IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 10842 of 2002 For Approval and Signature: HON'BLE MR.JUSTICE R.K.ABICHANDANI and HON'BLE MS.JUSTICE H.N.DEVANI ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- CHHAYABEN LABHSHANKER MEHTA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 10842 of 2002 MR. J.R.NANAVATY WITH MR BG JANI for Petitioner No. 1 Mr. A.J.DESAI, AGP for Respondent No. 1 MR. S.N.SHELAT, ADV.GENERAL with MR. JB PARDIWALA for Respondent No. 2-3 MR ASIM J PANDYA for Respondent No. 4 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE R.K.ABICHANDANI and HON'BLE MS.JUSTICE H.N.DEVANI Date of decision: 1/12/2004 C.A.V JUDGEMENT (Per : Hon'ble Ms. Justice H.N.Devani) 1. By way of the present petition, the petitioner challenges the Notification dated 8th August, 2002 issued by the State of Gujarat-the respondent no.1 herein, terminating the services of the petitioner as Judge, Labour Court (Junior Division), Class I. 2. The petitioner graduated in law from the North Gujarat University with high academic distinctions in the year 1991. She passed the LL.M. examination in the year 1994 securing first place in the North Gujarat University and was awarded gold medal. The petitioner obtained experience as an Advocate, and thereafter, she appeared in the examination for Class I post conducted by the Gujarat Public Services Commission on the basis of her academic qualification and experience as an Advocate. She passed the said examination in the year 1999 and on the basis of her placement in the select list at serial no.13, she was offered appointment as Judge, Labour Court by an order dated 16th October, 1999 issued by the respondent no.2. She was appointed under the Government Notification, Labour and Employment Department dated 12th October, 1999. The petitioner joined the services in the Labour Court at Ahmedabad on 21st October, 1999. 3. It is the case of the petitioner that her services were satisfactory and no memo or warning notice in respect of her performance was issued to her. It is the case of the petitioner that on the contrary the Registrar of the High Court had issued her a letter dated 20th April, 2001 stating that her Annual Confidential Report for the year 2000 is reasonably good. It was submitted that for the year 2002, the petitioner was not communicated any remark relating to grading as was done in the year 2001. No adverse remark or memo or warning letter was issued for the said year and she had completed her probation period on 20th October, 2001. It was submitted that during the probation period, her services as Labour Judge were quite satisfactory and without any adverse remark/grading or memo/warning letter. Thereafter, she was transferred to Labour Court, Rajkot by order dated 7th May, 2002 and she had reported on duty at Labour Court, Rajkot on 17th June, 2002. It was contended that after completion of probation period on 20th October, 2001, no letter of confirmation was given, nor was any letter of extension of probation period given, and therefore, she was deemed to be confirmed on the post immediately on expiry of probation period. By a communication dated 12th August, 2002, respondent no.3-the President, Industrial Court informed the petitioner that her services are put to an end on expiry of probation period from 8th August, 2002. Alongwith the forwarding letter, the impugned Notification dated 8th August, 2002 issued by the respondent no.1 was also enclosed. The said Notification dated 8th August, 2002 is subject matter of challenge in this petition. 4. In the petition, the contentions that were raised were that the probation period of the petitioner was completed on 20th October, 2001, on expiry of two years. No specific letter was ever issued to her extending her probation period from 21st October, 2001, therefore, she was deemed to be a confirmed employee. It was contended that on 8th August, 2002 the petitioner was no longer a probationer, and therefore, her services could not have been terminated except after an inquiry and without giving reasonable opportunity of being heard after informing about the charges against her. It was contended that the text of the Notification records that the conduct of the petitioner was not satisfactory and that, therefore, the impugned Notification terminating the services of the petitioner casts stigma on the petitioner. 5. It was submitted that if the work of the petitioner was not satisfactory during the period of probation, it was the duty cast upon the superior officer to give an opportunity to improve the performance by pointing out the area of poor performance. In the present case, no memo or remark was given to the petitioner, nor was any communication given to the petitioner, and therefore, the petitioner had every reason to believe that her performance was quite satisfactory during the period of probation and that even for the year 2000, a reasonably good grading was given to her and that for the next year, no grading had been given at all. It was contended that the High Court had formed an opinion that the performance and conduct of the petitioner was not satisfactory on the basis of reporting made by the President of the Industrial Court, who has no power or authority to make any observation, remark or reporting in respect of the peformance and conduct of the petitioner. It was submitted that other probationers appointed alongwith the petitioner who had been confirmed in the services by the same impugned Notification, include those probationers to whom advisory memos or memos were issued as against the petitioner to whom no warning or advisory memo was ever issued. 