Pradeep Kumar Singh v. Union of India & Anr

16. The impugned action of termination is malafide and a result of the personal vendetta of the CMD, on account of the fact that Petitioner pointed out several statutory and procedural violations in CEL, relating to labour licenses, deployment of labour, change of grades of executive without seeking Presidential approval, financial irregularities, etc. Once the deficiencies and irregularities were highlighted by the Petitioner, the CMD started issuing letters alleging non-performance, which was completely contrary to the records reflecting the tremendous work done by the Petitioner. The Supreme Court in Prabodh Sagar vs. Punjab SEB, (2000) 5 SCC 630 has held that the expression „malafide‟ is not meaningless jargon and has its connotations. Contentions of CEL

17. Mr. Sudhir Nandrajog, learned Senior counsel for CEL/ Respondent No.2, at the outset, argues that the present petition cannot be entertained as it is a settled law that an assessment of an employee based on his performance during probation cannot be reviewed in judicial proceedings and only procedural violations or decision-making process is subject to judicial scrutiny. An independent Board of CEL has assessed the performance of the Petitioner during probation on various parameters and found him unsuitable for confirmation and this assessment cannot be questioned and/or reassessed in writ proceeding, which is what the Petitioner is calling upon this Court to do.

18. The discharge of the Petitioner on account of non-confirmation of probation was in terms of Clause 2(a) of the offer of appointment letter dated 22.07.2017, which was accepted by the Petitioner without any protest, vide email dated 25.07.2017. The letter was never challenged in any Court of law prior to the order of termination impugned herein and only because his services have been terminated, Petitioner is laying a challenge to its validity, as an after-thought.

19. Letter dated 22.07.2017 clearly envisaged a probation period of one year, extendable further until confirmation in writing. It further provided that the services of the Petitioner were liable to be terminated during the probationary period, without notice and without assigning any reason. In view of this, Petitioner cannot adopt a position that at the end of one year probation period, he was deemed to be a confirmed employee and his services were not liable to be terminated abruptly as a probationer, that too without due process of law.

20. The contention of the Petitioner that in terms of OM dated 14.12.2012, appointment of the Petitioner is on permanent absorption basis is misconceived. Appointments in CPSEs are made either on regular basis or on deputation or on contract. Law does not contemplate continuity of service, on being appointed in a CPSE through direct recruitment, while serving in another CPSE. In any event Petitioner was appointed on probation and question of permanent absorption would have arisen only on satisfactory completion of probation.

21. Reliance of the Petitioner on the DoPT OM dated 17.08.2016 which defines technical resignation, is misplaced as the same applies only to a Government servant, which the Petitioner is not. Petitioner is misreading the advertisement as a mere eligibility criteria of minimum two years experience in the immediate lower scale of the post advertised or equivalent position for employees working in PSUs/Government Organizations cannot imply that the appointment was a promotion or that the benefits of technical resignation, wherever applicable, should accrue to the Petitioner. Likewise, the Petitioner cannot place reliance on the DPE OM dated 01.02.2017 as the same is applicable to cases of resignation, compulsory retirement, removal and dismissal as a result of Disciplinary Proceedings and entitles an employee to superannuation benefit scheme. Benefit of pay protection was given to the Petitioner at the time of joining to ensure that his basic pay in CEL does not fall below the pay drawn by him in previous organization and this by itself cannot lead to a conclusion that the Petitioner had joined CEL after technical resignation with CIL.

22. The allegations of bias and malafides leveled by the Petitioner against the CMD are completely baseless. Termination of the service of the Petitioner is an outcome of a transparent system of periodical reviews, followed by circulation of action points of the reviews. Several letters were written to the Petitioner, in terms of action points, communicating the areas where he had failed to perform. As an illustration, when the Petitioner joined in September 2017, he was required to complete the sixth monthly KRA evaluation by first week of November, 2017, however, the same was not completed even by March, 2018, despite repeated reminders. Similarly, specific tasks and duties assigned such as finalization of DPCs for the year 2017, review of manpower requirements, special drive for SC/ST recruitment, training need evaluation, etc., assigned to the Petitioner did not achieve the desired result and the Petitioner was a non-performer despite several opportunities to better his performance.

23. The allegations of the Petitioner that CEL was non-compliant with the statutory obligations under labour legislations, etc., and/or that the Petitioner was instrumental in implementation of various strategic decisions or achieving various goals, single handedly, as averred and argued are completely fallacious. Petitioner is trying to take credit of tasks accomplished with the efforts of various officers and employees in the organization as a team. There were no violations related to labour licenses, deployment of contractual workers and payment of wages or deduction of provident fund from the salaries of employees, as alleged. It is a matter of record that a Committee was formed to look into the issues, but no report was rendered by the Committee and therefore the contention of the Petitioner that this report was the cause of bias of CMD is baseless. Petitioner never completed the work assigned within required timelines, including preparation of the roster for promotion and the same had to be executed through a Committee formed by the Board of CEL comprising of senior officials and the Petitioner as the Secretary of the Committee.

