Dismissed

Smt. Seema Mukherjee v. the Registrar General

Chhattisgarh HC2 Nov 2023WA/146/2021

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh dismissed an appeal challenging the dismissal of a writ petition seeking quashing of the removal of an employee from service during her extended probation period. The bench held that extending probation indicates unsatisfactory service, and removal under the appointment condition without intimation or a charge sheet did not require an opportunity of hearing to the pr

What did the court decide?

No relief granted; appeal dismissed; impugned order of the Single Judge upholding removal stands affirmed.

Smt. Seema Mukherjee Vs the Registrar… — Pension and Retirement Benefits | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR WA No. 146 of 2021

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Smt. Seema Mukherjee W/o Shri Tara Mukherjee, Aged about 45 years, R/o Q. No. 295, Abhilasha Parisar, Near New Bus Stand, Tifra, Bilaspur, District Bilaspur, Chhattisgarh

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---- Appellant

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Versus

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The Registrar General, High Court of Chhattisgarh, Bilaspur Chhattisgarh.

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Additional Registrar (Establishment) High Court of Chhattisgarh, Bilaspur, District Bilaspur, Chhattisgarh.

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---- Respondents

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(Cause Title taken from Case Information System)

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For Appellant/Writ Petitioner : Mr. Siddharth Dubey, Advocate. For Respondents : Mr. Raj Kumar Gupta, Advocate.

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Hon'ble Mr. Ramesh Sinha, Chief Justice

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Hon'ble Mr. Naresh Kumar Chandravanshi, Judge

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Judgment on Board

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02/ 11/2023

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1. Challenge in this appeal is to the order dated 01.03.2021 passed by the learned Single Judge in WP(S) No. 7213 of 2011 by which her petition seeking quashing of dated 01.08.2011 by which she was removed from the service of establishment of the High Court in light of Condition No. 2 of the appointment order dated 27.09.2005, was dismissed.

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2. The facts, in brief, as projected by the appellant/writ petitioner is that the

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appellant was appointed initially on 27.09.2005 on the post of Peon on probation for two years. The period of probation was extended for one year by order dated 04.12.2007 w.e.f 29.09.2007 which came to be ended on 28.08.2008. Thereafter, she continued to work in the establishment and worked till the date of her removal i.e. 01.08.2011. The said order of removal was challenged by the appellant before the learned Single Judge in WPS No. 7213/2011.

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3. The learned Single Judge, after hearing the parties, dismissed the writ petition holding that even after completion of probation period of 3 years, the petitioner cannot automatically be deemed to be confirmed and in light of Condition No. 2 of the appointment order dated 27.09.2005, her termination could have been effected as she was not permanent.

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4. Mr. Siddharth Dubey, learned counsel for the appellant/writ petitioner submits that the order passed by the learned Single Judge is perverse and bad not only on the account of hyper-technicality, but also on the account of not appreciating equity encompassing the law. It makes the merciless and inequitable interpretation and construction of condition No. 2 of the appointment order dated 27.09.2005 whereby the learned Single Judge erred in not considering that- lack of intimation does not imply lack of reasonableness. Furthermore, reasonableness by its very nature is constitutional virtue and the same is always present. While considering Condition No. 2 of the appointment order dated 27.09.2005 failed to appreciate the guiding light of Article 311(2) and other equitable provisions underlying the law and jurisprudence allied to the same. A probationer is equitably protected under the Constitution and therefore lack of intimation as laid under the Condition No. 2 of the appointment order dated 27.09.2005 provides no room for arbitrary, unreasonable and subjective removal of the employee. There is a huge misapplication of the Rule 10(1)(2) of the

