probation

Case BriefsSupreme Court

Supreme Court: While dealing with a case relating to termination of a CRPF probationer for suppressing material information relating to his criminal antecedents, the bench of Surya Kant and JB Pardiwala*, JJ realised that the principles of law laid down in various rulings governing the subject were inconsistent. It, hence, shortlisted the following broad principles of law to be made applicable to such cases:

a) Each case should be scrutinised thoroughly by the public employer concerned, through its designated officials–more so, in the case of recruitment for the police force, who are under a duty to maintain order, and tackle lawlessness, since their ability to inspire public confidence is a bulwark to society’s security.

b) Even in a case where the employee has made declaration truthfully and correctly of a concluded criminal case, the employer still has the right to consider the antecedents and cannot be compelled to appoint the candidate. The acquittal in a criminal case would not automatically entitle a candidate for appointment to the post. It would be still open to the employer to consider the antecedents and examine whether the candidate concerned is suitable and fit for appointment to the post.

c) The suppression of material information and making a false statement in the verification Form relating to arrest, prosecution, conviction etc., has a clear bearing on the character, conduct and antecedents of the employee. If it is found that the employee had suppressed or given false information in regard to the matters having a bearing on his fitness or suitability to the post, he can be terminated from service.

d) The generalisations about the youth, career prospects and age of the candidates leading to condonation of the offenders’ conduct, should not enter the judicial verdict and should be avoided.

e) The Court should inquire whether the Authority concerned whose action is being challenged acted mala fide.

f) Is there any element of bias in the decision of the Authority?

g) Whether the procedure of inquiry adopted by the Authority concerned was fair and reasonable?

Background

  • The appellant was serving as a Constable (General Duty) with the CRPF. He was recruited as a temporary employee of the post of Constable (GD) in the CRPF on 28.07.2014. After undergoing the basic training, he reported at the 179th Battalion on 17.12.2015.
  • While filling up the requisite verification Form–25 at the time of his recruitment in the CRPF in response to the question whether any case was pending against him, the appellant answered in the negative.
  • Upon verification it was found out that a criminal case had been registered against him for the offences punishable under Sections 147, 323, 324, 504 and 506 IPC.
  • He was hence terminated in exercise of the powers conferred under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965 vide the order dated 11.03.2016 on the ground that he had concealed the information as aforesaid while filling up the Form–25.

Delhi High Court’s Ruling

The High Court dismissed the writ petition filed by the appellant challenging the termination and observed,

“In the present case, on the date of filling up of the verification form the criminal case against the Petitioner was very much pending. The fact that the charge sheet had been filed after the filling up the form will not make any difference to the fact that the Petitioner deliberately gave a wrong answer to the question whether any case was pending against the Petitioner. This could not be termed as innocent.”

Supreme Court’s Ruling

The Court agreed with the High Court’s ruling that it was a deliberate attempt on the part of the appellant to withhold the relevant information and it is this omission which has led to the termination of his service during the probation period.

The Court observed that the judgment in Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav, (2003) 3 SCC 437, squarely applied to the facts of the case wherein it was held that neither the gravity of the criminal offence nor the ultimate acquittal therein was relevant when considering whether a probationer who suppresses a material fact (of his being involved in a criminal case, in the personal information furnished to the employer), is fit to be continued as a probationer.

It was, hence, held that if an enquiry revealed that the facts given were wrong, the respondent was at liberty to dispense with the services of the appellant as the question of any stigma and penal consequences at this stage would not arise. He could be said to have exhibited or displayed such a tendency which shook the confidence of the respondent.

[Satish Kumar Yadav v. Union of India, 2022 SCC OnLine SC 1300, decided on 26.09.2022]

*Judgment by: Justice JB Pardiwala

For appellant: Advocate Jyoti Dutt Sharma

For Respondent: ASG Madhavi Divan

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (Lucknow Bench): The Division Bench of Justice Umesh Chandra Srivastava, Member (J) and Vice Admiral Abhay Raghunath Karve, Member (A) held that a cadet is akin to a probationer; hence, the employer has a right to discharge a Cadet who is not meeting the medical standards required for military service/training.  

Factual Background 

The applicant joined Officers Training Academy (OTA), Chennai on 05-04-2012 as a Lady Cadet; where she was available for training only for 19 days and was continuously absent from training from 18-04-2012 to 19-11-2012.  

