found undesirable to be retained in Government service is discharged on one month's notice. When the order referred to the fact that the concerned employee was found undesirable to be retained in Government service, it expressly cast a stigma on him and in that sense must be held to be an order of dismissal and not a mere order of discharge. It is obvious that to say that it is undesirable to continue a temporary servant is very much different from saying that it is unnecessary to continue him, in the first case, stigma attaches to the servant, while in the second case, termination of service is due to the consideration that a temporary servant need not be continued, and in that sense, no stigma attaches to him. It seems that anyone who reads the order, in reasonable way, would naturally conclude that the appellant was found to be undesirable, and that must necessarily import an element of punishment which is basis of the order and is its integral part. When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in such cases must be : Does the order cast aspersion or attach stigma to the officer when it purports to discharge him? If the answer to this question is in the affirmative, then notwithstanding the form of the order, the termination of service must be held, in substance, to amount to dismissal.'
In the above case the Supreme Court found that the order of reversion was based on a finding that the concerned employee was found undesirable to be retained in Government service. On facts it was found that the said aspersion expressly cast a stigma on him. Based on the finding the Supreme Court found that the order of discharge was not an order of dismissal. The above case will, therefore, be of no assistance to the petitioner. The observations are made in the context of the facts found and hence cannot have any application to the facts of the present case.
17. Shri Savant, learned Counsel appearing on behalf of the respondents, has relied upon the case of Municipal Corporation, Raipur, Appellant v. Ashok Kumar Misra, Respondent, : (1991)IILLJ343SC . The facts of the case are to be found in paragraph 1 of the judgment. They are as under :
'The appellant appointed the respondent as Lower Division Clerk on September 22, 1966 and put him on probation for a period of two years which expired on September 21, 1968. On December 9, 1968, the appellant served him with one month's notice terminating the services with effect from January 9, 1969. Calling in question the order of termination, the respondent laid the suit for declaration that the termination without enquiry and an opportunity of being heard was violative of Rule 9-A of the Madhya Pradesh Civil Service Classification, Control and Appeal (Rules), 1966 with consequential declaration that he became a permanent employee of the Corporation with continuity of the service and arrears of salary.'
The case was governed by Rule 8 of the Municipal Officer's and Service Recruitment Rules which provided for recruitment of a probationer which reads thus :
'Probation-(1) A person appointed to a service or post by direct recruitment shall ordinarily be placed on probation for such period as may be prescribed.
(2) The appointing authority may, for sufficient reasons, extend the period of probation by a further period not exceeding one year.
Note- A probationer whose period of probation is not extended under this sub-rule but who has neither been confirmed nor discharged from service at the end of the period of probation shall be deemed to have been continued in service, subject to the condition of his service being terminable on the expiry of a notice of one calender month given in writing by either side.
(3) A probationer shall undergo such training and pass such departmental examinations during the period of his probation as may be prescribed.'
In the context the Supreme Court has ruled as under :
'Exercise of the power to extend the probation is hedged with the existence of the Rule in that regard followed by positive act of either confirmation of the probation or discharge from service or reversion to the substantive post within a reasonable time after the expiry of the period of probation. If the rules do not empower the appointing authority to extend the probation beyond the prescribed period, or where the Rules are absent about confirmation or passing of the prescribed test for confirmation of probation and inaction for a very long time may lead to an indication of the satisfactory completion of probation. But in this case Rule 8 expressly postulates otherwise. The period of probation is subject to extension by order in writing for another period of one year. Passing the prescribed examination and successful completion of probation and to make an order of confirmation are condition precedent. Mere expiry of the initial period of probation does not automatically have the effect of deemed confirmation and the status of a deemed confirmation of the probation. An express order in that regard only confers the status of an approved probationer. We are of the view that note to sub-rule (2) read with sub-rule (6) of Rule 8 manifests the legislative intent that confirmation of the probation of the respondent would be made only on successful completion of the probation and the passing of the prescribed examinations. It is not the respondent's case that he passed all the examinations. He shall be deemed to be continued on probation. Before confirmation the appointing authority is empowered to terminate the service of the probationer by issuing one calender month's notice in writing and on expiry thereof the service stands terminated without any further notice. Within three months from the date of expiry of original two years period of probation and within one year's period, the order of termination was made. In this view the question of conducting an inquiry under the Classification, Control and Appeal (Rules) after giving an opportunity and that too for specific charges does not arise.'