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Chhattisgarh High Court Establishment (Appointment and Condition of Services) Rules, 2003 ( for short, the 2003 Rules ) which provides for confirmation of the employee. Rule 10(1)(2) is not applicable to the employee whose probation period is beyond 2 years as the same is extended probation and 10(1)(2) is merely the enabling and affirming provision for confirmation of the employee. This Rule neither allows or prohibits automatic probation. Furthermore, the Rule no where restricts deeming confirmation of probation in the case of extended probation. Just or equitable grounds are attracted for removal of the appellant of the services which is missing in this case. The impugned order as well as the removal order dated 01.08.2011 is against the equity, fairness and the principles of natural justice. The learned Single Judge did not appreciate Rule 10(1)(c) of the 2003 Rules whereby the probation shall not ordinarily exceed 3 years. Therefore in the absence of the exceptional circumstances exercised by the Hon'ble Chief Justice in his administrative competence and exercise of power; any other extended probation would not come under total period of probation. In the instant case, the then Hon'ble Chief Justice in his discretion or exercise of power has not confined the appellant as mere probationer.

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5. Mr. Dubey further submits that even assuming that the appellant happens to be a mere probationer, even then removal of service affects the right to life (Article 21) as enshrined under the constitution. The removal cannot be a an arbitrary dead letter. The order of the learned Single Judge, at paragraph No. 6 appreciates Rule 10(2) read with Rule 10(1) but neglects the fact that the so called 'positive acts' are within the burden of respondents and appellant is not the competent authority to culminate positive acts suo moto . Further, the order passed by the learned Single Judge neglects 'absence of any indication to the contrary'. The substance and spirit of the impugned order throughout has focused only on the fact whether appellant is a

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probationer or a permanent employee. Regardless of this line of fact, there is nothing in the impugned order to test the legality, equity or justifiability of the same. The omission of testing the same and being aggrieved with the resultant impugned order is the spirit of the instant writ appeal. No justification is given for removal of appellant. Appellant may be given opportunity of hearing and she may be continued in the services. The substance of the removal cannot be left at the whims and fancies of the administrative bodies. Also condition No. 2 is not exhaustive or categorical as to the reason for the removal of the employee. Therefore any removal without considering the facts and reasonable justification of it would automatically render the constitutional provision as dead letter. Such a subjective and unreasonable order of removal is also against the condition of appointment and the very purpose of equity and service law encompassing the subject matter. The respondents, in their reply have categorically submitted the fact in paragraph No. 5 of the preliminary submission that the service of the appellant was unsatisfactory. Therefore the respondents were required to give reasonable light on the same and the same cannot be left to whims and fancies. Further, the respondents in reply to the petition (paragraph no.6) have stated that the removal from the service is not punitive. Therefore the removal being not punitive and arising out of some other ground required explanation in the light of the livelihood of the appellant. The appellant deserves continuation in services and all consequential benefits in accordance with the law.

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6. Mr. Dubey has placed reliance on the judgments passed by the Supreme Court in Rajasthan High Court v. Ved Priya & Another , {2020 SCC OnLine SC 337}, Union of India & Others v. Mahaveer C. Singhvi {(2010) 8 SCC 220}, V.P.Ahuja v. State of Punjab & Others {(2000) 3 SCC 239}, Anup Jaiswal v. Govt. of India {(1984) 2 SCC 369}, State of

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Punjab v. Dharam Singh {AIR 1968 SC 1210}, Pavanendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences & Another {AIR 2002 SC 23}, Nar Singh Pal v. Union of India {(2000) 3 SCC 558}, Nehru Yuva Kendra Sangathan v. Mehbub Alam Laskar {(2008) 2 SCC 479}, Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta {(1996) 3 SCC 60}, Chander Prakash Sahi v. State of U.P. {(2000) 5 SCC 152}, a decision of the Bombay High Court in Vishwanath Dnyanoba Kirade v. Nav Akanksha Mahila Mandal & Others {WP No. 1481/2012, decided on 05.02.2015}, decision of High Court of Punjab & Haryana in Munshi Ram v. Presiding Officer, Labour Court and Another {2002-III-LLJ 115}, and The Haryana State Cooperative Apex Bank Ltd. v. Sat Narain {(1996) 1 PLR 399}, decision of the Rajasthan High Court in Tarun Kumar Khatri v. Ajmer Vidyut Vitran Nigam Ltd. & Another {(2013 SCC OnLine Raj 4190}.

