-1- Civil Writ Petition No.4720-CAT of 2003. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: March 13, 2008. Arvinder Kumar ... Petitioner VERSUS Union of India and others ... Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr.A.K. Ahluwalia, Advocate, for the petitioner. Mr. Anupam Gupta, Advocate, with Ms. Jaishree Thakur, Advocate, for respondents Nos. 2 to 4. -.- MOHINDER PAL, J. In this writ petition, challenge is made to the order dated May 08, 2002 (Annexure P-10), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh -2- Civil Writ Petition No.4720-CAT of 2003. (hereinafter referred to as `the Tribunal') whereby the Original Application filed by the petitioner under Section 19 of the Administrative Tribunals Act, 1985 was dismissed. The petitioner was appointed as a Radiographic Technician in the Government Medical College & Hospital, Sector 32, Chandigarh-respondent No.4 (hereinafter referred to as `respondent-College) vide appointment letter dated January 17, 1996 (Annexure P-1) after his name was sponsored by the Employment Exchange. As per the appointment letter (Annexure P-1), appointment of the petitioner was on temporary basis and he was kept on probation for a period of two years. It was also incorporated in the appointment letter that services of the petitioner were liable to be terminated on one month's notice. He joined the respondent-College on January 23, 1996. Case of the petitioner to decide his probation was considered by the Departmental Promotion Committee (hereinafter referred to as `D.P.C') in its meeting held on December 09,1998 and the D.P.C recommended his discharge from service. The Director Principal of the respondent-College agreed with the recommendations of the D.P.C and served the petitioner with one month notice with effect from December 23, 1998 as per the condition of his appointment. The order/notice dated December 31, 1998 has been annexed with this petition as Annexure P-3. The petitioner has also attached with the petition order/notice dated December 23, 1998 passed by the -3- Civil Writ Petition No.4720-CAT of 2003. Director Principal of the respondent-College as Annexure P-2 whereby notice of one month was given to him with effect from August 18, 1998. It has been averred in the petition that the notices (Annexures P-2 and P-3) are not sustainable in the eyes of law as these are retrospective in nature. It is further case of the petitioner that probation period of two years had expired on January 22, 1996, he having joined the respondent-College on January 23, 1996 and that neither his probation period was extended nor there was any provision in the appointment letter to extend the probation period. Before issuing notices (Annexures P-2 and P-3) no departmental inquiry was conducted and no opportunity of hearing was granted to the petitioner. Adverse remarks were never conveyed to the petitioner and his services were dispensed with without following the principles of natural justice. On January 23, 2004, learned counsel for the respondent-College had sought an adjournment to file affidavit of the Director Principal of the respondent-College to show that the petitioner had refused to receive the relieving order dated January 23, 1999. In this regard, affidavit dated March 02, 2004, was filed by Prof. H.M. Swami, Director Principal of the respondent-College stating as under:- “ 3. That the petitioner was working as Junior Radiographic Technician and was -4- Civil Writ Petition No.4720-CAT of 2003. under probation period. His case, to decide clearance of probation, was considered by the Departmental Promotion Committee in its meeting held on 9.12.98 and keeping in view of his lackadaisical service record the Departmental Promotion Committee recommended his discharge from service. 4. That the recommendation of DPC was accepted and it was decided that the services of petitioner are no longer required by this Institute. A one month notice to this effect was served upon the petitioner as per condition No.1 of his appointment letter. However, Dr.B.D. Gupta the then Head of the Department under whom the petitioner was working issued a relieving order dated 23.1.1999 under intimation to the deponent. But the petitioner refused to receive the orders. Dr.B.D. Gupta left the service of GMCH on 08.03.1999.” We have heard Mr.A.K. Ahluwalia, Advocate, appearing for the petitioner and Mr. Anupam Gupta, Advocate, assisted by Ms. Jaishree Thakur, Advocate, appearing for respondents Nos. 2 to 4 and have gone through the original record which was -5- Civil Writ Petition No.4720-CAT of 2003. produced by Mr. Anupam Gupta during the course of arguments. A perusal of the original record shows that on December 02, 1997, Dr. Birinder Nagi, Professor & Head of the Department of Radiology of the respondent-College wrote letter to the Director Principal of the respondent-College bringing to his notice that the petitioner was neglecting his duties in spite of repeated warnings to him. He did X-rays of medico- legal case on November 08, 1997 while he was on night duty. He had not put the desired markers on the X-ray films which was a serious irregularity. Dr. Birinder Negi proposed a strict action against the petitioner for this kind of negligence. The petitioner felt sorry for this lapse and undertook not to repeat it in future vide his explanation dated January 29, 1998. However, a lenient