Later on, the applicant was invalided out from service in low medical category due to the following disabilities: 

  • “Persistent Somatoform Pain Disorder” at 40% for life; and  
  • “Non-Supportive Ottis Media (LT) With Mild Hearing Impairment”, at 6-10% for life 

The disabilities were considered as neither attributable to nor aggravated by military service. Therefore, the claim of the applicant for ex-Gratia payment was rejected. Similarly, the first and second appeals of the applicant were also rejected.  

The respondent contended that the applicant’s claim of alleged development of disability (hearing impairment) due to pressure of military training was incorrect and unjustified since cadets are neither subject to hard physical or mental toughness training nor put through weapon training during their initial phase of training in the junior terms. A gradual and easy start is given to all new cadets to enable them to develop their capability to withstand tough military training in later phases of their training. 

Grievances of the Applicant 

As per the applicant, she was under stress and strain of military training which led to the occurrence of the injury. Therefore, both the disabilities should be considered attributable to or aggravated by military service and she should be paid the disability pension and Ex Gratia accordingly.  

The applicant submitted that she had applied for women entry of Short Service Commission (Technical) and at the time of medical board after Services Selection Board (SSB), she was declared temporary unfit due to Chronic Ottis Media (LT) with mild hearing impairment. Later on, after being operated Chronic Ottis Media (LT), she was declared fit in SHAPE-1 by the Army Medical Board. Thereafter, she joined OTA on 05-04-2012.  

Further, the applicant claimed that in May 2012, due to pressure of military training, she had developed a relapse of Chronic Ottis Media (LT) with mild hearing impairment and was treated first at MH Chennai and then at Command Hospital, Air Force, Bangalore, and was placed in medical category H-2 (Temporary) on the recommendation of ENT Specialist.  

Evidently, it was in June 2012 that the applicant was diagnosed with “Persistent Somatoform Pain Disorder” and was recommended to be medically invalided out of service in low medical category S-5.  

Findings and Conclusion  

The Tribunal relied on Narsingh Yadav v. Union of India, (2019) 9 SCC 667, wherein the Supreme Court had held that mental disorders cannot be detected at the time of recruitment and their subsequent manifestation does not entitle a person to disability pension unless there are very valid reasons and strong medical evidence to dispute the opinion of Medical Board. 

Noticing that the applicant had attained the training for a brief period of 15 days, the Tribunal affirmed the findings and opinion of the Medical Board and the Appellate Committee. The Tribunal held that a cadet is akin to a probationer and hence the respondents as an employer have a right to discharge a Cadet who is not meeting the medical standards required for military training/service. Therefore, the Tribunal upheld the opinion of the Medical Board that the applicant’s disability is neither attributable to nor aggravated by military service, and hence, she is not entitled to disability pension and Ex Gratia.  

In view of the above, the Original Application was dismissed.  

[Nira Chaudhary v. Union of India, Original Application No. 99 of 2021, decided on 28-04-2022]  

Appearance by:  

For the Applicant: Vinay Sharma holding brief of Col Y.R. Sharma (Retd), Advocate 

For Union of India: Dr. Shailendra Sharma Atal, Central Govt Counsel 

Kamini Sharma, Editorial Assistant has put this report together 

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Arup Kumar Goswami CJ. and Rajendra Chandra Singh Samant J. dismissed the appeal and remarked that quality cannot be claimed in illegality.

The facts of the case are such that the writ petitioners were appointed to the post of Agriculture Teachers. At the time of appointment, the petitioners were pursuing PhD courses and as a result of obtaining an appointment, they could not pursue the Ph.D. course. A joint application was filed by the petitioners to allow them to pursue Ph.D. course and to grant leave without pay, but no response was given by the authorities. Thus, the petitioners approached and filed writ petition which was disposed of providing that the representation of the petitioners would be considered within a period of 15 days. Assailing this, instant appeal was preferred.

The Single Judge observed, “It is relevant at this juncture to take note of the fact that as regards grant of leave is concerned, the same has been dealt with under the Chhattisgarh Civil Services (Leave) Rules, 2010.”

Counsel for appellants Mr. Kesharwani submitted that there are number of instances when the Government granted study leave even though the conditions enumerated under Rule 42(5) of the Rules of 2010 had not been fulfilled and therefore, the present petitioners are treated discriminatorily.

The Court relied on judgment Basawaraj v. Special Land Acquisition Officer, (2013) 14 SCC 81, and observed that Article 14 of the Constitution does not envisage negative equality but has only a positive aspect and thus, if some other similarly situated persons had been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well.

