K N VEENA Vs. PRINCIPAL DISTRICT

JUDGEMENT

(1.) 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 and 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.