view was taken and the petitioner was let off with a written warning issued to him vide letter dated February 20, 1998 issued by the Additional Director (Administration) of the respondent-College. Thereafter, vide letter December 03, 1998, the Director Principal of the respondent-College inquired from the Head of Radio-diagnosis Department about the work and conduct report in respect of the petitioner as the same was required to consider his probation. In response to this inquiry, the Head of Radio-diagnosis Department informed that the work of the petitioner was not satisfactory and he was also not regular in his reporting to duties. -6- Civil Writ Petition No.4720-CAT of 2003. Learned counsel for the respondent-College has also produced during the course of arguments `BRIEF PARTICULARS OF THE EMPLOYEES WHOSE PROBATION PERIOD IS TO BE CLEARNED (GROUP `C')'. The Registry is directed to place the same on the record of this case. Its perusal shows that case of the petitioner for clearing probation period was considered by the D.P.C in its meeting held on May 28, 1998 and it recommended extension in the probation period for six months i.e upto November 28, 1998. Thereafter, on December 09, 1998, as per special report received from the Head of the Radio-diagnosis Department which was not satisfactory, case of the petitioner was submitted before the D.P.C for consideration. His case was considered by the D.P.C in the meeting held on December 09, 1998 and recommendation for his discharge from service was made . The Director Principal of the respondent-College accepted the recommendations of the D.P.C and served the notices (Annexure P-2 and P-3) as per condition No.1 of his appointment letter which reads as under:- “ 1. That appointment is temporary and is liable to be terminated on one month's notice on either side except in case of removal for misconduct or your character and antecedents being reported to be -7- Civil Writ Petition No.4720-CAT of 2003. unsatisfactory or on the abolition of the post for which no notice will be issued. It will be open to Government to pay you in lieu of the notice falls short by one month. You will not be at liberty to relinquish charge even after the expiry of the notice period without the prior consent of the competent authority.” Dr. B.D. Gupta, Professor & Head of the Department of Radio-diagnosis vide his letter February 04,1999, informed the Office Superintendent of the Establishment Branch of the respondent-College that the relieving order was sent to the petitioner in the afternoon of January 22,1999. However, he refused to accept the same and left the department without any information. He further informed that the petitioner was not attending his duties from the morning of February 01, 1999. The D.P.C unanimously recommended to discharge the petitioner from service as he failed to clear the probation period. The petitioner has not alleged any mala fides against the members of the D.P.C. We have no reason to doubt the correctness of the conclusion arrived at by the D.P.C. The members of the D.P.C had formed the opinion to recommend discharge of the petitioner from service on the basis of the record placed before them. Since the discharge order of the petitioner is based on the recommendation of the D.P.C, the same -8- Civil Writ Petition No.4720-CAT of 2003. cannot be said to be illegal or arbitrary at all. The contention of the learned counsel for the petitioner that the petitioner had successfully completed the probation period as he had joined the respondent-College on January 23,1996 and the probation period of two years had expired on January 22, 1996, is not well-founded. The record shows that petitioner's case for clearing probation period was considered by the D.P.C on May 28, 1998 and a recommendation was made to extend his probation period for six months. On December 09, 1998, when a special report was received from the Head of the Radio-diagnosis Department that work of the petitioner was not satisfactory, his case was submitted before the D.P.C for consideration. In the meeting held on December 09, 1998 the D.P.C recommended for discharge of the petitioner from service. Merely because decision of the D.P.C dated May 28, 1998 whereby it was recommended to extend the probation period of the petitioner for six months was not conveyed to him, it cannot be said that he is deemed to have completed the probation period successfully. A positive order was required to be passed regarding the completion of probation period of the petitioner especially when the work and conduct of the petitioner was not satisfactory, as mentioned above. It is well- settled that if services of a probationer are to be dispensed with/discharged for his overall unsatisfactory work, there is no need to hold an inquiry. The very objective of the probation -9- Civil Writ Petition No.4720-CAT of 2003. is to test the suitability and if the employee is not found suitable, the competent authority has the powers to terminate his services. In view of the above, we do not find any illegality in the impugned order which may warrant interference by this Court in exercise of its writ jurisdiction. Hence, the present petition is dismissed. The Registry is directed to return the original record to learned counsel for the respondent-College. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE March 13, 2008. ak