89 4 r Regular Second AppealNo 1960of 1995 1 b INTHE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second AppealNo 1960of 1995 Date ofDecisionl 1092009 k PepsuRoad TransportCorporation eeAppellant VS 1 C SurjitSingh Respondent 0 0 CORAM HONBLE MR JUSTICE ARVIND KUMAR I 9 Present2 Mre RS Ahluwalia Advocate for the appellant Nlre ReK Malik SreAdvocate with Z Mr Vishal Mals Advocate for the respondcnte C S k ic I ARVIND KUMAR J a5 C0 The Road TransportCorporationPatiala cO 7 Ors are challenging the concurrent findingsretumedbythe Courts below Z to the effect that order dated 25 1990passedby the is illegal 0m null andvoid and againsttheprinciples ofnatural justiceThe said order has been set asidewith all reliefs The controversylies in the narrow compass RespondentSurjit Singhwas appointed as Service Engineerwith the appellants at Faridkot Depoton 8 1988andhejoinedas such on 1110 1988 Initiallyhe wason probation for a periodof one year ie 1110989 which was extendedup to 1010 1990vide Ietterdated201 01 989Ouringthe period of probationthe serVlCes of the respondentwere terminatedvide letter dated 25 1990 leadingto the institution of the present suit Iaying challenge to the said order on various groundsinter alia that theprinciples ofnatural justicewere not compliedwith priorto passingthe same since no notice was issued or any enquirywas conducted Hence thequashing ofthe same was soughtwith mandatoryinjunctiondirectingthe defendantsto re r lnstate him with full back wages and other beneStsincludingcontinuityof . Radhika 2012.05.24 14: 17 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 90 W 1 Regular Second AppealNo 1960of 1995 2 A service The stand of the on the other hand was that since the wasa siinplicitortherefore there was to hold any enquiryIt was furtheorallegedthat the servicesof no the plaintiffWere terininated not on account of any misconduct but on account of unsatisfactory by hiln duringprobationperiod Hencedismissalof the suit was sought W On thebasisof pleadings of partiesthe issued were settledand boththepartiesled their respective evidenceto substantiatethe same 0 C The learned trial court while fonningthe opinionthat the I order dated 25 990 was passedwithout complying with the C ofnatural justiceandplacingimplicitreliance upon various cases I held the impugned order as an illegal one and according set aside the same Z withall consequential benefltsto theplaintiff The appealpreferredby the appellants was dismissed by the r first appellate Court below therebyafflriningthe findingsreturnedbythe I trial Court Hence the instantregularsecondappeal c I have heard learned counsel for the partiesand have gone throughthe paper book as well as case law cited by both the counsel 7 carefullyThis Court is of the view that followingsubstantiaIquestions of Z law arisesfor in this regularsecondappeall Whethera probationer has a rightto the post though not adjudged up to themark and 2 Whether the dischargeduringperiodofprobationon the basis ofhis by a simpleorder could be termed as a stigmatic2 It is not in disputethat the petitioner joinedthe Corporation 1110988 Hls probationperiodfor one year was to be completed on 11101989 Hs probation periodwas extendedon 201 01 989 for a further periodof one vear we 11101989 However on 25 1990 impugned order his service was passedbythe competentauthorityThere J lS a difference in the nature of rightsof permanentcivil servant and a . Radhika 2012.05.24 14: 17 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 91 I Regular Second AppcalNo 1960of 1995 21 A In case of permanentcivil servant he acquires the rightlo hold the post until he reaches the age of or unless he is retired as a measure of penaltyHowever in the case of he has no rightto the post The very fact that a person iS appointed on probation means that he is on trial and decision for the authorityto decide as to whether he should be admit as a member of the service ie whether the right to hold the post 1 r shouldbe conferred on him or not In the case of former compliance under Article 31162of the Constitution of India would be a condition 0 C for puttingan end to servicesof such civil servant in whatever fonn would I be per se a penalty of dismissal or removal from service Whereas in the 0 caseof the latter that is a thequestion to be decided would be I whetherhe is suitable for the confermentof the rightto hold the post by Z