Avadh Behari Rohatgi, J.
(1) The real question for decision in this Case is whether a probationer in a higher post can be reverted to the lower post when a substantial time during the period of probation he remains under suspension.
(2) The petitioner, Pritam Singh, was working as Assistant Grade I officer in the Food Corporation of India (Corporation). By an order dated 23.12.79 he was promoted as Assistant Manager (Depot) on a provisional basis. He was to remain on probation for a period of one year. On satisfactory completion of the probationary period he was to be considered for confirmation to the post of Assistant Manager.
(3) On 5.1.1979 the petitioner started functioning as Assistant Manager, Food Storage Depot, at Ellenabad(Distt.Hissar). He worked till 11.6.1979. On 12.6.1979 the Zonal Manager (North) suspended him under the power conferred by Reg. 66 sub-clause (1) of the Staff Regulations, 1971,(the Regulations) of the Corporation. Suspension continued till 6.3.1980 when the suspension order was revoked under sub-clause 5 (e) of Reg. 66. The departmental proceedings were, however, pending against the petitioner at that time and the revocation order was without prejudice to those proceedings.
(4) This revocation order though made on 6.3.1980 was received by the petitioner on 10.4.1980. On 11.4.1980 he resumed his duties as Assistant Manager, Food Storage Depot, Pehwa (Dist. Kurukshetra).
(5) As the period of one year of probation had expired at the end of December, 1979, the Corporation extended the period of probation by six months i.e. up to 30.6.1989 vide order dated 18.1.80. The probationary period was further extended for another six months up to 29.12.1980 vide order dated 19.7.1980. It is the case of the Corporation that the petitioner's work during the two years of probation was found unsatisfactory and thereforee by order dated 16.12.1980 passed under Reg 15(3) the petitioner was reverted to the lower post of Assistant Grade I with immediate effect. It is this order of reversion that the petitioner has challenged in the present writ proceedings under Article 226 of the Constitution.
(6) At this stage Reg. 15 may be read:
(1)Every person regularly appointed to any post in the Corporation under sub-clause (a) of clause (1) of regulation 7 shall be required to be on probation for a period of one year from the date of appointment.
(2)The appointing authority may in his discretion extend the period of probation by a further period not exceeding one year.
(3)During the period of probation an employee directly recruited shall be liable to be discharged from service without assigning any reason by giving him a notice of (a) 30 days or pay in lieu thereof in the case of an employee belonging to Category-1 or Category-11 : (b) 7 days or pay in lieu thereof in the case of an employee belonging to Category-111 and Category-IV. An employee promoted from a lower post to a higher post shall be liable to be reverted to the lower post without notice and without assigning any reason.
(4)An employee who has satisfactorily completed his probation in any post shall thereupon be confirmed as soon thereafter as possible.
(5)Where an employee has rendered continuous temporary service or continuous service on deputation in any post immediately preceding his regular appointment to such post, the period of service so rendered temporarily or on deputation may be counted against the period of probation if the appointing authority so directs.'
(7) Under this regulation the initial period of probation has to be one year which may be extended by a further period not exceeding one year. The petitioner remained on probation from 5.1.1979 to 16.12.1980. This is admitted on both hands. This is also not in dispute that from 12.6.1979 to 10.4.1980 he remained under suspension. This comes to 9 months and 28 days. What is the effect of suspension during the period of probation on the reversion order? This is the central question in this case.
(8) To appreciate the question in its proper perspective it is necessary to state a few further facts. The departmental proceedings continued. The petitioner was charge-sheeted. An enquiry officer was appointed. He made his report. Then a de novo inquiry was ordered. The enquiry officer held the charges against the petitioner proved. But the Zonal Manager who was .the competent authority did not agree with his findings. He, by his order dated 17/18th December, 1981, exonerated the petitioner of the charges leveled against him. He further ordered that the suspension period shall be treated 'as a period spent on duty for all purposes'. This is an event of post-probationary period, but it has a vital bearing on the reversion order dated 16.12.1980.
