1. The petitioner was an employee of the Food Corporation of India. While working at Srikakulam, his services were terminated by an order dated 3-5-80 with effect from 4th May, 1980 A.N. This order was received by the petitioner on 6th May, 1980. The present writ petition has been filed challenging the validity of that order of the Food Corporation of India dated 3-5-1980.
2. The petitioner had first joined the Food Corporation of India in Sept. dated 1975 and worked with intermittent breaks upto the year 1979. By an order of the Food Corporation of India dated 27-3-79 he was appointed on ad hoc basis with effect from 5-5-78 in the pay scale or Rs. 290-440. Later on, by an order dated 2-4-80 the petitioner was appointed on a regular basis with retrospective effect from 5-5-78. The post to which was appointed requires one year probationary service. The order of appointment says that he should be deemed to have been placed on probation with effect from 5-5-78. The one-year probation would end by 4-5-79. No doubt, it could have been extended up to 4-5-80. But no extension order was made.
3. It appears from para 4 of the counter-affidavit, that the petitioner was found to be a party to the clandestine removal and disposal of stock of food-grains from the godown of the Food Corporation of India, Amadalavalasa. Basing upon the finding the Deputy Manager, (Vigilance) Regional Office, Hyderabad suggested to the F.C.I. the removal of the petitioner from service. It is admitted by the respondent that the F.C.I., accepting that suggestion of the Deputy Manager, removed the petitioner from service through the above mentioned proceedings. It is against these proceedings, the present writ petition has been filed.
4. It is argued by the learned counsel for the petitioner, Sri Poornaiah, that the petitioner by the date of his removal by F.C.I. was not probationer and that therefore, he could not have been removed from service on the basis that he was a probationer. It is a common case of the parties that a regular employee of the F.C.I. could only be removed in accordance with the procedure prescribed under Staff Regulation No. 54 by the F.C.I. The petitioner argues that his removal is bad and that procedure is not followed. Secondly, the learned counsel contends that the removal of the petitioner from service examined on the basis of administrative exigency was violative of Arts. 14 and 16 of the Constitution inasmuch as the employees who were far junior to the petitioner and working as probationers were retained in service while he had been removed from service. Thirdly, the learned counsel argues that as it was admitted by the F.C.I. in its counter that the petitioner's removal was founded upon findings in an inquiry held, into his conduct relating to the removal and disposal of the stocks of food-grains from the godowns of the F.C.I., Amadalavalasa and the recommendation of the Deputy Manager (Vigilance), Regional Office, Hyderabad dated 23-8-80 suggesting the removal of the petitioner on the basis of the aforesaid inquiry, the petitioner's removal by the impugned proceedings had been brought about by way of punishment. As no punishment of termination of services could be imposed on the petitioner except by following the procedure indicated in Staff Regulation 54, the order is liable to be set aside.
5. On the other hand, Mr. Suryanarayana Murthy, learned counsel for the F.C.I. denied everyone of these argument and argued with vehemence that notwithstanding the fact that the petitioner was deemed to have been placed on probation from 5-5-78 only for one year the petitioner still continued to be a probationer on the date of his removal. Counting him as a probationer his termination with 30 days pay should be held to be good, argued the counsel. In answer to the second argument, Mr. Suryanarayana Murthy said that as the petitioner happened to be only a probationer, the termination of his services while retaining his juniors in service did not give him any cause of complaint so long as the termination did not violate any of the Staff Regulations. In reply to the third contention, Mr. Suryanarayana Murthy said that the petitioner's services had been terminated not by way of punishment. No stigma was cast by the order of termination and the preceding inquiry into the clandestine removal of the stocks from the godowns of the F.C.I. was only a motive and not the foundation for his removal.
