JUDGMENT S. Rafat Alam, J.
1. In the instant writ petition the sole petitioner has come up for issuance of a direction in the nature of mandamus commanding the respondents to treat him on probation with effect from 14.5.1986 and also to pay his emoluments accordingly. A further prayer has been made for quashing the order of the Divisional Manager dated 4.8.1986 terminating petitioner's service as Apprentice Development Officer and for a direction to put the petitioner on probation. A prayer for quashing Rule 6.1 of the Life Insurance Corporation of India (Apprentice Development Officers) Recruitment Scheme, 1980 has also been made.
2. Heard Sri Shashi Kant Gupta, learned Counsel for the petitioner and Sri Manish Goyal, learned Counsel for the respondents.
3. The short facts giving rise to the writ petition, stated in brief, is that the Life Insurance Corporation of India vide advertisement dated 22.11.1984 invited applications for the selection of Apprentice Development Officer for urban areas as well as rural areas under Life Insurance Corporation of India (Apprentice Development Officers) Recruitment Scheme, 1980 (hereinafter referred to as Scheme of 1980). The petitioner, pursuant to the aforesaid advertisement, also applied along with others on 13.12.1984. The petitioner appeared in the written test as well as in the interview and having been qualified was offered appointment as Apprentice Development Officer vide letter dated 13.5.1985 (Anneuxre-2 to the writ petition) for a period of one year commencing from 15.5.1985 on a stipend of Rs. 600/- per month. It was also incorporated in the letter of appointment/selection that on completion of apprenticeship period, if his work and conduct is found satisfactory, he will be appointed as Development Officer on probation on a monthly basic salary of Rs. 250/- and such other allowances as are admissible in accordance with the Staff Regulation. Paragraph 4 of the selection letter provides that during the period of apprenticeship, he shall be liable to be discharged from service without any notice. Paragraph 6 provides that his appointment during the apprenticeship period shall be governed in all respect by the terms and conditions set out in the Scheme of 1980. Paragraph 8 provides that in the event of acceptance of offer, the duplicate copy of the letter of appointment, after affixing the signature thereon, as token of acceptance of the terms and conditions of appointment, was to return to the Corporation. Paragraph 9 also provides that if he accepts the offer he is required to report to the instructor of training centre at Divisional Manager, Agra on 15.5.1985 at 10 am. The petitioner being fully aware of the terms and conditions of his selection accepted the same and joined the training on 15.5.1985. However, when he was undergoing training it was detected that he deliberately withheld material information in the application form dated 13.4.1985 and, therefore, in terms of the letter of appointment by the impugned order dated 4.8.1986 his service as Apprentice Development Officer was terminated with immediate effect. Hence this writ petition.
4. Sri Shashi Kant Gupta, learned Counsel for the petitioner vehemently contended that the petitioner has done theoretical training successfully from 15.5.1985 to 14.7.1985 and thereafter he was sent for Administrative Training on 16.7.1985 at Hathras Branch for a period of one month; that having completed one month Administrative Training, he was asked to join as Apprentice Development Officer for field training at Lodha Block, Aligarh II Branch. It is further stated that the petitioner during the training was discharging his function with due diligence and his performance was found to be satisfactory by all concerned and was appreciated by the Branch Manager (respondent No. 3) vide letter dated 18.11.1985 recommending that the petitioner be put on probation. It is also submitted that despite repeated requests of respondent No. 3, the petitioner was not put on probation although the other trainees selected along with the petitioner were already put on probation and without there being any reason by the impugned order his services have now been terminated. It is contended that the impugned order is punitive in nature and could not have been passed without affording opportunity of hearing. It is submitted that in the counter affidavit the respondents have disclosed that the order of termination was passed since some information was withheld by the petitioner, which amounts to imputing allegations, and thus the impugned order should not have been passed without affording an opportunity to explain the same. The argument proceeds that the order of termination is not a termination simplicitor but with the allegations and, therefore, the rules of natural justice was to be adhered to before passing the order of termination. It is further contended that non-disclosure of the fact of his working as agent in the corporation prior to selection as Apprentice Development Officer was neither a material information nor by withholding such information the petitioner has drawn any benefit out of it and, therefore, the termination of the service of the petitioner on this score is unwarranted and unjust. He further argued that the petitioner was subjected to a discriminatory treatment, in as much as, persons junior to him have been put on probation after completion of training whereas the petitioner despite having completed the training successfully was not put on probation as per Clause 7.1 of the scheme of 1980. The submission is that nothing adverse was found during the period of training and, therefore, as per Rule 7-1 of the scheme of 1980, the respondent ought to have put him on probation and thus, the impugned order terminating his services is in gross violation of Rule 7.1 of the scheme of 1980. He further placed reliance on the judgment of the Hon'ble Apex Court in the case of The Manager, Govt Branch Press and Anr. v. D.B. Belliappa AIR 1979 SC 429. Learned Counsel further submitted that the provisions contained in Rule 6.1 of the scheme of 1980 is arbitrary and being opposed to public policy deserves to be set aside.
