(K.M. Joseph and S. Ravindra Bhat, JJ.)
Chairman and Managing Director, BHEL _______________ Appellant;
v.
Vijay Kumar D. ___________________________________ Respondent.
Civil Appeal No. 8763 of 2017, decided on July 28, 2021
The Order of the court was delivered by
Order
1. The respondent joined the appellant as a Trainee Engineer on 05.10.1981. As he completed the period of training, he was designated as Commercial Engineer with effect from 07.10.1982. He was placed on probation for a period of on year, which was extended. Thereafter his probation was declared with effect from 06.01.1984.
2. Disciplinary proceedings were commenced against him which resulted in appellant being dismissed. It must be noted that the charge against him was that he forged the signature of Manager, Production (TC) in two leave applications and also forged the signature of the Manager, Projection (TC) on the Employees Attendance Certificate certifying his own attendance. Thereafter, it appears, the case of the respondent was considered sympathetically. The following order is passed which evidenced his appointment. The said order is dated 10.02.1986:
“Shri D. Vijay Kumar S/o Shri D. Chittari is a re-a-pointed in this organisation as Engineer on a starting pay of Rs. 1100/- p.m. in the company’s pay scale of Rs. 1100-60-1940/- with effect from 20th October, 1986 (FN) in terms of office order No. PA:W8:8604:D:DV:86 dated 10.10.86 of the Executive Director. He is entitled to usual allowances admissible under rules from time to time.
He will be on trial for a period of one year with effect from 20.10.86 during which his performance work and conduct including punctuality attendance will be reviewed periodically and decision taken for his continuance or otherwise. During the trial period, his services are liable for termination without notice or without assigning reasons therefore and on satisfactory completion, which shall not be deemed to have been completed unless he is informed in writing, his services will be liable for termination by either side giving six months notice or payment of salary in lieu thereof.
He will be governed by the service rules & regulations including the conduct rules and administrative orders of the company in force from time to time and shall obey all such orders and directions he may receive from his superiors.
He will be treated as fresh entrant for all purposes and he will be junior most to all those who are already in EI grade on the date of his appointment in this organisation i.e. 20.10.86.
He is allotted staff No. 1882252 and posted to commercial, CDC (840) as commercial engineer (CDC).”
3. Thereafter, it is the case of the appellant that the performance of the respondent was not on expected lines. Memo dated 29.04.1989 may be noticed at this stage.
“During last financial year i.e. from 01.04.88 to 31.03.89 it is observed that you were absent from duty for 176 days, out of which you have applied various types of leaves, for 48½ days and the same were sanctioned post-facto and for the balance 127½ days your absence was un-authorised. Hence you are advised to improve year attendance and willingness to work in future, in your own interest.”
4. The respondent filed Writ petition No. 15002/1989 before the High Court. Therein, the relief sought was that the appellant may be directed to give continuation of respondent’s service from the date of first dismissal to the date of his reappointment.
5. The said writ petition culminated in judgment dated 07.09.1990. The following may be noticed: –
“True it is the scope of this writ petition is very limited; but is confirmed only to the continuation of the petitioners service from the date of dismissable to the date of reinstatement and other attendant benefits. In view of the assertion in the counter affidavit that there was a complete break in the service of the petitioner on account of the order of dismissal which was affirmed in appeal. I am not persuaded to grant the relief which the petitioner seeks in this writ petition.
Counsel for the petitioner submitted that the petitioner may be held entitled atleast to a declaration of his probation of confirmation in terms of the Standing Order. Those are not matters covered by this writ petition. The petitioner has to seek such reliefs before the respondents. I am sure that if any such request is made, it will be considered by the respondent in terms of the Standing Orders and appropriate orders will be passed as expeditiously as possible. Counsel for the petitioner submits that the petitioner will file a representation on the above lines within a period not exceeding two weeks from today. If it is so filed, the respondent shall consider the same and pass orders within a period not exceeding three months from the date of receipt of such representation.
Writ petition is disposed of with the above observations. No costs.”
6. It would appear that the respondent did make a representation on 29.12.1990 as was contemplated in the judgment. This led to the passing of the order dated 15.02.1991. It is necessary to advert to the same in some detail. Accordingly, we refer to it:
“1. Shri D. Vijayakumar (Staff No. 1864491), who joined this organisation as Engineer Trainee on 5.10.1981 and who was absorbed as Commercial Engineer with effect from 7.10.1982, was dismissed from service on 27.7.1985 on grave charges, and his appeal against the said order was dismissed by the appellate authority by order dated 30.12.1985.