6. The first and the central question that arises for consideration in this case is one relating to the status of the employee on the date of his removal. Was he or was he not a probationer on the date of termination, within the meaning of Staff Regulation 15(3) If he was a probationer and his services were terminated on the ground of his unsuitability the law requires the performance of no greater ceremony than giving 30 days notice or paying salary in lieu thereof. On the other, if the petitioner was a regular employee, he cannot be removed except for a cause established in accordance with the procedure. Regulation 15 date, that every person regularly appointed to any post in the F.C.I. should be required to on probation for a period of one year from the date of appointment. Regulation 15(3) however, empowers the appointing authority, acting in its discretion, to extend that period of probation by a further period of probation by a further period that may not exceed another year. But the Staff Regulations nowhere require a formal order of declaration of probation. It is in accordance with the above requirements of the Regulations, the appointment order said that the petitioner should be deemed to have been placed on probation with effect from the date shown against Column 4, i.e., 5-5-78. Now by the time the appointment order had come to me made on 2-4-80 the petitioner had already completed the one year period of probation required by Regulation 15(1). As the Regulations do not provide for any formal act of declaration of probation it must be assumed at the end of the period of one year, the petitioner's probation was over. It no doubt open for the F.C.I. to extend the period of the petitioner's probation by a further period not exceeding one year. But this power for its use requires exercise of discretion and passing of formal order by the appointing authority. Admittedly there is no such order of extension made by the F.C.I. On the other hand, the fact that the petitioner's probation had been declared to have been commenced on 5-5-78 would show that the F.C.I. was well aware of the fact that it was appointing the petitioner with completed probation, because the petitioner's probation of one year had thus come to an end. When once the petitioner's statutory period of probation of one year had thus come to be completed by 4-5-79 in terms of the appointment order itself the petitioner cannot be treated as still being on probation except by orders of F.C.I. extending probation. If it wished to exercise its discretion and decided to extend the period of probation by a further period not exceeding one year it should have passed the necessary orders after considering the relevant material and question. Admittedly, there was neither an order passed nor any consideration given to this question. Without there being any such order of extension passed, it would not, in my opinion, be permissible for this Court to infer that the F.C.I. had extended the petitioner's period of probation under Regulation 15(2). We have noticed that passing of an order extending probation is not automatic. Such an order can only be made in the discretion of the F.C.I. which means that the F.C.I. must apply its mind and find good reasons for making such an order. There must be a finding by the appointing authority, formal or informal, that the probation was not satisfactorily completed by the petitioner and that it should be extended. What is more, the Staff Regulation requires that the F.C.I. should also decide for what further period not exceeding one year the probation should be extended. Record does not show that the F.C.I. had ever considered the case of the petitioner for extension of probation. Because the F.C.I. had not considered and held that the petitioner's probation was not satisfactorily completed, it should follow that even by implication it had not made any order extending the petitioner's probation. In those circumstances, I find it exceedingly difficult to agree with the contention of Mr. Suryanarayana Murthy that the appointment order must itself be deemed to have commenced the probation, completed the probation and extended the petitioner's period of probation. There is nothing in the order of appointment to support this triple action theory of the learned counsel. On the other hand, this theory wreaks on the rock of requirement that extended probation should be for a period not exceeding one year. The argument of the learned counsel is that by the date of his appointment, i.e., 2-4-1980 the petitioner had already completed his probation of one year on 4-5-79 and in the absence of declaration of his probation it must be deemed that there is an implied order of extension of his period of probation in the appointment order. I cannot read all that involved logic into that plain appointment order. Even Halsbury's Laws of England (Vol. 14, 4th Edn.) recognizes the right to employment as a new property. Courts should not by inferential reasoning cut into such valuable rights. However, in support of his contention Mr. Suryanarayana Murthy invited my attention to the 'Note' addressed to the District Managers to obtain the statements together with the acceptance from the officials working in their District and forward them to the office of F.C.I., Regional Office duly verified and also requested to initiate review and send the quarterly probation reports in respect of the officials working under their controls immediately to enable that office to consider the confirmation of the above official(s) in any case not later than 1-5-80. I am unable to read this note as in any way applying to the petitioner. That note obviously applies to others covered by the common order of appointment. The absence of any regulation expressly requiring the Food Corporation of India to declare the satisfactory completion of the petitioner's probation as one year coupled with the fact that the statute merely contemplates extension if probation in appropriate cases implies me to reject the argument of the F.C.I. It must, therefore, be taken that the petitioner's one year's period of probation was satisfactorily completed by the date of appointment. That would make him a regular employee of the F.C.I. It is admitted that a regular employee can only be removed in accordance with Staff Regulation 58 and that was not the method of removal followed in this case. It follows that the order of removal is bad for procedural reasons.
