9911796707
TMI Blog2010 (12) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... ishnan with Nikhil Nayyar and R.N. Singh, Advocates, for the Respondent. [Order per : L.K. Joshi, Vice-Chairman (A)]. Two questions arising for adjudication in this OA are whether the Applicant would be considered deemed to have been confirmed from probation after the prescribed one year of probation, though provision existed for extension by two years, one year at a time, when the probation was extended towards the end of the third year, simultaneously for both the years; and whether the order of the Applicant s discharge from service would be considered punitive and not termination simpliciter. The following two orders have been assailed in this OA : (a) Order number 4 of 2009, issued by the first respondent, Department of Revenue, by which the period of probation of the Applicant as Member (Judicial) in the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has been extended retrospectively for a period of two years simultaneously; and (b) Order number 5 of 2009 issued by the first Respondent, whereby the Applicant has been discharged forthwith from service as Member (Judicial) in the CESTAT, under Rule 8(3) of the Customs, Excise and Service Tax Appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Judicial) of the CESTAT by letter dated23-10-2006. The terms and conditions of the service were annexed with the offer of appointment. He was appointed as Member (Judicial) by order dated7-11-2006. The Applicant assumed the charge of office on22-11-2006. The Applicant completed his one-year period of probation on21-11-2007. No order extending the period of probation was issued. The Applicant continued to work as Member (Judicial). He served under three Presidents, namely, Justice Abichandani, Justice S.N. Jha and Justice R.M.S. Khandeparkar. He never received any adverse comment from any one of them during his tenure of service as Member (Judicial). The Applicant also got his increment in his salary. Just when he assumed that his probation would have come to an end, to his utter chagrin he received the order dated19-11-2009extending his probation first up to21-11-2008and then further up to21-11-2009. The Applicant tendered his resignation from the post of Member on20-11-2009(Annex A-8). However, the order number 5 of20-11-2009discharging the Applicant from service was issued. The Applicant withdrew his resignation by letter dated23-11-2009under Rule 9 (2) of the Rules of 1987, wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Member (Judicial). 4. The Applicant had been granted increments in his salary on27-11-2007and27-11-2008. The learned counsel for the Applicant has submitted in this regard that the grant of increments would show that the performance of the Applicant had been satisfactory. Reliance has been placed on Ajit Singh and Others v. State ofPunjaband Another, (1983) 2 SCC 217. The Honourable Supreme Court made the following observations in the paragraphs 10 and 17 of the judgment : 10. This conclusion is buttressed by another circumstance appearing in the record. When each of the petitioners completed his one year of service, which marked the expiration of the period of probation, an increment was released in his favour. Subject to the specific rule to the contrary, ordinarily no increment is earned during the period of probation. But at any rate, if an increment can be earned after the expiry of the period of probation, it would depend upon the satisfaction of the appointing authority that the work and conduct of the probationer was satisfactory. Further Rule 4.7 of the Punjab Civil Service Rules, Vol. 1 provides that an increment shall ordinarily be drawn as a matter of course, unl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less it is withheld. An increment may be withheld from a Government servant by the Central Government or by any authority to whom the Central Government may delegate this power under Rule 6, if his conduct has not been good or his work has not been satisfactory. In ordering the withholding of an increment, the withholding authority shall state the period for which it is withheld, and whether the postponement shall have the effect of postponing future increments. Referring to the instructions of the Ministry of Home Affairs dated15-4-1959, the learned counsel would contend that the probation should not be extended as a matter of routine. The said instructions are extracted below : Confirmation of probationers - A person appointed against a permanent post as a direct recruit with definite conditions of probation is to be confirmed in the grade with effect from the date on which he successfully competes the period of probation. The decision whether he should be confirmed or his probation extended should be taken soon after the expiry of the initial probationary period, i.e., ordinarily within 6 to 8 weeks and communicated to the employee together with the reasons in case of exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraph 4.11 of the OA, that most of the orders passed by the Applicant were upheld by the Honourable High Court. The learned counsel would further contend that minor infringements of instructions could not lead to the drastic action of discharge of a judicial officer on probation. Reliance has been placed on Ishwar Chand Jain v. High Court of Punjab and Haryana, AIR 1988 Supreme Court 1395, in which it has been held thus in paragraph 13 : 13. As far as the confidential roll of the appellant is concerned it is noteworthy that when the High Court considered the matter on21-3-1985the appellant s annual report was available only for the first year of his service namely 1983-84. The report for that year was satisfactory. Entry for the year 1984-85 was awarded by Justice S.P. Goyal who was Inspecting Judge on15-4-1985. He awarded Grade B plus to the appellant which means that appellant s work was good. But this entry could not be taken into consideration by the High Court as it had already taken the decision on21-3-1985to dispense with the appellant s services. We are distressed to find that when the aforesaid entry for 1984-85 came up for consideration before the full court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be terminated. 