IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JULY, 2017 BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY WRIT PETITION NO.42012 OF 2012 (S-RES) BETWEEN:
K N VEENA AGED ABOUT 38 YEARS, W/O LATE SURESH, C/O SURESH HEBBAGILU, RIZWAN MANZIL, NEAR EXCISE OFFICE, HIRIYUR, CHITRADURGA – 577 598 (BY SRI SUBRAMANYA JOIS, SR. COUNSEL FOR SRI.K.C.SHANTHA KUMAR, ADV. (NOC)) AND:
THE PRINCIPAL DISTRICT & SESSIONS JUDGE CHITRADURGA, CHITRADURGA DIST.
(BY SRI D.NAGARAJ, AGA) …PETITIONER ...RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 29.9.2010 VIDE ANNEXURE-C, PASSED BY THE RESPONDENT AND QUASH THE SUBSEQUENT COMMUNICATION LETTER DATED 6.9.2012 VIDE ANNEXURE-D, PASSED BY THE RESPONDENT AND QUASH THE SUBSEQUENT RELIEVING LETTER DATED 10.9.2012 VIDE ANNEXURE-E, PASSED BY THE RESPONDENT AND DIRECT THE RESPONDENT TO PASS AN ORDER DECLARING THAT THE PETITIONER [PROBATIONER] HAS SATISFACTORILY COMPLETED HER PROBATION.
THIS WRIT PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner was appointed as Typist on 2nd April 2002 with a two years probationary period. The probation has not been declared. Thereafter, the probationary period has been extended from time to time. Even in the extended period also, the performance of the petitioner has not been improved hence the appointing authority-the District Judge sought for further extension from the High Court. The High Court had extended probationary period for two years from 2nd May 2005 to 1st May 2007 by its communication dated 28th July 2006. The condition that was put in the communication by the High Court was if the petitioner failed to improve, then she may be discharged from service. The extension of probationary period as a last chance, was communicated to the petitioner.
2. During the extended period, Departmental Enquiry No.2 of 2006 was initiated and the charge was levelled against the petitioner; and on conclusion of the enquiry, it was held the charges are proved and the same was communicated to the petitioner by its order dated 30th December 2009. As a consequence of proving the charges, the Disciplinary Authority has imposed the punishment of withholding one future increment without cumulative effect. Before the petitioner being discharged from duties, a communication was made to the petitioner by its order dated 29th September 2010 that her performance is found unsuitable, accordingly she was directed to be relieved from duties. Though she was discharged from duties, a letter was communicated from High Court to District Judge not to relieve the official. Accordingly, the effective date of discharge was postponed and thereafter it was given effect to in the month of September 2012. Before being discharged from duties, the petitioner preferred an appeal against the conviction in the Departmental Enquiry. The appeal came to be allowed by its order dated 28th February, 2014. Before the petitioner was relieved from duties, the appointing authority communicated a letter dated 19th May 2012 to the Registrar (Vigilance) of High Court stating that “of late, as per the report given by the Presiding Officer under whom Smt. K.N.Veena is working, her work and conduct are found to be satisfactory”. In this behalf, the learned senior counsel appearing for the counsel for the petitioner submits that the discharge of petitioner from service, that too after more than two years from the date of extended period and communication dated 19th May 2012, in which it is informed that she has improved to the satisfaction of the higher officer, was not proper. Secondly, the punishment order withholding of one future increment without cumulative effect which was in appeal, has been set aside and all the adversaries have been expunged. If these aspects are taken into consideration, the petitioner could not have been discharged from duties. When the appointing authority, in his further communication sent to the Registrar (Vigilance) of the High Court has informed that the petitioner has improved, it is the submission of the learned Senior Counsel, that the impugned order of discharging the petitioner from duties is to be set aside since it is not in consonance with the provisions of Karnataka Civil Services (Probation) Rules, 1977 (for short hereinafter referred to as ‘the Rules’). The observation made while discharging the petitioner from duties “as unsuitable” is contrary to the entry made in the Confidential Report of the petitioner for the period quarterly ending 31st March 2010. The performance for declaration of probationary period of the official working in the Court of Civil Judge (Senior Division) and CJM, Chitradurga for the period ending 31st March 2010 has been referred as “satisfactory”. After having entered in the relevant column that the work of the petitioner is ‘satisfactory’, the order of discharge dated 29th September 2010 refers that the petitioner is unsuitable to hold the post. Hence, the impugned order is out of non-application of mind and the reference made in the impugned order that she is found unsuitable, is also contrary to the observation made by the District Judge in his communication dated 19th May 2012 in DO No.16/2004 addressed to the Registrar (Vigilance) of High Court in which it is referred by the Principal District Judge that “her work and conduct are found to be satisfactory”. These two references made are not reflected in the impugned order of discharge Annexure-C. Hence, it is contrary to Rule 5(1)(b) of the Rules. By referring to Rule 6(2) of the Rules, the learned senior counsel submits that the respondents should have given the reasons and grounds for discharging the petitioner from duties. Except stating the word “unsuitable” no other reason is mentioned in the communication, accordingly it is violation of Rule 6(1) of the Rules. He also submits that the respondent has not looked into the quarterly report for the period ending 31st March 2010 in which the petitioner gained the performance as “satisfactory and fit”. When that being the case, the question of discharging is in contravention of Rules. Though the petitioner has been discharged from duties by its communication in the year 2010, but it was given effect to only in the year 2012, hence the discharge is a result of mechanical application of mind. Further, the learned Senior counsel submitted that the petitioner has successfully completed the probationary period, for which she was continued to work till discharge even after continuing to work for more than two years of extended period. Further, if the petitioner is discharged on the pretext of disqualification at this stage, it would cause hardship to the petitioner and she would be put to irreparable loss and damage.