(9) The fact remains that though the petitioner was exonerated of the charges in the departmental enquiry and the period of suspension was treated as one on duty for all purposes the petitioner was not allowed to work from 12.6.1979 to 10.4.1980 i.e. for 9 months 28 days on account of suspension order. The result of the suspension was that he was not allowed to show his performance for 9 months 28 days during the trial time of 2 years. The question is whether without giving a full opportunity to show his worth could it be said with justice that the petitioner was unfit for promotion?
(10) What is the meaning and effect of suspension on the contract of employment? The Oxford Dictionary defines suspension as 'action of debarring or state of being debarred, especially for a time, from a function or privilege; temporary deprivation of one's office or position'. In employment it means to forbid the employee from performing his duties for a more or less definite interval of time. He is debarred for a time from the performance of duties. Temporarily the contract is discontinued, but with an expectation of resumption. It is a temporary cessation of work by the employee. It is not synonymous with 'removal' which terminates wholly the incumbency of the office or employment.
(11) When there is a power of suspension given to the employer, then, when it is exercised the whole contract is affected, and the obligations of both sides are suspended for the duration of the period of suspension (Wall work v. Fielding (1922) 2 Kb 66 at p. 72 per Lord Sterndale M.R., at pp. 74-73 per Warrington LJ). Thus the employer will not be liable to pay the employee wages during such period. Under the suspension order the right to pay ceases. It enables the employee, when the suspension ended, to claim as of right to continue in his old job. The whole contract is suspended, in the sense that the operation of the mutual obligations of both parties is suspended. The employee ceases to be under any present duty to work, and the employer ceases to be under any consequential duty to pay. This is the natural meaning of the word 'suspend' when applied to a contract of employment, and I think it is also its legal meaning Bird v. British Celanese Ltd. (194i) Kb 336 per Scott Lj at p. 341). Suspension of employment does not merely refer to a mere suspension from duty but to a temporary discontinuance of both work and pay under a contract which permits such discontinuance whilst the contract of employment remains in force. (Corv v. Transport (1973) 2 All Er 558 per Buckley Lj at p. 572).
(12) The effect of 'suspension' has been considered by the Supreme Court in Hotel Imperial New Delhi v. Hotel Workers' Union : (1959)IILLJ544SC. The Supreme Court held that where there is power to suspend either in the contract of employment or in the statute or in the rules framed there under the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not to get pay or render service and the master is not bound to pay. The relationship is suspended only temporarily during the period of suspension.
(13) A neat answer to the question will be to hold that though the employee was put on probation for two years in form but in substance it was not so. The husk remained but the kernel was eaten away by suspension. The right thing to do will be to give to the employee the period during which he remained under suspension in addition to one year, and if probation is extended, in addition to the extended period. During the course of arguments I gave an example. Suppose during one year of probation the employee remains under suspension for 8 months. Will he or h& will not be entitled to one year and 8 months in addition? This is not extending the period of probation beyond one year. Only the suspension period of 8 months is excluded. As we do in limitation, the period spent in obtaining the certified copy is excluded. I gave another example. During the two years of probation the employee is under suspension for 23 months. Only for one month he is allowed to work. He cannot be reverted under the Regulations. Because he has not been tried and tested for two years which is the intention of the regulation.
(14) The suspension may swallow up the whole period of probation. What do you do then? It is abuse of language to call it a probationary period. It is unmitigated suspension and nothing else. 'A loose vocabulary is the fruitful mother of evils'. (Gray). (Some Definitions and Questions In Jurisprudence (1892-3), 6 Harvard L.R. 21). We may, if we like, call it probation-cum- suspension period. But this combination is.unknown to Reg-.15. Reg. 15 does not contemplate a case of this kind. The master cannot have the best of both worlds. The truth is that probationary period does not include suspension period.
(15) Mr. R.P. Srivastava, learned counsel for the Corporation, said that such will be the rarest of rare cases. But, in my opinion, they do illustrate vividly the weakness of the Corporation's case. Without giving him an opportunity to work for 9 months and 28 days beyond 28.12.1980 it was not open to this public Corporation to revert the petitioner. This is long and short of this case.