24. There is no illegality in the action of CEL in terminating the Petitioner on account of unsatisfactory probation and no show cause notice was required, in law. It is a termination simplicitor and not by way of punishment pursuant to a disciplinary action requiring a Disciplinary Enquiry. The order is not punitive or stigmatic. The Supreme Court in Parvendra Narayan Verma vs. Sanjay Gandhi P.G.I. of Medical Sciences and Ors., AIR 2002 SC 23 held that whether an order of termination is punitive or not can be determined by seeing whether prior to the termination there was (a). a full scale formal enquiry; (b). allegation involving moral turpitude of misconduct and (c). the allegations culminated into a finding of guilt. In the absence of any one of the three factors, termination order cannot be held to be punitive. Impugned order by its reading is neither punitive nor stigmatic.

25. It is for the employer to judge the suitability of a probationer based on the assessment of work and conduct and this satisfaction and assessment, based on several factors is not open to judicial review in a writ petition. The Supreme Court in T.C. Pillai vs. The Indian Institute of Technology, Guindy Madras, AIR 1971 SC 1811 held that suitability does not depend merely on excellence or proficiency in work. There are many factors which enter into consideration for confirming a person on probation which could be his attitude or tendency displayed.

26. I have heard learned counsel for the Petitioner and learned Senior Advocate appearing for the CEL.

27. After traversing the entire gamut of facts and hearing the learned counsels for the parties, in my view, at the heart of the dispute is the applicability of Clause 2 (a) of the offer letter of appointment dated 22.07.2017. To decide this strenuous challenge Court needs to examine the said clause, which is as under:- “2(a). You will be on probation for a period of one year or until such time thereafter when confirmation is intimated in writing. During the probationary period, your services shall be liable to be terminated without notice and without assigning any reason whatsoever. During the probation you may leave the Company‟s service after giving one month‟s notice in writing. The period of probation can be extended at the discretion of the competent authority. “

28. Reading of the contents of the aforesaid clause makes it palpably clear that it prescribed a probation period of one year extendable till confirmation in writing. What emerges from its plain reading is that there was no maximum period of probation prescribed and one year could be extended until the Competent Authority issued an order of confirmation, on satisfactory completion of probationary period.

29. Before adverting to the judicial pronouncements with respect to probation and confirmation, it is necessary to deal with the prime contention of the Petitioner that the clause itself was invalid and not applicable. The contention is premised on the ground that Recruitment Rules in question do not prescribe probation and the advertisement only stipulated one year probation and thus the clause 2(a) permitting extension of probation beyond one year until confirmation in writing, is extraneous and contrary to the Rules and the advertisement and invalid.

30. I have carefully examined the Recruitment Rules applicable to the Petitioner, a copy of which has been annexed by the Petitioner along with an application filed during the pendency of the petition to place on record additional documents. There is merit in the contention of the Petitioner that the Recruitment Rules do not envisage probation on appointment. In so far as the advertisement is concerned, having perused the same, I tend to agree with the Petitioner that a period of one year probation has been stipulated in para 8 of the General Instructions for candidates selected in Grade E-6 and above. Relevant para is as under:- “The selected candidates in Grade E[6] and above, will be on probation for a period of one year and candidates below Grade E[6] will be on probation for two years.”

31. However, this by itself cannot persuade the Court to accept the contention that Clause 2(a) is invalid and cannot be read as a part of terms and conditions of the offer of appointment of the Petitioner. Letter dated 22.07.2017, by its bare perusal was an „offer‟ of appointment, detailing the terms of appointment therein. This is amply clear from the Subject, the opening paragraph and para 11 of the letter. The subject reads as under:- “Subject-Offer of appointment for the post of General Manager [HR]”

32. The opening paragraph and para 11 respectively read as follows:- “with reference to your application and the subsequent interview on June 02, 2017, we have the pleasure in offering you the post of General Manager [HR] on the following terms and conditions:” “11. Please acknowledge the receipt of this letter and if you are willing to accept the appointment on the terms and conditions stated above, you should inform the Asstt. General Manager (HRD) on or before August 23, 2017 and report for duty as soon as possible but not later than October 23, 2017. In case the company does not receive your acceptance of the offer of appointment by August 23, 2017 then this offer will be treated as cancelled.”

33. CEL offered appointment to the Petitioner enumerating the service conditions in terms of pay scale, tenure of service, place of posting, etc., including Clause 2(a) specifying the condition with respect to probationary period. Petitioner was required to acknowledge the receipt of the letter and acceptance of all the terms mentioned in the letter. Thus, it cannot be said that the terms specified in the letter were imposed on the Petitioner and being an offer, it was open to the Petitioner to accept or not to accept appointment on such terms. Petitioner admittedly accepted the offer, on the terms and conditions specified in the offer letter, without any demur, protest or reservation. In fact as pointed out by CEL, he reverted by email dated 25.07.2017 by stating as follows:- “..Thanks for giving me the opportunity for serving your esteemed organization. I am confirming that I accept your Offer of Employment as GM (HR) in your organization and will submit my joining very soon.”

34. In this view of the matter, it is not open to the Petitioner to even contend that Clause 2(a) of the offer of appointment letter would not govern the terms and conditions of his service or that the probation period could not be extended with a further stipulation of requirement of confirmation in writing.