6. The respondent no.2-High Court filed a detailed reply stating that on completion of two years period of probation on 20th October, 2001, the question of appointing or otherwise of 21 candidates, including the petitioner on long term basis on their satisfactory completion or otherwise of the probation period was taken up for consideration by the High Court. The High Court by a letter dated 9th January, 2002 requested the President, Industrial Court, Ahmedabad, who is the Head of the Department for Industrial Courts and Labour Courts in the State to submit his special report in respect of all probationers including the petitioner, giving his considered opinion as regards the merit and fitness of the probationers for their continuation as Labour Court Judges on long term basis. While so requesting, the President was informed that he should take into consideration the judgments delivered by such probationer and other aspects of the judicial service in the report which he would prepare. 7. It was further stated that the President, Industrial Court, Ahmedabad by his letter dated 18th February, 2002, submitted a special report in respect of all probationers including the petitioner. The opinion given by the President in his special report in respect of the petitioner reads as under: "She is honest and polite, but her assessment of disposal is not so good, but, her overall assessment is reasonably good. So, she may be appointed on long term basis." 8. It was stated that the High Court while considering the question of appointing the probationers on long term basis on their satisfactory completion of the probation period has taken into consideration various aspects like special report of the President, confidential report during the period of probation in respect of probationers, vigilance cases, departmental inquiries and administrative complaints. 9. It was stated that the following adverse remarks were passed by the President of the Industrial Court in the confidential report of the petitioner for the year 2001: Personal Characteristics:- (7) Diligence & Industry In active. Method of work:- (e) Overall assessment of Not so good. It was further stated that thereafter the file of the petitioner was placed before the Honourable the Chief Justice and the Honourable Unit Judge. It was stated that it was opined by the Honourable Unit Judge that: "Ms.C.L.Mehta is inactive and her disposal is not so good. This officer cannot be appointed on long term basis, even she is found to be honest and polite by the President, Industrial Court." It was stated that it was further decided that the file of the petitioner be placed before the Standing Committee on 7-5-2002. It was stated that in the Chamber meeting which was held on 29th June, 2002 it was decided that the petitioner cannot be given appointment on long term basis in view of the unsatisfactory performance and accordingly on 9-7-2002, the Government was informed that the petitioner cannot be appointed on long term basis and that the services of the petitioner be put to an end with immediate effect. In pursuance of the recommendation, the Government vide its Notification dated 8th August, 2002 issued by the Labour and Employment Department terminated the services of the petitioner. 10. The petitioner filed an affidavit-in-rejoinder to the reply filed by the respondent no.2, wherein it was contended that the President of the Industrial Court had filled up the confidential report for the year 2001 in which it was stated that the petitioner is `in active' in reference to "diligence and industry", and so far as overall assessment of disposal is concerned, he has stated that the same is "not so good". It was contended that this confidential report is quite contradictory to his own special report to the High Court wherein it is clearly stated that the petitioner's overall assessment is reasonably good and that she may be appointed on long term basis. It was submitted that before writing confidential report for the year 2001, no warning, memo or oral instruction was given to the petitioner in respect of her performance. Reliance has been placed upon the General Administrative Department Resolution dated 8th March, 1969 to point out that every employee should know about his/her defects and how to remove them and that at no point of time should an employee be kept ignorant of the reporting officer's opinion when his/her services are not considered satisfactory. It was contended that the entire academic career of the petitioner, service career and confidential report for the year 2000 ought to have been taken into consideration. 11. It was contended that by a letter dated 23rd April,2002, the President of the Industrial Court informed the petitioner about the norms for determining the adequacy of disposal to various categories for the assessment of judicial work done by the Member, Industrial Court and Judges of the Labour Court. It is pointed out that the said document clearly shows that the norms came into effect from 1st April, 2002 and prior thereto, there were no written norms. It was submitted that even otherwise, the peformance of the petitioner in the context of disposal of cases was at par with other Judges of the Labour Court who are confirmed. It was submitted that this Court may call for the details of disposal of cases done by other Judges whose services have been confirmed as well as the confidential report and special report in respect of them so as to ascertain the true facts. It was also contended that the opinion of the Unit Judge was based upon the special report and confidential report of the President of the Industrial Court which is on the face of it contradictory and cannot be relied upon. It was submitted that had the comparative assessment of the disposal of cases been taken into consideration, the services of the petitioner would have been confirmed. 