JUDGMENT
Ravi R. Tripathi, J.
1. The present petition was on Board yesterday and
the Party in Person, a physically challenged person
insisted for its hearing as according to him the matter
has been lingering before the Court despite the fact that
the same was filed on 16.03.2000 and the first order of
notice returnable was passed on 29.03.2000. Thereafter,
as usual the matter was adjourned for number of occasions
and finally on 01.12.2000 this Court issued rule making
it returnable in the first week of February 2001. The
Party in Person requested that if the matter could be
heard, the hanging uncertainty may come to an end and his
agony of coming to this Court frequently may also come to
an end. In that view of the matter it was ordered that
the matter will be taken up for final hearing today
peremptorily. That is how the matter is taken up for
final hearing.
2. The Party in Person submitted that he is a
physically challenged person suffering from Cerebral
Palsy with Spastic Quadriplegia. His partial permanent
disability is assessed at 80 to 90% by the Government
Hospital, Bhavnagar vide Certificate dated 21.10.1984. A
copy of the said certificate is at Annexure ‘E’ to the
petition.
3. The facts of the case are that the petitioner was
appointed as Management Trainee by the Gujarat State
Export Corporation Limited (hereinafter referred to as
the “respondent corporation”) by order dated 16.09.1997.
The order was to become effective from 01.10.1997. The
appointment was on probation for a period of one year,
from the actual date of joining of the petitioner.
Clause (5) of the appointment order is relevant for the
purpose of adjudicating the controversy involved in the
petition, which reads as under:
“5. You will be initially on probation period
of one year from the actual date of your joining
with us and would continue to be so unless and
until you are expressly confirmed in the regular
services of the corporation. The probation
period can be curtailed or extended by the
Management at its sole discretion without
assigning reasons. During the probationary
period your services are liable to dispensed with
at any time, without any notice, compensation or
assigning any reasons thereof at the sole
discretion of the corporation.”
3.1 Clause (5) is a usual clause and more
particularly, in the matters where the contracting
parties are not at par with each other, a person seeking
employment in an institution like the respondent
corporation has to agree, to the terms and conditions on
which the appointment is offered. The petitioner also
agreed to the contents of clause (5) of the appointment
order. Be that as it may the petitioner worked hard and
on his completion of probation period, i.e. on
30.09.1998 he was offered the post of Manager Grade ‘I’
by order dated 13.10.1998, making effective from
01.10.1998. This requires to be mentioned with a purpose
and the purpose is that the management found the services
of the petitioner indispensable and that is why issued an
order on 13.10.1998 making it effective since 01.10.1998.
The Party in Person submitted, with all emphasis at his
command that the post of Manager Grade ‘I’ is higher than
two other cadres, namely, Deputy Manager and the Joint
Manager. It was as a mark of appreciation of his
services, which is not required to be spelt out in so
many words because the issuance of the order of
appointment to the post of Manager Grade ‘I’ speaks for
itself. A copy of the appointment order to the post of
Manager Grade ‘I’ is at Annexure ‘D’ to this petition.
This time the respondent corporation did not think it
fit, may be because the Corporation had the performance
of the petitioner with it, to incorporate a clause, like
clause (5) of the earlier order. Instead of that it was
only stated in the order that:
“.. .. Initially you will be on a
probation period of one year. You will be
governed by GEC Staff Service Rules, 1968,
as may be amended from time to time. Other
terms and conditions of appointment will be
finalised afterward. .. .. ”
4. The petitioner was then allowed to continue for
the full term of probation, i.e. upto 30.09.1999 and on
that day an order, terminating the services of
the petitioner was issued, which brought the petitioner
before this Court by filing the present petition.
5. The impugned order dated 30.09.1999 is produced
at Annexure ‘A’. The order reads as under:
“You were appointed as Manager Grade-1 on
probation for a period of one year w.e.f.
1.10.1998 vide order, letter dated 13.10.1998.
