JUDGMENT
S. Ravindra Bhat, J.
Page 1127
1. The Writ Petitioner has challenged an order terminating him from the services, dated 17.3.1989 issued by the first Respondent (hereafter called as ‘the Institute’), his employer.
2. The Petitioner avers that being a qualified engineer, a holder of B.E degree in Electronics he answered an advertisement issued by the Institute, for the post of Senior Technical Officer (Electronics). He relies upon the advertisement which required that the applicant had to be a BE degree/diploma holder in Electronics and Instrumentation. The Petitioner was permitted to participate in the recruitment process, and was selected to the post. The Institute issued an appointment letter dated 18.3.1985. The relevant portion of the appointment letter reads as follows:
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No. 2/13/84-NII 18.3.1985
OFFICE MEMORANDUM
Subject: Appointment to the post of Senior Technical Officer (Elect) in the National Institute of Immunology.
With reference to his application dated 20.4.1984 for the post of Senior Technical Officer (Elect) Shri M.L. Arora is informed that he has been selected for the post of Senior Technical Officer (Elect) in the scale of pay of Rs.700- 40-900-EB-40-1100-50-1300 in the National Institute of Immunology. He will draw an initial basis pay of Rs.700/- in the scale of pay mentioned above. In addition to pay he will be entitled to other usual allowances admissible to Central Government Employees of his rank stationed at Delhi/ New Delhi.
2. He will be on probation for a period of two years which may be extended or curtailed at the discretion of the competent authority. On satisfactory completion of the period of probation he will be eligible for continued appointment either on contract basis or otherwise, as may be provided in the rules, regulations and bye- laws of this Institute.
3. The nature of work will be Repair service and maintenance of equipment used in scientific research laboratories and looking after electrical installations and service facilities.
3. It is averred that the Institute advertised for filling up of two posts of Senior Technical Officers one in the Electrical discipline, and the other, in the Electronics discipline. It is alleged that the Petitioner worked under a superior officer, one Shri B. Bose, Manager (Administration) for the period between April, 1985 and October, 1986 and subsequently for an intervening period with Major P.C. Sharma after which he was again posted to work under Shri B. Bose. It is alleged that he completed the probation period on 31.3.1987 and was therefore entitled to for being confirmed to the post.
4. The Petitioner alleges that one Shri Anil Kumar had been selected to the post of Senior Technical Officer (Electrical), however he declined the offer. As a result the Petitioner was deputed, to man that post. It is alleged that in addition, he was handling additional charge of Assistant Engineer (Electrical). He claims to have brought to the notice of the authorities that a Contractor who had installed the motor/pumps had done so defectively, which led to over-flowing of water. Apparently on 16.8.1986 due to over-flowing of water in the pump house, the motors got submerged. The Petitioner claims that he was made scape goat for the incident and a memorandum was issued to him on 28.8.2006. The Petitioner replied, pointing out that he could not be held responsible.
5. It is alleged that after this incident, Mr. B. Bose, the superior official/manager was annoyed and prejudiced against the Petitioner. The Petitioner also claims that his close scrutiny, of bills of one M/s Sat Kartar, was not liked by Shri B. Bose.
6. The Petitioner was issued with memos on 4.7.1988 and 22.7.1988. He claims to have suitably replied to them. When matters were reaching a head, the Institute advertised the post of Senior Technical Officer Page 1129 (Electronics) on 11.3.1989. It is alleged that the Petitioner was threatened and asked to resign which he refused. In this background on 17.3.1989, the impugned order was issued.
7. The impugned letter is attacked as illegal due to non-application of mind. It is alleged that the Petitioner had made to discharge functions for which he was not appointed; whereas he was appointed to the post of Senior Technical Officer (Electronics) he was asked to perform the work relating to Senior Technical Officer (Electrical). It was also urged that apart from heavy work-load, the superior officers to whom the Petitioner had to report, developed a needlessly hostile attitude when they thought that he was a thorn in their flesh. Accordingly, the whole environment at the work-place was manipulated, with malafide motives and somehow create a hostile situation by which he could be eased out.