3. The learned Government Advocate files statement of objections. He submits to dismiss the petition. By referring the judgment of Hon'ble Supreme Court in the case of KAZIA MOHAMMED MUZZAMMIL v. STATE OF KARNATAKA AND ANOTHER reported in (2010)8 SCC 155, by referring paragraph 51 of the judgment, he submits that deemed confirmation on the principle of automatic confirmation does not apply to the case on hand. Though the petitioner was permitted to continue for more than two years after the last extended period, but that does not mean that she has successfully completed the probationary period or deemed to be confirmed. He submits that by mere completion of period of probation, the petitioner is not entitled for confirmation to the post held. As per Sub-rule (2) of Rule 5 of the Rules, unless a specific order to that effect is passed, any delay in issuance of the order under Sub-Rule (1) of Rule 5 of the Rules, shall not entitle the probationer to be deemed to have satisfactorily completed the period of probation. The respondent ought to have discharged the petitioner within two years from the date of appointment. However, by taking a lenient view by the High Court, she was continued for another extended period. The second extension was with a condition that she will not be permitted to continue further and she will have to be discharged from service. Within the said period, she did not improve herself and accordingly discharge was inevitable. By referring Rule 5(1)(b) of the Rules, the learned Government Advocate submits that the extension of probationary period the said rule and this extension was given only as a chance to the petitioner to improve as it is held by the Hon'ble Supreme Court in the case of KAZIA MOHAMMED MUZZAMMIL (supra). The learned Government Advocate reiterated that what has been done by the respondent in discharging the petitioner is simpliciter in accordance with law and no right accrued to the petitioner for continuation of service. Accordingly, he supported the impugned order. He has also relied upon the judgment in the case of HIGH COURT OF GUJARAT AND ANOTHER v. C.G. SHARMA reported in AIR 2004 SCW 6687 and submitted that even if the period of two years expires and the probationer is allowed to continue after the period of two years, automatic confirmation cannot be claimed as a matter of right, because in terms of Rules, work has to be satisfactory which is a pre-requisite or pre-condition for confirmation. In the instant case, if the petitioner is further continued for two years after the last extended period of two years that is for technical reason and that itself cannot be a ground to claim the right. The learned Government Advocate also referred to the judgment of Hon'ble Supreme Court in the case of CHAITANYA PRAKASH AND ANOTHER V. H OMKARAPPA reported in (2010)1 SCC (L & S) 644 in which the Hon'ble Supreme Court has held that discharge of probationer during the period of probation for unsatisfactory services cannot be set to be stigmatic. With regard to the power to discharge the petitioner in the probationary period, the learned Government Advocate referred to the judgment in the case of H.F. SANGATI v. REGISTRAR GENERAL, HIGH COURT OF KARNATAKA reported in AIR 2001 SC 1148.
4. At this stage, the learned Senior Counsel by referring the judgment of the Hon'ble Supreme Court in the case of ANOOP JAISWAL v. GOVERNMENT OF INDIA AND ANOTHER reported in (1984)2 SCC 369 and placing reliance on paragraph 12 of the judgment submits that though the discharge is simpliciter, but for the purpose to go beyond the object and motive to discharge, the court has to examine the fact and circumstances of the case. In the instant case, during the extended period of probation, enquiry was initiated and the petitioner was punished by withholding of one increment and thereafter in appeal the punishment was set aside. These things have to be taken into account for the purpose of discharging from service. Hence, discharging is not a simpliciter, it is dismissal from service on the basis of enquiry resulting in proving the charge against the petitioner. He has also referred to a judgment of Hon'ble Supreme Court in the case of CHANDRA PRAKASH SHAH v. STATE OF U.P. AND OTHERS reported in (2000)5 SCC 152 and submitted that the discharge was found on the misconduct and therefore it is punity. The termination is on the basis of departmental enquiry and hence what has been stated in the impugned order of discharge Annexure-C is not merely a simpliciter, but it is a major punishment.