5. During the course of the arguments the Respondents were directed to place the record pertaining to the discharge of the Applicant for the perusal of the Tribunal. From the perusal of the relevant file, we found that the letter dated 16-11-2009 had been written by the President of the CESTAT addressed to the Secretary of the first Respondent, in which it was mentioned that the Applicant was not fit and suitable to be continued as Member (Judicial) of CESTAT taking into consideration his overall unsatisfactory performance. He requested for the discharge of the Applicant from the CESTAT in the best interest of our institution. The President also mentioned in the aforementioned communication that many of the orders passed by the Applicant ex facie disclose that he entertains appeals against the orders of the Commissioner (Appeals), which is specifically barred under Section 35C of the Central Excise Act, 1944 and he invariably interface in such orders. It was also stated that in spite of being assigned the work of Single Member, he entertains and decides the appeal which are to be heard by a Division Bench. It was further mentioned that the jurisdiction of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the noting in the file that the order was punitive. 7. The learned counsel for the Applicant would further contend that the Rule 8 of the Rules of 1987 provided for probation for a period of one year. It is pointed out that the probation could be extended after one year for a period of two more years subject to the condition that the probation would be extended for a further period of one year at a time. Since the probation of the Applicant was not extended after one year for another period of one year after completion of an year in November 2007, the Applicant would be deemed to have been confirmed. Reliance has been placed on State ofPunjabv. Dharam Singh, AIR 1968 SC 1210, in which the Honourable Supreme Court has observed in paragraph 5 and 9 as under : 5. In the present case, Rule 6(3) forbids extension of the period of probation beyond three years. Where, as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 1952 was not followed and as the constitutional protection of Article 311 was violated, the impugned orders were rightly set aside by the High Court. It may at this stage be mentioned that the Applicant had dropped the contention regarding the deemed confirmation after some arguments initially, after considering the judgment of the Tribunal in OA number 1895/2009, Dr. Punita K. Sodhi (supra) decided on 6-1-2010, in which the identical issue of deemed confirmation was discussed. However, the argument regarding deemed confirmation has been revived by the learned counsel for the Applicant citing the judgment of Dharam Singh (supra). 8. The Respondents would contend that the reliance of the Applicant on the notes in the file on the subject of confirmation is futile because the process of confirmation was far from complete even in May 2009, as would be seen from the note dated 11-5-2009, placed at page 156 of the paper book, in which it was mentioned that the comments from the President, CESTAT, were still awaited. A reminder was sent to the CESTAT in this regard. It was contended that grant of increments does not ipso facto mean confirmation. The learned counsel for the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnishes a valuable opportunity to the master to closely observe the work of the probationer and by the time the period of probation expires to make up his mind whether to retain the servant by absorbing him in regular service or dispense with his service. Period of probation may vary from post to post or master to master. And it is not obligatory on the master to prescribe a period of probation. It is always open to the employer to employ a person without putting him on probation. Power to put the employee on probation for watching his performance and the period during which the performance is to be observed is the prerogative of the employer. 9. Having clearly ascertained the purpose and intendment underlying the concept of probationary period in service jurisprudence, one can confidently say, that it is not absolutely necessary to prescribe a period of probation in each case and the State Government as an appointing authority will have discretion in this matter subject to rules by which appointment is governed, otherwise the rule would be counter-productive. Highly qualified and experienced persons coming into service at a later stage in life like petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondents that period of probation was two years, the fact that on the expiry of one year of service an increment was released, would imply that during the period of one year the work and conduct has not been unsatisfactory. If it was otherwise the release of increment could have been interdicted on the ground that neither the work nor the conduct was satisfactory. The fact that the increment was released would at least permit an inference that there was satisfactory completion of the probation period and that during the probationary period, the work and conduct of each of the petitioner was satisfactory. It was further contended that in case of the probationer it would not be necessary to advise him/her about his shortcomings in work. The Respondents have placed reliance on High Court of Judicature at Patna v. Pandey Madan Mohan Prasad Sinha and Others, (1997) 10 SCC 409, in which the Honourable Supreme Court has held thus in paragraphs 6 and 7 of the judgment : 6. An order terminating the services of a probationer can be questioned only if it is shown that it has been passed arbitrarily or has been passed by way of punishment without complying with the requirements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r during or at the end of the period of probation for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it before orders are passed by the authority competent to terminate the employment. Having regard to the said provision contained in Rule 55-B, this court held that the government employee was entitled to be informed of the grounds on which his services were sought to be terminated and given an opportunity to show