5. On the other hand, Shri Manish Goyal, learned Counsel for the respondent opposed the writ petition and submitted that the petitioner having accepted the terms and conditions of selection for training is bound by the same. He further submitted that the petitioner furnished false information in the application form and deliberately withheld the informations sought from a candidate about his previous working in the Corporation as an agent. It is submitted that the petitioner was already working as an agent at Hathras Branch of the office of the Corporation since 5.7.1979 with agency code No. 3709276. He therefore made wrong declaration in the form that the information furnished by him is true and correct, which is of serious nature and this alone entails his termination from the apprenticeship as per terms of the contract. Learned Counsel for the respondent also placed reliance on the judgments of the Hon'ble Apex Court in the case of A.P. Public Service Commission v. Koneti Venkateswarulu and Ors. , Shailaja Shivajirap Patil v. President, Hon'ble Khasdar UGS Sanstha and Ors. , Kalyani Sharp India Ltd. v. Labour Court No. 1, Gwalior and Anr. , Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution v. Educational Appellate Tribunal and Anr. , Life Insurance Corporation of India and Anr. v. Shri Raghavendra Seshagiri Rao Kulkarni , M. Venugopal v. Divisinal Manager, Life Insurance Corporation of India, Machilipatnam, A.P. and Anr. , Director, Institute of Management Development, U.P. v. Smt. Pushpa Srivastava 1992 AII.L.J. 909, Parvesh Kumar Gupta v. Life Insurance Co.of India and Anr. 2003 AII.L.J. 444, Neeraj Kumar Soti and Ors. v. Life Insurance Corporation and Ors. 1997 AII.LJ. 776. It is also argued on behalf of the respondent that the claim of the petitioner that as apprentice he discharged his duties with due diligence and his performance was full of satisfaction, is not correct. It is submitted that the Manager (Sales) vide letter dated 1.11.1986 (annexure 2 to the counter affidavit) informed the petitioner about the complaint made by his Branch Manager in not taking interest in developing the area allotted to him for life insurance business and invited his comments. It is thus submitted that the order of termination was passed in terms of the letter of appointment and keeping in view Clause 6.1 of the scheme of 1980, which provides that the Apprentice Development Officer may be discharged at any time without any notice or without assigning any reason.