18. In our view the above decision based on a rule which is substantially similar to the regulation at hand will apply to the present case and the petitioner will not be entitled to claim automatic confirmation at the end of the completion of the probationary period.
19. Shri Savant has next relied upon a case of Oil and Natural Gas Commission and others Appellants v. Dr. Md. S. Iskander Ali, Respondent, 1980 Lab. I.C. 698. The facts of the case have been narrated as under :
'The facts giving rise to the appeal lie within a very narrow compass. The respondent, Dr. Md. S. Iskander Ali, was appointed on a purely temporary basis to the post of a medical officer in a the Oil and Natural Gas Commission. Under the terms and conditions of his service, he was to remain on probation for a period of one year which could be extended at the discretion of the appointing authority. The respondent was appointed on October 15, 1965, and the order of his appointment may be extracted thus :
'No. 52/35/65/-ENT dated the 15th October 1965.
MEMORANDUM
With reference to his interview on the 18th August, 1965, held at Sibsagar, Shri Dr. Md. S. Iskander Ali, is hereby informed that he/she has been selected for a temporary post of Medical Officer in the Oil and Natural Gas Commission on an initial pay of Rs. 325/- p.m., in the scale of Rs. 325-25-500-30-EB-30 800 (plus non-practising allowance @ 25% of basic pay subject to minimum of Rs. 150/-). He will be entitled to draw dearness and other allowances at such rates and subject to such conditions as may be laid down in the rules and that orders governing the grant of such allowances from time to time.'
2. The order of appointment was accompanied by conditions regulating his appointment and two of them may be extracted below, as they appear to be very relevant for the purpose of deciding the question at issue :-
'(ii) The appointment may be terminated at any time by one month's notice to be given by either side, viz., the appointee or the appointing authority, without assigning any reasons. The appointing authority, however, reserves the right of terminating the services of the appointee without notice or before expiration of the stipulated period of notice by making payment to him of a sum equivalent to the pay and allowances for the period of notice of the unexpired portion thereof.
(iii) He will be on probation for a period of one year from the date of appointment. This period may be extended at the discretion of the appointing authority, if necessary. During the period of probation, the services are liable to be terminated at any time without notice, and/or assigning any reasons whatsoever.'
3. It appears that during the period of his probation there were some reports against the respondent as a result of which a departmental enquiry was held against him but which does not appear to have been proceeded with nor was any punishment imposed on him. After he had completed the period of one year on 15-10-1966, his probation was extended for another six months and before his services were terminated, there was no express order either confirming him or extending the period of probation. Ultimately, by an order dated 28th July, 1967, the services of the respondent were terminated with effect from 28th July, 1967. The order of termination runs thus :-
'No. 57/191/67/ENT dated July 28, 1967.
OFFICE ORDER
Under para (2) (iii) of offer of appointment No. 52/35/65/ENT dated October 16, 1965, the services of Dr. Md. Iskander Ali, Medical Officer (still on probation), is hereby terminated with effect from the date of the service of this order on him.'
