JUDGMENT
N. Pandey, J.
1. This appeal has directed against the judgment dated January 21, 1988 whereby and whereunder prayer of the appellant for quashing the order of his termination was rejected.
2. From the materials on record, it would appear that pursuant to the decision of the Council of Ministers, a memorandum was placed before the Board of Directors for appointment to the post of Managing Director in the Bihar State Electronic Development Corporation Limited. Thereafter, by the letter dated September 8, 1984 issued by the Special Secretary, the appellant was appointed, on probation for a period of two years. It was also indicated that on expiry of the period of two years, the appellant would be confirmed provided his services were found satisfactory. The appellant having accepted the terms and conditions of the appointment, joined the post and started working. But, according to the respondent-authority, since the appellant utterly failed to perform his duty satisfactorily during the aforesaid period of probation, therefore, by the letter dated December 12, 1985, his services were terminated.
3. The appellant has challenged the aforementioned order mainly on the grounds: (a) that the State of Bihar being not the competent authority, the condition of probation of two years should not have been incorporated in the letter of appointment, and (b) in any event, the respondents were not justified in law to terminate the services of the appellant during the period of probation and that too without getting approval of the Council of Ministers.
4. Mr. Sinha, learned senior counsel, appearing for the appellant, contended that in terms of Articles 124 and 129 of the Articles of Association of the respondent-Corporation, a Managing Director is to be appointed by resolution of the Board for a term not exceeding five years. Therefore, it was not open to the authority to put the appellant on probation for a period of two years at the instance of the State Government unless such a resolution was adopted by the Board.
5. Learned counsel for the respondents, on the other hand, contended that the Corporation in question is fully owned and controlled by the State of Bihar and, therefore, the State is vitally interested in the affairs of the Corporation. But, significantly in this case, the Board had itself approved the terms and conditions of appointment of the appellant. That apart, learned counsel also drew our attention to the provisions of Articles 124 and 129 of the Articles of Association, which have been appropriately quoted in the impugned judgment for ready reference. From a bare perusal to these Articles, there appears no dispute that the Governor of the State has the power to take any decision with regard to the appointment to the post, whose maximum salary exceeds Rs. 2,000/- and also the decision including appointment of a Managing Director in terms of Article 129.
6. Apart from what has been noticed above, it would also appear from the impugned judgment that the appellant had not challenged in the writ petition the authority of the Governor in making appointment. In fact, on the other hand, he accepted the offer of appointment on the post and worked for a substantial period. Therefore, in our view, the appellant should not be permitted to challenge the jurisdiction of the Governor in such appointment or the conditions thereof. From a bare perusal of Article 129, it would appear that Governor had the necessary power to make appointment. It would further appear that respondent-authority had also attached a copy of the resolution with their counter-affidavit whereby the appointment of the appellant was approved. We, therefore, keeping in mind of the facts noticed above, fully agree with the views expressed in the impugned order on this question.
7. Turning to the second limb of submission, Mr. Sinha, placed reliance on the decisions of the Apex Court in the case of The Management of the Express Newspapers Private, Ltd., Madurai v. The Presiding Officer, Labour Court, Madurai and Anr., AIR 1964 SC 806 and in the case of Agra Electric Supply Co. Ltd. v. Sri Aladin and Ors., AIR 1970 SC 512 : 1969 (2) SCC 598 : 1969-II-LLJ-540. On the other hand, learned counsel for the respondents contended that an employee who is appointed on probation can be terminated at any moment, if his/her performance is not found satisfactory. In view of well-settled principle of law, an employee, who is appointed on probation, does not acquire any legal right to continue unless confirmed. That apart, from a bare reference to the impugned order, it would appear that there is no stigma or any adverse remark was reflected in his service book which may infringe the right of the appellant, as contained in Article 311 of the Constitution of India or otherwise.
8. Keeping in mind the above, a reference can be made to different decisions of the Apex Court in the cases of Shamsher Singh v. State of Punjab and Anr., AIR 1974 SC 2192 : 1974 (2) SCC 831 : 1974-II-LLJ-465 : Oil and Natural Gas Commission and Ors. v. Dr. Md. S. IskanderAli, 1980 SC 1242 : 1980 (3) SCC 428 : 1980-n-LLJ-155 Commodore Commanding Southern Naval Area, Cochin v. V.N. Rajan, AIR 1981 SC 965 ; 1981 (2) SCC 636 : 1981-II-LLJ-1 : and Union of India and Ors. v. Chander Pal, AIR 1987 SC 1334 : 1987 (Supp.) SCC 41. From a bare perusal of the abovementioned decisions, it would appear the law relating to appointment on probation is well-settled. An employee who gets appointment on probation continued to be on probation. Period of probation is to judge the performance of such an employee. The decision of the Apex Court as relied upon the appellant in the case of the Management of the Express Newspapers (Pvt.) Ltd., Madurai v. The Presiding Officer, Labour Court, Madurai and Anr. (supra), in our view, would not be applicable to the facts of the present case. In the said case even after expiry of the period of probation, the service of the employee concerned was neither terminated nor confirmed. That apart, there was clear stigma in the letter of termination. In that background, it was held that an employer had no right to terminate the services of the employee before the period of probation had expired except on the ground of misconduct or for sufficient reasons in which case even the services of a permanent employee can be terminated.
9. In the instant case, as would appear from the materials noticed above, the appellant was to be confirmed, if his performance was found satisfactory on the expiry of the period of probation. From the facts averred in the counter-affidavit, it would appear that the appellant had not only failed to perform his duty satisfactorly but during his tenure, the Corporation had suffered a great set-back. Therefore, in such a situation, if a decision was taken by the authorities to terminate his services, no illegality can be made out.
10. Apart from the facts of the present case, there are number of decisions of the Supreme Court, namely, Shamsher Singh v. State of Punjab and Anr. (supra). Oil and Natural Gas Commission and Ors. v. Dr. Md. S. Iskander Ali (supra), and Union of India v. Arun Kumar Roy, AIR 1986 SC 737 : 1986 (1) SCC 675 : where services of the employee concerned were terminated during the period of probation since their performance was not satisfactory.
11. It is thus obvious that in the facts and circumstances of a particular case, if the appointing authority considered it expedient to terminate the services of the employee on probation, it cannot be said that the order of termination attracted the provisions of Article 311 of the Constitution, when the appointing authority had the right to terminate the services without assigning any reasons. In such a case, even if misconduct, negligence, inefficiency may be the reasons to terminate the services of the employee, it cannot be termed as penalty or punishment. In fact, such a termination is recorded by the employer under his power which flowed .from the contract of service. Otherwise also, it is well-known that termination simpliciter of the probationer, appointed against a temporary post does not attract Article 311 of the Constitution. Therefore, keeping in view the facts discussed above, it was not expected from the respondent-Corporation to allow the appellant to continue for his full term.
12. The next submission of the learned counsel has also no substance regarding validity of the order of termination on the ground that no approval of the Council of Ministers was obtained. From a bare reference to Articles 124 and 129 of the Articles of Association, it would appear that the Board of Directors of the Company can appoint one or more Directors to be the Managing Director on the basis of the decision of the Governor. In such a circumstance it was not necessary for the Board of Directors or the appointing authority to get the approval of the Council of Ministers before recording the order of termination. The order of the Board with approval of the Governor was enough.
13. We, for the reasons stated above, are satisfied that the order terminating the services of the appellant was valid and did not involve any stigma and, thus, fully justified in the facts and circumstances of the present case. In the circumstances, therefore, we find no merit in this appeal and the same is hereby dismissed, but without costs.