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7. On the other hand, Mr. Raj Kumar Gupta, learned counsel for the respondents submits that the order passed by the learned Single Judge is just and proper warranting no interference. Earlier, the appellant/writ petitioner, against her order of removal dated 01.08.2011 had filed a review which was also dismissed vide communication dated 12.09.2011, however, the same being not challenged before any Court of law, has attained finality. Since the appellant/writ petitioner could not complete her probation successfully, it was extended for a period of one year and till she is formally confirmed on the post, she was deemed to be on probation. Extension of the probation period itself is suggestive of the fact that her work was not satisfactory and was found unsuitable for confirmation. The removal of the appellant was affected as per Condition No. 2 of the appointment order dated 27.09.2005.

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8. We have heard learned counsel for the parties, perused the pleadings and

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documents appended thereto.

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9. The appellant/writ petitioner has challenged her order of termination before the learned Single Judge. The appellant, while she was posted on the establishment of this High Court on probation, was terminated from services. The order dated 04.12.2007, which is an order extending the period of probation of the appellant w.e.f 29.09.2007, while extending her period of probation, also issues a word of caution that she has to improve herself and to come in the office in proper uniform and give respect to the directions of the Registry and her attitude with respect to taking leave frequently. When probation period of any employee is extended, it only means that the services of that particular employee is not satisfactory and has to keep under watch for further period of time and to give a chance to the employee to correct his/her conduct or improve the quality of working. Though the order of termination is silent as to for what reason she was terminated, it simply states that she was removed with immediate effect as per Condition No. 2 of her appointment order dated 27.09.2005.

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10. Condition No. 2 of the appointment order states that ‘their services shall be liable to be terminated without any intimation during the probation period.’ When the appellant/writ petitioner joined the services, she was aware of the said condition. It is for the employer to extend the period of probation or to discontinue the services of an employee if their work is not found to be satisfactory. While extending the probation period, she was directed to improve her conduct with regard to frequently availing leave, attending her duties in proper uniform and to obey the directions of the Registry.

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11. Though the learned counsel for the appellant/writ petitioner has placed reliance on the judgments cited (supra), however, they are not relevant in the facts and circumstances of the present case.

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12. No institution can function properly unless there is a discipline which

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appears to have been violated by the appellant/writ petitioner. The conduct of the appellant/writ petitioner during the period of probation cannot be appreciated. It is further to be noted that the High Court, taking a lenient view has simply removed the appellant/writ petitioner from services of establishment of the High Court without commenting on her conduct which could have been stigmatic. When she was on probation and has been removed from service simplicitor, which was Condition No. 2 of the appointment order, she cannot complain that she has not been given opportunity of hearing.

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13. The learned Single Judge, in its order has dealt with all the relevant aspects of the case at paragraphs 7, 8 and 9, after relying on the decisions rendered by the Supreme Court in Dharam Singh (supra), Shamsher Singh v. State of Punjab {(1974) 2 SCC 831} and Wasim Beg v. State of U.P. {(1998) 3 SCC 321}, has rightly come to the conclusion that the submission of the appellant/writ petitioner that after completion of probation period of 3 years, the appellant/writ petitioner would be deemed to be confirmed, cannot be given effect to and therefore, the harmonious construction of Rule 10(1) (C) would be directory in nature.

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14. We do not find any error in the order passed by the learned Single Judge.

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15. Resultantly, this appeal stands dismissed .

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Sd/- Sd/(Naresh Kumar Chandravanshi) (Ramesh Sinha) JUDGE CHIEF JUSTICE

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Amit

Smt. Seema Mukherjee v. the Registrar General

Case brief

What is this about?

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Smt. Seema Mukherjee v. the Registrar General

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