IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.10.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH W.A.No.1244 of 2003 The Secretary Bharathidasan College of Arts and Science Ellispettai Pallapalayam (Post) Erode 638 116 .. Appellant/2nd Respondent -Vs- 1. S.Krubainathan 2. The Registrar Bharathiar University Coimbatore .. Respondents/Petitioner/ 1st Respondent Appeal filed under Clause 15 of the Letters Patent, against the order dated 31.1.2003 made in W.P.No.16460 of 2001 filed under Article 226 of the constitution of India, praying to issue a writ of Certiorari, to call for the entire records of the second respondent in his proceedings No.Ref.No.Nil dated 7.6.2001 and quash the same. For Appellant :: Mr.K.S.Govinda Prasad For Respondents :: No appearance JUDGMENT (Judgment of the Court was delivered by D.MURUGESAN, J.) Heard the learned counsel for the appellant. Though notices were served on both the respondents, none appears. 2. The first respondent was appointed as Physical Director from 19.4.2000 in the scale of Rs.2,200/- plus other allowances by order dated 19.4.2000. The appointment order reads as under:- "BHARATHIDASAN COLLEGE OF ARTS & SCIENCE ELLISPETTAI, PALLAPALAYAM (POST), ERODE638 116 https://hcservices.ecourts.gov.in/hcservices/ N.KRISHNAN SECRETARY & CORRESPONDENT DATED: 19.4.2000 PROCEEDINGS OF THIRU N.KRISHNAN, SECRETARY & CORRESPONDENT, BHARATHIDASAN COLLEGE OF ARTS & SCIENCE, ERODE 638 116 Sub: Bharathidasan College of Arts & Science, Erode - Appointment - Teaching staff - Mr.S.Kirubainathan, Physical Director - Appointment order - issued - reg. ------- Mr.S.Kirubainathan is informed that the governing body of Bharathidasan College of Arts and Science are pleased to appoint him as Physical Director from 19th April 2000 on a scale of Rs.2,200/- plus other allowances per month. You are governed by the following conditions: 1. You will be on probation for a period of one year. Your post will be confirmed after your successful completion of one year probation. 2. Your appointment is subject to approval of the Registrar, Bharathiar University. 3. You will not be relieved in the middle of the academic year. You have to enter into an agreement with the management that you will work in this institution at least for 3 years. 4. If the management is not satisfied with your performance and conduct, your service will be terminated with one month notice. Similarly, if you want to leave the college you have to give one month notice. 5. You have to work under the general guidance, direction and supervision of the Principal. Sd/- Secretary & Correspondent ......" By a subsequent notice dated 7.5.2001, he was given one month notice on the ground that his performance was not satisfactory and the said order reads as under:- "Mr.S.Kirubainathan, Physical Director, is informed that the management is not satisfied with his performance and the way he conducted himself and he is hereby given a month's notice and his https://hcservices.ecourts.gov.in/hcservices/ services will be terminated on 6th June, 2001." On the expiry of the period of one month, by subsequent order dated 7.6.2001, he was terminated by the following order:- "Mr.S.Kirubainathan, Physical Director, is informed that his services are terminated on 6.6.2001 (FN). This is in continuation of the notice dated 7.5.2001 served on him." 3. The first respondent questioned the order dated 7.6.2001 in the writ petition on the ground that he was not given any opportunity of show cause notice and no enquiry was conducted and therefore the order is illegal for non compliance of the principles of natural justice. The writ petition came to be allowed accepting the contentions of the first respondent. As against the said order, the present appeal is filed by the college. 4. A perusal of the appointment order shows that the first respondent will be on probation for a period of one year and after successful completion of probation, his appointment will be confirmed. Admittedly, there is no order of confirmation. As the first respondent's performance was not found satisfactory, in terms of clause-4 of the appointment order, one month notice dated 7.5.2001 was issued and on the expiry of the period of one month, the impugned order dated 7.6.2001 terminating the services of the first respondent was made. In our considered view, so long as the appointment of the first respondent made initially on probation is not confirmed, he cannot claim a right over the post seeking for a show cause notice and conduct of enquiry. As it is not in dispute that on completion of the period of one year his probation was not confirmed, in the absence of any specific confirmation, the appellant is well within its right to invoke clause-4 of the appointment order to issue one month notice on the ground that the performance of the first respondent was not satisfactory and on completion of the period of one month, his services came to be terminated. Hence we do not find any infirmity in the order impugned in the writ petition in discharging the first respondent from service. Though the order impugned in the writ petition refers to the word 'termination', in case when the termination is effected pursuant to the conditions of the appointment order, it must be construed as 'discharged from duty' and not a 'termination' strictly in the sense as applied against a permanent employee. Moreover, the Supreme Court in the judgment in Municipal Corporation, Raipur v. Ashok Kumar Misra (1991) 3 SCC 325 has held as follows:- "Exercise of the power to extend the probation is hedged with the existence of the rule in that regard followed by positive act of either confirmation of the probation or discharge from service or reversion to the substantive post within a reasonable time https://hcservices.ecourts.gov.in/hcservices/ after the expiry of the period of probation. If the rules do not empower the appointing authority to extend the probation beyond the prescribed period, or where the rules are absent about confirmation or passing of the prescribed test for confirmation of probation then inaction for a very long time may lead to an indication of the satisfactory completion of probation. But in this case Rule 8 expressly postulates otherwise. The period of probation is subject to extension by order in writing for another period of one year. Passing the prescribed examinations and successful completion of probation and to make an order of confirmation are condition precedent. Mere expiry of the initial period of probation does not automatically have the effect of deemed confirmation and the status of a deemed confirmation of the probation. An express order in that regard only confers the status of an approved probationer. We are of the view that note to sub-rule (2) read with sub-rule (6) of Rule 8 manifests the legislative intent that confirmation of the probation of the respondent would be made only on successful completion of the probation and the passing of the prescribed examinations. It is not the respondent’s case that he passed all the examinations. He shall be deemed to be continued on probation. Before confirmation the appointing authority is empowered to terminate the service of the probationer by issuing one calendar month’s notice in writing and on expiry thereof the service stands terminated without any further notice. Within three months from the date of expiry of original two years period of probation and within one year’s period, the order of termination was made. In this view the question of conducting an inquiry under the Classification, Control and Appeal (Rules) after giving an opportunity and that too for specific charges does not arise." The Supreme Court in H.F.Sangati v. Registrar General, High Court of Karnataka and others (2001 SCC (L&S) 534 has held that the discharge of a probationer from service during probation period for unsuitability was neither stigmatic nor punitive and hence affording opportunity or holding of departmental enquiry before passing such order was not necessary. In fact the Supreme Court in the judgment in Kunwar Arun Kumar v. U.P.Hill Electronics Corporation Ltd. & Ors. (1997) 2 SCC 191 has held that the appointing authority has to look into the performance of the work and duties during the period of probation and if they record a https://hcservices.ecourts.gov.in/hcservices/ finding that during that probation period, the work and performance of the duties were unsatisfactory, they are entitled to terminate the service in terms of the letter of appointment without conducting any enquiry and that does not amount to any stigma. 5. In view of the above, we find that the order of the learned single Judge cannot be sustained and it has to be set aside. For the said reason, the order in the writ petition is set aside and the writ appeal is allowed. Consequently, W.A.M.P.No.1545 of 2003 is closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ss To The Registrar Bharathiar University Coimbatore +1cc to Mr.K.V.Srinivasaraghavan, Advocate Sr 56809 BS (CO) km/20.10. W.A.No.1244 of 2003 https://hcservices.ecourts.gov.in/hcservices/