2. In response to persistent representations by Shri Vijayakumar, and on humanitarian ground, he was reappointed as a fresh entrant as Commercial Engineer (C.D.C.), on trial, w.e.f. 20.10.1986 with staff No. 1882252, vide office order No. E/545/86 dt. 29.10.1986 subject to the terms and conditions specified in the order. In view of the poor performance and irregular attendance of Shri Vijayakumar, his trial period was extended.
3. In the meantime, Shri Vijayakumar filed writ petition No. 15002 of 1989 on the file of the High Court of A.P. seeking issue of a writ of Mandamus directing B.H.E.L. to give continuation of service for the period from the date of dismissal to the date of reappointment, with all usual pay and allowances as are admissible, and other consequential reliefs. The High Court of A.P. by judgment dated 7.9.1990, refused to grant the reliefs sought by the Writ Petitioner, and observed that if a representation was filed by him for declaration of his probation and regularization of service, B.H.E.L. shall consider the same in terms of the rules governing the conditions of service of the petitioner, Sri Vijayakumar.
4. A copy of the representation said to have been sent by Shri Vijayakumar, and not traceable, was obtained from him on 29.12.1990.
5. The representation of Shri Vijayakumar was examined with reference to his performance from the date of his reappointment till date, having due regard to the observations of the Honourable High Court of A.P., in its judgment in writ petition No. 15002 of 1989, and the relevant service rules, and the terms and conditions of the order of reappointment of Shri Vijayakumar.
6. The performance of Shri Vijayakumar is found to be most unsatisfactory. Inspite of the long opportunity given to him by extension of the trial period, he has not shown any improvement or even an inclination in that regard. He has not been evincing any interest in work. He has been persistent in unauthorized absenteeism. For the whole period of his service from the date of reappointment (29.10.1986) till date, for major part of the period of service, he had authorisedly absented himself from duty. The break up of the number of days he had unauthorisedly absented himself is as below (exclusive of sanctioned leave);
| Years | Period of unauthorized absenteeism |
| 1987 | 11½ days |
| 1988 | 70 days |
| 1989 | 275½ days |
| 1990 | 155 ½days |
| 1991 (upto 12.2.91) | 28 days |
7. It is found that Shri Vijayakumar is unsuitable for the post and it is not in the interest of the company to extend the trial period of his service any longer, and therefore, the service of Shri Vijayakumar are hereby terminated with immediate effect.
8. His dues, if any, will be paid to him on receipt of no demand certificate from all the departments concerned.”
7. This order, in turn, triggered the present round of litigation with the respondent approaching the High Court with writ petition impugning the order. Learned Single Judge dismissed the writ petition. By the impugned judgment, the High Court has allowed the appeal filed by the respondent. It must be noted here that in the impugned order, the High Court proceeded on the basis that having regard to the fact that the period of probation of the respondent having been extended beyond the maximum period, he ceased to be a probationer and had become a member of service and since he came to be punished without holding inquiry, the inevitable conclusion was that the order of punishment was liable to be set aside; though strictly speaking, the matter ought to have been relegated to the appellant for conducting inquiry. It is also found that since the allegation is about the absence of some period, the Court was of the view that denial of 50 per cent backwages would meet the ends of justice. It is ordered that the appellant would not be in obligation to pay any salary during the period the respondent was absent. The High Court has directed the reinstatement of the respondent in service forthwith and it was further directed that he may be paid 50 per cent of the backwages and that also he be extended other benefits.
8. Heard Mr. P.S. Patwalia, learned senior counsel appearing on behalf of the appellant and Mr. Somiran Sharma, learned counsel appearing on behalf of the respondent.
9. Learned senior counsel for the appellant would contend that this is a case where the High Court has overlooked the fact that under the extant rules governing the respondent, while there was a provision to extend the period of probation, there was equally a provision which required an express order of confirmation to confirm the services of the respondent. Such an order is conspicuously absent, for the reason that such an order was not passed. He would therefore, contend that the entire reasoning of the High Court is fallacious and particularly, having regard to the law declared by this Court in a catena of decisions. He would refer us to the judgment of this Court in Head Master Lawrence School Lovedale v. Jayanthi Raghu (2012) 4 SCC 793 for the proposition that in the scenario where the period of probation is prescribed and it is further contemplated that the original period of probation can be extended and what is more, the maximum of the period of probation is also provided, and, if the employee were to continue beyond the maximum period of probation, it could be said that he is deemed to be confirmed. It is further, he pointed out subject to the principle that if there is a provision which expressly provides that the order of confirmation must be passed to confer the status of a confirmed employee, the period of probation would not come to an end and this is one such case, having regard to the rules in question.
10. He would further submit that the appellant is a Public Sector Unit and mulcting the appellant with liability to pay huge amount was totally uncalled for. It is also pointed out that the Court may notice the period for which the appellant has worked during the years in question. His submission is that there was no justification for the High Court to have passed the impugned order.