(16) Mr. Srivastava says that this view goes against the Regulations. I do not agree. The Staff Regulations are statutory in character. The Corporation was established by the Food Corporation Act, 1964 (the Act). Section 45 of the Act empowers the Corporation to frame regulations. In exercise of this delegated power the Corporation framed the Staff Regulations of 1971. These Regulations came into force on 8.5.1971. These corporate bodies- exercise functions of a legislative nature delegated to them by legislative bodies. In a sense they are subordinate legislative bodies, but in truth, they are what Lord Maugham described in Rowell v. Pratt (1938) Ac 101) as domestic bodies which the legislature has thought fit in the public interest to entrust with important statutory powers. (See Arthur Yates & Co. Pvt. Ltd. v. the Vegetable Seeds Committee (1945) 73 CLR 37. The F.C.I. Staff Regulations have the force of statute (See Kailash Nath v. State of U.P. : AIR1957SC790.
(17) The view I have taken is in conformity with true intent and meaning of Reg. 15. The function of the court is to effectuate the intention of the law-maker. The object of the Reg. is to subject the individual officer to a period of testing and trial so as to be able to ascertain his fitness for a particular job. This is why be is put on probation. This probation is to last one year ordinarily. This is the irreducible minimum period. It can be extended up to one more year at the discretion of the appointing authority. Unless the full period is out there can be no proper evaluation of a man's merit. It he is suspended the unexpired probationary period comes to an end. The rights remain hanging up for a time. They neither float nor fly, they are suspended. Probation and suspension are antithetical terms.
(18) There is another angle to look at this problem. The Corporation has issued a circular dated 5.11.79 which lays down instructions for -the timely submission of probation reports. It says that during the two years of probation 4 half yearly probation reports will be made to the head office regarding the probationer's work in order to judge whether it is satisfactory or unsatisfactory. So that the employee can improve and the employer can decide whether to extend the probation or to revert or to confirm the man. The object of four half yearly reports is that the employee knows his drawbacks and shortcomings so that he can improve his performance. These reports have to be made according to a time schedule. They are in the nature of a balance sheet where credits and debits, merits and demerits, good points and bad points are entered. They are evenly spread over the entire period of probation of 2 years. They assess the performance of the man at the end of every six months. To see whether he will make a good Assistant Manager. The time-frame is this:
(I)The first report has to be made within 15 days of the expiry of the first half yearly period of probation. This report has to be communicated to the employee within one month of the receipt of the report.
(II)The second half-yearly report should be written on the basis of the performance of the first 4 months of the second half year. In case it decided to extend the period of probation by 6 months beyond the period of I year, the shortcomings and drawbacks in the second half yearly report should be communicated to the employee within a period of one month of the receipt of the report.
(III)The third half-yearly report should cover the remaining period of 2 months of the second half yearly report and the first four months of the third half yearly probation period. In case probation is further extended by six months the shortcomings and drawbacks shall be communicated to the employee within one month of the receipt of the report.
(IV)The fourth half-yearly report should cover the period of the last two months of the third half-yearly probation period and the first three months of the fourth half-yearly period. The report should be sent to the head office latest by the end of the extended period of probation so that the decision of confirmation or reversion of the employee can be taken well within the completion of the period of two years up to which an employee can remain on probation. 'A strict compliance of these instructions' is demanded of the authorities concerned.
(19) Have these instructions been followed in this case? My answer is an emphatic 'No'. On the record are forthcoming only two half yearly reports, namely, (1) third half-yearly report dated 16.8.80 for the period ending 30.6.80, and (ii) fourth half-yearly report dated 3.12.1980 for the quarter ending 29.12.1980. In both these the petitioner's work was found unsatisfactory and he was advised to improve his work and conduct.
