[1.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the appellants herein – original defendants – Gujarat State Road Transport Corporation and others to quash and set aside the impugned judgment and decree dated 01.02.1984 passed by the learned trial Court – learned Civil Judge (Junior Division), Junagadh in Regular Civil Suit No.603 of 1983 as well as the impugned judgment and order dated 31.01.1989 passed by the learned Appellate Court – learned Joint District Judge, Junagadh in Regular Civil Appeal No.33 of 1984 by which the learned Appellate Court has dismissed the said Appeal preferred by the appellants herein by confirming the judgment and decree passed by the learned trial Court decreeing the suit. [2.0] That the respondent herein – original plaintiff was appointed as a Clerk on probation initially for a period of one year with effect from 03.11.1981. That as during the probation his work was not found satisfactory, his probation period was extended for a further period of six months upto 02.05.1983 which further came to be extended for a further period of three months to 02.08.1983. That as his work was not found satisfactory during the probation period, on completion of the probation period, the respondent herein – original plaintiff came to be removed / relieved from the service by order dated 02.08.1983. That being aggrieved and dissatisfied with the order dated 02.08.1983 relieving the plaintiff from service on completion of the probation period on the ground that during the probation his services were not found satisfactory, the respondent herein – original plaintiff instituted the Regular Civil Suit No.603 of 1983 before the learned trial Court on the ground that before passing the order dated 02.08.1983 and removing him from service and as he was removed from the service on the ground that his work was not found satisfactory, the said order is punitive and it attaches stigma and therefore, before removing him from service a departmental inquiry was required to be initiated / held. Therefore, the case on behalf of the plaintiff was that order dated 02.08.1983 of removal is in breach of principles of natural justice.
[2.1] That the suit was resisted by the appellants herein – original defendants by filing the written statement submitting that Civil Court has no jurisdiction to entertain the suit as the Industrial Disputes Act would be applicable and therefore, the plaintiff was required to raise the dispute under the Industrial Disputes Act. The suit was resisted on merits also by submitting that as the work of the plaintiff was not satisfactory during the probation and when thereafter on completion of probation period, he is relieved, it cannot be said that the same is punitive for which a departmental inquiry was required to be initiated. Therefore, it was requested to dismiss the suit.
[2.2] That the learned trial Court framed the issues. Both the sides led evidence, oral as well as documentary. The learned trial Court specifically held that the Civil Court would have jurisdiction to entertain the suit as it was the case on behalf of the plaintiff that the order dated 02.08.1983 is in breach of principles of natural justice. On merits the learned trial Court held that as the order dated 02.08.1983 is based on the ground that the work of plaintiff is not found satisfactory and therefore, it attaches a stigma and therefore, before removing him from service, departmental inquiry was required to be initiated, which has not been held and therefore, the order dated 02.08.1983 is in breach of principles of natural justice and consequently the learned trial Court decreed the suit quashing and setting aside the order dated 02.08.1983 and directed the appellant to reinstate the plaintiff to his original post.
[2.3] Feeling aggrieved and dissatisfied with the judgment and decree dated 01.02.1984 passed by the learned trial Court in Regular Civil Suit No.603 of 1983, the appellants herein – original defendants preferred Regular Civil Appeal No.33 of 1984 before the learned Appellate Court and the learned Joint District Judge, Junagadh by impugned judgment and order dated 31.01.1989 has dismissed the said Appeal and confirmed the judgment and decree passed by the learned trial Court decreeing the suit.
[2.4] Feeling aggrieved and dissatisfied with the judgment and order passed by both the Courts below, the appellants herein – original defendants have preferred the present Second Appeal under Section 100 of the Code of Civil Procedure, 1908.
[3.0] At the outset it is required to be noted that while admitting the present Second Appeal, the learned Single Judge has framed the following substantial questions of law.
a) Whether in the facts and circumstances of the case the lower courts were right in law in holding that the order terminating the probation was an order dismissing the plaintiff from service?
b) Whether in the facts and circumstances of the case the lower courts were right in holding that the order dated 02.08.1983 (Exh.21) was illegal and invalid order?
