Sri J.C. Mondoloi vs Oil and Natural Gas Commission and Others

S.N. Phukan, J.—In this writ petition under Article 226 of the Constitution the Petitioner has challenged the impugned order No. 8 1/79.D and A, dated (sic), issued by member (On Shore) of the Oil and Natural Gas Commission, Respondent No. 2. The aforesaid order was served on the Petitioner on 3.4.84 and the impugned order has been annexed as Annexure ''VII'' to the petition and by the said order the order of suspension from 28.4.79 was revoked, the entire period was treated as spent on duty with full pay and allowances and the services of the Petitioner were terminated with immediate effect. The Petitioner was also paid one month''s pay and allowances in lieu of notice. The aforesaid order of termination was passed under Regulation 24 of the Oil and Natural Gas Commission (Terms and Conditions of Appointment and Service) Regulations, 1975, hereinafter referred to as ''Service Regulations'', framed u/s 32 of the Oil and Natural Gas Commission Act, 1959. The Petitioner who passed Bachelor of Engineering in 1972 was appointed as Technical Assistant Grade I (civil) by the Respondents on 24th June, 1975, by an Office Memorandum (Annexure ''II'' to the petition) and under the terms of appointment the Petitioner was on probation for a period of one year from date of appointment with the power to extend the said period at the discretion of the appointing authority, if necessary. Thereafter on 30.3.79 the Petitioner was promoted to the post of Assistant Executive Engineer (Civil) vide Annexure ''III'' to the petition and he was again put on probation for one year with the power to extend the period of the said probation. According to the Petitioner, on 16.4.79 his wife committed suicide herself but the police suspected it to be case of murder and accordingly arrested the Petitioner on 28.4.79 and he was placed under suspension with effect from the date of his arrest by an order dated 3.5.79 (Annexure ''V'' in the petition) issued under Regulation 33 of the Oil and Natural Gas Commission (Conduct, Discipline and Appeal) Regulations, 1976, framed u/s 32 of the aforesaid Act, for short ''Conduct Regulations'', by the General Manager which was subsequently ratified by the Office-on-Special Duty by an order dated 10th July, 1979 (Annexure ''VI'' to the petition). The Petitioner has alleged that after completion of the period of probation of three years he became a permanent employee and he was also promoted to Class I post from Class II post and as such his services cannot be terminated under Regulation 24 of the Service Regulations which is applicable only to a temporary employee and as such the impugned order of termination is arbitrary, capricious and violative of Articles 14 and 16 of the Constitution. The Petitioner further submits that his sudden termination without giving any cause and opportunity to him is violative of principles of natural justice. Hence the present petition.

A joint affidavit-in-opposition has been filed on behalf of all the Respondents. It is not disputed that the Petitioner was put under suspension as he was arrested and detained for more than 48 hours in connection with Nazira Police Station Case No. 33(4)79 u/s 302 IPC. According to Respondents, as it was uncertain how long it would take for the final decision of the criminal case, the Respondents after considering all aspects of the matter decided that such uncertainity was detrimental both to the Petitioner as well as to the Respondents as the Respondents were not getting any benefit of service though the Petitioner was being paid subsistence allowance. It was, therefore, decided, to terminate his service to enable the Petitioner to get other source of livelihood and the Respondents would also be relieved of payment. The Respondents have denied that the Petitioner was a permanent employee and pleaded that as he was a temporary employee his services could be terminated under Regulation 24 of the Service Regulations. The Respondents have also denied that the termination order was malafide, arbitrary or was passed in violation of the Articles 14 and 16 of the Constitution. It is also stated that it was a termination simpliciter without any stigma attached to it and there was no scope for giving opportunity of show cause and there was also no violation of principles of natural justice.

Mr. Lahiri, learned Counsel for the Petitioner urged that as the Petitioner completed his period of probation to the full satisfaction of the Respondents and the fact that he was also promoted after the said period would clearly show that the Petitioner was a permanent employee as such Regulation 24 of the Service Regulations would not be attracted. Mr. Lahiri further submits that it was not a case of termination simpliciter as would appear from the order of termination and as such the order is bad as the order was passed without any enquiry. According to Mr. Talukder, the termination was valid and legal as the Petitioner was a temporary employee.