35. Even otherwise, this contention cannot be sustained. The Recruitment Rules are admittedly silent on the probation period. As far as the advertisement is concerned, while it did mention that period of probation would be one year but it was conspicuously silent on the issue of extension of the period and did not provide that one year would be the maximum period of probation and that the probationer would stand automatically confirmed on expiry of the probation period of one year. Thus, the stipulation in the appointment letter is neither contrary to nor in conflict with the Recruitment Rules or the advertisement and at the cost of repetition, once the appointment letter was accepted by the Petitioner without a demur and not challenged until his services were terminated, this Court is unable to uphold this contention of the Petitioner.

36. The judgement in Central Inland Water Transport vs. Brojo Nath Ganguly, (1986) 3 SCC 156 has been relied on to argue that insertion of Clause 2(a) in the appointment letter was beyond the control of the Petitioner and he had no option but to accept it as he had unequal bargaining power qua the CEL. In my view, the concept of unequal bargaining power cannot be imported by the Petitioner in the present case. In every process of direct recruitment, after a candidate is recommended for appointment, an offer letter of appointment is issued detailing the terms and conditions of his/her employment. Opportunity is given to the prospective employee to accept the offer letter with its terms and conditions after carefully weighing the pros and cons. Having accepted the offer letter and having worked as a probationer for over a year, the Petitioner cannot be heard to say that he accepted the appointment out of any compulsion or on account of unequal bargaining power. Therefore the judgment in Prabodh Sagar (supra) would not help the Petitioner.

37. Before proceeding to deal with the contention of the Petitioner that on expiry of one year of probation, by efflux of time, Petitioner is deemed to be a confirmed employee and his services could not be ended abruptly, I may refer to the law as developed through judicial pronouncements on probation and confirmation.

38. Starting from one of the earliest judgments on the point, I may refer to judgment of the Constitution Bench of the Supreme Court in G.S. Ramaswamy vs. The Inspector General of Police, Mysore State, Bangalore, AIR 1966 SC 175, where the Court held that, a probationer cannot, after the expiry of probationary period, automatically acquire the status of a permanent servant, unless the Rules expressly so provide. Therefore, even if the probationer continues to act in the post for more than the initial period of probation, he cannot acquire permanency merely by efflux of time. Relevant para reads as under:-

39. Another Constitution Bench of the Supreme Court in State of U.P. vs. Akbar Ali Khan, AIR 1966 SC 1842 took the same view as follows:-

40. In State of Punjab vs. Dharam Singh, AIR 1968 SC 1210, the Constitution Bench of the Supreme Court after examining the anatomy of the Rules in question, addressed itself to the effect of Rule 6(b) of the Punjab Educational Service (Provincialised Cadre) Class-III Rules, 1961 wherein a period of three years was fixed, beyond which probation period could not be extended. The view taken by the Supreme Court was that once there was a maximum period of probation fixed by the Rules, beyond which probationary period could not be extended, then merely because an employee appointed to the post continues after completion of the maximum period, without an express order of confirmation, he cannot be deemed to continue as a probationer, but would have to be treated as a confirmed employee. In the said case, the Service Rules itself negatived the principle that there is no deemed confirmation. Relevant paras are as under:-

41. In Samsher Singh vs. State of Punjab and Anr., (1974) 2 SCC 831, a seven-Judge Bench of the Supreme Court was dealing with termination of services of probationers under Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and Rule 7(3) of Punjab Civil Services (Judicial Branch) Rules, 1951. The law laid down by the Constitution Bench in Dharam Singh (supra) was approved but was distinguished because of the Rule in question in the said case, which provided a probation period for two years, extendable from time to time, not exceeding three years and an Explanation to the Rule which stipulated that period of probation shall be deemed to have been extended if a Subordinate Judge is not confirmed on expiry of probation period. Relevant paras are as under:-

42. In Dayaram Dayal vs. State of M.P. and Anr. (1997) 7 SCC 443, Supreme Court noted that there were two distinct line of cases which were emerging from the different judicial pronouncements. One line of judgments held that mere continuation of service beyond the probation period does not amount to confirmation unless it was so specifically provided. The other line is that where in the Rules there is an initial probation with extension thereof, but a maximum period is also provided beyond which probation cannot be extended, the employee will be deemed to be confirmed on completion of maximum period of probation.

43. In Wasim Beg vs. State of U.P. and Ors., (1998) 3 SCC 321, the Supreme Court identified three possible categories of cases and observed as under:-

44. A three-Judge Bench of the Supreme Court in High Court of M.P. vs. Satya Narayan Jhavar, (2001) 7 SCC 161, declined to accept the principle of automatic or deemed confirmation and held as follows:-

45. This view was followed by the Supreme Court in Registrar, High Court of Gujarat and Anr. vs. C.G. Sharma, (2005) 1 SCC 132 holding that a probationer remains a probationer unless confirmed on the basis of his work evaluation and that once there is no stipulation in the Rules prescribing maximum period of probation, there is no question of automatic or deemed confirmation. Relevant paras are as under:-

46. In Kazia Mohammed Muzzammil vs. State of Karnataka and Anr., (2010) 8 SCC 155, the Supreme Court was dealing with the Rule, which contained a negative command that the period of probation shall not be less than two years. This period could be extended by a specific order by half of the said period but on completion of the probation period, suitability of the probationer was to be considered. If found suitable then order was to be issued confirming the employee but if found unsuitable, then either the period should be extended or the competent authority could discharge the probationer. After examining several judgments on the issue, the Supreme Court held as follows:-

