M/s. Durgapur Chemical Ltd. vs Chandan Mondal and Others

Arun Mishra, C.J.—In this intra-Court appeal, the legality of the impugned judgment and order passed by the learned single Judge on June 29, 2011 in W.P. No. 131 of 2010, has been challenged. The petitioner successfully assailed the termination of his services, made vide order dated December 8, 2009, passed by the appellant on the ground that his services were on contractual basis for two years and his performance in the capacity of Deputy Manager (Production) had been far below satisfactory as such the management decided to discontinue his employment on contractual basis. Two months'' notice was given to the petitioner and his services were dispensed with on and from February 8, 2010.

The petitioner was given the offer of appointment initially on May 8, 2009 vide Arnnexure P-2 to the petition. Initially the petitioner was appointed on a basic pay scale of Rs. 12000/-, plus allowances and provident fund, totaling Rs. 32,246/-. On successful completion of the probationary period, he was to be confirmed in the pay scale of Rs. 12000-375-18000/-.

It is pertinent to mention here that the petitioner was appointed in his services vide order dated May 8, 2009 on a contractual period of two years. However, subsequently an order dated June 30, 2009 was issued in which it was mentioned that the petitioner''s appointment will commence from June 3, 2009 in the pay scale of Rs. 12000-375-18000/- with the basic pay being Rs. 12000/-. In the said order, it was also mentioned that the appointment was on contractual basis for a period of two years. It was, inter alia, also mentioned in Condition 9 of the appointment order issued on June 30, 2009 that the petitioner''s services will be liable to be terminated on two months'' notice in writing on either side.

Thereafter, the services of the petitioner was dispensed with vide order dated December 8. 2009 mainly on the ground that his appointment was contractual and his performance was below satisfactory as such the management decided to discontinue his employment made on contractual basis. Two months'' notice period was also given to the petitioner and his services stood terminated with effect from February 8, 2010.

The petitioner assailed the said order of termination of his services before the learned single Judge of this Hon''ble Court. The Single Bench, by the impugned order, has gone into the anomaly in the two appointment orders which were initially issued on May 8, 2009 and then on June 30, 2009. The Single Bench observed that there was complete departure from the advertisement itself and that on selection, the petitioner was offered the appointment on contractual basis for a period of two years. The Single Bench has not gone into the question of unsatisfactory services being rendered by the petitioner and has observed that the advertisement conveyed that the appointment will be a permanent appointment. There was no explanation why two appointment letters were issued. The petitioner joined his services on June 3, 2009 and the second appointment order could not have been issued on June 30, 2009. The said action of the employer had been held to be arbitrary and unsustainable and the writ petition had been allowed by quashing the order impugned, dated 08.12.2009 in the writ petition and the employer was directed to treat the petitioner as having lawfully joined his services on the basis of the first letter of appointment dated May 8, 2009 as contained in Annexure P-2 to the writ petition.

Aggrieved thereby, this intra-Court appeal has been preferred.

It was submitted by the learned counsel appearing on behalf of the appellant that there was no substantial difference between the two appointment orders. The services of the petitioner was contractual one and apart from that his services were not satisfactory. Even if the order of his joining in service is taken apropos the order dated May 8, 2009, there was the condition of completion of the probationary period of six months successfully. Thereafter confirmation could take place; but the petitioner''s services were not satisfactory and there was no clause in the service conditions of automatic confirmation of service. This aspect was not considered by the Single Bench. If the appointment order of May 8, 2009 is relied upon, the petitioner has no case for interference as a matter of fact by virtue of the order dated June 30, 2009 the additional period of two months notice was required which was also complied with. Even if that is ignored, then going by the first order also the termination could not be said to be illegal in any manner and the petitioner was found wanting as he was unable to cope up with the technology. By no stretch of imagination, the order of termination could be termed to be stigmatic one.