The Court further observed that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality cannot be claimed in illegality and therefore, cannot be enforced by a citizen or Court in a negative manner.

The Court thus held “we find no good ground to interfere with the order of the learned Single Judge and, accordingly, the writ appeal is dismissed.”

[Lokesh Ahirwar v. State of Chhattisgarh, 2022 SCC OnLine Chh 757, decided on 27-04-2022]

Appearances

For Appellants: Mr. Rajesh Kumar Kesharwani, Advocate.

For Respondents No. 1 to 5: Ms. Astha Shukla, Government Advocate.

For Respondent No. 6: Mr. Shashank Thakur, Advocate

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: Manish Pitale, J., referred questions of seminal importance for consideration of a larger bench.

One significant question in the present petition is as follows:

Question pertains to Section 5 (3) of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977 [MEPS Act] and Rule 15 of the Maharashtra Employees of Private School (Conditions of Service) Regulation Rules, 1981 [MEPS Rules].

Controversy

Whether entire sub-rules (1) to (6) of Rule 15 of the MEPS Rules apply to an employee appointed on probation or only sub-rule (6) of Rule 15 of MEPS Rules applies to such an employee appointed on probation, when read with Section 5(3) of the MEPS Act.

M.M. Agnihotri, Petitioners Counsel submitted that only sub-rule (6) of Rule 15 of the MEPS Rules read with Section 5(3) of the MEPS Act would apply to an employee appointed on probation.

Termination of Service

In the present case, the service of respondent 1 was terminated during the period of probation by stating that his service was found to be unsatisfactory during such a period.

Supreme Court in Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36, held that where a person was appointed on probation, the termination of his service during or at the end of the period of probation will not ordinarily and by itself be a punishment and a person so appointed had no right to continue to hold such post.

Supreme Court in High Court of Judicature, Patna v. Pandey Madan Mohan Prasad, (1997) 10 SCC 409, considered the validity of the termination of service of a Munsif appointed on probation in the context of non- communication of adverse remarks in confidential reports to the employee.

In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta, (1999) 3 SCC 60, in the context of when an order of termination of service of an employee appointed on probation could be said to be stigmatic, the Supreme Court specifically held that use of words ‘unsatisfactory work and conduct’ in the termination order will not amount to a stigma.

The above-mentioned decisions clearly distinguish the rights that an employee appointed on probation can claim, as compared to a confirmed employee. This is particularly so when the order of termination of service cannot be said to be stigmatic in nature.

Crux of the controversy

While taking action of termination of service under Section 5(3) of the MEPS Act for unsatisfactory work or behaviour of an employee appointed on probation, only sub-rule (6) of Rule 15 of the MEPS Rules applies or all the sub-rules i.e. sub-rules (1) to (6) of Rule 15 of the MEPS Rules apply to such an employee?

In the Supreme Court’s decision in Progressive Education Society v. Rajendra, (2008) 3 SCC 310 Court had an occasion to refer to Section 5(3) of the MEPS Act and Rules 14 and 15 of the MEPS Rules.

In the above-stated decision, the Supreme Court specifically found that the documents upon which the Management was placing reliance were not above suspicion and that the requirement of Rule 15(6) and 14 of the MEPS Rules had not been complied with prior to the invocation of powers under Section 5(3) of the MEPS Act.

In the said case, it has been interpreted that failure to communicate adverse remarks would mean that the work of the probationer was satisfactory.

Analysis

A perusal of the various judgments clearly shows that there are two sets of views on the same material.

There cannot be any doubt about the fact that only sub-rule (6) of Rule 15 of the MEPS Rules refers to “an employee appointed on probation”. This has some significance.

Whether, the position of law laid down by the Supreme Court and this Court in series of judgments as regards the rights of an employee appointed on probation, while challenging a non-stigmatic order of termination of service issued during or on completion of probation, enjoins that only sub-rule (6) of Rule 15 of the MEPS Rules read with Section 5(3) of the MEPS Act would apply to the case of an employee governed by the said Act and Rules, or that entire Rule 15 of the MEPS Rules read with Section 5(3) of the MEPS Act would apply?

Supreme Court has specifically observed that the rights of an employee appointed on probation under the said Act and Rules create a different situation.

In the decision of Progressive Education Society v. Rajendra, (2008) 3 SCC 310, it was stated that although Rules 14 and 15 of the MEPS Rules have been specifically referred to, particular emphasis has been placed by the Supreme Court only on sub-rule (6) of Rule 15 of the MEPS Rules.