6. I have considered the submissions made on both sides.
7. It is evident from a perusal of the advertisement, contained in annexure 1 to the writ petition, that the applications were invited in a prescribed format. Clause 13 of the advertisement provides that if a candidate is working as an agent in the corporation he has to disclose his date of appointment, as an agent and also to disclose the business made by him in the last five years. Petitioner, accordingly, applied on the prescribed application form, a copy whereof is enclosed as annexure 1 to the counter affidavit. In Clause 13 of the form a candidate was required to disclose as to whether he has ever worked or is working as an agent in the Corporation. Admittedly, the petitioner was working as an agent since 5.7.1979 with agency Code No. 3709276 despite that he in his own writing wrote on the application form 'Nahin' (no) and also gave declaration in the bottom of the application form that all the informations furnished in the application form are true and correct as to his knowledge and belief and if any information is found otherwise, he would be liable to such action, which is deemed fit and proper by the Corporation. Thus, the petitioner not only made a wrong statement but also made wrong declaration in the form. It is not relevant as to whether by the aforesaid non-disclosure of the fact or suppression of the fact any advantage is drawn by the petitioner or not; what is relevant is that this particular information, which was specifically asked for in the form was not disclosed correctly, rather a false statement was made that he had not worked, as an agent in the corporation. In the case of A.P. Public Service Commission v. Koneti Venkateswarulu and Ors. (supra) the candidate left column 11 of the application form pertaining to previous employment totally blank and gave declaration at the end of the application that all statement made in the application are true and correct and his candidature may be cancelled at any stage if it is found incorrect. The Hon'ble Apex Court repelled the contention that there was no mala fide intention in not disclosing the full particulars and due to inadvertence on the part of the candidate disclosure of his previous employment was not made, which could not be a reason for the cancellation of his candidature. The Hon'ble Apex Court held that it is not open to the candidate to sit in the judgment about the relevance of the information called for and decide to supply it or not. Their Lordships endorsed the view taken by the Hon'ble Apex Court in the case of Kendriya Vidyalaya Sangathan and Ors. v. Ram Ratan Yadav wherein it has been held that a person, who indulges in such suppresso veri and suggestio falsi and obtains employment by false pretence does not deserve any public employment.
8. In the case in hand, in the advertisement as well as in the application form the Corporation asked the candidate to furnish information about his working, as an agent in the Corporation, which, the petitioner in clear words, stated no, meaning thereby that he had not worked in the Corporation as agent, which was, admittedly, false, and thus, he is guilty of furnishing false statement, which not only disentitles him to continue in service but also disentitles him to get any relief under the equitable jurisdiction of this Court.
9. The contention that the impugned order is not termination simplicitor, rather punitive and, therefore, the same could not have been passed without affording any opportunity of hearing or show cause is also devoid of merit and cannot be accepted in the facts of the case. By letter dated 13.5.1985 the petitioner was offered appointment as Apprentice Development Officer, with clear stipulation that his appointment could be terminated at any time without any notice. In turn he accepted and joined the training knowing fully well that his services can be terminated without notice and, therefore, the order of termination being in terms of the letter of appointment there can be no exception to it. Even the scheme under which the petitioner was given appointment, as Apprentice Development Officer, provides that he can be discharged from apprenticeship at any time without assigning any reason or without any notice. The respondent though could have initiated further action against the petitioner in view of the declaration made by him in the application form but they decided only to dispense with his apprenticeship and, therefore, they did not initiate inquiry and as such the impugned order cannot be held to be punitive or stigmatic. The Hon'ble Apex Court in the, case of Parshotam Lal Dhingra v. Union of India AIR 1958 SC 36 held that mere use of expressions like 'terminate' or 'discharge' is not conclusive and in spite of the use of such expressions, the court may determine the true nature of the order to ascertain whether the action taken against government servant is punitive in nature. Their Lordships further laid down two tests to find out the nature of the order, viz., (1) whether the temporary government servant had a right to the post or the rank or (2) whether he has been visited with evil consequences. Their Lordships further held that if either of the tests is satisfied, the order of termination of a temporary government servant can be said to be by way of punishment. In the case in hand the petitioner was selected for training as Apprentice Development Officer under the Scheme. Clause 6.1 of the Scheme of 1980 itself provides that an Apprentice Development Officer may be discharged at any time without any notice or without any reason whatsoever. Clause 6.1 is extracted below for ready reference:
An Apprentice Development Officer, other than an employee-apprentice, may be discharged at any time without any notice or without assigning any reasons whatsoever.
10. Petitioner's selection was for the post of Apprentice Development Officer and the dictionary meaning of 'apprentice' as given in the Webster's Dictionary is that some one learning a craft or trade from an employer to whom he is bound by legal agreement for specified period. Thus, the apprentice is a learner and during learning the trade or business, he does not acquire the status of an employee. In the instant case the petitioner was not getting salary but was given stipend of Rs. 600/- every month and only having successful completion of training, he could have been appointed and put on probation. The Apprentice Development Officer is defined in the recruitment scheme of 1980, which is as under: -
(a) "apprentice Development Officer" means a person recruited under this Scheme for training and subsequent appointment to the cadre of Development Officers and includes an employee-apprentice.