The learned counsel appearing on behalf of the appellant has also relied upon the decisions of the Apex Court in Kunwar Arun Kumar Vs. U.P. Hill Electronics Corporation Ltd. and Others, and Life Insurance Corporation of India and Another Vs. Raghavendra Seshagiri Rao Kulkarni,

Per contra, the learned counsel appearing on behalf of the writ petitioner in this appeal has urged that the basic question to be considered here is that there was no indication in the advertisement which was issued that permanent appointment was not going to be offered. Thus the appointment order dated May 8, 2009 was contrary to the advertisement. It was an outcome of superior bargaining power that the condition of contractual appointment was imposed on the writ petitioner such a condition could not have been enforced. Even otherwise, the learned counsel submitted that, the order of appointment has to be treated as of permanent appointment and there is absolutely no material on record so as to indicate that his services were not satisfactory. As a matter of fact, in September 2009, a fresh advertisement was issued inviting applications for the post of Production Manager which indicates even before termination mind was made up to remove him from service. Again advertisement was issued on December 22, 2009. So the services of the writ petitioner were dispensed with under a pre-conceived notion and the impugned order of termination of his services had been rightly set aside by the Single Bench as the services of the writ petitioner could not be treated to be on contractual basis as mentioned in the order of termination dated December 8, 2012. He has relied upon the decision in Syed Azam Hussaini Vs. Andhra Bank Ltd., and 2001 (2) AWC 1291 (SC)

First, coming to the question of two different appointment orders issued in the instant case. When we read the two appointment orders respectively dated 8th May, 2009 and 30th June, 2009, we find that it is common in both the orders that appointment was offered on contractual basis for two years. In the first order it was offered with the basic pay and in the subsequent order dated 30th June, 2009 it was offered in the pay scale. The subsequent order was beneficial to the petitioner. In the initial order dated 8th May, 2009 there was yet another significant condition in that, there was condition of successful completion of probationary period for a period of six months; whereas there was no such probationary condition in the order dated 30th June, 2009 in which it was mentioned that services may be terminated by giving two months notice, on either side, even without assigning any reason whatsoever.

In the aforesaid factual matrix, considering the two appointment orders which were issued, the learned single Judge has ordered that the petitioner''s service can be treated as lawfully valid under appointment order dated 8th May, 2009. Even if we, take into account the best condition of the both the orders of appointment, we find that the petitioner has not made put any case so as to persuade the Court to set aside the termination order of service itself. Firstly, in both the orders it was mentioned that the appointment was for a contractual period of two years. There was no indication in the advertisement that the appointment was going to be offered on permanent basis. It is true that it was not also mentioned that it was to be offered on contractual basis. However, the fact remains that by virtue of the initial order issued on 8th May, 2009 the petitioner had joined the service on 3rd June, 2009 without any demur or without any objection or protest. Thus, he was bound by the conditions mentioned in the order of appointment which could not be termed as outcome of superior bargaining power or arbitrary one. Apart from that, even if we ignore the conditions of contractual appointment for a period of two years in the initial order of appointment, the fact remains that services were offered on probationary basis for a period of six months, and, only on successful completion of probationary period, he shall be confirmed to the post of Deputy Manager (Production). The petitioner has not been able to complete the period of probation successfully. Thus, in the order of termination of service, it was clearly mentioned that the service was far below satisfactory and, as such, the management has decided to terminate the employment of the petitioner on contractual basis. Even if the word "contractual" is ignored, the fact remains that the service is found to be far below satisfactory. Even if the initial order of appointment dated 8th May, 2009 is relied upon, the petitioner was on probation for a period of six months and he was not able to complete the probationary period successfully

It has been explained in paragraph 57 of the affidavit-in-opposition filed by the employer that the performance was not satisfactory because of the fact that the petitioner was unable to cope with Technology of Membrane Cell for production of Caustic Soda. Thus, the reason for termination of service can be clearly traced from the averments made in the affidavit-in-opposition and in order of termination dated 08.12.2009 and there is absolutely nothing to disbelieve it. There is no other motive attributed nor any other reason attributed which was foundation, so as to dispense with the service of the petitioner. Merely issuance of the advertisement in the month of September, 2009 which was for a different post of Manager (Production) is not indicative of the fact that there was pre-conceived motive for dispensing with the service of the petitioner and, as a matter of fact, in this case the service of the petitioner was not satisfactory. In fact, it was far below satisfactory. The advertisement that has been issued had nothing to do in so far as the petitioner is concerned, as the company did not have any Production Manager, which was essential for Membrane Cell plant, as such, the advertisement was issued for filling up the vacancy of Manager (Production). The petitioner was holding the post of Deputy Manager (Production) and not the Manager (Production). The post in question was different. Thus, it cannot be said that the employer has acted in preconceived notion as the advertisements were related to a different post.