(20) What is surprising is that though in the third half-year ending 30.6.80 the petitioner remained throughout under suspension until 18.104.22.168, his work was rated as unsatisfactory. How could the report of unsatisfactory work be made? The third half yearly report, according to instructions, should cover November-December 1979 and January to April, 1980. But during this almost entire period the petitioner was under suspension. He was forbidden to work. If the employer has temporarily put a stop to the contract of service there will be no performance of duty and nothing to show. During his suspension the employee is a sort of prisoner at large and does no duty. 'The employee ceases to be under any present duty to work, and the employer ceases to be under any Consequential duty to pay,' as Scott L.J. said in Bird's case. During the temporary cessation of work there can be no performance of work no shortcomings, no draw-backs, no self-improvement. Everything is in abeyance. In fact there is nothing to report about. This is why the Corporation Circular dated 18.10.1979 says that the report shall only indicate the factual position that the employee was under suspension and nothing else. So according to instructions the third half-yearly report is no report and ought to be discarded.
(21) Coming to the fourth half-yearly report dated 3.12.1980 it is for the quarter ending 29.12.1980. According to instructions it should cover the last two months of the third half-yearly period and first three months of the fourth half-year. In this case it should have been May and June 1980 of the third half year and July, August and September 1980 of the fourth half-yearly. Instead it is for October, November, December 1980. This is against the instructions.
(22). Mr. Srivastava referred me to Kharak Singh v. State of U.P. : 1963CriLJ329 in support of his submission that the circulars are in the nature of departmental instructions for the guidance of the officers. But here the departmental instructions were more honoured in breach than in observance. The Corporation insists on a 'strict compliance'. But counsel 'wants me to whittles down their importance.
(23) There was some controversy whether the first half-yearly report was communicated to the petitioner. The petitioner denied its receipt. Counsel for the corporation said that it was served in January 1980 but no receipt of acknowledgement was produced to show that it was served. Nor is there any affirmation of it in the counter-affidavit in clear and unambiguous words.
(24) It has to be noted that the petitioner was advised to improve his work. The report is dated 3.12.80. It purports to be for quarter ending 29.12.80. But on 10.12.80 the petitioner was reverted 'with immediate effect' without waiting for 29.12.80 to arrive. The order of reversion was passed suddenly. Regardless of the fact that probation was extended up to 29.12.80 the petitioner was demoted on 16.12.80. The fourth report dated 3.12.80 presaged into the future. 29.12.80 was still to come. I can see no justification for this abrupt action.
(25) On the record there are no reports of the first half year and the second half-year. So no opportunity of self-improvement was given to the petitioner. On 18.1.1980 the probation period was extended by six months, i.e. up to 30.6.80 on the ground that the petitioner 'has not earned satisfactory performance'. He was warned that in case of the unsatisfactory performance during the extended period he will be liable to reversion. But during 1979 the petitioner had worked only up to 11.6.79. No first half-yearly report was communicated to the petitioner within one month of the expiry of first six months as required by instructions. It is amazing that extension is based on unsatisfactory performance. It is for the first time on 16.8.80 in the third half yearly report that shortcomings and drawbacks were pointed out. The extension order dated 18.1.80 is not a report, as was argued. It merely says that probation is extended for six months because of poor performance. No failings of the man are pointed out, as intended by instructions. No self-improvement could take place as no defects were pointed out.
(26) The second extension order dated 19.7.80 is no better. It says that the probation period is extended by six months, i.e. up to 29.12.80 because the petitioner 'has not completed his probation satisfactorily'. It will be seen that till 19.7.80 the petitioner had worked not even for one year. He worked from January to June Ii, 1979 and April Ii to July, 17, 1980. In all he had worked for 9 nearly months. Two extensions were given because of unsatisfactory performance. The Reg. says that a probationer has to be tried at least for one year. The period of probation may be extended for a period not exceeding another year. What is happening here is that the period of suspension is being taken as period of unsatisfactory performance. This is the fatal flaw in the corporate action.
(27) Two other things have to be noticed. Though extension was given up to 29.12.80 the order of reversion was made much before, i.e. on 16.12.80. In the second place, there is an annual confidential report for-the year 1979 dated 29.5.80/4.6.80 which shows that petitioner's performance was, poor. on this confidential report of 1979 much reliance was placed. But this has to be disregarded. What have to be taken into account are the-four half-yearly reports which must be made strictly according to instructions. This has not been done in this case. The man's worth was not Judged properly. He was given no opportunity to show his fitness for the^ new job. He was under suspension for 9 months 28 days. On a later date he was exonerated of all the charges. Though benefit of pay was given to 'him he was not given the benefit of Reg. 15. In this case there was no trial for full two years, no halfyearly reports according to instructions, no exclusion of-the suspension period. Everywhere he was found unsatisfactory, whether he was 'working or was forbidden to work. The exercisers of authority did not see that there was a temporary stop of the contract of employment and -that petitioner was not tried and tested for two years.