While Rules 14 and 15 of the MEPS Rules cannot override Section 5(3) of the MEPS Act, the requirements of sub-rule (6) of Rule 15 of the MEPS Rules would be a factor which the School Management has to take into consideration while exercising power, which it undoubtedly has and is recognized under Section 5(3) of the MEPS Act.

In the case of High Court of Judicature at Patna v. Pandey Madan Mohan Prasad Sinha, (1997) 10 SCC 409 Supreme Court specifically held that non-communication of adverse remarks cannot be a ground to hold that an order simplicitor terminating the service of a probationer stands vitiated.

Bench in view of the above decisions found substance in the contention raised on behalf of the petitioners that only sub-rule(6) of Rule 15 of the MEPS Rule would apply to an employee appointed on probation under the aforesaid Act and Rules and it is the requirement of only the said sub-rule that needs to be satisfied in the context of the action that the Management can take under Section 5(3) of the MEPS Act.

Section 5(3) of the MEPS Act, the Management can terminate the service of an employee appointed on probation not only for unsatisfactory work, but also for unsatisfactory behaviour.

Rule 15 (6) of the MEPS Rules, refers to an employee appointed on probation and it requires the Head only to objectively assess an employee appointed on probation and to maintain a record of such assessment.

This, coupled with the decisions of the Division Bench of this Court and followed by Single Judges of this Court held that only Rule 15 (6) of the MEPS Rules applies to an employee appointed on probation, shows that there is a clear conflict of opinions in this matter.

Hence, the bench held that the above-stated controversy needs to be put to rest by an authoritative pronouncement of a larger bench of this Court.

Court stated that papers be placed before the Chief Justice to consider whether the present writ petition can be more advantageously heard by a Larger Bench of this Court on the following questions:

(i)  Whether only sub-rule (6) of Rule 15 of the MEPS Rules applies to an employee appointed on probation when the Management seeks to take action under Section 5(3) of the MEPS Act or entire Rule 15 from sub-rules (1) to (6) of the MEPS Rules apply to such an employee appointed on probation?

(ii)  Whether the judgment of the Hon’ble Supreme Court in the case of Progressive Education Society and another v. Rajendra and another (supra) lays down that entire Rule 15 of the MEPS Rules applies to an employee appointed on probation, particularly in the context of power available to the Management under Section 5(3) of the MEPS Act?

(iii)  Whether failure to adhere to requirements of sub-rules (3) and (5) of Rule 15 of the MEPS Rules would ipso facto vitiate an action taken by the Management under Section 5(3) of the MEPS Act, despite the fact that the Management satisfies the requirement of sub-rule (6) of Rule 15 of the MEPS Rules by ensuring that performance of an employee appointed on probation has been objectively assessed by the Head and record of such an assessment has been maintained?

(iv) Whether non-compliance of sub-rule (5) of Rule 15 of the MEPS Rules would vitiate an order of termination of service simplicitor issued by the Management under Section 5(3) of the MEPS Act when the said sub-rule deems that “work of an employee is satisfactory”, while Section 5(3) of the MEPS Act gives power to the Management to terminate the service of an employee appointed on probation not only for “unsatisfactory work”, but also for “unsatisfactory behaviour”?

(v) Whether it would be sufficient compliance on the part of the Management while acting under Section 5(3) of the MEPS Act, if it complies with only sub-rule (6) of Rule 15 of the MEPS Rules by ensuring that the performance of an employee appointed on probation is objectively assessed and the Head maintains a record of such assessment, and principles of natural justice stand satisfied by issuing notices/warnings for unsatisfactory work to such an employee appointed on probation, considering the limited rights available to such an employee as per the law laid down from the case of Parshotam Lal Dhingra v. Union of India (supra) in the year 1958 and onwards? [Gramin Yuvak Vikas Shikshan Mandal, Kinhi Naik v. Shivnarayan Datta Raut, 2020 SCC OnLine Bom 966, decided on 22-09-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Administrative Tribunal (CAT), Chandigarh: Sanjeev Kaushik, (Member) J. quashed the order issued by the Chandigarh administration which provided that new recruits would be paid only fixed emoluments without any grade pay or annual increments or any other allowance except travelling allowance during the first two years of probation.