There is no dispute at the bar that Regulation 24 of the Service Regulations would be Applicable only in (sic) of temporary employee and if it can be proved that the Petitioner was a permanent employee of the Respondents the order of termination which was passed under Regulation 24 of the Service Regulations cannot stand. The result of the instant case will depend on the interpretation of Regulation 10 and Regulation 24 of the Service Regulation and we, therefore, quote below the relevent portions of the said Regulations:

Probation:

(1) Every person appointed to a post either by direct recruitment or by departmental promotion, shall be on probation for a period of one year:

Provided that the appointing authority may extend the period of probation by any period, which shall not normally exceed one year, except for special reason to be recorded in writing; but no employee shall be kept on probation for a total period exceeding three years in any post.

(2) * * * *

(3) * * * *

(4) An employee, who fails to complete his probation satisfactorily, or who fails to pass the written examination proficiency test or trade test mentioned in Sub-regulation (2), within she specified period or chances or within such extended period or chances, as may be allowed to him, or whose progress is not satisfactory during the period of probation, may be:

(i) discharged from the service of the Commission if he is a direct recruit from the open market, or

(ii) reverted to a lower post, if he is a promotee, or was appointed to the higher post as a departmental employee against direct recruitment without any notice or any reason being assigned.

Termination of Service:

(1) Except as may specifically be provided in the contract of service, the services of a temporary employee shall be liable to termination at any time without assigning any reasons by a notice in writing given either by the employee to the appointing authority or by the appointing authority to the employee and the period of such notice shall be one month:

Provided that the services of any such employee may be terminated forthwith and on such termination, the employee shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his service, or as the case may be, for the period by which such notice falls short of one month.

Provided further * * * *

* * * *

As the validity of the Regulation 24 of the Service Regulations has not been challenged before us on the theory of "hire and fire" which allows free scope under the doctrine of elaissez faire'' we need not consider this aspect of the matter in the present proceeding.

The crux of the matter is whether on the basis of Regulation 10 of the Service Regulations the Petitioner can be treated as deemed to have been confirmed in his post. The status of a probationer during and after the period of probation was discussed in numerous cases by the Supreme Court and the law laid down by the Apex Court on this point is clear and consistent. It has been held that if a probationer who was appointed for a specific period is allowed to continue in the post after the expiry of the period without any order of confirmation he should be deemed to continue in the post as a probationer in case of absence of any indication to the contrary in the original order of appointment or probation or in the service rule. (Emphasis supplied). It was also laid down that only because a probationer was allowed to continue in the post after the said period of probation he should not be deemed to have been confirmed and an express order of confirmation will be necessary to give the employee a substantive right to the post. The above law has been laid down in Sukhbans Singh Vs. State of Punjab, , G.S. Ramaswamy and Others Vs. Inspector-general of Police, Mysore, and State of Uttar Pradesh Vs. Akbar Ali Khan, In The Director of Panchayat Raj and Another Vs. Babu Singh Gaur, , it was also held that a temporary Government servant does not become a permanent Government servant unless he gets that capacity either under some rule or he is declared or appointed by the Government as a permanent Government servant.

From the decision of the Supreme Court in Dhanjibhai Ramjibhai AIR 1993 SC 603, we can also come to the conclusion that there is no right of a probationer to be confirmed merely because he had completed the period of probation as because rule provides for extension of the said period and the period of two years prescribed in the rule does not represent the maximum period of probation. A leading case on the subject is State of Punjab Vs. Dharam Singh, which was decided by a Bench of Hon''ble five Judges of the Apex Court. In that case, the Supreme Court reiterated the above views and also considered Rule 6 of Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961. As the said rule is relevant for the present purpose, we are quoting below the relevant provisions of the rule:

6(1) Members of the Service, officiating or to be promoted against permanent posts, shall be on probation in the first instance for one year.

(2) * * * *

(3) On the completion of the period of probation the authority competent to make appointment may confirm the member in his appointment or if his work or conduct during the period of probation has been in his opinion unsatisfactory he may dispense with his services or may extend his period of probation by such period as he may deem fit or revert him to his former post if he was promoted from some lower post:

Provided that the total period of probation including extensions, if any, shall not exceed three years.

(4) * * * *

Their Lordships approved the law laid down by the earlier decisions, as stated above and thereafter proceeded to discuss the legal implications of the above rule. Their Lordships held as follows:

(5) In the present case, Rule 6(3) forbids extension of the period of probation beyond three years. Where, as in the present case; the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an inspiration is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication.