47. A Division Bench of this Court in V.K. Mittal and Ors. vs. 407, had the occasion of considering the concept of deemed confirmation and after referring to several judgements of the Supreme Court, the Division Bench summarized the legal position in the following words:-

48. Another Division Bench of this Court in the case of Medical Council of India vs. Sangeeta Sharma and Ors. 2019 SCC OnLine Del 8276 held as under:-

49. From a conspectus of the various judgments aforementioned and close reading of the legal position summarized in V.K. Mittal (supra) and to the extent it is relevant to the present case, the position in law that emerges is that if in a rule or an order of appointment a probation period is specified with power to extend probation and the probationer is allowed to continue beyond the prescribed period of probation, he cannot be deemed to be confirmed and at the end of the probation period he merely becomes qualified or eligible for substantive appointment. The exception to the rule is where there is a provision for initial probation and extension thereof but a maximum period of extension is provided, in which case the presumption about continuation beyond the probation period as the probationer stands negatived. This is however subject to a caveat where the rule or the appointment letter requires a specific act on the part of the employer to issue a confirmation order, in writing, and in such case until an order of confirmation is passed, the probationer cannot be deemed to have been confirmed, merely because the probation period has ended by efflux of time.

50. In the present case, the appointment letter clearly stipulated a probation period of one year with power of extension until an order of confirmation was passed, in writing. The stipulation makes it evident that confirmation is not automatic and therefore merely completion of one year of probation period cannot lead to a conclusion of deemed confirmation. The appointment letter did not prescribe that the Petitioner shall stand confirmed at the end of one year probation period, by afflux of time nor was a maximum period of probation stipulated. The Rules as noted above are conspicuously silent on probation. There was nothing in the advertisement even remotely indicating a maximum period of probation or that the probationer would stand automatically confirmed at the end of one year. Contrary to the stand of the Petitioner the appointment letter mandates that confirmation has to be in writing, leading to only one conclusion that at the end of one year, if the performance of the probationer was not found satisfactory, CEL had the power and prerogative to extend the probation and when found suitable an order in writing confirming the probationer was required to be issued.

51. In V.K. Mittal (supra) the Division Bench was dealing with Rule 8(a) of the Delhi High Court Establishment (Appointment and Conditions of Service) Rules, 1972 which is as under:- “Appointment to post specified in Schedule II other than the post of Registrar-cum-Secretary to Hon'ble the Chief Justice may be substantive or on probation or on officiating, temporary or adhoc basis. Any appointment other than substantive appointment may be terminated at any time without assigning reasons. Probation shall ordinarily be of one year's duration. Expiry of the period of probation shall not result in automatic confirmation.”

52. Having examined the Rule and the judgments on probation and confirmation, the Division Bench observed as follows:-

68. One important fact requires to be noticed at this stage. The conversion of the 25 temporary posts of PS to permanent ones took place in fact on 7-8-2007 and not 25-7-2007. By that date, the DR PSs had also “successfully” completed their probation. Thus if one were to accept the Petitioners' contention that the letter of a Deputy Registrar communicating the completion of probation was sufficient for inferring confirmation, then there were as on the date of conversion of the posts of PSs into permanent ones, two sets of confirmed PSs. However, the correct legal position would be that under the 1972 Rules, there had to be separate decision taken and a separate order of confirmation issued by the competent authority i.e. the Chief Justice. This is also the reason why this was placed as a separate agenda item for the decision of the Selection Committee on 3-3-2009. The court is informed by the learned Senior counsel for the High Court that this has been the practice in the High Court and there is no reason to view it differently as far as the PSs are concerned. This order of confirmation i.e. appointing them “substantively” as PSs took place only by the order dated 28-3-2009 effective 20-3-2009.

69. It was not incumbent on the Chief Justice to have issued the orders of confirmation only because the recommendation of the Selection Committee in respect of the promotee PSs had been accepted. The completion of probation is one aspect but confirmation on the post is another. If for taking a conscious decision as to the latter aspect, the Chief Justice was required to keep in view the possible competing claims of the DRs who had also by then “successfully” completed their probation, it cannot be said that the Chief Justice was acting arbitrarily. One important aspect to be borne in mind at this stage was the effect this would have on the arranging of their inter se seniority in the cadre of PSs. At this stage i.e. 7-8-2007, Rule 5-A had not been recommended by the Selection Committee to be repealed. That happened later on 17-2-

2009. All this happened at the instance of only the promotee PSs and without any notice to the DR PSs whose interest were being adversely affected by such a decision. This was what prompted the case of confirmation of the entire lot of PSs to be placed before the Selection Committee on 3-3-2009. This also reinforces the position that there was no deemed confirmation of either set of PSs only upon completion of their probation and that it required a separate decision and a consequential order of the Chief Justice in that regard.

