JUDGMENT
1. The petitioner is
questioning the action of the respondents in terminating her from the service of Computer Maintenance Corporation Limited (for short “CMC” ) on the completion of her probation period.
2. CMC is a Government of India undertaking. The petitioner joined CMC as Senior Executive, Personnel Development in July, 1996 at Hyderabad. She claims to be the gold medalist in MBA and possessing an experience of 6 1/2 years as Personnel Officer and Manager in various reputed Organisations. Her services were terminated on 31-3-1996 by the Vice President, RMD Mr. P. Das gupta on the ground that her performance had not been upto the mark for confirmation. To enable the petitioner to come up to the management’s expectations, by a letter dated 5-12-1996, her probation period was extended upto 31-3-1997. However, after carefully reviewing her performance during the extended period of her probation, the Management thought it fit to terminate her service and accordingly her services were terminated.
3. This termination is challenged on various grounds. Firstly, that one month’s notice was required to be served upon the petitioner if her services were to be terminated while on probation. But, according to the petitioner, no such notice was given and, therefore, her termination was in violation of the terms and conditions of the contract of service and not tenable.
4. The learned Counsel for the respondent – Corporation however, submitted
that absence of one month’s notice did not vitiate the petitioner’s termination having regard to the fact that her termination was a termination simplicitor on the ground of unsatisfactory performance during her probation period. At best, according to the learned Counsel for the respondents -Corporation, she could claim one month’s notice pay. But under no circumstances an employee who is found not fit for continuing in the employment could be forced upon the respondent- Corporation on the ground that the requirement of one month’s notice before termination was not strictly followed. I do not find any infirmity in this submission made by the learned Counsel for the respondents -Corporation.
5. The Supreme Court took the same view in Oriental Insurance Co. Ltd. v. T. Mohammed Raisuli Hassan, 1982 FJR 242. The Supreme Court held that there was nothing to indicate or suggest, even remotely, that the non-service of one month’s nodce as a condition precedent for termination of the employee’s service would result in vitiation or invalidation of the termination. Service of such notice as a condition precedent to terminating the service of the employee is not a mandatory requirement so that the breach of the same could result in vitiation of that termination. The Supreme Court further observed that the non-service of one month’s notice before termination of the employees service would, at the most, entitle him to claim one month’s salary in lieu thereof and nothing else.
6. The next ground taken on behalf of the petitioner was to the effect that before terminating her services several charges were levelled against her and, therefore, termination amounted to disciplinary action which could not have been taken without following the grievance procedure like holding departmental enquiry, personal hearing, etc. It is however not correct to say so. It appears in the Interim Performance Review of the petitioner made on 7-10-1996 appearing on page 4 of the material papers produced by the learned Counsel for the respondents – Corporation that it was reported after pointing out the petitioner’s deficiencies that her level of performance was unsatisfactory, by a letter dated 5-12-1996, the petitioner’s probation period was extended upto 31-3-1997 and it was brought to her notice that her performance had not been found up to the mark for confirmation. It was further pointed out to her that in order to enable her to come up to the Management’s expectations her probation period was extended upto 31-3-1997 and the Management hoped that she would utilise this opportunity to improve further her performance and attitude towards others. The petitioner submitted an explanation dated 9-12-1996 in response to her extension of probation by letter dated 5-12-1996. She endeavoured to impress upon the Management as to how she was performing her duty to the best of her ability and how there was no cause for finding any fault with her competence to carry out her job to the satisfaction of the Management. But she did not make any allegation against any Officer of the Corporation or against any other employees of the Corporation in this explanation. She also did not refer to any allegation made against her by any Officer or employee of the Corporation.
7. By a Memo dated 20-1-1997, M.V. Ramu, Manager, Personnel (1st respondent) pointed out to her that several tasks entrusted to her had yet to be completed. But, inspite of that the petitioner insisted that no tasks were pending with her. it was, therefore, once again pointed out by the Manager, Personnel to spend some time to recall all matters which were yet to be completed and to let him know the status of the same. In fact by letter dated 27-1-1997 the petitioner assured the Management that she would complete the tasks within a week to the best of her ability and in the interest of the Organisation . By a letter dated 24-2-1997, the petitioner responded to the letter dated 18-2-1997, from M.V.Ramu by which it was put on record that the petitioner had been found looking into some papers kept on his (M. V. Ramu’s) desk. It was further pointed out to her that it was also known for some time that the petitioner had been looking into papers on others’ working desks and she was advised
that it was not a healthy practice. The petitioner stated in her reply that she had been working in the Personal Department for the past 8 1/2 months but neither Mr. M.V.Ramu nor any other colleague employee had pointed out that she had looked into papers in their working desks and thereafter the petitioner alleged that having failed on all the fronts he had engineered capriciously to cause injury to her career and reputation in the field of Personal Management and Industrial Relations by making such allegations against her.