7. But Mr. Suryanarayana Murthy argued that unless there is a declaration of completion of probation, no employee can complete his probation merely by lapse of time. In support of his contention he relied upon two judgments of the Supreme Court reported in Sukhbans Singh v. State of Punjab, [1963-I L.L.J. 671] and Kedar Nath v. State of Punjab, (1972 Lab I.C. 433). I find it not easy to agree with this contention of the learned counsel urged as a general proposition of law. The question whether an employee in public service or in private service should be deemed to have completed his probation by mere lapse of time or whether he would require the help of a positive act of declaration by his master depends not upon the general principles of law but upon the particular terms of the contract and provisions of the applicable statutory law. I do not, therefore, derive much assistance for elaborate citation of the case law. In this case it is admitted that there is no express provision which either requires or contemplates a positive declaration of completion of probation to be made by the F.C.I. Staff Regulation 15(1) provides probation for a period if one year only subject to an order of extension. The power to extend the period of probation cannot be made without just consideration of the case of the petitioner. In this case as there is no such consideration and no order extending the probation period and as the petitioner had already completed his one year probation, I find it difficult to agree that the probation had not been completed on the ground that there was no positive declaration by the F.C.I. about the completion of the probation. It is suggested by the learned counsel that satisfactory completion of probation mentioned in Staff Regulation 15(4) implies a passing of a positive order declaring probation. In my opinion, the question of satisfactory completion of probation is sought to be dealt with by the Staff Regulations not through the mechanism of a formal order of declaration but by conferring power of extension mentioned in Regulation 15(2). In other words, in the absence of any extension of the petitioner's probation beyond one year probation had been satisfactorily completed. In this view of the matter, I omit detailed discussion of the above two decisions of the Supreme Court or of a judgment of the Division Bench of this Court in Writ Appeal No. 845/75. This point is accordingly answered against the F.C.I.
8. The second contention of the petitioner also, in my opinion, deserves to be upheld. In the vast and expanding concept of State action there is no doubt that the F.C.I. is a 'State', within the meaning of Art. 12 of the Constitution and as such, is governed by the requirement of Arts. 14 and 16 of the Constitution. The assurance of equal opportunity in the matter of public employment contained in Art. 16, therefore, applies to the petitioner and cannot be breached by the F.C.I. except for valid and substantial reasons. If the petitioner had been removed following the procedure or for substantial reasons of his unsuitability if he were a probationer those would have furnished the reasons. As held that the petitioner was a regular employee his right to continue in service need not be decided on the basis of the last come first-go rule embodied in Art. 16 of the Constitution. I hold that this question does not arise for consideration here.
9. Mr. Justice Methew in State of Uttar Pradesh v. Sughar Singh, [1974-I L.L.J. 260], dealing with the State civil servants held that they are within the combined protection of Arts 311 and 16 of the Constitution. Following the ratio of that judgment I hold that the petitioner is protected by the Staff Regulations and Art. 16 of the Constitution. This protection cannot be allowed to be whittled down by this Court whose primary duty is to uphold these protections. But as I said above this whole question does not arise. The protection of Staff Regulations is enough for the petitioner.