11. Shri Somiran Sharma, learned counsel appearing for the respondent pointed out that careful reading of the rules in question would show that their harmonious construction would not bear out the learned senior counsel for the appellant in his submissions:
“2.3 Every new employee appointed in the Company’s service will be issued with a formal order of confirmation on satisfactory completion of probationary period or the extended period of probation, as the case may be. The employee will be considered to be continuing on probation until so confirmed in writing.
2.4 An order relating to confirmation or extension of probation will normally be communicated within one month from the date of completion of the probationary period or extended period of probation. If, however, for administrative or other reasons it is not done so, the employee concerned will be informed of the reasons therefor within the stipulated period of one month.
2.5 If during the probationary period or extended period of probation, the performance, progress and general conduct of the employee are not found satisfactory or upto the standard required for the post, his/her services are liable to be terminated at any time without notice and without assigning any reason therefor.”
12. He would submit that while it may be open to the employer under these rules to have terminated the services if the services were not found suitable, it was not open to the appellant to sit over the matter without any justification. In such circumstances, the reasonable construction would have been, particularly in the absence of any reason for extending the probation, to hold that despite the presence of rule 2.3, in the absence of a order of confirmation, it could still be maintained that the respondent was not continuing on probation.
13. He also drew our attention to judgment of this Court in Jaswantsingh Pratapsingh Jadeja v. Rajkot Municipal Corporation (2007) 10 SCC 71 and he would point out that reading of the order which is impugned is clearly stigmatic as nothing is left to imagination.
14. We have noted the statutory rules. We have also considered the facts as a whole. It is a case where the appellant started his innings earlier. The curtains were drawn on the said part of his career by virtue of disciplinary proceedings. His dismissal was held in departmental proceedings. It appears to have been largely as a sympathetic measure that the appellant decided to reappoint him. Terms of the order reappointing the respondent would go to show that he was to be on trial for a period of one year. The judgment rendered in the earlier writ petition would also tend to show that the respondent was permitted to represent his grievance that the probation was not being declared. No doubt, learned counsel for the respondent did contend that what was called for was only a formal order of declaration of his probation. The fact remains that under Clause 2.3, despite the presence of maximum period of extending the probation, the employer did contemplate specific and express order of confirmation. In such circumstances, respondent may not be justified in pointing out that even though an order of confirmation is not passed, he stood confirmed.
15. The High Court has premised its judgment overlooking the crucial part in the rules which provided for the express order of confirmation. No doubt, the fact remains there is express reference to the nature of performance by the respondent in the impugned order. Shri P.S. Patwalia, learned senior counsel, would point out that it is still in consonance with an order contemplated by an employer discharging a probationer for the quality of the work that was produced by him or rather the lack of quality of the work. In this regard, it must be noted that the impugned order recites fairly large periods of absentism for the years 1989-1990 which are the two years immediately preceding the year in which the impugned order was passed. In the year 1991 till 12.02.1991, the respondent was absent for a period of 28 days which means that for the lions share of the year even in that year, the respondent was not present. This is leaving out the shorter periods for the earlier years 1987-88. Upon being queried about any plausible justification of his absence, the learned counsel for the respondent is unable to point out any cause for his being absent.
16. In the judgment which was drawn upon by the learned counsel for the respondent, we do note, it was a case where the employee was ill. Whatever that be, the fact remains that the interest of justice may still require that while we find that the order of the High Court may be without basis insofar as it finds that the respondent became a member, we do take note of the fact that there is reference to his performance in the order in the manner in which it is done. Therefore, we would think that on the whole, the interests of justice would be subserved in the facts of this case, if we were to modify the order in the following fashion.
17. The impugned order shall stand modified and we vacate the order of reinstatement of the respondent with 50% backwages and we instead direct that the appellant pay a sum of Rs. 18 lakhs within a period of one month from today.
18. The appeal is allowed as above.
19. No orders as to costs.
Civil Appeal No. 8763/2017
Chairman and Managing Director, BHEL ________________ Appellant
v.
Vijay Kumar D ____________________________________ Respondent
([SUBJECT TO OVERNIGHT PART-HEARD] [IN THE MONTH OF JULY, 2021])
Date: 28-07-2021 This appeal was called on for hearing today.
(Before K.M. Joseph and S. Ravindra Bhat, JJ.)
For Appellant(s) Mr. P.S. Patwalia, Sr. Adv.
Mr. G. Ramakrishna Prasad, AOR
Mr. Byrapaneni Suyodhan, Adv.
Ms. Filza Moonis, Adv.
For Respondent(s) Mr. Somiran Sharma, AOR
UPON hearing the counsel the Court made the following
ORDER
20. The appeal is allowed in terms of the signed order.
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