2013 Supreme(Kar) 429

IN THE HIGH COURT OF KARNATAKA AT DHARWAD (CIRCUIT BENCH)
Aravind Kumar, J.
Sidagouda N. Patil
Vs.
Union of India and Others
Writ Petition No. 12480 of 2010 (S-DIS)
Decided On: 23.07.2013

Headnote:LABOUR & SERVICES - Discharge of probationer: [Aravind Kumar, J] Central Industrial Security Force Act (50 of 1968) - Section 22 - Central Industrial Security Force Rules, 2001 (As amended by Rules of 2003), Rule 25 - Discharge on ground that he was not found fit for further retention - Plea that in view of his extension beyond period of probation, he was deemed to be permanently appointed in view of second proviso of Rule 25 providing that member of force shall not be kept on probation for more than twice the period prescribed in Rules - Held, Plea cannot be accepted. Rule has to be read in its entirety. First proviso of Rule 25 specifically provides that in the absence of specific order of confirmation, member of force would be deemed to be on probation.

       LABOUR & SERVICES - Discharge of probationer: [Aravind Kumar, J] Applicability of Rule of ’ejusdem generic’- If the order of discharge is simplicitor there cannot be any view other than concluding that such order of discharge or removal cannot be subject matter of scrutiny by the Courts in exercise of the power under Article 226 of the Constitution of India. It is trite to say that proceedings arising under Article 226 of Constitution of India are in the nature of judicial review and such review could only be in respect of decision making process and not the decision by itself. If two views are possible, even then, it would not be possible for High Court to interject or substitute its conclusion or views to that of the decision arrived at by the parties. Thus, a heavy burden is cast on the Court to discern from the order of termination and to ascertain as to whether termination is by way of punishment and the test to be applied would be to find out as to whether such termination order or discharge would result in visiting such employee with the penal consequence which would result in forfeiture of any of the right of such an employee. Where the petitioner who was on probation was discharged from service on ground that he was not found fit for further retention in service, by invoking Rule 25 of Central Industrial Security Force Rules, 2001 (As amended by Rules of 2003), it cannot be said in view of extension of his probation beyond period of probation that, it is deemed that his probation is completed satisfactorily and as such petitioner is deemed to have been appointed permanently by relying upon second proviso to Rule 25. Rule 25 has to be read in its entirety and proviso cannot be read in isolation to sub-section(l) to which the proviso applies. First proviso to Rule 25 specifically provides that in the absence of a specific order of confirmation or a declaration of satisfactory completion of probation, the member of the force would be deemed to be on probation. The language employed in the first proviso is clear, specific and unambiguous. Merely because in the second proviso it has been provided that a member of force shall not be kept on probation for more than twice the period prescribed in reinstatement rules it would not entitle such member of the force to contend that he is deemed to have been permanently appointed on completion of two (2) years of probation. The words used in the second proviso being "ordinarily" it has to be read "ejusdem generic" as otherwise the probation period would become otiose or nugatory, Moreover, even if the second proviso is taken into consideration namely twice the period of probation is not yet completed i.e., four years period had not lapsed as on date of discharge, when reckoned from the date of initial appointment . Hence, the contention of petitioner that petitioner is to be deemed to have been permanently appointed cannot be accepted, since four years period had not been completed as on date of discharge.

       LABOUR & SERVICES - Discharge of probationer: [Aravind Kumar, J] Whether it amounts to a stigma - Central Industrial Security Force Act (50 of 1968) - Sections 8 & 22 - Central Industrial Security Force Rules, 2001, Rule 25(2) (as amended by Rules of 2003) Records indicating that petitioner was habitual absentee and his performance was not satisfactory - Extension of probation period from time to time - Held, During the period of probation, the employer is entitled to assess the suitability of the candidates and if it is found that a 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 performed by an employee during the period of probation and if they record a finding that during the probationary period, the work and performance of the duties of a probationer were unsatisfactory, employer is entitled to terminate the service in terms of the letter of appointment without conducting any enquiry.

        Further, the word ’stigma’ would relate to conduct or character of an employee. Stigma according to dictionary meaning is something that detracts from the character or reputation of a person, a mark, sign etc. indicating that something is not considered normal or standard. It is a blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame and mark or label indicating deviation from a norm. In the context of an order of termination or compulsory retirement of a Government servant, stigma would mean a statement in the order indicating his misconduct or lack of integrity.

        Where there were no communications issued to the petitioner for his habitual absenteeism finding a place in the order of discharge and order only stated that petitioner has not been found fit for further retention in service. Hence, it cannot be construed that the order of termination is with a stigma.

        Moreover, records of appraisal of performance of petitioner by reviewing authorities showed that he had bad quality of not correcting himself when pointed out and therefore his probation should be extended, also would not render order of discharge as stigmatic. In such a case, by relying upon consent affidavit by authorities it could not be contended that authorities have cast aspersions or allegations on the petitioner and that because of these allegations petitioner was removed from service, because grounds stated in the counter affidavit would not be relevant factor while examining as to whether the termination order is simplicitor or stigmatic. In such a case, in view of the fact that petitioner was a probationer and his probationary period was being extended from time to time, question of holding any inquiry would not arise at all.