10. The last and final point that remains to be considered here is whether the petitioner had been removed from service by way of punishment and without following the procedure indicated in Regulation 58. Regulation 58 would apply only where the removal is brought about by way of punishment. The question, therefore, is whether the petitioner had been removed by way punishment. The argument of the learned counsel for the petitioner is that from the counter-affidavit filed by the F.C.I. the removal was shown to have been brought about on the basis of the recommendations and suggestions of the Deputy Manager (Vigilance), Regional Office, Hyderabad which in turn were based upon a report implicating the petitioner in the clandestine removal of the stocks from godown of the F.C.I. It is, therefore, argued on the basis of this allegation in the counter-affidavit that the petitioner's removal should regarded as having been brought about by way of punishment. This contention of the petitioner is fully supported by the aforesaid decision of the Supreme Court in State of Uttar Pradesh v. Sughar Singh (supra) as well as in State of Bihar v. S. B. Misra, [1970-II L.L.J. 440], which were followed in this case at least in three instances which I immediately remember. The element of stigma was spelt out by Mathew, J., in Sughar Singh case from out of a statement made by the counsel across the bar. Here the fact of recommendation and inquiry was undenied. If we look to the surrounding circumstances and antecedent events as Bihar case says we can, it must be held that the petitioner was removed because he was found guilty in an ex parte inquiry of unworthy conduct. That is clearly wrong, because it is condemning a man without asking him for his explanation. That is clearly an affront to fair play. But Mr. Suryanarayana Murthy read out a catena of decisions showing that mere termination of service based upon such an inquiry however implicatory it may be, cannot be regarded as attracting the protection of principles of natural justice as embodied in Regulation 58, His argument is, such inquiries need not form foundation for the passing of order of removal while they may constitute motive. In support of this contention, the learned counsel has relied upon State of U.P. v. Ram Chandra, [1977-I L.L.J. 200], Oil & Natural Gas Commission v. Md. S. Iskandar Ali, [1980-II L.L.J. 155] and Commodore Commanding, Southern Naval Area v. V. N. Rajan, [1981-II L.L.J. 1]. As a matter of proposition of law it is now well-settled that where an inquiry forms the very foundation, removal cannot be ordered except by following the principles of natural justice. There is no difficulty in following these principles although the mystique difference between the two is not easy to be isolated. The difficulty in applying these fine distinctions of verbal niceties to the everyday world is noticed by the Supreme Court in Samsher Singh v. State of Punjab, [1974-II L.L.J. 465]. In that case the Supreme Court had characterised the analogous distinctions as too impracticable and uncertain. Krishna Iyer, J., quoted with characteristic frankness the following observations of Dr. Tripathi on the point :
'Failure to appreciate this relationship between motive (the real but unraveled object) and form (the apparent, or officially revealed object) in the present context has led to an unreal interplay of words and phrases wherein symbols like 'motive', 'substance', 'form' or 'direct' parade in different combinations without communicating precise situations or entities in the world of facts. 'The law of survival of fittest clearly calls for far greater simplicity.'
In above State of Bihar v. S. B. Mishra (supra) that simplicity was provided. There the Supreme Court had laid down that the order of removal alone is not conclusive in finding out the basis for removal. The attendant circumstances can be looked into. Following that simple test I hold that the petitioner was removed as a measure of punishment but without following the procedure of Staff Regulations. It is true that there are a line of cases which have been referred to in Shamsher Singh v. State of Punjab (supra) holding that an enquiry into the conduct of the probationer in order to find out whether he is suitable to be absorbed regularly is not an inquiry in which the employee had a right to notice. But in this case, the inquiry that was conducted was not into the suitability of the petitioner but whether the petitioner participated in clandestine and criminal removal of stocks. The finding about his conduct and participation in an illegal and unlawful activity of removal of stocks belonging to the F.C.I. that was made the basis for termination of service does require, in my opinion, to be arrived at in accordance with the principles of natural justice. The petitioner was not told that he was unsuitable. He was told that he was unsuitable because he was found in an ex parte inquiry to be a criminal. Obviously that can be done only in obedience to the principles of natural justice. The advice of the Deputy Manager, (Vigilance), Regional Office, F.C.I., Hyderabad based upon that finding only underlies the necessity to follow principles of natural justice in this case. I, therefore, hold that that report is the basis for the petitioner's removal and not any imaginary ground of unsuitability. In these circumstances, I hold that the impugned order is passed without following the procedure indicated in Regulation 58 of the Staff Regulations. I accordingly set aside the order of removal. But this judgment should not preclude the F.C.I. from holding an inquiry according to the Staff Regulations and proceeding against the petitioner in accordance with law. In view of the serious findings arrived at in the inquiry conducted regarding the removal of the stocks from the F.C.I. godown, I direct the F.C.I. to conduct an inquiry into the conduct of the petitioner after giving him notice and to complete it within six months from the date of receipt of this order thereafter within three months, final orders should be passed. The writ petition is accordingly allowed. No costs.