cause against the same. The said decision cannot be construed as laying down a general proposition that in every case where services of a probationer are terminated during the period of probation, he must be apprised of the grounds for such proposal and given an opportunity to show cause against it. Since there is no provision similar to Rule 55-B in the rules governing the post of Munsif on which Respondent 1 had been appointed on probation, he cannot seek any assistance from the said decision of this court. (emphasis added) Reliance has also been placed on Progressive Education Society and Another v. Rajendra and Another, (2008) 3 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly so, on the basis of the records placed before them. We are also satisfied, after perusing the confidential reports and other relevant vigilance files, etc. that the respondent is not entitled to continue as a judicial officer. The order of termination is termination simpliciter and not punitive in nature and, therefore, no opportunity needs to be given to the respondent herein. Since the overall performance of the respondent was found to be unsatisfactory by the High Court during the period of probation, it was decided by the High Court that the services of the respondent during the period of probation of the respondent be terminated because of his unsuitability for the post. In this view of the matter, order of termination simpliciter cannot be said to be violative of Articles 14, 16 and 311 of the Constitution. The law on the point is crystallised that the probationer remains a probationer unless he has been confirmed on the basis of the work evaluation. Under the relevant Rules under which the respondent was appointed as a Civil Judge, there is no provision for automatic or deemed confirmation and/or deemed appointment on regular establishment or post, and in that view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption and if his services are terminated without following the provisions of Article 311(2) he can claim protection. Reliance has also been placed on Rajesh Kohli v. High Court of J and K and Another, 2010 (10) SCALE 134. The contentions of the petitioner had been noted in paragraphs 6 and 8 of the judgment as follows : 6. Further, during the period when the petitioner was posted to District Kargil as Principal District Sessions Judge, he did not join there, w.e.f., 24-12-2001 to 18-1-2002 and an explanation was sought from him in that regard. Even thereafter, a complaint from a judicial employee of District Kargil was received wherein it was alleged that the petitioner had been abusing the employees and had created lot of problems at the District Kargil. These matters are recorded in the personal records of the petitioner. After completion of the initial two years of his probationary period, his records and his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer was not given any confirmation letter even after the completion of his two years of probation period. The rules in the said case provided for the extension of initial two years of probation period for a further period of two years. This Court in that case held at Paragraphs 3 5 that : - 3.......................A reading thereof would clearly indicate that every candidate appointed to the cadre shall undergo training initially for a period of six months before he is appointed on probation for a period of two years. On his completion of two years of probation, it may be open to the High Court either to confirm or extend the probation. At the end of the probation period, if he is not confirmed on being found unfit, it may be extended for a further period not exceeding two years. It is seen that though there is no order of extension, it must be deemed that he was continued on probation for an extended period of two years. On completion of two years, he must not be deemed to be confirmed automatically. There is no order of confirmation. Until the order is passed, he must be deemed to continue on probation. 5. Under these circumstances, the High Court was justified in disch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the service records it is disclosed that the service of the petitioner is not satisfactory it is open for the respondents to record such satisfaction regarding his unsatisfactory service and even mentioning the same in the order would not amount to casting any aspersion on the petitioner nor it could be said that stating in the order that his service is unsatisfactory amounts to a stigmatic order. 20. In the case of Krishnadevaraya Education Trust v. L.A. Balakrishna reported in (2001) 9 SCC 319, the services of respondent-Assistant Professor were terminated on the ground that his on the job proficiency was not upto the mark. This Court held that merely a mention in the order by the employer that the services of the employee are not found to be satisfactory would not tantamount to the order being a stigmatic one. This Court held in para 5 thus :- 5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement was required to be considered which was so granted. The mere granting of yearly increments would not in any manner indicate that after completion of the probation period the full court of the High Court was not competent to scrutinize his records and on the basis thereof take a decision as to whether or not his service should be confirmed or dispensed with or whether his probation period should be extended. The High Court has a solemn duty to consider and appreciate the service of a judicial officer before confirming him in service. The district judiciary is the bedrock of our judicial system and is positioned at the primary level of entry to the doors of justice. In providing the opportunity of access to justice to the people of the country, the judicial officers who are entrusted with the task of adjudication must officiate in a manner that is becoming of their position and responsibility towards society. (emphasis added) 10. We have also perused the file Number26/8/2006-AdlC, which is the personal file of the Applicant, of the Department of Revenue, in which the matter regarding the discharge of the Applicant has been dealt with. The background of the case has been disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and other difficulties. 