12. Mr. J.R.Nanavati, learned Counsel appearing on behalf of the petitioner has drawn our attention to the academic career of the petitioner to show that she has excelled throughout from the First Year of LL.B. to LL.M. The learned Counsel contended that as per Rule 3 of the Labour Court-Judge (Junior Division), Recruitment Rules,1982, a candidate appointed by direct selection shall be on probation for a period of two years, and that the said rule does not provide for extension of the period of probation. It was contended that the said rule does not provide that probation will be automatically continued beyond the period of probation. 12.1 The learned Counsel has referred to the conditions No.3 and 4 of the Notification dated 12th October, 1999 whereby the petitioner had been appointed on probation for a period of two years as Judge, Labour Court. It was contended that condition no.4 has to be read first and assessment of performance has to be made during the period of probation. On completion of probation, it is the bounden duty of the respondents to assess the performance of the probationers. It was contended that on a combined reading of conditions no.1, 3 and 4 of the said Notification, on expiry of two years, the probationer automatically acquires the status of permanency. It was submitted rule 3 of the said Rules does not provide for any extension of the period of probation and that the order of appointment cannot go beyond the rule. It was submitted that the reason of the rule shows that two years probation is mandatory and that the respondents cannot go beyond the rule and extend the period of probation. It was submitted that there was a solemn assurance by the rule that the probation was for a period of two years only. It was contended that upon completion of the period of probation there was an automatic confirmation. 12.2 The learned Counsel submitted that the qualifying (upper age limit) for the appointment of Judge, Labour Court is 45 years. It was contended that Advocates are recruited as they are familiar with the system and that since trained Advocates are recruited, their ability to work cannot be tested and that the same is unquestionable. It was contended that looking to the upper age limit, persons of considerable age and experience are recruited, and they cannot be thrown out when they are on the verge of retirement. 12.3 The learned Counsel contended that the content of the rule must be percolated in the order and the decision should be taken before expiry of two years. He submitted that power of extension can be provided by the rules and that there cannot be any deemed extension. It was contended that the rule lays down the maximum period of probation and nothing more and in the facts of the present case, the rule is absolute and unqualified and that the order of appointment has to be read in harmony with the rules. 12.4 The learned Counsel referred to the circular dated 30th March, 1989 wherein the guidelines for putting an end to and extending the period of probation of employees/officers appointed on probationary basis are laid down. Reference was made in particular to clause (10) of the said circular which provides that under any circumstances, within three months of completion of the period of probation, the probationary period should be put to an end and orders giving long term appointment or extending the period of probation should be passed. 12.5 The learned Counsel referred to paragraphs 4 and 5 of the affidavit in reply filed on behalf of the respondent no.2 and submitted that the special report was called for from the President, Industrial Court who was also the author of the confidential reports of the petitioner. It was submitted that the author of the confidential reports has said that the petitioner is fit for being confirmed. The learned Counsel also referred to paragraph 8 of the reply wherein the adverse remarks in the confidential report for the year 2001 in respect of the petitioner are set out and submitted that analysis of the affidavit shows that the special report made by the President, Industrial Tribual, shows that the petitioner was fit for long term appointment. The learned Counsel also referred to to the said confidential report wherein under the heading "method of work", the overall assessment is shown to be " not so good" and submitted that there is an element of absurdity in the expression "not so good". 12.6. The learned Counsel for the petitioner contended that the impugned order must meet with the test of Aricle 14, in that, the decision must be rational and the same must be uniformly applied to the cases at hand. It was submitted that the probative value of the material on record must be considered. 12.7. Referring to the facts of the present case, the learned Counsel submitted that the decision contained in the impugned order is based on reasons that are discriminatory. It was contended that the same principle is applied differently to different persons. It was contended that there was no criteria for disposal at the relevant time. The learned Counsel also referred to the communication dated 23rd April, 2002 addressed to the petitioner by the President, Industrial Court, wherein it was stated that the norms of disposal and guidelines are brought into force with effect from 1st April, 2002, and contended that the norms which were not in force could not have been taken into consideration for the purpose of assessing the performance of the petitioner. The learned Counsel drew our attention to the disposal sheet annexed as Annexure "H" wherein details regarding the cases disposed by the petitioner are set out. The learned Counsel submitted that the said disposal sheet has to be read in juxtaposition with the norms provided at Annexure "H (h)" to the petition. He submitted that there is nothing to show as to whether anything was done to check the veracity of the report submitted by the President, Industrial Court. 