It is apparent that service of the petitioner was not satisfactory. There was no malice attributed to any person. The employer is entitled to form an opinion with regard to the performance whether satisfactory or not. The Apex Court in Kunwar Arun Kumar v. U.P. Hill Electronics Corporation Ltd. & Ors. (supra) has laid down that during the period of probation, the authorities are entitled to assess the suitability of the candidates and in case they reach to a finding that during probationary period work or performance was not satisfactory, without holding any enquiry services can be terminated. That does not amount to a stigma. The Apex Court has laid down as follows:--

The petitioner challenged the order of termination in the High Court. The High Court without going into the question whether or not it is a stigma, came to the conclusion that the respondents had totally lost confidence in the appellant and that he was totally unsuitable for the job for which he was employed and, therefore, he was found not entitled to any enquiry. Consequently, it dismissed the writ petition. Shri Sehgal, learned Senior Counsel for the petitioner, contends that the finding recorded amounts to a stigma, action taken without conducting enquiry and giving an opportunity to the petitioner, is violative of Article 311(2) of the Constitution and the rules made thereunder. Therefore, he is entitled to an opportunity of being heard and be dismissed only on the ground of misconduct and not by termination simpliciter. We do not agree with the learned Counsel. The reasons mentioned in the order may be a motive and not a foundation as a ground for dismissal. During the period of probation, the authorities are entitled to assess the suitability of the candidates and it if is found that the candidate is not suitable to remain in service they are entitled to record a finding of unsatisfactory performance of the work and duties during the period of probation. Under these circumstances, necessarily the appointing authority has to look into the performance of the work and duties during the period of probation and if they record a finding that during that probation period, the work and performance of the duties were unsatisfactory, they are entitled to terminate the service in terms of the letter of appointment without conducting any enquiry. That does not amount to any stigma. If the record does not support such a conclusion reached by the authorities, a different complexion would arise. In this case, they have recorded the finding that the petitioner was regularly absent on one ground or the other. Under these circumstances, the respondents terminated his services. We do not find any illegality in the action taken by the respondents.

In Life Insurance Corporation of India and Another Vs. Raghavendra Seshagiri Rao Kulkarni, the Apex Court has laid down that the probationary period is a period of test during which the work and conduct of an employee was under scrutiny. If on an assessment of his work and conduct during this period it is found that he was not suitable for the post, it would be open to the employer to terminate his services. His services cannot be equated with that of a permanent employee who, on account of his status, is entitled to be retained in service and his services cannot be terminated abruptly without any notice or plausible cause. This is based on the principle that a substantive appointment to a permanent post in a public service confers substantive right to the post. The Apex Court has laid down as follows:--

The period of probation is a period of test during which the work and conduct of an employee is under scrutiny. If on an assessment of his work and conduct during this period it is found that he was not suitable for the post it would be open to the employer to terminate his services. His services cannot be equated with that of a permanent employee who, on account of his status, is entitled to be retained in service and his services cannot be terminated abruptly without any notice or plausible cause. This is based on the principle that a substantive appointment to a permanent post in a public service confers substantive right to the post and the person appointed on that post becomes entitled to hold a lien on the post. He gets the right to continue on the post till he attains the age of superannuation or is dismissed or removed from service for misconduct etc. after disciplinary proceedings in accordance with the Rules at which he is given a fair and reasonable opportunity of being heard. He may also come to lose the post on compulsory retirement.