8. It is also averred that the Petitioner became a permanent or confirmed employee after the expiration of the period of probation. In such cases, the Respondents could not have dispensed with the services unless the basis for the termination was an alleged misconduct. In this case the foundation of the Petitioner’s termination was alleged misconduct; he then only could have been proceeded against through a regular enquiry and then terminated from service. The procedure adopted was therefore arbitrary.
9. In its return the Respondents have denied that the termination was a colourable exercise of power. The Institute contests that the Petitioner was an appointee to the post of Senior Technical Officer (Electronics); it is averred that he was offered and appointed to the post of Senior Technical Officer (Electrical). The Institute also denies that the Petitioner was discharging duties prescribed for two posts. It relies upon the annual confidential reports for the years 1987-88 to say that as per the entries made by the Petitioner himself, the job related to installation and maintenance of electrical equipments. It is also averred that the ACRs did not show that the Petitioner rendered satisfactory service.
10. The Institute has averred that one Shri Anil Kumar was selected to the post of Senior Technical Officer (Electronics). As Shri Anil Kumar did not join, the post for maintenance and repair had not been activated. The Institute also denies that the Petitioner was given additional responsibility of Assistant Engineer (Electrical) between April, 1985 and October, 1986.
11. The Institute denies that the petitioner completed his probation satisfactorily, as alleged. It relies on the Memoranda dated 28.8.1986, reprimanding him for his failure to effectively supervise services. It is claimed that the Petitioner’s omissions resulted in great damage to its electrical installations, in particular the burning of a number of electrical motors in the pump house, leading to considerable trouble and disruption of the water supply.
12. The allegation about the Petitioner closely scrutinizing the bills of Sat Kartar Electronics and thus leading to annoyance of Shri Bose had been denied. The impugned order has been justified as a bona fide exercise of power in terms of appointment letter.
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13. Mr. G.D. Gupta, learned senior counsel appearing in support of the writ petition submitted that the Institute could not have dispensed with the services of the Petitioner. He contended that the Petitioner was appointed in March, 1985; in express terms of the letter, the probation ended in March, 1987. In the absence of any order, expressly extending the services, he stood confirmed in 1987.
14. Counsel appearing for the Petitioner contended that the appointment letter and the qualifications held established beyond doubt that the Petitioner’s appointment was to the post of Senior Technical Officer (Electronics). Such being the case, entrusting work which did not relate the post and expecting him to perform it along with the job content of two other posts, could not have been legitimately used by the Institute to dispense with his services. It was contended that Shri Anil Kumar who was selected to the post of Senior Technical Officer (Electrical) did not join and therefore his duties had to be discharged by the Petitioner which was an unfair burden. Shri Gupta, submitted that the maintenance and installation of electrical equipment, particularly motors etc. was not the Petitioner’s job. Hence, the omission of someone else was fastened on to him, with malafide intention.
15. Learned counsel also contended that the memos issued alleging delay and deficiencies in the work were motivated. It was claimed that the Petitioner’s action scrutinizing bills and also in fastening responsibility on the Contractor for defective work was not liked by his superior officers. Therefore, the memorandum were issued to him, with a view to ultimately remove him from the services.
16. Learned counsel relied upon the judgment of the Supreme Court reported as State of Gujarat v. Akhilesh Bhargava , Chander Prakash Shahi v. State of Uttar Pradesh AIR 2000 SC 1706; Anoop Jaiswal v. Government of India and Jarnail Singh v. State of Punjab AIR 1986 1626. It was contended that in all these judgments the Supreme Court had ruled that if the real foundation for the termination, which is otherwise cast in innocuous terms, are allegations of misconduct, the termination would be illegal in the absence of a full fledged departmental enquiry. It was contended that the real foundation or basis for termination was the Petitioner’s alleged failure in his work which had to be enquired into their departmental proceedings.