Applicants herein were appointed as clerk, steno and typist and they were granted fixed grade pay in their appointment letter. But as per Clause 4 of the appointment letter, a condition was inserted that minimum pay scale/salary of the pay band without any grade pay and without any annual increments or any other allowance except traveling allowance during the first two years of probation and on confirmation of probation period shall not be counted towards permanent service. This insertion was in accordance with the amendment in the Punjab Civil Service Rules, Volume-I, Part-I wherein Rule 2.20-A was inserted in substitution of Rule 4.1, 4.4 and 4.9. The said amendment was adopted by the Chandigarh administration through an adoption letter. Applicants, aggrieved by the adoption letter, filed an appeal in Central Administrative Tribunal, Chandigarh.

Learned counsel for the applicants,  S.S. Sidhu and Gagneshwar Walia argued that the notification issued by the State of Punjab and adopted by Chandigarh administration had already been set aside in Dr Vishavdeep Singh v. State of Punjab, CWP No.6391 of 2016 (O&M). Therefore, he prayed that as a result of the setting aside of notification issued by State of Punjab, being in violation of Articles 14 and 16 of Constitution of India, adoption letter of the rule by Chandigarh Administration was also liable to be set aside.

Taking note of the fact that Punjab and Haryana High Court, in Dr Vishavdeep Singh case, had already quashed the notification issued by Chandigarh administration the impugned letter of adoption was also quashed.[Amit Sharma v. Union Territory, Chandigarh, OA No. 60 of 348 of 2018, decided on 17-05-2019]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: The order modifying the sentence of respondents-convicts passed by the learned Additional Sessions Judge wherein he directed the release of the convicts on probation of good conduct was upheld in a revision petition filed under Section 401 CrPC, by a Single Judge Bench comprising of Shekher Dhawan, J.

The respondents were accused in a criminal case registered under Sections 324 and 341 read with Section 34 IPC. They were convicted under the said sections by the learned Judicial Magistrate and sentenced accordingly. However, on appeal against the said order, the Additional Sessions Judge upheld the order of conviction but modified the sentence and released the convicts on probation of good conduct by imposing conditions. The petitioner submitted that the injured in the case has sustained grievous injuries and the order of the Additional Sessions Judge should be set aside.

In order to settle the controversy, the High Court referred to various decisions of the Supreme Court as well as the same Court. The Court observed that there was no illegality in the impugned order. The offences alleged against the convicts were recorded under Sections 324/341/34 of IPC; and the accused persons involved in such like cases who were not previous convicts and not habitual offenders, could be extended the benefit of probation under the Act. In the instant case, the respondents were not previous convicts and the Additional Sessions Judge passing the said order had taken into consideration the fact that in case the convicts were released on probation, that shall afford an opportunity to the parties to live peacefully; also the conditions imposed on the convicts were reasonable and in accordance with law. Thus, the revision petition was dismissed. [Phuman Singh v. State of Punjab, 2017 SCC OnLine P&H 3504, dated 01-12-2017]

Case BriefsHigh Courts

Bombay High Court: Deciding an appeal against the sentence awarded by the trial court on ground of its inadequacy, a single judge bench of A.I.S. Cheema, J., has observed that while granting benefit of probation, courts shall ensure compliance of provisions of Probation of Offenders Act, and when probation is to be granted under Section 4 (1) of the Act, courts shall collect information by calling a report of the probation officer as contemplated by Section 4 (2) of the Act.

In the instant case, a bus driver who caused the death of a 13 year old boy by driving at high speed in a congested area, was convicted under Section 184 of the Motor Vehicles Act. The trial court, however instead of passing a sentence of imprisonment or fine, directed his release on the bond of Rs.5000 and the bond of one month’s period as contemplated in Section 4 of the Probation of Offenders Act. The  Court observed that neither the trial court has called any report as contemplated under Section 4 (2) of the Act, nor did it pass any supervising order under Section 4(3) of the Act. The court also found that the record didn’t demonstrate that any bond as mentioned in the operative order was ever taken, and thus quashed the order for non-compliance of law. Justice Cheema further admonished the lenient approach of the trial court for granting probation on the grounds that the convict was a retired military man and the fact that it was a first incident while absolutely ignoring the plight of victims.

The court thus sentenced the convict a simple imprisonment till rising of the Court and directed him to pay compensation of Rs.40,000/- to the deceased’s father, taking into account his old age and low retirement income. The court also recommended the District Legal Services Authority, Jalgaon to decide the quantum of further compensation to be paid to the deceased’s father by the state since it was responsible for congestion and chaos in streets in which citizens are put to constant risks. [State of Maharashtra v. Madhav Vitthal Bansode, 2016 SCC OnLine Bom 2297, decided on 25. 04. 2016]