Considering the aforesaid decisions of the Apex Court, it is too clear that assessment of work had been made by the employer and it was found to be far below satisfactory. The petitioner was not hearing the requisite knowledge and was unable to cope with the Technology of Membrane Cell of Caustic Soda and thus, he was not found to be suitable to continue in service. The said order cannot be said to be punitive in any manner. Neither the petitioner was successful in completing the probationary period even if he had been appointed on permanent basis though there was no indication in the advertisement that the appointment on said post was likely to be made on permanent nor in both the orders of appointment.

Just looking from another angle as regards the initial order of Appointments. The service of the petitioner was a contractual one along with condition of probation on first order and in the subsequent, order the beneficial condition was that two months'' notice on either side was necessary. Both the conditions have been complied with. Thus, there was no infirmity in the order passed by the employer terminating the service of the petitioner. The order of termination cannot be criticized as unjust of arbitrary or violative of conditions of appointment.

The learned counsel appearing for the respondent has relied on the decision in the case of Syed Azam Hussaini Vs. Andhra Bank Ltd., 2 in which the question was posed as to whether the termination can be treated as retrenchment or of discharge without satisfactory completion of probationary period. The Apex Court has considered that the authority has passed the order on the ground that in the averments made by the appellant Syed Azam Hussaini, no denial was made by the respondent. In the backdrop of the case, when the averments were not controverted and no material was produced to substantiate, it was held not to be a case of discharge on unsatisfactory completion of period of probation as the services for 240 days were rendered and was held to be a case of illegal retrenchment u/s 25F of the Industrial Disputes Act. The ratio of the aforesaid decision has to be operative in different field and has no application to the facts of the instant case. Each case has to be dealt with on its own facts.

The learned counsel has also referred to a decision of Supreme Court in A.R. State Federation of Coop. Spinning Mills Ltd. & Anr. (supra) in which the question came up for consideration as to whether the termination was punitive and what was the difference between the motive and the foundation. In that case what is the difference between motive and foundation has been considered by their Lordships and it was held as follows:--

The legal position is fairly well-settled that an order of termination of a temporary employee or a probationer or even a tenure employee, simpliciter without casting any stigma may not be interfered with by the Court-But the Court is not debarred from looking at the attendant circumstances, namely, the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the order of termination or formed the foundation for the same order. If the Court comes to a conclusion that the order was, in fact, the motive, then obviously the order would not be interfered with, but if the Court comes to a conclusion that the so-called inefficiency was the real foundation for passing of order of termination, then obviously such an order would be held to be penal in nature and must be interfered with since the appropriate procedure has not been followed. The decisions of this Court relied upon by Mr. K. Ram Kumar also stipulate that if an allegation of arbitrariness is made in assailing an order of termination, it will be open for the employer to indicate how and what was the motive for passing the order of termination, and it is in that sense in the counter-affidavit it can be indicated that the unsuitability of the person was the reason for which the employer acted in accordance with terms of employment and it never wanted to punish the employee. But on examining the assertions made in paras 13 and 14 of the counter-affidavit, in the present case it would be difficult for us to hold that in the case in hand, the appellant-employer really terminated the services in accordance with the terms of the employment and not by way of imposing the penalty in question.

It is apparent from the aforesaid decision in A.P. State Federation Coop. Spinning Mills & Anr. (supra) that if the Court finds that inefficiency was really the motive for the order of termination then, obviously the order would not be interfered with. If it was penal in nature and it should be interfered with since the appropriate procedure had not been followed. In the instant case it is not the case of penal order at all. The order is based on unsatisfactory performance. There is no other misconduct alleged or attributed nor it is the case of the petitioner that the foundation was different. The single Judge has merely gone into the question of difference between the two appointment orders and has not considered the relevant question as to unsatisfactory service being rendered and, even if the order dated 8th May, 2009 is taken into consideration, as ordered by the single Judge, we find that the petitioner has not been able to make out any case to challenge the order of termination of service.

Resultantly, the appeal is allowed and the order impugned is set aside. No costs.

Photostat certified copy of this order be made available to the parties, if applied for, upon compliance of usual formalities.