17. It was also contended that in terms of the appointment letter, which had clearly stipulated that the Petitioner was on probation for two years, he was entitled to be treated as a confirmed employee after expiration of that period. It was contended that the impugned order was motivated by mala fides of Shri B.Bose who somehow wanted to get rid of the Petitioner. The learned Counsel relied upon the letters/ memoranda issued to the Petitioner as well as to his replies in support of this submission. It was lastly contended that Page 1131 one more indication to show that the Petitioner was a confirmed employee was the circumstance that increments were released to him. If indeed he was a probationer, the Respondents would not have released increments. Counsel relied on the judgment of the Supreme Court reported as 1983 (2) SLR 1.
18. Learned counsel for the Respondents relied on the appointment letter issued to the Petitioner and contended that at no stage was he offered/appointed to the post of Senior Technical Officer (Electronics). He placed particular reliance on para 3 of the appointment letter, which mentioned that the nature of work would be repair service and inter alia looking after technical installations and service facilities. It was contended that the Petitioner and the Institute were well aware of the job description and the post to which the Petitioner was appointed namely Senior Technical Officer (Electrical). In such a situation, he could not complain that duties relatable to some other post were, thrust on him.
19. Learned counsel for the respondent submitted that the Petitioner was never a confirmed to the post; as per clause 2 of the appointment letter, an express order or letter confirming the petitioner to the services had to be issued. He placed reliance on the decisions of the Supreme Court reported as High Court of M.P. through Registrar and Ors. v. Satya Narayan Jhavar ; Krishnadevaraya Education Trust v. L.A. Balakrishna ; Mathew P. Thomas v. Kerala State Civil Supplies Corporation 2003 (3) SC 263 and Registrar, High Curt of Gujarat v. C.G. Sharma to say that there is no question of any deemed confirmation as was contended on behalf of the Petitioner.
20. Learned counsel relied upon copies of the ACRs and the memoranda issued to the Petitioner to say that the impugned order was consequent to bonafide exercise of power. He also relied upon the letter, dated 16.5.1988, which recorded that the Director of the Institute had noticed malfunctioning of various installations. It was contended that the service records as reflected in the ACRs showed that the performance levels of the Petitioner were at best average and that he needed to improve his capabilities. After observing the Petitioner’s job and ability to handle various functions, it was decided to discontinue his services. Such a decision was based on bonafide appraisal. The order was therefore not punitive; it was based upon an evaluation that the Petitioner’s services need not be continued, since he had not been confirmed.
Page 1132
21. The first question, which arises is whether the Petitioner was appointed to the post of Senior Technical Officer (Electronics) as contended by him. This has some bearing on the related point as to whether he was asked to discharge duties which were not relatable to the post. Although there is no dispute that the Petitioner holds electronics qualifications, the appointment letter issued to him would afford a key to the intention of the parties. It unambiguously records that the appointee/employee would have to look after repair service and maintenance of equipment used in scientific research laboratories and would also be required to look ‘after electrical installations and service facilities’. Even if the first part of the appointment letter, which uses the abbreviated expression ‘(Elec)’ points at some ambiguity, the latter stipulation in clause 3, in my opinion, clears that doubt by categorically describing the job. The Petitioner admittedly accepted this appointment and started discharging the duties.
22. The ACRs which are on record also show that the job which the Petitioner himself had outlined included construction and maintenance of electrical installation; laison on with Government, sanction of power load and its connection, telephone system installation and maintenance etc. In 1987-88 the Petitioner was involved in the installation work of DG sets, electrical installation in main Institute building, sub-station installation, air- conditioning and computer installation, maintenance of various electrical systems, etc. In the light of the above facts, the inescapable conclusion is that the Petitioner as well as the Institute were clear in their minds that the job description was that of Senior Technical officer (Electrical). It is not the Petitioner’s case nor it was pleaded that during the time of appointment in 1985-86 that he protested at any time stating that he ought to have been treated as a Senior Technical Officer (Electronics). Therefore on the basis of the above findings, the further contention that the Petitioner was saddled with work not relatable to his post, cannot be countenanced. Again on this score also the Petitioner has merely levelled allegations in his pleadings. No contemporaneous record by way of letters between 1985-88 have been relied upon.