ordering his confirmation or whether he is not suitable and he should be For takingsuch a decision Article 31 l 629has no application 2 C The order of discharge of the if madepurelyon assessment of work and of a duringtheprobationperiodthen an Olj ordersimplicitorwould suffice and would be beyondapproachHowever if theorderofthe disclplinaryauthorityismade onthe basisofhisattitude or vmo some kind of tnisconduct or behaviour displayedduringthe probation Z periodwhich in theopinionofthe appointingauthorityis sufScient to hold Om him unsuitableto the post then thedisciplinary authorityis required to hold a limited enquirywhich is separateand distinct from an inquirywhich IS prescribed as a condition precedentunderArticle 3 11629 In the instant case the probationperiodof the plaintiffwas extendedon 2001989 wef l l101989 for anotherone year and till his servlces were tenninated on 251990 he had not even worked for a single dayas he had appliedfor medical leaveand thevery basis ofthe termination order that he earned unsatisfactory reportand failed to show satisfactory has rightlybeenheld to be fallacious by the Courts below In this regardit is relevant to reproduce the findingsretumedbythe appellate Court below in paras8 and 1 8 In this case the serves oftheplaintiffwere lJ terminated as it wasfeltthat his attendancewas low and . Radhika 2012.05.24 14: 17 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 92 4 A that hewas habituatedin sendingleave applications and he was leaving daily Whenthe servicesof the Were termnatedwhat weighed with the was that he generallyremalned on leave and was habituated In Ieavingthe Hqs dallv inspiteof repeatedverbal instructions to him by the DepotManagernot to do so 1 r 9 of dutyby him 0 C ln thesecond year ofprobationcould not be a ground I for terminating his services when he had not put in any 0 work during the periodwhen the second year of I probation commencedand he remained away fromdlity Z after25 190 According to him becauseof his physica V ailment if his servlces were to be terminatedbecauseof r his absence from duty there should have been an I enquiryand he should havebeengivenan opportunityof a5 beingheard tha his absencewas not intentional 31 7 The tenor of the standof the is also indicative of the fact Z that theywere mainlyaggrieved that the plaintiffgenerallyrelnained on tl leave and is sendinghis leave froln home lt is clear that the terminatedthe services of the on speciflc allegations of misconduct but never felt any necessity to know the cause of absenceof the by holdingan enquiryOtherwise had therebeen any enquirythen in that Sltuatloll the opportunitywould have beengivento him to submit his defenceand thedisciplinary authoritymight have agreedto his explanationThus the termination order was rightlyset aside by the Courts below by hoIdingthat the same is in contraventionof proV1S10nsof natural justiceTherefore in the considered opinionof this Court the matter is requiredto be remittedback to thedisciplinary authority to hold a limited enquiryinto theallegedabsenceofthe r 17heHonble Supreme Court in the case ofManagingDirector ECIL HyderabadVs B Karunakar1993 JudgmentToday S01 hasobservedthat wheneverthe Court sets aside an order and V1L . Radhika 2012.05.24 14: 17 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 1 93 1 RegularSecond AppealNo 1960of 1995 5 4 ordersreinstatementthe questionwhether the would be entitled to backwages froin the date of disnlissal to the date of his relnstatment if ordered should invariablybe left lo be decided bythe authority concemed to Iaw after the culmination of the and on the final outcome In view of the above the instant appealis partlyallowed and thejudgments and decreespassedby the Courts below are modifled to the r extent thatthe matter is remittedback to the disciplinaryAuthoritywith a directionto hold a limited enquiryand to passfresh orderskeeping in vlew 0 C theobservationsmade above within threemonthsfrom the dateof receipt I of certified copy of this judgmentIt is further ordered that the paymenlof C5 arrears of salaryand benetlts be keptin abeyanceand be I decided bythedisciplinaryAuthorityat thetime ofgivingdecision Z Appealstandsdisposed of accordinglyThe partiesto bear their own costs I ARVIND KUMARI 08 JUDGE September10 2009 Jiten 7 Z L1e r 7 7 . Radhika 2012.05.24 14: 17 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document