[3.1] Now so far as the jurisdiction of the Civil Court to entertain the suit is concerned, considering the recent decision of the Hon'ble Supreme Court in the case of Rajasthan State Road Transport Corporation and Ors. vs. Mohar Singh reported in (2008)5 SCC 542, Ms. Vasavdatta Bhatt, learned advocate appearing on behalf of the appellants has fairly conceded that now the aforesaid issue is not res integra and it cannot be disputed that in the facts and circumstances of the case the Civil Court had jurisdiction to entertain the suit. However, on merits, she has vehemently submitted that the learned trial Court has materially erred in holding that the order dated 02.08.1983 relieving / removing the plaintiff from the service on completion of probation period is penal in nature and therefore, before terminating the services of plaintiff, a departmental inquiry was required to be initiated. It is submitted by Ms. Bhatt, learned advocate appearing on behalf of the appellants that as such as during the probation period the work of the plaintiff was not found satisfactory and therefore, when on completion of the probation period the plaintiff came to be removed/relieved, a departmental inquiry was not required to be initiated. Relying upon the decision of the Hon'ble Supreme Court in the case of Registrar, High Court of Gujarat and another vs. C.G. Sharma reported in AIR 2005 SC 344 as well as another decision of the Hon'ble Supreme Court in the case of Kazia Mohammed Muzzammil vs. State of Karnataka and Anr. reported in (2010)8 SCC 155 it is requested to allow the present Second Appeal and to quash and set aside the impugned judgment and order passed by both the Courts below.
[4.0] Shri A.S. Supehia, learned advocate appearing on behalf of the respondent original plaintiff is not in a position to show any decision contrary to the aforesaid decisions of the Hon'ble Supreme Court taking a view that if the services of the probationer is not extended on the ground that during the period of probation, his work is not found satisfactory, the said order cannot be said to be punitive and therefore, no departmental inquiry is required to be initiated. Therefore, it is requested to pass appropriate order.
[5.0] Heard learned advocates appearing on behalf of respective parties at length and considered the impugned judgment and decree passed by both the Courts below as well as the documentary evidences which are available from the Record & Proceedings received from the trial Court. From the documentary evidences and it is an admitted position that the original plaintiff was appointed as a Clerk on probation initially for a period of one year which came to be further extended for a period of six months and thereafter for a further period of three months upto 02.08.1983. It appears that during the probation period the work of the plaintiff was not found satisfactory and therefore, on completion of the probation period by order dated 02.08.1983 he was removed from the service and/or he was relieved from the service and/or his probation period was not further extended. The trial Court decreed the suit and quashed and set aside the said order dated 02.08.1983 solely on the ground that as the probation period was not extended on the ground that the work of the plaintiff is not found satisfactory, it is punitive order as it attaches a stigma and therefore, before terminating his services departmental inquiry was required to be initiated.
[5.1] Identical question came to be considered by the Hon'ble Supreme Court in the case of C.G. Sharma (Supra) and Kazia Mohammed Muzzammil (Supra) and it is held by the Hon'ble Supreme Court in the aforesaid decisions that if the work of the probationer is not found satisfactory and on completion of the probation period, his tenure is not extended and/or he is removed / relieved the said order cannot be said to be punitive and it does attach the stigma and therefore, no departmental inquiry is required to be initiated. Under the circumstances, the impugned judgment and decree passed by the learned trial Court confirmed by the learned Appellate Court holding the order dated 02.08.1983 is in breach of principles of natural justice cannot be sustained and the same deserves to be quashed and set aside.
[6.0] In view of the above and for the reasons stated above, present Second Appeal succeeds and impugned judgment and decree dated 01.02.1984 passed by the learned Civil Judge (J.D.), Junagadh in Regular Civil Suit No.603 of 1983 as well as the impugned judgment and order dated 31.01.1989 passed by the learned Joint District Judge, Junagadh in Regular Civil Appeal No.33 of 1984 are hereby quashed and set aside and consequently the suit filed by the original plaintiff is hereby dismissed. No costs.
Sd/ (M.R. Shah, J.) menon