Their Lordships also considered the relevant rule and the period of service of the concerned Petitioner and came to the finding that in view of Rule 6(3) it was not possible to presume that the competent authority extended the period of probation beyond the period of three years or that thereafter the probationer continued to hold the post as a probationer. The Supreme Court accepted the finding of the High Court that the probationer in question must be deemed to have been confirmed in the post after the maximum period of probation was over and no formal order of confirmation was necessary. Similar view was also expressed in State of Haryana and Others Vs. Rajindra Sareen, wherein their Lordships held that if an officer had been appointed in a permanent post against the substantive vacancy and if he has completed the initial period of probation or the period of probation upto the maximum of such period, the inference is that he becomes a permanent member of the service. the law laid down in Dharam Singh (supra) still hold the field.

Coming back to the case in hand, if we compare Rule 6(3) of the Punjab Educational (Provincialised Cadre) Class III Services with Regulation 10 of the Service Regulations of the instant case, we find that both in the rule and the Regulation the appointing authority may extend the initial period of probation of one year but no employee shall be kept on probation for a total period exceeding three years in any post. Thus, Regulation 10 of the Service Regulations of the instant case is similar to the above Rule 6(3). As Regulation 10 of the Service Regulations fixes the maximum period of probation of three years, the Petitioner who was allowed to continue in service after the said maximum period of three years shall be deemed to have been confirmed in the post by implication, in view of the law laid down by the Supreme Court. That apart, in addition to laying down the maximum period of probation of three years, in Regulation 10 of the Service Regulations there is another condition that the initial period of probation of one year can be extended by more than one year for special reasons to be recorded in writing and in any event such extension shall not exceed three years in the post. The Respondents have not placed before us any such written order where special reason was recorded for extending the period of probation of the Petitioner beyond the initial period of one year.

In the affidavit-in-opposition, a statement has been made that before the Petitioner could be confirmed three conditions are to be fulfilled, namely, (1) his character, conduct and work render him suitable for permanent retention in Commission service, (2) he has passed prescribed Departmental Test etc. and (3) he has been examined by an appropriate Medical Authority and found fit. But these points were not pressed into service at the time of hearing. That apart, there is nothing on record to show that all probationers including the Petitioner have to pass any Departmental Test and there is also nothing on record to show that he was medically not fit. Regarding his character, conduct and work, nothing has been placed before us against him. On the other hand, it is an admitted fact that he was promoted to a higher grade during his service. We are unable to accept the statement made in the affidavit-in-opposition of the Respondents.

We, therefore, hold that as Regulation 10 of the Service Regulations prescribes the maximum period of probation and the Petitioner shall be deemed to have been confirmed after the said period was over.

To guard against errors of judgment in selecting unsuitable personnel for service the concept of probation was introduced. The idea being that during the period of probation the employer gets an opportunity to closely observe the work of the probationer and before the time of probation is over, the employer can make up his mind whether to retain the person in service or to discharge him. The period of probation may vary from post to post. Therefore, probationers are a class by themselves and accordingly we find that in almost all the service rules there is a specific provision to deal with the services of the probationers. In the instant case, Regulation 10 of the Service Regulations is the relevant regulation to deal with the probationers appointed by the Respondents. If we have a close look at the said Regulation, we find that the Regulation provides for a minimum period of probation which may be extended to the maximum period of three years and there is also a provision to deal with the probationer if his service is found unsatisfactory. When there is a specific Regulation to deal with probationers, we are afraid we cannot agree that services of a probationer can be dispensed with by exercising powers under Regulation 24 of the Service Regulations which is meant for a separate class of employees. On this ground also the impugned order which was passed by the Respondents under Regulation 24 against the Petitioner, who admittedly was initially appointed as a probationer, cannot stand.

In the instant case, there is another interesting aspect of the matter. By an order dated 24th June, 1975, vide Annexure II, the Petitioner was initially appointed on probation for one years in the post of Technical Assistant Grade I (Civil). We find from the order dated 30th March, 1979 (Annexure III) that the Petitioner was promoted to the post of Assistant Executive Engineer (Civil) and he was again placed on probation for a period of one year. The contention of the Respondents if that the initial period of probation, vide Annexure II, continued till the date the services were terminated. We fail to understand how the Petitioner could be again placed on probation when he was promoted on 30tb March, 1979. If we have a look at Regulation 10, we find that there is a specific provision to deal with an employee who is promoted and placed on probation. Clause (ii) of Sub-regulation (4) of Regulation 10 of the Service Regulations provides that an employee who fails to complete his probation satisfactorily etc. may be reverted to a lower post if he was a promoter or was appointed to the higher post as a departmental employee against direct recruitment, without any notice or any reason being assigned. The very fact that the Petitioner was promoted on 30th March, 1979 and placed on probation again would show that the Respondents treated him as deemed to have been confirmed in his earlier post, namely, Technical Assistant Grade I (Civil). We therefore, hold that the services of the Petitioner cannot be terminated by resorting to the provisions of Regulation 24 of the Service Regulations as the above action of the Respondents would show that the Respondents treated him as a confirmed employee in the post of Technical Assistant Grade I (Civil). On this ground also the impugned order cannot stand.

