Regular Second Appeal No.2494 of 1993 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.2494 of 1993 Date of decision: 15.07.2009 Bishan Dass son of Mani Ram, Senior Scale Stenographer, Milk Plant, Ludhiana, (Punjab) ..... Appellant. Versus 1.The Punjab Dairy Development Corporation through its Managing Director; 2.The Managing Director, the Punjab Dairy Development Corporation; 3.The Punjab State Coop. Milk Producers, Federation, Ltd. (MILKFED) through the Managing Director, SCO No. 153-155, Sector 34-A, Chandigarh. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Girish Agnihotri, Senior Advocate with Mr. Pankaj Malwani, Advocate for the appellant. Mr. Alok Jagga, Advocate with Mr. D.S. Patwalia, Advocate, for the respondents. --- Regular Second Appeal No.2494 of 1993 2 Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 16.10.1989, rendered by the Court of Sub Judge Ist Class, Chandigarh, vide which it dismissed the suit of the plaintiff. and the judgment and decree dated 29.05.1993, rendered by the Court of Additional District Judge, Chandigarh, vide which it dismissed the appeal. 2. The brief facts of the case, are that the plaintiff (now appellant) after having joined the service of defendant-Corporation on 15.11.1974 as a Senior Scale Stenographer, was promoted as Purchase Officer on 12.6.1981. He was placed under probation, for a period of six months, which was lateron extended by another six months, vide order dated 25.11.1981. It was stated that the plaintiff kept on serving at many places, including Bhattian and Mohali and discharged his duties to the complete satisfaction of his superiors. It was further stated that his probation period was further extended upto 11.02.1983 on extraneous Regular Second Appeal No.2494 of 1993 3 reasons. It was further stated that the plaintiff was reverted to his substantive post of Senior Scale Stenographer on 15.12.1982. It was further stated that the real cause, for the above said illegal order, was that some sweets, which had been got prepared by the Corporation, at the time of Dewali festival, in November, 1982, could not be sold out, and were instead spoiled. It was further stated that the plaintiff had nothing to do therewith but he was singled out, for the aforesaid act. It was further stated that the order dated 15.12.1982 was passed by way of punishment. It was further stated that the defendants were asked many a time, to withdraw the illegal order, but to no avail. On their final refusal, left with no alternative, a suit for declaration challenging the order impugned, as illegal, null and void as also inoperative against the rights of the plaintiff, was filed. 3. Defendant nos. 1 and 2, put in appearance, and contested the suit, by way of filing joint written statement. It was averred that the suit was not maintainable; that the Regular Second Appeal No.2494 of 1993 4 plaintiff was estopped from filing the suit, by his own act and conduct; and that the suit was bad for non-joinder of necessary parties. It was admitted that the plaintiff was appointed as Senior Scale Stenographer. It was also admitted that the plaintiff was promoted as Purchase Officer. It was further admitted that initially he was on probation for a period of six months, which period was extended from time to time. It was stated that since the plaintiff was found to be unsuitable for the higher post of Purchase Officer, he was reverted to the substantive post of Senior Scale Stenographer, during the period of probation, as per the terms and conditions of his letter of promotion. It was denied that the order dated 15.12.1982, was passed by way of punishment. The remaining averments were denied. 4. Defendant no.3, filed a separate written statement, wherein, it was averred that the suit was liable to be dismissed, for want of notice under Section 79 of the Cooperative Societies Act, 1961. It was stated that Punjab State Coop. Milk Producers, Federation, Ltd. (MILKFED) is a Regular Second Appeal No.2494 of 1993 5 Cooperative Society, registered under the Punjab Coop. Societies Act, 1961, and was, therefore, not an instrumentality of the Punjab Government, as contemplated in Article 12 of the Constitution of India. The remaining averments, made in the plaint, were denied, being wrong. 5. From the pleadings of the parties, the following issues were framed by the trial Court :- “1- Whether there is a relationship of master and servant between the plaintiff and defendant ? If so, to what effect ?OPP 2- Whether the suit is bad for non- joinder of necessary parties ?OPD 3- Whether the suit is barred by limitation ?OPD 4- Whether suit is bad for want of notice under Sections 55 and 59 of the Punjab Cooperative Societies Act ?OPD3 5- Whether order No. MD/PSL/OR- 276/24969-24975 dated 15.12.1982 is null and void ?OPD 6- Whether plaintiff is entitled for declaration and mandatory injunction prayed for ?OPD Regular Second Appeal No.2494 of 1993 6 7- Relief.” 6. The parties led evidence in support of their case. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the trial Court held that the order passed was not by way of punishment. Ultimately, the suit was dismissed. 7. Feeling aggrieved, an appeal was preferred by the plaintiff(appellant), which was also dismissed by the Court of Additional District Judge, Chandigarh, vide its judgment and decree dated 29.05.1993. 8. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the plaintiff/appellant. 