5. Heard the learned senior counsel and the learned Government Advocate appearing for the State. It is undisputed fact that the petitioner was appointed as typist for a period of two years and further the probation was extended for another one year. Thereafter, the appointing authority has requested the High Court with regard to declaring the probationary period of the petitioner. This Court has extended the probation for a further period of two years from 2nd May 2005 to 1st May 2007. In the interregnum, enquiry was initiated in DE No.2 of 2006 resulting in punishing the petitioner by withholding one increment. These facts show that in addition to her performance in the office as an employee, Departmental enquiry was initiated which reflect her performance as a typist. The poor performance and unsatisfactory service are the grounds to discharge a person from office which is simpliciter and not a stigma and it is not punity. In the instant case, in the interregnum the petitioner was punished after holding due enquiry. Later on, this Court has exonerated and allowed the appeal and the punishment imposed on the petitioner has been set aside. The appeal was allowed on 28th February 2014. Before the appeal is allowed, she was discharged from service in September, 2012. The extended period of two years expired on 1st May 2007. However, the petitioner was continued as such till 2012. In the meanwhile, her performance has been assessed by the assessing authority and communicated the same to the respondent by communication dated 19th May 2012 in DO No.16 of 2012 by observing that the work and conduct are found to be satisfactory. Added to that the assessing authority has entered in the quarterly ending report dated 31st March 2010 about the adverse remarks dated 12th May 2010 at the relevant column as “satisfactory and fit”. These two observations made by the assessing authority and the accepting authority shows that the petitioner has been found suitable to the post. After having entered these two remarks dated 12th May 2010 in the quarterly ending report dated 31st March, 2010, Annexure-C has been passed and the petitioner was relieved from the post.
6. Rule 5 of the Probationary Rules contemplates that the appointing authority shall consider the suitability of the petitioner to hold the post to which he/she was appointed. If the appointing authority decides that the probationer is not suitable to hold the post to which he/she was appointed or has not passed special examination or special test, if any, required to be passed during the period of probation, shall consider the suitability of the probationer to hold the post. With regard to Rule 5 of the Rules, the assessing authority or appointing authority has entered the performance of the petitioner at relevant column as “satisfactory and fit”. The same was also communicated to the High Court vide communication dated 19th May 2012. These two instances are the matter for reference which prove that the petitioner has performed well and she was found to be suitable to the post for which she was appointed to. These aspects have not been gone into by the respondent as is held by the Hon'ble Supreme Court in the case of KAZIA MOHAMMED MUZZAMMIL (supra) wherein it is observed that “…discharge has to be simpliciter without causing a stigma upon the probationer concerned. In our view, it is difficult for the court to bring the present case within the class of the cases, where “deemed confirmation” or principle of “automatic confirmation” can be judiciously applied.” In the light of the judgment of the Hon'ble Supreme Court, the performance entered by the appointing authority dated 12th May 2010 for the quarterly ending report dated 31st March 2010 and the communication dated 19th May 2012 by the appointing authority to the High Court show that the performance of the petitioner is “satisfactory and fit” to hold the post. These two reports and the communication made to the High Court should have been taken into consideration before discharging the petitioner from service.
7. In the case of ANOOP JAISWAL (supra) at paragraph 12 of the judgment it observed thus:
“12. It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the order holds that the order through in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.”
8. As per the judgment, what is to be looked into is not merely the discharge order. Though the power conferred on the appointing authority to pass the discharge order, the reviewing authority or the higher authority has to look into as to whether the discharge is simpliciter or punity in nature. In the light of the above judgment and also in view of the fact that the petitioner right from the date of appointment, and during the extended period and further the petitioner was continued for another two years, punished in the departmental enquiry and thereafter the punishment was set aside in the appeal and the entering of performance of the petitioner in the confidential report for the quarterly ending report dated 31st March 2010 and communication dated 19th May 2012 all these show that the discharge of the petitioner from service is something like automatic and without application of mind.
9. In view of the above, I hold that the reporting authority has not considered remarks in the quarterly ending report dated 31st March 2010 which communicated on 12th May 2010 in which it was referred as “satisfactory and fit”; and secondly, it was communicated to this Court by letter dated 19th May 2012 that the petitioner’s work and conduct have been “satisfactory”. When such is the case, discharging the petitioner is not on the basis of unsuitability to hold the post, but probably might have referred the extended period for the second time i.e. from 02nd May 2005 to 1st May 2007 and further putting a condition that probationary period would not be extended any further. However, the period was extended. Under the circumstance, the authority must have thought that the petitioner might have been discharged from service. While doing so, if the authority had looked into the documents, the impugned order would not have been passed.
Under the circumstance, the petitioner succeeds and the petition is allowed. The petitioner is reinstated into service with immediate effect. The appointing authority has to pass order afresh declaring the probationary period of the petitioner based on the communication dated 19th May 2012 and the quarterly ending report dated 31st March 2010. The appointing authority is directed to pass appropriate order under Rule 6 of the rules. Time for compliance to reinstate is three months from the date of receipt of certified copy of this order. Petitioner is entitled for 50% of back-wages with continuity of service for the purpose of seniority and other benefits.
lnn Sd/- JUDGE