12.8 The learned Counsel contended that prior to April, 2002, no standards had been laid down regarding disposal. He submitted that the assessment of a candidate depends on the overall assessment of the entire record. It was submitted that the High Court has not considered the overall assessment and that the petitioner was entitled to consideration of the overall assessment of her work. 12.9 The learned Counsel contended that in his report the President, Industrial Court says that the petitioner is inactive and that the disposal is not so good, but he has not placed the positive things before the Judges of the High Court. It was submitted that overall assessment can be made upon consideration of the positive and negative points taken together. 12.10 The learned Counsel emphasized that the special report says that " She is honest and polite. Her assessment of disposal is not so good, but her overall assessment is reasonably good. So, she may be appointed on long term basis", and the Honourable Unit Judge opined that the petitioner is inactive and that the disposal is not so good and that she cannot be appointed on long term basis even if she is found to be honest and polite by the President, Industrial Court. It was contended that the Honourable Unit Judge appears to have formed his opinion on the basis of the report of the President, Industrial Court and does not say anything about the overall consideration of the petitioner's service record. It was contended that when one says that the disposal is not so good, then it can be said to be fair. It was also contended that the fact that the Notification regarding disposal came later, has been overlooked. Moreover, as per the Annual Confidential Report for the year 2001, the disposal of heavy and contested matters was good, and therefore, disposal of petty matters was not so good. It was contended that this aspect has not at all been considered. It was submitted that the positive material of two years has not at all been taken into consideration. It was also submitted that other similarly situated candidates are continued on the basis of overall assessment and that in the case of the petitioner, the overall assessment has not been considered. 12.11 The learned Counsel submitted that on an application of the Wednesbury's principle, the impugned order should satisfy the test as to whether a reasonable man would upon overall assessment of the petitioner's service record, terminate her services. 12.12 It was contended that the two grounds upon which the impugned order is based, would be subject to judicial review. Thus, all aspects have to be considered in conjunction with all the positive aspects which are emanating from the Annual Confidential Reports of the two years which had not been considered. It was submitted that the author of the two entries has himself recommended that the petitioner should be continued. It was contended that satisfaction should be arrived at on an overall assessment and that the conclusion has to be arrived at after giving proper probative value of each criteria which has not been done in the present case. 13. In support of his contentions, the learned Counsel for the petitioner has relied upon the following precedents: (a) The decision of the Supreme Court in the case of C.G.SHARMA V. STATE OF GUJARAT reported in 2001(3) G.L.H. 643, was cited for the proposition that even if the power is there to terminate at the end of the probation period or during the extended period of probation at any time, such power cannot be exercised in an arbitrary manner. It was observed that, arbitrariness strikes at the very root of the principle of reasonableness, prudence and rationality. It was found that there is a clear and transparent case of arbitrary exercise of power and that the respondents have failed to place any material on record whatsoever in support of the case as to why and on what basis the work of the appellant could not be said to be satisfactory, when the cases in which the work was assessed to be poor repeatedly were also confirmed and petitioner as well as others were all appointees of the year 1991. It was observed that had uniformity been followed and the norms of disposal been applied in an even manner and there had been objective appraisal of data on record on a uniform yardstick, the petitioner could not be terminated. It was held that when the probationers are taken for confirmation or termination different yardsticks cannot be applied and that norms on which the question is taken up and applied should be uniform and if any departure is made, adequate reasons are required to be recorded. (b) The decision of the Supreme Court in the case of HIGH COURT OF M.P. V. SATYA NARAYAN JHAVAR reported in (2001) 7 SCC 161, was cited to point out that the Supreme Court has laid down three classifications of cases in the matter of probationers. It was observed therein that one line of cases is where in the service rules or the letter of appointment a period of probation is specified and the power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where, though under