11. Clause 7.1 of the scheme provides that only having successfully completion of training an Apprentice Development Officer will be appointed as Development Officer on probation. Clause 7.2 provides that period of probation shall be of one year and at the discretion of the competent authority it may be extended up to maximum period of two years and only after confirmation the probationer shall be confirmed in service as Development Officer. Therefore, an Apprentice Development Officer during the training does not get the status of regular or even of temporary employee and his selection or appointment can be dispensed with after completion of training or even in the midst of training. Therefore, looking to the nature of selection and status of Apprentice Development Officer, the petitioner has no right to the post nor it can be held that Clause 6.1 of the scheme of 1980 is arbitrary or illegal. The petitioner, having fully aware of the terms and conditions of selection and having accepted the same, he cannot be allowed to blow hot and cold.
12. The contention that since the respondents in the counter affidavit has levelled allegation that the petitioner withheld material information and obtained appointment by suppression of facts and thus, the impugned order being stigmatic, it was necessary to provide an opportunity of show cause can also not be accepted for the reason that the suppression of facts or withholding information by the petitioner may be the motive or the inducing factor which influenced the respondents to take action under the terms of the contract of employment and the Rules but it was not a foundation.
13. It is well settled legal position that termination founded on a probationer's misconduct may be held to be illegal while terminations motivated by the probationer's misconduct cannot be said to be illegal or punitive in nature. In the case of Pavanendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences and Anr. repor (Para-21) ted in AIR 2002 SC 23 the Hon'ble Apex Court laid down the test in para 21 of the judgment to find out as to whether the order of termination is punitive or not, which reads as under:
One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct (c) which culminated in a finding of guilt, If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld.
14. In the instant case, admittedly, the Corporation did not chose to initiate enquiry against the petitioner in respect of the allegation nor any finding of guilt is recorded and, therefore, the impugned order of termination cannot be held to be punitive or stigmatic. The contention of the learned Counsel for the petitioner that the action of the respondent is arbitrary and reliance on the judgment of the Apex Court in the case of The Manager, Government Branch Press and Anr. v. D.B. Belliappa , is misplaced and is of no help to the petitioner for the reason that in that case D.B. Beliappa was appointed as temporary Government Servant and was terminated without there being any reason or cause for such termination. The same was challenged on the ground that Beliappa was picked up for the impugned action without any special reason, which could put him in a class separate from that of three juniors, who were retained in service. It appears from the aforesaid judgment of the Apex Court that the counsel appearing for the appellant admitted before the Apex Court that the resolution was passed without any reason and in that background their Lordships held that the power reserved to the employer under the conditions of employment has been exercised arbitrarily. This is not the case here. In the instant case, the respondent has disclosed in their counter affidavit that the petitioner secured appointment by playing fraud with the Corporation. In the counter affidavit further the assertion of the petitioner made in para 11 of the writ petition that he was doing his job with due diligence and his performance was well to the full satisfaction of his authorities, is denied in para 9. Thus, the contention that the petitioner was subjected to discriminatory treatment and singled out is also devoid of merit and does not borne out from the record.
15. In the case of Parvesh Kumar Gupta (Supra), the Apprentice Development Officer having completion of successful training, was given appointment order appointing him as Development Officer on probation for a period of one year which was further extended with a fresh target to be achieved by him during the extended period of probation. However, when he failed to achieve the target, his services were terminated under the conditions mentioned in the letter of appointment. The Division Bench of this Court approved the order of termination.
16. Thus, in view of the discussions made above, I am of the view, that the impugned order does not call for any interference and the petitioner is not entitled for the relief sought in the writ petition. It is, however, made clear that if the post of Apprentice Development Officer is advertised in future and the petitioner applies for the same, his candidature may be considered in accordance with law and may not be rejected only on the ground of dismissal of this petition.
17. In the result, the petition fails and is hereby dismissed with the above observation but without any order as to costs.