8. By a subsequent letter dated 27-2-1997 the petitioner gave an assurance to the Management that the work entrusted to her in the field of personnel management and HRD functions would be taken up with a sense of commitment, identity and organisational belonging. Further assurance was given by the petitioner that she could give improved results in the field of productivity and organisational effectiveness to be achieved by each employee in CMC if the subjects mentioned in her letter were allotted to her to work independently as she could shoulder higher responsibility and managerial accountablility in the Organisation.
9. The petitioner in her subsequent letter dated 17-3-1997 submitted that she considered it to be her bounden duty to bring to the notice of the Management some of the wild and unimaginable allegations made by Sri M. V. Ramu against her and highlighted the following three allegations ;
“1. Your looking into other working desks.
2. Attitude towards colleagues,
3. A memo stating tasks to be completed and no mention was made about the tasks, etc.”
Thereafter, it appears that by letter dated 31-3-1997 issued under the signature of the Vice-President – Dr. P.P. Dastupta, the services of the petitioner were terminated. The relevant portion of the said letter is reproduced below:
“…..Incur letter dated December 5, 1996, we had informed you that your performance has not been upto mark for confirmation. Therefore, to enable you to come up to our expectations and improve upon the aspects mentioned in our letter dated December 5, 1996, we had extended your probation period upto March 31, 1997.
Subsequent to the above, we have carefully reviewed your performance during the extended period of your probation. We regret to inform you that your performance has still not been upto mark. We are, therefore, terminating your services with the organisation with the closing hours of March 31, 1997. You will be relieved on March 31, 1997.
10. Three weeks after her termination, by a letter dated 22-4-1997, the petitioner made certain personal allegations against M.V. Ramu According to her it was incumbent upon the respondent – Corporation to hold departmental enquiry into such allegations and to see that her services were not terminated unless she was found guilty of the charges.
11. In my opinion, this stand taken by the petitioner is thoroughly mis-conceived. Even if it is believed that there is no substance in the charges as contained in the petitioner’s letter dated 22-4-1997, the allegations in fact were made by the petitioner against M. V.Ramu and not by the Management against the petitioner. The charges were mainly of unseemly behaviour of M.V. Ramu towards the petitioner and, therefore, even if it is believed that there was any substance in such allegations the same did not call for any departmental enquiry to be made against the petitioner. Hence, her termination of service immediately on completion of her probation period could not be called in question. Moreover, in the termination letter it is specifically pointed out that the petitioners performance was not up to the mark. No ground except her unsatisfactory performance was stated in the termination order as a cause for not confirming her services. The legality of termination order, therefore, could not
be questioned at all on the basis of allegations contained in the representation dated 22-4-1997 which was made three weeks after her termination.
12. The learned Counsel for the petitioner pressed into service the decision of the Supreme Court in the case of Vishaka v. State of Rajasthan, 1997 (7) Supreme 323, in which the Supreme Court laid down certain guidelines and norms for due observance at all work places or other institutions. The guidelines were laid down keeping in view the absence of enacted law to provide for effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse of women at work places. The case before us, however, is not of sexual harassment or physical contact and advances or a demand or request for sexual favours or sexually coloured remarks, or showing pomography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature as contemplated in the guidelines. It would be too remote a proposition to say that the case before us warranted the scrutiny of any of the features of sexual harassment as contemplated by the Supreme Court in the ruling cited above. With utmost respect, therefore, it would not be in fitness of things to make any observation that the instant case is infested with the nature of sexual harassment as contemplated by the Supreme Court.
13. On the other hand, in support of the submissions that the procedure of holding departmental enquiry was totally ruled out on the ground that the termination was on account of unsatisfactory performance and not on account of any mis-conduct alleged against the petitioner, the learned Counsel for the respondents- Corporation has referred to and relied upon various decisions of the Supreme Court, as follows :
In K.V. Krishnamani v. Lalitkala Academy, 1996 (5) Supreme 438, the Supreme Court held that the very object of the probation was to test the suitability and if the appointing authority found that the candidate was not suitable, it certainly had power to terminate the services of the employee. The Supreme Court further held that under the given circumstances, it could not be held that the reasons mentioned constituted motive and not foundation for termination of service. This observation made by the Supreme Court applies with a still greater force to the facts of the present case.