23. The second issue is whether the Petitioner’s services stood confirmed, or he became a regular/permanent employee after the expiration of two years period of service. This issue has arisen for consideration in a number of judgments. The law on the subject, regarding confirmation or ‘deemed confirmation’ of a probationer was noticed in the judgment reported as Karnataka State Road Transport Corporation v. S. Manjunath AIR 2000 SC 2070, where it was held as follows:
This Court had an occasion, to review, analyze critically and clarify the principles on an exhaustive consideration of the entire case law in two recent decisions reported in Dayaram Dayal’s case (supra) and Wasim Beg’s case (supra). One line of cases has held that if in the Rule or Order of appointment, a period of probation probation is specified and a power to extend probation is also conferred and the officer is allowed to continue Page 1133 beyond the prescribed period of probation, he cannot be deemed to be confirmed and there is no bar on the power of termination of the officer after the expiry of the initial or extended period of probation. This is because, at the end of probation he becomes merely qualified or eligible for substantive permanent appointment. The other line of cases are those where even though there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The Constitution Bench which dealt with the case reported in State of Punjab v. Dharam Singh AIR 1968 SC 1210, while distinguishing the other line of cases held that the presumption about continuation, beyond the period of probation, as a probationer stood negatived by the fixation of a maximum time limit for the extension of probation. Consequently, in such cases the termination after expiry of the maximum period up to which probation could be extended was held to be invalid, inasmuch as the officer concerned must be deemed to have been confirmed.
11. The principles laid down in Dharam Singh’s case (supra) though were accepted in another Constitution Bench of a larger composition in the case reported in Samsher Singh, etc. v. State of Punjab and Anr. the special provisions contained in the relevant rules taken up for consideration therein were held to indicate an intention not to treat the officer as deemed to have been confirmed, in the light of the specific stipulation that the period of probation shall be deemed to be extended if the officer concerned was not confirmed on the expiry of his period of probation. Despite the indication of a maximum period of probation, the implied extension was held to render the maximum period of probation a directory one and not mandatory. Hence, it was held that a probationer in such class of cases is not to be considered confirmed, till an order of confirmation is actually made. The further question for consideration in such category of cases where the maximum period of probation has been fixed would be, as to whether there are anything else in the rules which had the effect of whittling down the right to deemed confirmation on account of the prescription of a maximum period of probation beyond which there is an embargo upon further extension being made, and such stipulation was found wanting in Dayaram Dayal’s case (supra).
12. The decision in Wasim Beg’s case (supra) also purported to classify these type of cases into three categories, on a review of the entire gamut of law. It was observed therein as follows:
15. Whether an employee at the end of the probationary period automatically gets confirmation confirmation in the post or whether an Page 1134 order of confirmation or any specific act on the part of the employer confirming the employee is necessary, will depend upon the provisions in the relevant Service Rules relating to probation and confirmation. There are broadly two sets of authorities of this Court dealing with this question. In those cases where the Rules provide for a maximum period of probation beyond which probation cannot be extended, this Court has held that at the end of the maximum probationary period there will be a deemed confirmation of the employee unless Rules provide to the contrary. This is the line of cases starting with State of Punjab v. Dharam Singh, M.K. Agarwal v. Gurgaon Gramin Bank Om Parkash Maurya v. U.P. Coop. Sugar Factories Federation, 1986 Supp SCC 95; State of Gujarat v. Akhilesh C. Bhargav
16. However, even when the Rules prescribe a maximum period of probation, if there is a further provision in the Rules for continuation of such probation, beyond the maximum period, the courts have made an exception and said that there will be no deemed confirmation in such cases and the probation period will be deemed to be extended. In this category of cases we can place Samsher Singh v. State of Punjab which was the decision of a Bench of seven Judges where the principle of probation not going beyond the maximum period fixed was reiterated but on the basis of the Rules which were before the Court, this Court said that the probation was deemed to have been extended. A similar view was taken in the case of Municipal Corporation v. Ashok Kumar Mishra . In Satya Narayan Athya v. High Court of M.P although the Rules prescribed that the probationary period should not exceed two years, and an order of confirmation was also necessary, the termination order was issued within the extended period of probation. Hence the termination was upheld.