87. To summarise the conclusions: (a) The fact that the recommendations made on 21-2-2007 by the Selection Committee on the representation of the Petitioners was accepted by the Chief Justice on 28-2- 2007 and the subsequent recommendation at the meeting on 19-7-2007 was accepted on 25-7-2007 did not ipso facto mean that a decision by the Chief Justice had been taken to confirm the promotee PSs from either 17-2-2007 or 25-7-2007. (b) Under the 1972 Rules, there had to be a separate decision taken and a separate order of confirmation issued by the competent authority i.e. the Chief Justice. This has been the practice in the High Court and there is no reason to view it differently as far as the PSs are concerned. This order of confirmation i.e. appointing the Petitioners and Respondents 2 to 14 “substantively” as PSs took place only by the order dated 28-3-2009 effective 20-3-2009.

(d) Under the 1972 Rules there is no scope for a “deemed confirmation” of the Petitioners as PSs. Their contention that they should be held to have been deemed to be confirmed as PSs on 17-2-2007 or at the latest 25-7-2007 is rejected.”

53. In Medical Council of India (supra), the Division Bench was again confronted with the same proposition, where the relevant part of the appointment letter was as under:-

54. Contention of the Petitioner/MCI, assailing an order passed by the Central Administrative Tribunal allowing the Original Application, holding that at the end of the probation period Respondent became a deemed confirmed permanent employee and directing re-induction of Respondent No. 1 therein, was as under:-

55. The Division Bench held that the decision of the Central Administrative Tribunal was laconic as the rules did not envisage automatic or deemed confirmation. Relevant observations of the Division Bench have been extracted in the earlier part of the judgment and reference at this stage is additionally made to para 18 of the judgment as under:-

56. Reliance was placed by the Division Bench on several judgments of the Supreme Court, most of which have been alluded to above in the present judgment and are not being repeated to avoid prolixity, except to refer to the judgment in Head Master, Lawrence School, Lovedale vs. Jayanthi Raghu, (2012) 4 SCC 793 on which also the Division Bench placed reliance and the relevant para is as under:-

57. In view of the aforesaid the contention of the Petitioner that merely by the expiry of probation period of one year, Petitioner was deemed to be a confirmed employee, cannot be accepted by this Court. The mere stipulation of one year probation period cannot lead to an inference that on its expiry the Petitioner would be deemed confirmed and the only interpretation that can be given to the stipulation in the appointment letter is that the Petitioner was to remain on probation even after expiry of the one year period until a confirmation order was issued, in writing. Had the intent of the employer been otherwise, the appointment letter would have categorically provided a maximum period of probation, beyond which there could be no extension, which certainly is not the case here. This Court therefore holds that the Petitioner cannot be treated as a confirmed employee of CEL.

58. Petitioner contended that he had, by his dedicated work contributed immensely towards achieving many a milestones in CEL and has taken pains to dedicate several pages in the writ petition to point out his achievements. Some of these, as noted earlier, allegedly include creating a congenial and harmonious environment by negotiating with the workmen, expediting DPCs and preparing rosters for promotions, ensuring payment of salaries of the workmen, expediting statutory compliances as well as working towards making the net worth of CEL positive. Succinctly put the argument of the Petitioner is that the Petitioner, on account of his competency, knowledge, vast experience and hard work, was suitable to be continued as GM (HR) with CEL and there was no reason or cause to have terminated his services on the ground of unsuitability. Pithily put, Petitioner calls upon this Court to examine his suitability to the post.

59. It is the settled law that where the form of an order discharging a probationer is a mere camouflage, Courts can lift the veil and go behind the order to ascertain its true character. If the Court finds that the order although seems like, in form, as an order simplicitor discharging the probationer and determining the employment, but in reality, is a cloak for an order of punishment, Court can interfere and if the facts and circumstances so demand, quash the order. In Anoop Jaiswal vs. Govt. of India, (1984) 2 SCC 369, the Supreme Court held that even though the order of discharge may be non-committal, it cannot stand alone and the cause for the order cannot be ignored. The recommendation behind the order which is the basis or foundation should be read along with the order to determine the true character. If on reading the two together, the Court reaches the conclusion that the alleged act of misconduct was a cause of the order and that but for the incident of misconduct, the order would not have been passed, then it is inevitable that the order of discharge should fall to the ground and the employee must be given a reasonable opportunity to defend himself.

60. In Parvendra Narayan Verma (supra), the Supreme Court considered the question whether the order of termination on the ground of unsatisfactory probation was punitive and stigmatic and if so whether it could be sustained without a full scale departmental enquiry. Relying on the earlier judgments of the Supreme Court in V.P. Ahuja vs. State of Punjab, (2000) 3 SCC 239, Krishnadevaraya Education Trust vs. L.A. Balakrishna, (2001) 9 SCC 319, H.F. Sangati v. Registrar General, High Court of Karnataka (2001) 3 SCC 117 and Samsher Singh (supra), the Supreme Court held as under:-

29. Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? 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. The decisions cited by the parties and noted by us earlier, also do not hold so. 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.”