During probation period, you services are not
found satisfactory. Your services are terminated
w.e.f. 30.9.1999 after office hours and you are
relieved from the services of the corporation
w.e.f. 30.9.1999 after office hours.”
6. The Party in Person emphatically submitted that
an order of termination cannot be allowed to stand in
view of the fact that for a long two years the petitioner
was with the corporation, initially one order was issued,
as Management Trainee, on successful completion of that
he was appointed as Manager Grade-I, instead of offering
the post of either Deputy Manager or Joint Manager.
Thereafter, he completed one year service as Manager
Grade ‘I’ with the respondent corporation without there
being one single communication, complaining about his
unsatisfactory discharge of duties, deficiency on any
front in any manner. Therefore, now to terminate his
services on the ground that his services are not found
satisfactory is nothing but an unjust and arbitrary
action and the order is illegal, which required to be
quashed and set aside by this Court in light of various
decisions of the Honourable the Apex Court and this
Court.
7. The Party in Person strenuously submitted that he
was never granted an opportunity of hearing before
penalty of ‘economic death’ was imposed on him that too
without giving him an opportunity to improve upon. He
submitted that the case is required to be viewed in light
of the peculiar facts of the case being, the petitioner
is physically challenged person, he is allowed to put in
two years’ service with the respondent corporation and
at the end of that period by an order he is sent
home branding his services to be ‘not satisfactory’.
8. The Party in Person relied upon a decision of the
Honourable the Apex Court in the matter of V.P. Ahuja
Vs. State of Punjab and others, reported in AIR 2000 SC
1080, wherein the Honourable the Apex Court has held
that,
“A probationer or a temporary servant is also
entitled to certain protection and his services
cannot be terminated arbitrarily, nor can those
services be terminated in a punitive manner
without complying with the principles of natural
justice.”
The Honourable the Apex Court has also held in the same
decision that,
“The termination order founded on the ground that
the probationer had failed in the performance of
his duties administratively and technically. Ex
facie, is stigmatic. such an order which on the
face of it is stigmatic could not have been
passed without holding a regular enquiry and
giving an opportunity of hearing to the
probationer. Plea that probationer cannot claim
any right on post as his services could be
terminated at any time during the period of
probation without any notice, as set out in the
appointment letter, cannot be countenanced.”
9. The Party in Person next relied upon a decision
of the Honourable the Apex Court in the matter of Chandra
Prakash Shahi Vs. State of U.P. and others, reported in
AIR 2000 SC 1706, where the facts were a constable in
U.P. Pradeshik Armed Constabulary, who had completed his
training and was placed on probation for two years, on
completion of the probationary period, without any
blemish found involved in a quarrel with a fellow
constable, his services were terminated by a simple
notice. The Honourable the Apex Court was pleased to
observe that, ‘the order is punitive and violative of
Regulation 541(2) of U.P. Police Regulations. The Party
in Person pointed the observations made by the Honourable
the Apex Court in para 24, wherein the Honourable the
Apex Court was pleased to refer its earlier decision in
the matter of Ravindrakumar Misra Vs. U.P. State
Handloom Corporation Ltd., reported in AIR 1987 SC 2408 :
1987 (Suppl.) SCC 739, wherein it is held that,
“Finding out the effect of the order of
termination, the concept of “motive” and
“foundation” has to be kept in mind. It was
further observed that no straitjacket test can be
laid down to distinguish the two, namely, the
‘motive’ and the ‘foundation’. Whether motive
has become the foundation has to be decided by
the Court with reference to the facts of a given
case. It was also observed that ‘motive’ and
‘foundation’ are certainly two points of one
line-ordinarily apart but when they come
together, ‘motive’ gets transformed and merged
into ‘foundation’. It was also observed that
since in regard to a temporary employee or an
officiating employee an assessment of the service
is necessary, merely because the Authority
proceeds to make an assessment and record its
views, it would not be available to be uitlised
to make the order of termination, following such
assessment, punitive in character. It was
observed by this Court that in the relationship
of master and servant there is a moral obligation
to act fairly. There should be an assessment of
the work of the employee and if any defect is
noted in his working, the employee should be made
aware of the defect in his work and deficiency in
his performance. Defects or deficiency,
indifference or indiscretion may be with the
employee by inadvertence and not by incapacity to
work. Timely communication of the assessment of
work in such cases may put the employee on the
right track. Without any such communication, it
was observed, it would be arbitrary to give a
movement order to the employee on the ground of
unsuitability.”