On these facts the Supreme Court observed as under :
'It was then vehemently contended by the respondent that as the appointing authority chose to institute a departmental inquiry against the respondent for dereliction of duty and negligence in not attending to a baby who died due to his carelessness, the enquiry should have been carried to its logical end and charge-sheet having been framed, the provisions of Article 311 of the Constitution were clearly attracted and therefore it was not open to the appellants to have terminated the services by giving the order of cover of termination simpliciter. In other words, the contention was that the real motive behind the termination of the service of the respondent was to inflict a punishment on him and as the appellants did not comply with the requirement of Article 311 of the Constitution, the order impugned was illegal. We are, however, unable to agree with this argument. In the first place, it has been clearly pleaded by the Government in its counter affidavit that although an enquiry was held yet is was not continued and no punishment was imposed on the respondent. In this connection, relevant portion of paragraph 11 of the counter-affidavit before the High Court may be extracted :-
A preliminary enquiry was made before the charge was framed and on the enquiry report a prima facie case having been found against the petitioner due charge was framed against him. No punishment under Regulation 28 of Oil and Natural Gas Commission (Conduct, Discipline and Appeal) Regulation was inflicted on the petitioner.'
In these circumstances, therefore, it is obvious that as the respondent was merely a probationer, the appointing authority did not consider it necessary to continue the enquiry but decided to terminate the services of the respondent as he was not found suitable for the job. It is well settled by a long course of decisions of this Court that in the case of a probationer or a temporary employee, who has no right to the post, such a termination of his services is valid and does not attract the provisions of Article 311 of the Constitution. In the case of Samsher Singh v. State of Punjab, : (1974)IILLJ465SC , the matter was considered in all its aspects by a Constitution Bench comprising seven Judges of this Court and the Court adumbrated the following propositions :-
'Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of in-adequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this... The fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of punishment.... A probationer whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311(2)...'
'An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article 311. Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct.'
For these reasons, therefore, we are satisfied that the order terminating the services of the respondent was valid and did not involve any stigma and was fully justified in the facts and circumstances of the present case.'
20. The above case would show that even when the departmental proceedings had been initiated in respect of charges of misconduct and were discontinued and when an order of termination was passed after the extended period of probation was over, the order was held to be an order of termination simpliciter and not that of dismissal. It would thus appear that it will all depend upon the facts of a particular case. Courts are required to consider on the facts of each individual case and arrive at a finding whether the order is one of termination simpliciter or an order of dismissal couched in words of an order of termination which in fact, for all purpose and intent, is an order of dismissal.
21. Reliance is placed on case of Governing Council of Kidwai Memorial Institute of Oncology, Banglore, Appellant v. Dr. Pandurang Godwalkar and another, Respondents, : (1993)ILLJ308SC where the Supreme Court observed thus :
'If an employee who is on probation or holding an appointment on temporary basis is removed from the service with stigma because of some specific charge, then a plea cannot be taken that as his service was temporary or his appointment was on probation, there was no requirement of holding any enquiry, affording such an employee an opportunity to show that the charge levelled against him is either not true or it is without any basis. But whenever the service of an employee is terminated during the period of probation or while his appointment is on temporary basis, by an order of termination simpliciter after some preliminary enquiry it cannot be held that as some enquiry had been made against him before issuance of order of termination it really amounted to his removal from service on a charge, as such penal in nature.
The principle of tearing of veil for finding out real nature of the order shall be applicable only in a case where the Court is satisfied that there is a direct nexus between the charge so levelled and action taken. If decision is taken, to terminate the service of an employee during period of probation, after taking into consideration overall performance and some action or inaction on the part of such employee then it cannot be said that it amounts to his removal from service as punishment. It need not be said that the appointing authority at stage of confirmation or while examining the question as to whether the service of such employee be terminated during the continuance of the period of probation, is entitled to look into any complaint made in respect of such employee while discharging his duties for purpose of making assessment of the performance of such employee.
Thus in the present case the Governing Council examined different reports in respect of the probationer during period of probation and considered the question as to whether he should be allowed to continue in the service of the Institute. The decision was taken by the Governing Council on the total and overall assessment of the performance of the probationer in terms of the condition of the appointment. It cannot therefore be said that the order of termination amounts to removal from service as a punishment.'
22. As has been done in the earlier case, this case also illustrates the fact that courts are required to find out the real nature of the order by lifting the veil. As has been found in the aforesaid case, we find that in the present case on hand, the relevant authorities of the respondents have examined the report made by Shri Waghmare under whom the petitioner was serving as a probationary. Based on the report and on an overall assessment of the performance of the petitioner the respondents have come to the conclusion that it was not desirable to confirm and continue the petitioner on the promotional post and hence he has been reverted to his substantive post of Junior Engineer. In our view the aforesaid decision of the respondents cannot, in the circumstances, be successfully assailed.