61. The Supreme Court then examined the facts of the case before it where the language used in the termination order was “work and conduct has not been found to be satisfactory”. Having examined the impugned termination order before it, the Supreme Court held as under:-

62. In this context, I may refer to the principles with respect to discharge of a probationer which were laid down by the Constitution Bench of the Supreme Court in Parshotam Lal Dhingra vs. Union of India, AIR 1958 SC 36 and as summarized by the Supreme Court in State of Bihar vs. Gopi Kishore Prasad, AIR 1960 SC 689 as follows:-

63. Examining the facts of the present case on the touchstone of the principles enunciated by the Supreme Court on the subject, this Court is of the view that the impugned order of termination is neither stigmatic nor punitive. It is nobody‟s case that the Petitioner had indulged in any act amounting to a misconduct or misdemeanor and even today before this Court the stand of CEL is that the Petitioner was a non-performer and did not execute the work assigned to him within the required timelines. While the Petitioner has taken pains to highlight his achievements and contributions which in his perception took the Corporation to a positive net worth, learned Senior Advocate for CEL has attempted to illustrate delays in making rosters, holding DPCs and has also taken a stand that in most of the targets and goals achieved, Petitioner had worked as a team with other officers and employees and cannot take the entire credit.

64. In my view, reading of the pleadings and the arguments made can only lead to a conclusion that the impugned order, in its form and substance cannot fall into the category of a punitive order as there are no allegations of misconduct or moral turpitude and the order was neither preceded by any investigation or informal enquiry. The impugned order is an order of discharge simplicitor of a probationer on account of unsatisfactory probation. The purpose of placing an employee under probation casts an obligation on the employer to consider whether his work is satisfactory making him suitable for the post. The employer after assessing the work of the probationer may come to a conclusion based on non-performance, conduct, temperament and a host of other factors, singularly or cumulatively, that the probationer is unsuitable for the job and must be discharged. This cannot amount to a punishment if it is an order of discharge simplicitor and found to be so on lifting of the veil. The order impugned herein cannot be termed as punitive.

65. I cannot agree with the contention of the Petitioner that the order is stigmatic. As can be seen from a mere reading of the order that it seeks to terminate the services of the Petitioner on ground of unsuitability and there is not even an iota of stigma cast upon the Petitioner, for any other prospective employer to even infer that the services were terminated for any other cause. In Parvendra Narayan Verma (supra), the Supreme Court observed that generally when a probationer is terminated it means that the probationer is unfit for the job but a simple termination cannot be held to be stigmatic. In Medical Council of India (supra), the Division Bench while examining a somewhat similar order of termination of a probationer concluded that it was a simple order of discharging a probationer and could not be treated as a stigmatic order.

66. Once it is found that the order of termination of the Petitioner is neither punitive nor stigmatic, the question that arises is whether this Court can determine the „suitability‟ of the Petitioner and come to a conclusion contrary to the determination by the Competent Authority in this regard. In State of Punjab vs. Sukhwinder Singh, (2005) 5 SCC 569, a three-Judge Bench of the Supreme Court held that the decision to discharge a probationer during probation is taken by the appointing authority or administrative heads of various departments, who are not judicially trained people. The superior authorities in 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. A probationer is on test and has no right to the post. In the present case, the concerned authorities in CEL have assessed the performance of the Petitioner to judge his suitability for the post in question. Admittedly, letters were written to the Petitioner pointing out the alleged deficiencies or delay in carrying out the tasks entrusted to him. Petitioner has placed on record some of his responses, rebutting the contents of those letters and on the contrary attributing the non-performance and non-achievement of targets to the Management. It is not the domain of this Court in a judicial review to sit in assessment over the performance of the Petitioner. Looking into the nature of shortcomings and deficiencies pointed out by the Respondent, this Court has no expertise or mechanism to judge the performance of the Petitioner so as to conclude that he is suitable to be confirmed as GM(HR). The decision to terminate the services of the Petitioner is purely a bonafide attempt by the superior officers to ascertain whether the Petitioner could be retained in service or not based on his performance and the impugned order does not, in my view, call for any interference. Supreme Court in Oswal Pressure Die Casting Industry, Faridabad vs. Presiding Officer and Anr. (1998) 3 SCC 225, while allowing an appeal against the judgement of the High Court, against an Award of the Labour Court, held that it was not open to the High Court to sit in appeal over the assessment made by employer of the performance of the employee. It was further held that once it was found that the assessment made by the employer was supported by some material and was not malafide, it was not proper for the High Court to interfere and substitute its satisfaction with the satisfaction of the employer. The relevant para is as under:

67. The next contention of the Petitioner is that since CEL is a Central Public Sector Enterprise, the appointment of the Petitioner was on a permanent absorption basis and being a permanent employee, his services could not be terminated abruptly by the impugned order, without following the due process of law, entailing a full-fledged enquiry. Reliance was placed on DPE OM dated 14.12.2012 to strengthen the argument. In order to examine the said contention I may extract hereunder the relevant para of the DPE OM dated 14.12.2012:-

68. There is no doubt that all appointments in CPSEs are on a permanent absorption basis and only in rare cases, appointments are on deputation. But what cannot be lost sight of is the fact that the Petitioner was appointed on probation for a period of one year until confirmed in writing and during the probationary period his services were liable to be terminated without notice and without assigning any reason whatsoever. Para 2(a) of the offer letter of appointment has been extracted above. It cannot therefore, be said that the Petitioner was permanently absorbed with CEL on the day of his appointment, as alleged, since the appointment was subject to a caveat of satisfactory completion of probation. Certainly, if the Petitioner would have satisfactorily completed probation and was found suitable, an order of confirmation would have followed. Only after confirmation the Petitioner would have been a „permanently absorbed‟ employee of CEL. Thus, this contention of the Petitioner is untenable in law.