Admittedly, the Petitioner was promoted as Assistant Executive Engineer (Civil) on 30th March, 1979 and he was placed on probation for a period of one year. Nothing has been placed before us to show that the said period of probation for one year was extended to the maximum limit of three years by a written order giving special reason, as provided in Regulation 10 of the Service Regulations. We, therefore, find that on the date the services of the Petitioner were terminated, that is, on 3.4.84, he had completed the maximum period of probation of three years and in view of the law laid down by the Supreme Court, he shall be deemed to have been confirmed even without a formal order of confirmation. We, therefore, hold that the Respondents cannot terminate his services as Assistant Executive Engineer (Civil) by resorting to the provisions of Regulation 24 of the Service Regulations which is admittedly applicable only in case of temporary employees which the Petitioner was not at the relevant time.

We find from the impugned order that the suspension order of the Petitioner was first vacated end thereafter his services were terminated in exercise of powers under Regulation 24 of the Service Regulations. We must say that in the affidavit-in-opposition the Respondents have taken an honest stand, that is, his services were terminated as it was uncertain how long it would take for the final decision of the criminal case, that though the Respondents were paying subsistence allowance to the Petitioner they were not getting the benefit of his services and that the order was passed without any stigma to enable the Petitioner to earn his livelihood elsewhere. We must say that the above considerations were absolutely extraneous and the termination order was passed in colourable exercise of powers. The rule making authority could envisage such a situation and accordingly in Regulation 33(5) of the Conduct Regulation power was given to the appointing authority to modify or revoke any such suspension order. But in the instant case, the authority instead of exercising this power and getting the services of the Petitioner, terminated his services on the ground that he would be able to earn his livelihood elsewhere. We cannot ignore the fact that the Petitioner got his Bachelor Degree of Engineering as far back as in 1972 and at this late age it may not be possible for the Petitioner to get a job elsewhere and this cannot be a ground for termination of his services. In any event the order cannot stand as it was passed on extraneous considerations and in violation of Regulation 10 of the Service Regulations which is applicable to the instant case.

The opening words of Regulation 24 of the Service Regulations are as follows:

Except as may specifically be provided in the contract of service.

So, Regulation 24 is subject to the conditions of the contract of service. The offer of appointment was made on 24th June, 1975, to the Petitioner, vide Annexure II, and Clause (iii) of the terms of appointment provided that the Petitioner would be on probation for a period of one year from the date of appointment. This also shows that since the Petitioner was a probationer from the time of appointment, Regulation 24 with not be applicable and his services will be governed by Regulation 10 of the Service Regulations.

Since we are at the offer of appointment vide Annexure-II we would also like to consider the other provisions of the terms of appointment relevant for the present purpose. According to Clause (1) of the terms of appointment the post was temporary, according to Clause (II) the appointment could be terminated at any time by one month''s notice to be given by either side and according to Clause (III) the Petitioner was put on probation for a period of one year from the date of appointment which could be extended at the discretion of the appointing authority, if necessary. Admittedly the Petitioner was appointed in a temporary capacity, but on the same day he was put on probation. There are different categories of temporary employees and it is not possible to give an exhaustive list of such employees. However, we would like to mention some categories which may be relevant for the purpose of the present petition. An employee may be appointed purely on a temporary basis for a specified period, for example, against a leave vacancy or to perform specific duly and in such event the services of such temporary employee can be terminated after the expiry of the above period.