9. I have heard the Counsel for the parties, and have gone through and perused the documents on record, carefully. 10. The following substantial questions of law, arise in this appeal, for the determination of this Court:- Regular Second Appeal No.2494 of 1993 7 “1. Whether the Courts below committed a legal error in holding that the order dated 15.12.1982 was not passed by way of punishment and, as such, not stigmatic, but, on the other hand, was innocuous not visiting the plaintiff (appellant) with an evil consequences? 2- Whether the Courts below illegally held that the order dated 15.12.1982 was not the result of non-application of mind by the competent authority to the facts and circumstances of the case ?” 11. The Counsel for the appellant submitted that the order dated 15.12.1982 was passed by the competent authority by way of punishment. He further submitted that the Courts below were wrong in holding that the order dated 15.12.1982 was only innocuous and did not visit the plaintiff (now appellant) with penal consequences. He, on the other hand, submitted that before passing the order dated 15.12.1982, the explanation of the plaintiff Regular Second Appeal No.2494 of 1993 8 (now appellant ), Ex.P5/29 dated 23.11.1982 was called with regard to the lapses indicated therein. He further submitted that vide this letter, the plaintiff ( now appellant) was asked that before initiating any disciplinary action against him, he should explain his position, otherwise, he will be proceeded, in accordance with the relevant Rules. He further submitted that the letter, Ex.P5/29 clearly showed that the plaintiff (now appellant) was reverted from the substantive post of Senior Scale Stenographer, on account of the alleged lapses, committed by him, in the discharge of his duty, which according to the Corporation constituted mis-conduct. He further submitted that since the order dated 15.12.1982 was passed by way of punishment, it was required of the defendants(now respondents) to afford full opportunity to the plaintiff (now appellant), by way of holding a regular departmental enquiry, to put forth his version and lead the defence evidence. He further submitted that since the major penalty was imposed upon the Regular Second Appeal No.2494 of 1993 9 plaintiff (now appellant) by way of reverting him to the lower post, without holding a regular departmental enquiry against him, the same was liable to be set aside. He further submitted that even the order dated 15.12.1982, was the result of non-application of mind to the facts and circumstances of the case. In the order impugned, the designation of the plaintiff (now appellant) was mentioned as Sales Officer, whereas, he was promoted as Purchase Officer and never worked as Sales Officer. He also placed reliance on Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic Science, Calcutta and others, AIR 1999 (Supreme Court) 983, Anoop Jaiswal v. Government of India, 1984 LLJ 337, Smt. Rajinder Kaur v. Punjab State, AIR 1986 (SC) 1790, Punjab State v. Smt. Kamlesh Kumar, 1988(1) SLR 614 (Pb. & Har. High Court), and Rakesh Kumar v. State of Punjab , 1994(4) RSJ 133, in support of his contention that the Courts are not to go by the form of the order Regular Second Appeal No.2494 of 1993 10 but can lift the veil to come to the conclusion as to whether, the same was passed by way of punishment or not. He further submitted that the order impugned, being illegal, was liable to be set aside, but the Courts below, committed a grave error in holding the legality thereof. 12. The Counsel for the respondents , on the other hand, submitted that the order dated 15.12.1982, was not passed by way of punishment, but on account of the reason, that the plaintiff (now appellant) was found unsuitable for the job of Purchase Officer as his work and conduct was not found to be satisfactory. He further submitted that the order in the instant case, is innocuous having been passed during the probation period of the plaintiff, as his work and conduct was not found to be satisfactory. He further submitted that, as such, the Courts below were right in coming to the conclusion that the same was legal and valid. He further submitted that the designation of Sales Officer and Purchase Regular Second Appeal No.2494 of 1993 11 Officer was inter-changeable and this fact was admitted by the plaintiff (now appellant) in his statement. He further submitted that it could not be said that there was no application of mind to the facts and circumstances of the case before passing the order impugned. He also placed reliance on S. Sukhbans Singh v. The State of Punjab, AIR 1962 SC 1711, Union of India and others v. P.S. Bhatt, 1981(2) Supreme Court Cases 761, The State of Punjab and another v. Sukh Raj Bahadur AIR 1968 Supreme Court Cases 1089 , Raj Kumar v. Union of India and others (1975) 3 Supreme Court Cases 458, and the State of Orissa and another v. Ram Narayan Dass, AIR 1961 Supreme Court 177, in support of his contention that the order, passed in this case, did not visit the plaintiff (now appellant) with evil consequences but it was in accordance with the terms and conditions of the promotion order dated 12.06.1981. He further submitted that the judgments and decrees of the Courts below, Regular Second Appeal No.2494 of 1993 12 were liable to be upheld. 13. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the parties, in my considered opinion,the appeal deserves to be dismissed,for the reasons to be recorded hereinafter. There is no dispute with regard to the factum that the plaintiff (now appellant) was appointed as Senior Scale Stenographer, in the defendant Corporation. It is also not disputed that he was promoted as Purchase Officer and placed, on probation, for a period of six months initially. It is also not disputed, between the parties that his probation period was extended from time to time. It is settled principle of law, that until and unless, an employee is confirmed after the expiry of his probation period, he cannot be deemed to have been confirmed. During the period of probation, it was for the competent authority to determine as to whether, the work and conduct of the probationer was satisfactory and he was suitable to be retained at a particular post or not. If the competent authority, after assessing the work and conduct of Regular Second Appeal No.2494 of 1993 13 an employee, as not satisfactory, during the period of probation, either reverts him to the substantive post or terminates his service, it can be said that such an order, does not visit him with evil consequences. Ex.PW5/1 is the letter dated 12.06.1981, vide which the plaintiff (now appellant) was promoted as Purchase Officer, wherein, one of the conditions, was that in the event of unsatisfactory work and conduct, he was liable to be reverted to his original post. The order dated 15.12.1982, Ex.P5/22, vide which the plaintiff (now appellant) was reverted, to the post of Senior Scale Stenographer, reads as under:- “Shri Bishan Dass, Sales Officer, Milk Plant Verka is reverted as Senior Scale Stenographer, with immediate effect, in accordance with para -1 of his promotion order no. MD/PSL/OR-275/6076- 91 dated 12.06.1981 on account of his unsatisfactory performance during the period in which he has been in the rank of Officer on probation. Regular Second Appeal No.2494 of 1993 14 On reversion, Shri Bishan Dass is hereby posted at Cattle Feed Plant, Bhattian (Khanna).” 14. The bare perusal of the contents of the letter, extracted above, clearly goes to show that the same was not passed, by way of penalty,but in accordance with the terms and conditions of the promotion order dated 12.06.1981, as his work and conduct was not found to be satisfactory. The order , aforesaid, thus, does not appear to be stigmatic. No doubt, the Court can lift the veil to find out, as to whether the order, was passed by way of punishment or otherwise. Undisputedly vide letter, Ex.PW5/29, explanation of the plaintiff (now appellant ) was called and he was asked that if his reply was found to be non- satisfactory, disciplinary action as deemed fit, may be taken by the Corporation. However, as stated above, for the purpose of coming to the conclusion, as to whether, the work and conduct of a particular employee was satisfactory or unsatisfactory, during the period of probation, certain enquiries are required to be made, from various quarters, and Regular Second Appeal No.2494 of 1993 15 various officers, under whom, he worked. It is only on the basis of the reports of those officers that the competent authority can come to the conclusion, as to whether the work and conduct of the employee during the course probation period, was satisfactory or otherwise. In the instant case, no doubt, in letter Ex.PW5/29, certain lapses of the plaintiff (now appellant) were indicated and he was directed to explain the same. However, that letter was not made the basis of the order dated 15.12.1982. The principle of law, laid down in S. Sukhbans Singh's case (supra), decided by a Constitutional Bench of the Apex Court, was to the effect that a probationer cannot, after the expiry of probationary period, automatically acquire the status of a permanent member of a service, unless of course the rule under which he was appointed expressly provide for such a result. A probationer officiating, in a higher post, who continues to be such without being reverted after the expiry of the period of probation has no legal right to the higher post in which he is officiating, but merely becomes eligible for being absorbed in the higher Regular Second Appeal No.2494 of 1993 16 post as a permanent member. He still continues to be a probationer, and can be reverted to his original post, under the service rules, even without assigning any reason, if his work is found to be unsatisfactory. The provisions of Article 311 (2) do not apply to such a situation. In Union of India and others's case (supra), the principle of law laid down by the Apex Court was to the effect that even if the misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the authority to terminate the services of an employee on probation, such termination cannot be termed as penalty or punishment. In State of Punjab and another's case (supra), decided by a three Judges Bench, of the Apex Court, Sukh Raj Bahadur, who was on probation as Extra Assistant Commissioner, being posted as Inspector, Local Bodies, Jullundur Division and Assistant to Commissioner, Jullundur Division, was charge sheeted for his mis-conduct, during the period of probation. He filed reply to the said charge sheet. No further proceedings were initiated. He was, however, reverted to his Regular Second Appeal No.2494 of 1993 17 substantive post. In these circumstances, the Apex Court held that the