69. There is yet another facet of the argument of the Petitioner. It is contended that the Petitioner was employed with CIL where he rendered 23 long years of dedicated and unblemished service and had applied for appointment with CEL through proper channel and after a No Objection Certificate from CIL and thus the resignation from CIL was a „technical resignation‟. In support the Petitioner highlights the Minutes of the Selection Committee where it was specifically directed that he would be entitled to pay protection with CEL. DoPT OM dated 17.08.2016 is pressed to highlight the meaning and definition of „technical resignation‟. Concisely, the argument is that the appointment with CEL, after technical resignation from CIL, was a substantive, regular and permanent appointment and thus the order terminating his services, randomly and abruptly, without due process of law, treating him as a probationer, cannot be sustained in law.

70. „Technical resignation‟ has been defined in the OM dated 17.08.2016 issued by the DoPT as hereinunder:- “2.1.[1] As per the Ministry of Finance OM No. 3379-E.III (B)/65 dated the 17th June, 1965, the resignation is treated as a technical formality where a Government servant has applied through proper channel for a post in the same or some other Department, and is on selection, required to resign the previous post for administrative reasons. The resignation will be treated as technical resignation if these conditions are met, even if the Government servant has not mentioned the word “Technical” while submitting his resignation. The benefit of past service, if otherwise admissible under rules, may be given in such cases. Resignation in other cases including where competent authority has not allowed the Government servant to forward the application through proper channel will not be treated as a technical resignation and benefit of past service will not be admissible. Also, no question of benefit of a resignation being treated as a technical resignation arises in case of it being from a post held on ad hoc basis.”

71. In this context, I may also refer to the following para from DoPT OM dated 26.12.2013:- “In case where a Government servant applied for post in the same or the other departments through proper channel and on selection, is required to resign the previous posts for administrative reasons,the benefit of past service, if otherwise admissible under rules, is given treating the resignation as a “Technical Formality.” Resignation submitted for other reasons or if competent authority has not allowed him to forward his application through proper channel is a resignation and benefit of past service will not be admissible.”

72. That benefit of pay protection is available on appointment to another post on technical resignation from the erstwhile post is clear from a reading of para 2.[4] of the DoPT OM dated 17.08.2016 as under:- “2.[4] Pay Protection, eligibility of past service for reckoning of the minimum period for grant of Annual Increment In cases of appointment of a Government servant to another post in Government on acceptance of technical resignation, the protection of pay is given in terms of the Ministry of Finance OM No. 3379-E.III (B)/65 dated 17th June, 1965 read with proviso to FR 22-B. Thus, if the pay fixed in the new post is less than his pay in the post he holds substantively, he will draw the presumptive pay of the pay he holds substantively as defined in FR-9(24). Past service rendered by such a Government servant is taken into account for reckoning of the minimum period for grant of annual increment in the new post/ service/ cadre in Government under the provisions of FR 26 read with Rule 10 of CCS (RP) Rules, 2016. In case the Government servant rejoins his earlier posts, he will be entitled to increments for the period of his absence from the post.”

73. Reading of the relevant provisions alluded to above obviates any doubt that the resignation tendered by the Petitioner to CIL was a technical resignation. Petitioner has placed on record the letters requesting for grant of No Objection Certificate for appearing in the interview pursuant to the advertisement issued by CEL as well as the letter forwarding his case for No Objection Certificate. Parties are adidem that the Petitioner had applied with CEL through proper channel and the No Objection Certificate was furnished while applying. A perusal of the Minutes of the Selection Committee fortifies the stand of the Petitioner that pay protection was granted to him and this is not denied by CEL, even today before this Court. The response of CEL to the ground of technical resignation, broadly, is that the DoPT OM dated 17.08.2016 does not apply to the Petitioner as it is only applicable to Government servants. This contention of CEL is misconceived as the concept of technical resignation applies to the movement of officers from one PSU to another also and in this context, I may rely on a judgment of the Division Bench of this Court in Indraprastha Power Generation Company Ltd. vs. Savinder Kaur in LPA 51/2018 decided on 04.09.2018 wherein, the Respondent had filed a writ petition before the learned Single Judge seeking retention of lien. The Respondent therein, while working as Deputy Manager (HR) in IPGCL, had applied for the post of AGM (HR) in M/s Pawan Hans Limited, a CPSE, in response to an advertisement, through proper channel and after receiving a No Objection Certificate. Upholding the claim of the Respondent for retention of lien with IPGCL the Division Bench had affirmed the position that movement from IPGCL to Pawan Hans Limited would be treated as technical resignation. Relevant para of the judgment is as under:-