14. In T.C.M. Pillai v. Technology
Institute, , the Supreme Court held that the suitability of an employee did not depend merely on the excellence or proficiency in work. Many factors enter into consideration and a particular attitude or tendency displayed by an employee could well influence the decision of the confirming authority while judging his suitability or fitness for confirmation. In paragraph 7, the Supreme Court observed that it was well settled that a probationer or a temporary servant could be discharged if it was found that he was not suitable for the post which he was holding. This could be done without complying with the provisions of Art. 311(2) of the Constitution of India unless the services were terminated by way of punishment.
15. In Ranendra Chandra Banerjee v. Union of India, , the Supreme Court emphatically said that a probationer had no right to the post held by him and under the terms of his appointment he was liable to be discharged at any time during the period of his probation subject to the rules governing such cases. The Supreme Court also held that though the letter of appointment did not say in so many words that the probation was likely to be extended, it was implicit therein that the probation would continue till such time as the appellant was confirmed or discharged and so would the term in the appointment letter that his services were liable to be terminated without any notice and without any cause being assigned, during the period of probation.
16. In Union of India v. P.S. Bhatt, the
Supreme Court clearly laid down that the law
in relation to termination of service of an employee on probation was well settled. If any order terminating the service of a probationer be an order of termination simpliciter without attaching any stigma to the employee and if the order was not an order by way of punishment, there would be no question of the provisions of Article 311 being attracted.
17. In Samsher Singh v. State of Punjab, , the Supreme Court observed in Para 63 that no abstract proposition could be laid down that where the services of a probationer were terminated without saying anything more in the order of termination than that the services were terminated it could never amount to a punishment in the facts and circumstances of the case. The Supreme Court further observed that before a probationer was confirmed the authority concerned was under an obligation to consider whether the work of the probationer was satisfactory or whether he was suitable for the post and that in the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer was unsuitable for the job and hence must be discharged.
18. In Dhanjibhai Ramjibhai v. State of Gujarat, , the Supreme Court held that there was no right in the probationer to be confirmed merely because he had completed the period of probationer of two years and had passed the requisite tests and completed the prescribed training. The function of confirmation implies the exercise of judgment by the confirming authority on the overall suitability of the employee for permanent absorption in service.
19. In Ajitsingh v. State of Punjab, 1983 (1) LLJ 410, the Supreme Court held that in order that an incompetent or inefficient servant was not foisted upon him because the charge of incompetence or inefficiency was easy to make but difficult to prove, concept of probation was devised, to guard against errors of human judgment in selecting suitable personnel for service, the new recruit was put on test for a penod before he was absorbed in service or got a right to the post. Period of probation gave a sort of locus paenitentiae to the employer to observe work, ability, efficiency, seniority and competence of the servant and if he was found not suitable for the post, the master reserved a right to dispense with his service without anything more during or at the end of the prescribed period which was styled as period of probation. The Supreme Court further observed that the power to put the employee on probation for watching his performance and the period dunng which the performance was to be observed was the prerogative of the employer.
20. The authorities cited above do not leave any scope for a different view in the matter and this Court has also no misgiving in its mind that no employee could be thrusted upon the employer who failed to justify his existence in the employer – Organisation for the purpose for which he was employed. The period of probation was precisely for enabling the employer to verify the suitability of an employee or his utility to the Organisation. If the employee fails to establish his utility, the right of the employer to dispense with the services of such employee cannot be called in question.
21. It was also urged on behalf of the petitioner that her services were terminated by an authority who was not the appointing authonty and, therefore, the termination order was bad in law, which also necessitated, according to the petitioner, to allow the relief claimed in the present writ petition. It is true that the two authorities are different. The Officer who signed the appointment order was M.H.Razack, Advisor, RMC, CMC. However, the termination order dated 31-3-1997 is signed by P.Dasgupta who is the Vice President, RMC of the Respondent-Corporation. In my opinion, however, no infirmity could be treated as arising from this discrepancy because the Vice-President of the Corporation is obviously a superior authority than the Advisor, RMD and, therefore, there could be no constraint on
the power of the superior authority to terminate the services of an Officer working in that Corporation. On tins ground, therefore, the termination could not be held to be illegal or void.
22. Considenng all the above facts and circumstances as well as the proposition of law emerging from the decisions of the Supreme Court, I have no hesitation in arriving at the conclusion that the writ petitioner is not entitled to the relief claimed in the writ petition. Hence, the writ petition is dismissed. However, with no order as to costs.