order reverting him to the substantive post, did not visit him with evil consequences, nor was it stigmatic, nor the said charge sheet was made the basis for his reversion, to the substantive post and, as such, the same could not be said to have been passed by way of punishment. It was also held that the provisions of Article 311 (2) of the Constitution of India, did not apply to the case. In The State of Orissa and another's case (supra), a case decided by a Constitution Bench of the Apex Court, a show cause notice was given to a Sub Inspector, on probation, as to why his services should not be terminated. The notice consisted of two parts, (1) relating to ten heads of “gross neglect of duty and unsatisfactory work” and (2) “suspicious and upolicemanlike conduct” in which specific instances of fabrication of public records and acceptance of illegal gratification were set out. A formal order was communicated to the respondent, stating therein, that he was discharged from service for unsatisfactory work and conduct. In Regular Second Appeal No.2494 of 1993 18 these circumstances, it was held by the Apex Court that the show cause notice, which was given to the official, indicating therein, the incidents of gross neglect of duty, fabrication of public records and acceptance of illegal gratification, was only for ascertaining whether he should be confirmed or his employment was required to be terminated. In these circumstances, it was held that prima-facie, the order was one terminating employment of the official as a probationer, and it was not an order dismissing him from service. It was also held that it was not passed by way of punishment. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Since the order, in this case, was passed reverting the plaintiff (now appellant) to his substantive post of Senior Scale Stenographer as his work and conduct as Purchase Officer was not found to be satisfactory, during the period of probation, it could not be said to have been passed by way of punishment. There is, no dispute, with the principle of law, laid down in Dipti Prakash Banerjee's, Anoop Jaiswal's, Smt. Regular Second Appeal No.2494 of 1993 19 Rajinder Kaur's, Punjab State's, and Rakesh Kumar's cases (supra) relied upon by the Counsel for the appellant, that if the order discharging or terminating the service of an employee, during the period of his probation, is passed on the basis of his mis-conduct, then such an order could not be said to be an innocuous order, but the one which visits the employee with evil consequences, and, thus, could only be passed after holding a full- fledged enquiry. However, the facts of the aforesaid cases, are clearly distinguishable, from the facts of the instant case. In the instant case, as stated above, the order dated 15.12.1982, reverting the plaintiff (now appellant) to the substantive post having been passed, only on the ground, that his work and conduct was not found to be satisfactory, could not be said to have visited him with evil consequences and, as such, the provisions of Article 311 (2) of the Constitution of India, were not at all violated. No help, therefore, can be drawn by the Counsel for the appellant, from the ratio of law, laid down, in these cases, as the facts thereof, are completely Regular Second Appeal No.2494 of 1993 20 distinguishable, from the facts of the instant case. The judgments and decrees, rendered by the Courts below holding the order dated 15.12.1982, Ex.PW5/22, as legal and valid, do not suffer from any illegality or perversity. The same are liable to be upheld. 15. Coming to the factum as to whether the order dated 15.12.1982, Ex.PW5/22, was passed without application of mind, to the facts and circumstances of the case, it may be stated here, that, no doubt, in the order impugned, the designation of the plaintiff (now appellant ) was recorded as Sales Officer, though he was promoted as Purchase Officer, yet this point was clarified by the plaintiff(now appellant) himself, when he appeared as his own witness, as PW-5. During the course of cross-examination, it was stated by him that it was correct that he was transferred from Mohali to Verka as Sales Officer. He further stated that he never gave in writing to his authorities that the change of designation from Purchase Officer to Sales Officer, was wrong. He further stated that he did not file any representation Regular Second Appeal No.2494 of 1993 21 because he was on probation. From the statement of the plaintiff, it was, thus, proved that he could be posted as Purchase Officer as also Sales Officer. The designation of Sales and Purchase Officer was inter-changeable. Under these circumstances, it could not be said that the competent authority did not apply its mind, while recording the designation of the appellant as Sales Officer, in the order dated 15.12.1982, Ex.PW5/22. This fact was also duly clarified, in para no.20, of its judgment, by the trial Court. The order dated 15.12.1982 therefore, could not be said to be illegal, on account of this reason. The submission of the Counsel for the appellant, being without merit, must fail and the same stands rejected. The substantial questions of law, depicted herein- above, are decided against the appellant. 16. For the reasons recorded above, the appeal being devoid of merit, must fail, and the same stands dismissed with costs. ( Sham Sunder ) July 15, 2009 Judge dinesh