(28) On the whole case I am of opinion that if during' the period of probation the employee is put under suspension he is entitled to exclude the period of suspension for purposes of computation of. the period of probation. This is a sensible way to interpret Regulation 15. Probation and suspension are incompatible. To resolve this inconsistency a purposive approach should de adopted. A suspended contract is susceptible of being revived. Only temporarily the contract is discontinued, but with an expectation of resumption. When the contract is resumed probation commences and if there is any period of probation left, whether of the original one year or of extension beyond one year, the employee is entitled to that period under Regulation 15.
(29) This must happen if the period of probation is not one continuous whole but .truncated, suspension intervening. The period of suspension has to be detached from the period of probation.
(30) The petitioner argued his case in person with restraint and moderation. He submitted that the reversion order was discriminatory and that he was singled out for this unjust treatment and reverted while his juniors in the panel have been confirmed or are still working as Assistant Managers. I think there is substance in this contention. Equality of opportunity in public employment is guaranteed by the Constitution. Equality of opportunity is a misleading term since opportunity can never be equal among human beings who have unequal capacities to ..grasp it. Equality means that adequate opportunities are laid open to all. By adequate opportunities we cannot imply equal opportunities in a sense that implies identity of original chance. The native endowments of men are by no means equal. What it means is that it is unjust that anybody should be more favored than others. 'Every effort should be made at least to mitigate the asperities of natural human inequality and that no obstacle should be offered, but rather help offered to practicable opportunities of self-improvement' (Allen : Aspects of Justice p. 31).
(31) The petitioner was discriminated when the period of suspension was counted against him as the period of probation. This period was dubbed as a period of poor performance as the first order of extension shows. The order dated 18.1.80 says :'You have not earned satisfactory performance', while the man was actually under suspension. Suspension has coloured and complicated the whole scene. A new concept of public employment is emerging. 'The right to public employment is a new form of property', as the Supreme Court has said, (State of Maharashtra v. Chanderbhan Tale : (1983)IILLJ256SC. Discrimination is an act rather than a feeling. If it results in the denial of opportunity to show merit or .talent for a given job it must be condemned.
(32) The petitioner was under a cloud from 12.6.79 when he was suspended till 18th December, 1981 when he was exonerated in the departmental proceedings. It is true that the suspension order was revoked on 6.3.1980 but the departmental proceedings continued till he was exonerated. The atmosphere against him was surcharged. An unfavorable wind was blowing against him. His work was found unsatisfactory. He was declared unfit. Now that he has been cleared and has to be tried and tested again for 9 months and 28 days the authorities concerned will judge his performance dispassionately and objectively. This ^ why I have gien him this opportunity to show's worth and fitness for the new job. ^
(33) If theory and practice are not to part company, this is how Reg. 15 should beinterpreted. The Corporation has not applied Reg. 15 to the petitioner in'. a fair, reasonable and just manner. The Corporation is bound by the regulations statutory as they; are.' The regulations arc the children of the Act. -The Corporation is the creature of the Act. So the Corporation is bound both by the parent and progeny. If the regulations are not observed the corporate action will -have to be struck down,
(34) For these reasons the order of reversion dated 16.12.80 is set aside and quashed. The petitioner is reinstated in his post of Assistant Manager (Depot). He will work for the remaining period of 9 months and 28 days. First report on his performance will be made at the end of six months and the second report at the end of the remaining period of 9 months and 28 days. He will retain his seniority and the old position in the list of probationers in the new job. The Corporation can then decide whether to confirm or revert him. This is how, I think, justice can be done to the petitioner. In my opinion he was dealt unfairly by the Corporation. In the circumstances I make no order as to costs.