10. The Party in Person next relied upon a decision
of the Division Bench of this Court in the matter of
Director, Lok Bharti & another Vs. Mukeshbhai C. Tanna
& others, reported in 2003 (1) GLR 585, wherein the
Division Bench has held that, ‘a professor serving in a
college, cannot be dismissed or removed from service
without a notice and an inquiry, especially when there
are allegations of unfitness’. In this case the Division
Bench was pleased to reproduce the relevant extracts
in para 11, which reads as under:
“.. .. The institution has engaged you
on probation for a period of two years. .. ..
.. ..
Your working as Professor has not been found
to be satisfactory. .. ..”
In these facts and circumstances, this Court was pleased
to dismiss the petition and uphold the decision of the
Tribunal, whereby the order of termination was quashed
and the respondent was ordered to be reinstated in
service with consequential benefits.
11. Mr. Paresh Upadhyay, the learned advocate
appearing for the respondent corporation emphatically
submitted that this is a case of ‘terminating the
services of the probationer’ and as is contained in the
appointment order the corporation was always within its
rights to terminate the services of the petitioner while
he was on probation. In this regard, Mr. Upadhyay, the
learned advocate relied upon two decisions of the
Honourable the Apex Court in the matters of, (i)
Krishnadevaraya Education Trust and another Vs. L.A.
Balakrishna, reported in AIR 2001 SC 625, and (ii) H.F.
Sangati Vs. R.G. High Court of Karnataka and others,
reported in AIR 2001 SC 1148. According to Mr. Paresh
Upadhyay, the employer has in-built right and power to
terminate the services of a probationer while the
employee is on probation. The aforesaid decisions have
no application to the facts of the present case. The
facts of the case on hand are similar to the facts of the
case cited by the Party in Person. In the considered
opinion of this Court, in light of the fact that the
petitioner having put in two years of service, more
particularly after he completed his one year probation as
‘Management Trainee’, he was offered the post of Manager,
Grade ‘I’ giving him a jump of two lower posts, namely,
Deputy Manager and Joint Manager, there is no reason for
this Court to believe that his performance became so poor
which will warrant termination. Assuming for the sake of
argument that it so happened, then also as laid down by
the Honourable the Apex Court in the case of V.P. Ahuja
Vs. State of Punjab and others (supra), though the
petitioner was a probationer, he ought to have been given
an opportunity to improve without which the termination
is an arbitrary one. Not only that as the Honourable the
Apex Court has rightly observed in the case of
Ravindrakumar Misra Vs. U.P. State Handloom Corporation
Ltd. (supra) that,
“.. .. There should be an assessment of
the work of the employee and if any defect is
noted in his working, the employee should be made
aware of the defect in his work and deficiency in
his performance. Timely communication of the
assessment of work in such cases may put the
employee on the right track. Without any such
communication, it was observed, it would be
arbitrary to give a movement order to the
employee on the ground of unsuitability.”
12. In view of the aforesaid discussion and in view
of the decision of the Division Bench of this Court in
the case of Director, Lok Bharti (supra), the present
petition deserves to be allowed and the same is
accordingly allowed. Order of termination dated
30.09.1999 is hereby quashed and set aside. The
respondent corporation is directed to reinstate the
petitioner in service forthwith with all consequential
benefits. Taking into consideration the special
circumstances of the case, namely, the petitioner being a
physically challenged person, it is directed that the
respondent corporation shall comply with these directions
within two weeks from the date of receipt of the same.
Rule is made absolute. No order as to costs.