6. From the above, it is clear that on overall appreciation of the record of service of Sh. P.K. Das, President, CESTAT is of the considered opinion that Sh. P.K. Das, Member (Judicial) is unsuitable for being confirmed in CESTAT. The matter was discussed with Solicitor General of India on17-11-2009and as per his advice, the recommendation tendered by President, CESTAT for termination of services of Sh. P.K .Das, Member (Judicial) may be accepted and he may be discharged from service on or before21-11-2009, the date of completion of probation, under clause 8(3) of the RRs. Submitted for kind approval of Hon ble FM. The proposal has been approved by the Finance Minister. 11. We have given utmost consideration to the rival contentions and have gone through the record placed before us. 12. The matter regarding the deemed confirmation of probation is now well-settled. The judgment in Dharam Singh (supra) has been considered in High Court of MP v. Satya Narayan Jhavar (supra) and after considering various judgments of the Honourable Supreme Court including the seven-Judge Bench judgment in Samsher Singh v. State of Punjab, (1974) 2 SCC 831 and the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are entirely different and the administrative side of the High Court and the Full Court were right in taking the decision to terminate the services of the respondent, rightly so, on the basis of the records placed before them. We are also satisfied, after perusing the confidential reports and other relevant vigilance files, etc. that the respondent is not entitled to continue as a judicial officer. The order of termination is termination simpliciter and not punitive in nature and, therefore, no opportunity needs to be given to the respondent herein. Since the overall performance of the respondent was found to be unsatisfactory by the High Court during the period of probation, it was decided by the High Court that the services of the respondent during the period of probation of the respondent be terminated because of his unsuitability for the post. In this view of the matter, order of termination simpliciter cannot be said to be violative of Articles 14, 16 and 311 of the Constitution. The law on the point is crystallised that the probationer remains a probationer unless he has been confirmed on the basis of the work evaluation. Under the relevant Rules under which the respondent w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... punitive as it was based on the letter dated 16-11-2009 of the President, it is our considered view that eventually the discharge of the Applicant has been on the basis of his unsuitability for the job and unsatisfactory performance of his duties. There is a distinction between the case of the Applicant and the case of Dr. Punita K. Sodhi in as much as in the latter case the service of the said Dr. Sodhi was terminated on the basis of several allegations against her brought out in the note and not on the basis of her unsuitability for the job or unsatisfactory performance of duties. The semantic minefield of form , motive and foundation has been clarified in Pavanendra Narayan Verma (supra), already adverted to above. Paragraph 19 of the judgment has been reproduced below : Thus some courts have upheld an order of termination of a probationer s services on the ground that the enquiry held prior to the termination was preliminary and yet other courts have struck down as illegal a similarly worded termination order because an inquiry had been held. Courts continue to struggle with semantically indistinguishable concepts like motive and foundation ; and terminations founde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployee were terminated with one month s salary in lieu of notice. The Constitution Bench upheld the order of termination and drew a distinction between a preliminary inquiry and a departmental inquiry. It was held that a preliminary inquiry held to satisfy the Government whether there was no reason to dispense with the services of the temporary employee should not be mistaken for a departmental inquiry held to decide whether punitive action should be taken. 24. In State of U.P. v. Kaushal Kishore Shukla the employee had been appointed on a temporary basis for a fixed tenure. During the period of his service, adverse entries were made in his character roll. Complaints were also received by the auditors of the employer. A summary inquiry was held. It was found that the auditor s complaint was correct. The employee was transferred to another post. He did not join and the employer terminated his services. This Court, while upholding the order of termination said that the mere fact that prior to the issue of the termination an inquiry was held against the employee did not make the order of termination into one of punishment. 25. In Radhey Shyam Gupta v. U.P. State Agro Industries Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order must be in a language which imputes something over and above mere unsuitability for the job. 30. As was noted in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences : (SCC p.73, para 28). 28. At the outset, we may state that in several cases and in particular in State of Orissa v. Ram Narayan Das it has been held that use of the word unsatisfactory work and conduct in the termination order will not amount to a stigma. It is thus clear that there has not been any full-scale formal enquiry, but only facts have been brought to the notice of the competent authority about the unsatisfactory performance of the Applicant. Although it has been mentioned that the Applicant has exceeded his jurisdiction, yet it is not judgmental in the sense that allegation of favouring anyone has been made. It is only in support of general unsuitability of the Applicant. No allegations of moral turpitude are involved in this case. The competent authority could not have passed the order of discharge of the Applicant without having any material for doing so before him. The facts regarding the transgression of jurisdiction mentioned in the letter of the President h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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