74. In view of the above, it cannot be held that only because the Petitioner resigned from a CPSE to be appointed in another CPSE, it would not be treated as a technical resignation. While this argument of CEL is unacceptable, however, it cannot inure to the advantage of the Petitioner to conclude that merely because his resignation with CIL is a technical resignation, he should be treated as a permanent employee with CEL at the threshold of his initial appointment. This argument of the Petitioner has to be rejected for twofold reasons. First and foremost, the Petitioner was appointed as a probationer subject to confirmation. This point has been elaborately discussed above. Secondly, there is no law under which an employee confirmed in a post, appointed to another post, after submitting technical resignation, carries the benefit of confirmation to the latter post. Concededly in the present case, Petitioner had applied for appointment with CEL, through the process of direct recruitment and his appointment as GM (HR) was a fresh appointment, with different terms and conditions and different nature of job. It was for this reason that the Petitioner was placed on probation to adjudge his suitability for confirmation, which was never challenged by the Petitioner. Therefore, the mere fact that the Petitioner came through proper channel is not sufficient to hold that he would be treated as a confirmed/permanent employee of CEL on appointment. Learned counsel for the Petitioner has not been able to show any law enabling this Court to hold in his favour and on the contrary the DoPT OM dated 24.09.1992 provides as under:- “ If a Government servant is appointed to another post by direct recruitment either in the same department or a different department, it may be necessary to consider him for confirmation in the new post in which he has been appointed by direct recruitment irrespective of the fact that the officer was holding the earlier post on a substantive basis. Further confirmation in the new entry grade becomes necessary because the new post may not be in the same line or discipline as the old post in which he has been confirmed and the fact that he was considered suitable for continuance in the old post (which was the basis for his confirmation in that post) would not automatically make him suitable for continuance or confirmation in the new post, the job requirements of which may be quite different from those of the old post. The same principle has been reiterated and reaffirmed in a recent DoPT OM dated 11.03.2019 as under:- (A) DIRECT RECRUITMENT TO ANOTHER POST IN SAME OR DIFFERENT DEPARTMENT “ If a Government servant is appointed to another post by direct recruitment either in the same department or a different department, it may be necessary to consider him for confirmation in the new post in which he has been appointed by direct recruitment irrespective of the fact that the officer was holding the earlier post on a substantive basis. Further confirmation in the new entry grade becomes necessary because the new post may not be in the same line or discipline as the old post in which he has been confirmed and the fact that he was considered suitable for continuance in the old post (which was the basis for his confirmation in that post) would not automatically make him suitable for continuance or confirmation in the new post, the job requirements of which may be quite different from those of the old post.”

75. Learned counsel for the Petitioner has relied on the judgments of the Supreme Court in Renu (supra) and K. Manjusree (supra) as well as A.P. Public Service Commission (supra) to urge that rules of the game cannot be changed once the game has started. The argument is based on the assumption of the Petitioner that the appointment letter prescribing that CEL will have the power to extend probation until confirmation in writing is extraneous to the advertisement issued for appointment. This Court has in the earlier part of the judgement held that Clause 2(a) in the appointment letter is not contrary or extraneous to the advertisement, besides the fact that the offer letter of appointment was accepted by the Petitioner with open eyes along with all the terms and conditions mentioned therein. There is thus no change in the rules of the game in the midst of the game and therefore, the judgments are of no avail to the Petitioner.

76. After carefully perusing the pleadings of the parties and hearing the arguments, this Court has not been able to discern any malice or malafide in the impugned action, as alleged by the Petitioner. In the detailed counter affidavit filed, CEL has rebutted and controverted the averments made by the Petitioner regarding his sole contributions in achieving certain tasks as well as the allegations that he had flagged issues resulting in a report against the CMD, which prompted the Management to terminate his services. In the counter affidavit, it is elaborately explained that the Petitioner delayed preparation of the rosters for carrying out promotions, failed to perform his duties as regards the work related to online ACRs delayed the deadlines to meet the MOU targets, etc., which are shortcomings related to work and cannot be held to be actuated by malice. The Supreme Court in Ratnagiri Gas & Power (P) Ltd. vs RDS Projects Ltd., (2013) 1 SCC 524, held that law casts a heavy burden on the person alleging malafides to prove the same on the basis of facts that are either admitted or satisfactorily established and/or logical inferences are deductible from the same. This particularly gains importance, when a person alleges malice in fact, in which case, it is obligatory for the person making such allegations to furnish particulars and not vague and general allegations. Relevant paras are as follows:

26.2. We may also refer to the decision of this Court in Ajit Kumar Nag v. Indian Oil Corpn. Ltd. [(2005) 7 SCC 764: 2005 SCC (L&S) 1020] where the Court declared that allegations of mala fides need proof of high degree and that an administrative action is presumed to be bona fide unless the contrary is satisfactorily established. The Court observed: (SCC p. 790, para 56)

”

77. Before parting with the present petition, I may note that in the present petition, the Petitioner has only sought the relief of quashing the termination order and further directions to reinstate him with back wages and consequential benefits qua CEL. Petitioner has not sought any relief qua his lien with CIL and in fact, CIL is not even a party in the present petition. However, since this Court has held that the resignation tendered by the Petitioner with CIL for joining as GM(HR) with CEL is a technical resignation, it would be unjust to the Petitioner if he is not given the liberty to exercise his rights flowing out of the technical resignation with CIL, more particularly as he has been terminated on probation and within the permissible Lien period. Accordingly, liberty is granted to the Petitioner to seek his rights and remedies flowing out of his technical resignation with CIL, in accordance with law, if so advised.

78. For all the aforesaid reasons, the writ petition is dismissed with all pending applications.

79. No orders as to costs.

JYOTI SINGH, J MAY 04, 2021 Yo/yg