23. Shri Savant lastly relied on the case of M. Venugopal v. Divisional Manager, Life Insurance Corporation and another, : (1994)ILLJ597SC wherein the Supreme Court observed:
'Even under general law, the service of a probationer can be terminated after making an overall assessment of his performance during the period of probation and no notice is required to be given before termination of such service. This aspect has been examined by this Court in the case of The Governing Council of Kidwai Memorial Institute of Oncology, Bangalore v. Dr. Pandurang Godwalkar, where it has been pointed out that if the performance of the employee concerned during the period of probation is not found to be satisfactory on overall assessment, then it is open to the competent authority to terminate his service.'
The aforesaid cases relied upon by Shri Savant are the cases which apply to the facts of the present case. Once the ratio laid down in the aforesaid cases is kept in mind, we find no hesitation to hold that the order impugned is fully justified and does not call for any interference in the present petition. The 2nd petitioner was due on 30th November, 1985 to be considered for his confirmation as Assistant Engineer. By a memo dated 11th October, 1985 issued by the Manager (Personnel) addressed to the Additional Chief Engineer he set in motion the process of eliciting the appraisal of the performance, qualitative and quantitative and the general conduct of the 2nd petitioner during his probationary period. The said Manager on 10th December, 1985 received a report dated 15th November, 1985 of the Divisional Engineer which was duly endorsed by the Additional Chief Engineer on 5th December, 1985. The Divisional Engineer reported adversely about the performance of the 2nd petitioner. The Additional Chief Engineer concurred with the views of the Divisional Engineer. The Additional Chief Engineer recommended the extension of the probationary period by one year but added that he had no objection if the 2nd petitioner was reverted at that stage itself. Based on the recommendation the impugned order of reversion was passed. We find that evaluation of the work and the conduct of the 2nd petitioner as recorded by his immediate superiors is not baseless and has been honest and bona fide. Expression of their opinion as to the undesirability of confirming the 2nd petitioner as an Assistant Engineer is based on material. The 2nd petitioner, in their estimation, was found to be unfit for being confirmed as Assistant Engineer but he was found fit to be continued only as Junior Engineer. As far as the circular at Exhibit 'D' to the petition is concerned, we find that reliance placed is misconceived and misplaced as the circular is intended to instruct and guide the senior officers rating and reporting upon their junior officers from year to year for the purpose of maintaining confidential reports. The said circular has no application to the evaluation of the performance of a probationer.
24. In the result we find that the petitioner was by an order dated the 23rd November, 1984 was promoted from the post of Junior Engineer to the post of Assistant Engineer. Promotion was on probation for a period of one year. The promotion was made subject to the CIDCO Service Regulations. Regulation 13 does not contemplate an automatic confirmation at the end of the period of probation. There is no confirmation till an order to that effect is intimated and the probationary period has therefore, continued till the passing of the impugned order of reversion. The process of evaluating the performance of the petitioner was undertaken by the communication issued by the Manager (Personnel) on 11th October, 1985 which was well within the period of probation. A decision to revert the petitioner has been taken by the Managing Director on 1st January, 1986 and the same has been duly communicated to the petitioner by the impugned order dated 7th January, 1986. It cannot, therefore, be said that the order of reversion has been passed after undue delay and therefore an inference arises that the petitioner is deemed to have been confirmed. The order of reversion is therefore found to be fully justified on the material on record. The impugned action is an administrative action and cannot be termed to be punitive in nature. The same, therefore, cannot be assailed on the ground of want of enquiry contemplated under Chapter IV of the Service Regulations. In the circumstances, we find that the challenge to the impugned order is devoid of merit. In the result, the petition fails. Rule is discharged. There shall, however, be no order as to costs.