A person may be employed in a temporary capacity with a view to absorbing him permanently. In such a case he may be placed on probation immediately or after such period as the employer may decide and these are matters of pure cadre management. If a temporary employee continues as such for a long period he may acquire the status of quasi permanent employee. As stated above a person who is appointed on a post purely for a specified duration his services can be terminated at the end of the said period. But if a temporary employee acquires the status of a quasi permanent nature or is appointed as a probationer, his services can be terminated as per rules, if any and in absence of any such rule on the basis of established principles of law as laid down by judicial pronouncement. In the instant case though the Petitioner was appointed on temporary basis, on the same day he was put on probation which could be extended, but such extension is governed by the statutory Regulation 10 of the Service Regulations. The power of extension of the said period of probation same to an end at the end of the expiry of the maximum period of probation of three years as per the aforesaid Regulation. We, therefore, hold that though the Petitioner was appointed on a temporary basis his services could not be terminated by giving one month''s notice as per terms of the appointment as he was put on probation and as a probationer he could be discharged only in terms of Regulation 10 of the Service Regulations.

Though we have already dealt with the order of promotion of the Petitioner to the post of Executive Engineer, Civil, vide Annexure-III, at the cost of repetition we would like to deal with the conditions laid down in the said order of promotion. The Petitioner was promoted in a temporaly capacity and until further orders and he was also put on probation on the same day for one year and the competent authority had the power to extend the said period of probation in his discretion. Even though the Petitioner was promoted temporarily until further orders and put on probation for one years we are of the view that the said period of one year could not have been extended for more than the maximum period of three years as laid down in Regulation 10 of the Service Regulations. That apart, though the appointment was temporary if his services were not satisfactory during the aforesaid period of probation the only option open to the authority was to revert him to the lower post, that is, Assistant Engineer (Civil) in view of the specific provision in Sub-regulation (2) of Regulation 10 of the Service Regulations.

Regulation 11 of the Service Regulations, inter alia, provides for the principles of confirmation against a permanent post as per terms laid down in Annexure-I appended to the Service Regulations. If we read the said Regulation 11 with Annexure-I we do not find breach of any condition by the Petitioner which would disentitle him to be declared as a permanent employee. We have already discussed and given our finding regarding the conduct, character and also passing of departmental tests etc. In view of this Regulation also the Petitioner was entitled to be declared as a permanent employee, more particularly when he had completed more than three years of probation, the maximum period in both the posts namely. Technical Assistant Grade-I (Civil) and Assistant Executive Engineer (Civil).

For the reasons stated above, we hold that the Petitioner was a confirmed Assistant Executive Engineer (Civil) under the Respondents and termination of his services by the Respondents by exercising powers under Regulation 24 of the Service Regulations is illegal and cannot stand.

Mr Lahiri, learned Counsel for the Petitioner urged that his prayer is only to set aside the portion of the order, Annexure-VII to the petition, by which the services of the Petitioner were terminated and submitted that we need not disturb the revocation of the order of suspension. We are of the opinion that the impugned order is not severable and the entire order has to be struck down. The suspension order was vacated only for the purpose of terminating the services of the Petitioner and as such the concerned authority shall have to apply its mind at to whether this is a fit case to revoke the suspension order for the purpose of allowing the Petitioner to resume his duties. We do not want to interfere with this power of the appointing authority. In the petition also, the Petitioner has specifically asked for a direction for quashing the impugned order of termination of his services, which also includes the revocation order of suspension.

Regulations 44, 45, 46, 47 and 52 of the Conduct Regulations specifically provide for appeal against orders such as suspension, imposition of any penalties specified in Regulation 34, that is, removal, dismissal from service etc. Admittedly the present petition was filed without taking recourse to the said provisions for appeal. Ex facts the impugned order (Annexure-VII) was passed under Regulation 24 of the Service Regulations and no appeal lies as it was not a penalty vide Explanation (VIII) to Regulation 34 of the Conduct Regulations. As there was no provision for appeal against the impugned order the present petition cannot be thrown out on the ground that the Petitioner did not avail of such an opportunity which was not available to him under the law. However, an appeal lies against an order of suspension. In the event the suspension order of the Petitioner is not revoked, as per our decision which shall presently follow, the Petitioner shall have a right of an appeal under Regulation 44 of the Conduct Regulations.

We therefore, direct that within a period of two months the Respondents shall consider whether the period of suspension of the Petitioner should be revoked or not by exercising powers under Regulation 33(5) of the Court Regulations. We also direct that within the aforesaid period of two months the Respondents shall pay arrear subsistance allowance from the date of termination of the services of the Petitioner, that is, from 3.4.84 till the Respondents arrive at a decision whether the suspension order shall continue or not. In the event the Respondents decide not to revoke the suspension order the Respondents shall continue paying the subsistence allowance according to rules timely.

In the result, with the aforesaid direction we allow the petition by quashing the impugned order (Annexure-VII) with costs quantified at Rs. 500/-.