17. The other line of cases deals with Rules where there is no maximum period prescribed for probation and either there is a Rule providing for extension of probation or there is a Rule which requires a specific act on the part of the employer (either by issuing an order of confirmation or any similar act) which would result in confirmation of the employee. In these cases unless there is such an order of confirmation, the period of probation would continue and there would be no deemed confirmation at the end of the prescribed probationary period. In this line of cases, one can put Sukhbans Singh v. State of Punjab ; State of U.P. v. Akbar All Khan ; Page 1135 Kedar Nath Bahi v. State of Punjab ; Dhanjibhai Ramjibhai v. State of Gujarat and Tarsem Lal Verma v. Union of India ; Municipal Corporation v. Ashok Kumar Misra and State of Punjab v. Baldev Singh Khosla . In the recent case of Dayaram Dayal v. State of M.P . (to which one of us was a party) all these cases have been analysed and it has been held that where the Rules provide that the period of probation cannot be extended beyond the maximum period there will be a deemed confirmation at the end of the maximum probationary period unless there is anything to the contrary in the Rules.
24. In a later judgment, in High Court of M.P. through Registrar and Ors. v. Satya Narayan Jhavar the Supreme Court held as follows:
11. The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject- matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of Page 1136 confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired.
25. This decision was followed in Commr. of Police v. R.S. More . In Smt. Archana Dayal v. Union of India (UOI) and Ors. , this Court, after noticing the judgments of the Supreme Court, and the judgment in Chandra Prakash Shahi (supra) relied upon by the petitioner, held as follows:
The Constitution Bench has opined in S. Sukhbans Singh v. The State of Punjab that a probationer cannot, after the expiry of probationary period, automatically acquire the status of a permanent member of a service the rules under which he is appointed expressly provide for such a result. In State of Punjab v. Dharam Singh the Constitution Bench has enunciated that – “where on the completion of the specified period of probation an employee is allowed to continue in the post without an order of confirmation, in the absence of anything to the contrary in the original order of appointment or promotion or the Service Rules, the initial period of probation is deemed to be extended by necessary implication’`. In Partap Singh v. Union Territory of Chandigarh and Anr. it has been held that the concerned officer cannot be deemed to have been confirmed in the absence of an order of confirmation even at the end of the probation of three years. Similar views have been expressed in Chandra Prakash Shahi v. State of U.P. and Ors. AIR 2000 SC 1706 where Regulation 541 of the U.P. Police Regulations had come up for consideration. The Court observed that the period of probation was for two years and the Regulation was silent as to the maximum period beyond which it could not be extended. The Apex Court held that in the absence of any such prohibition, even if the appellant had completed two years of probationary period successfully and without any blemish, his period of probation must be treated as having been extended, as a permanent status can be acquired only by means of a specific order of confirmation. The same conclusion has been arrived at in High Court of M.P. through Registrar and Ors. v. Satya Narayan Jhavar .
