Raj Pal vs The State of Haryana and Another

J.L. Gupta and M.L. Koul, JJ.—The petitioner was recruited as a Driver on January 22, 1990. The appointment was on temporary basis. He was to remain on probation for a period of two years. The period of probation could be extended.

On February 18, 1990, the petitioner caused an accident. A notice was issued to him. He did not file any reply. The matter was kept pending on the pretext of granting a personal hearing to the petitioner. On April 25, 1990, the petitioner caused another accident in which a person died. Vide order dated May 3, 1990, a copy of which has been produced as Annexure P-5 with the writ petition, the petitioner''s services were terminated. He filed an appeal, which was rejected. Aggrieved by the orders of termination, and the rejection of his appeal the petitioner has approached this court through this writ petition.

The solitary contention raised by the learned counsel for the petitioner is that he has been removed from service without compliance of the provisions of Article 311(2) of the Constitution. Is it so?.

Admittedly, the petitioner''s appointment was temporary. His suitability for the post was being judged. During the short spell of less than four months, the petitioner had caused two accidents. These facts are not disputed. In this situation, the employer could have legitimately concluded that the petitioner was not suitable for the post of Driver. It could have terminated his services on this account. This is precisely what has happened. The order is in strict conformity with the terms of appointment.

Learned counsel for the petitioner pointed out that in the impugned order, it has been observed that the petitioner was "negligent in causing accident of the vehicle". This, according to the learned counsel, casts a stigma. The order is, thus, penal.

We are unable to accept this contention. The authority has merely noticed a sequence of events. After the accident had occurred, the authority had issued a notice to the petitioner in conformity with the terms of appointment. He did not file any reply. Furthermore, in order to ascertain the actual facts, the petitioner was called upon the appear for personal hearing. He was actually heard by the authority on March 21, 1990. He could not show anything to indicate that there was no negligence on his part. Still, the case was kept pending to Watch the petitioner''s performance. He caused another accident ton April 25, 1990 in which one person had died at the spot. These facts have been noticed by the authority while passing the impugned order. The correctness of the facts enumerated by the authority has not been disputed. On a perusal of the order, we are satisfied that it was not the intention of the authority to punish the petitioner. On the contrary, an effort had been made to ensure compliance with the principles of fair play and natural justice. The authority had given the petitioner a reasonable chance to show improvement. He did not. Consequently, it ordered the termination of his services "in accordance with service conditions". In our view, the order does not cast any aspersion or stigma on the petitioner. The order of termination has been passed in strict conformity with the terms of appointment and we find no ground to interfere with it.

The petitioner was admittedly on probation. His performance was being watched. If during the period of probation, it is found that his performance is not satisfaction, the employer could have terminated his services. This is precisely what has been done in the present case. A similar situation had arisen in the case of Union of India v. R.S. Dhaba 1969 S.L.R. 442. The performance of R.S. Dhaba who had been promoted to the rank of Income Tax Officer, was found to be unsatisfactory. He was, consequently, ordered to be reverted on the ground of his "having been found unsuitable after trial to hold the post of Income Tax Officer, Class II..." It was contended on his behalf that the order was passed by way of punishment and the provision of Article 311 of the Constitution were attracted. This contention was up-held by the High Court. However, on appeal by the Union of India, their Lordships of the Supreme Court reversed the decision and held that "it is well established that a Government servant who is officiating in a post has no right to hold it for all time and the Government servant who is given an officiating post hold it on the implied term that he will have to be reverted if his work was found unsuitable. In a case of this description, a reversion on the ground of unsuitability is an action in accordance with the terms on which the officiating post is held and not a reduction :n rank by way of punishment to which Article 311 of the Constitution could be attracted". The position in the present case is similar.

Accordingly, we find no merit in this petition. It is dismissed in limine.