Page 1137
This point may be summarized as follows :
(1) The mere stipulation of a specific period of probation by itself cannot lead to the inference that upon its expiry, the employee would be confirmed. The condition or stipulation has to be more categorical about the intention to treat the employee as a confirmed employee;
(2) Wherever terms of service require the issuance or passing of specific or positive order confirming the probationer to the services, in the absence of such orders, he cannot be deemed to have completed the period of probation;
(3) The one circumstance where an employee can be deemed to have been confirmed is when the rule or condition prescribes categorically a time limit beyond which the official cannot be treated as probationer, and/ or confers the status of permanent, by a fiction, as the consequence flowing from expiry of the maximum probationary period.
26. On an application of the above principles to the facts of this case, the intention of the employer, i.e the Institute in this case was to, in the first instance keep the Petitioner on probation for a period of two years. However, clause (2) of the appointment letter does not disclose an unambiguous intention to treat the Petitioner as a confirmed employee after the expiration of that period. It gives the employer the choice to continue the incumbent on contractual or other basis. In other words, neither does the stipulation prescribe the outer limit while extending the service nor does it prescribe an automatic consequence upon expiry of the initial period of probation in the absence of specific order. Therefore, the Petitioner’s contention that he stood confirmed, cannot be accepted. His status continued to be as a probationer even after March, 1987.
27. The last point is whether the impugned order was founded on misconduct, or vitiated by mala fides. The law on this subject has been reiterated and re-stated in numerous judgments. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences 2002(5) SCC 520, the Supreme Court, after referring to large number of earlier decisions, summarized by principles as follows:
One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was
(a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld.
Generally speaking when a probationer’s appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer’s appointment, is also not stigmatic. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.
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28. Recently, in State of Punjab v. Sukhwinder Singh (2005) 5 SCC 569 the Supreme Court explained how an objective evaluation of the probationer’s work and performance, in the background of what may be perceived as allegations of misconduct, cannot, ipso facto, constitute a punitive order, in the following terms:
It must be borne in mind that no employee whether a probationer or temporary will be discharged or reverted, arbitrarily, without any rhyme or reason. Where a superior officer, in order to satisfy himself whether the employee concerned should be continued in service or not makes inquiries for this purpose, it would be wrong to hold that the inquiry which was held, was really intended for the purpose of imposing punishment. If in every case where some kind of fact-finding inquiry is made, wherein the employee is either given an opportunity to explain or the inquiry is held behind his back, it is held that the order of discharge or termination from service is punitive in nature, even a bona fide attempt by the superior officer to decide whether the employee concerned should be retained in service or not would run the risk of being dubbed as an order of punishment. The decision to discharge a probationer during the period of probation or the order to terminate the service of a temporary employee is taken by the appointing authority or administrative heads of various departments, who are not judicially trained people. The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. As mentioned earlier a probationer is on test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry ‘for the purpose of imposing punishment’ and an order of discharge or termination of service as a result thereof ‘punitive in character’, the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong.
29. The petitioner’s contention of being saddled with extra work, or duties alien to his appointment, stand negatived, in the earlier part of this judgment. In this background, the only point is whether the memorandum issued to him, in respect of his work constituted ‘foundation’ of alleged misconduct, so as to taint the impugned order. As explained by the Supreme Court, in Sukhvinder Singh’s case (supra) a superior officer acts within his rights to even hold some form of inquiry to determine the probationer’s continued utility in the organization. Such exercise cannot be termed mala fide. The issuance of memorandum, coupled with the less than flattering appraisals contained in the ACRs of the petitioner, constitute the basis of a bona fide exercise of power. As far as allegations of mala fides of Shri Bose are concerned, Page 1139 I am of the opinion that mere allegations of his being inimical or hostile to the petitioner cannot lead to proof of such a state of affairs. Malice in fact, unlike malice in law, requires clearer pointers to an attitude, a frame of mind, and a baleful eye. These are missing in the present case.
30. In view of the above conclusions, the petitioner is not entitled to relief. The writ petition is accordingly dismissed. Rule discharged. No costs.