Probationer's Performance Assessment Is The Function Of Employer,Judicial Review Not Warranted Unless It Is Arbitrary and Capricious: Delhi High Court

The assessment of work and performance of a probationer is the function of the employer and the Court should only invoke its power of Judicial Review where such action is tainted by arbitrariness and capriciousness and the courts should be wary of substituting their opinion on such questions, Delhi High Court noted. Justice Yashwant Varma, in a case pertaining to alleged unlawful termination of services of a probationer as Director (HRD) of Damodar Valley Corporation, further noted that even the Union government can only interfere in respect of matters which are not provided for in the Regulations framed by the Corporation and where the regulations clearly make provisions for the stipulation of work and assessment of such work and do not envisage any role to be played by Union government with regard to the same, only the corporation itself has the mandate to govern on such issues. The undisputed facts of the case are that the petitioner was engaged as Director (HRD) in Damodar Valley Corporation of probation in July 2003 and his appointment was terminated with immediate effect in January 2004. The petitioner then appealed against this order of termination to the Chairman of the Corporation on 17 February 2004 and during the pendency of such appeal, he was offered another role, in Bokaro Power Supply Company Private limited (BPSCL) in June 2004 as Head of Personnel and Administration. The Petitioner then made a representation to the Ministry of Power, and on taking cognizance of the matter, the Ministry transferred it back to the Corporation for comments. Corporation Secretary then apprised the Ministry that the petitioner was found to be inefficient in discharging his duties and functions as Director (HRD) and had not paid any heed to the several pieces of advice and warnings given to him by the Chairman and the secretary to improve his performance, during his six-month probation period and thus, considering the overall interests of the Corporation, petitioner could not be allowed to continue as Director (HRD). The matter was also simultaneously being considered by the Board of the Corporation and even the Chairman acceded that it would be inappropriate to allow the extension of the probationary period of the petitioner which would work detrimental to the interest of the corporation. The petitioner has challenged through a writ petition filed before this court, his termination order, his new appointment at a subordinate post and the Union government's order to not interfere in the matter considering that the corporation is an independent statutory body. Mr Jatin Mongia, the learned counsel for the petitioner had argued that As per the terms of the letter of appointment, the petitioner should have been given a three months' notice or pay in lieu thereof before his termination. This was also mandated in the Regulations framed by the Corporation itself. The Counsel further argued that since the Regulations (specifically Regulation no. 18) puts a duty on the probationer to give a three months' notice if he chooses to resign, it's illogical, ultra vires and arbitrary that the same duty is not cast upon the employer. Learned Counsel then argued that as per S.6 of the Regulations, if any matter is not provided for in the regulations, then that is to be governed by the Union government. Learned counsel drew sustenance from the Office Memorandum issued by the Ministry of Personnel, PG & Pensions in March 2019 relating to engagement of probationers and assessment of their performances and relevant factors for termination of their services.Learned Counsel further asserted that the Corporation was obliged in law (referring to the O.M.) to undertake a due assessment of petitioner's work and performance and inform the petitioner of his shortcomings before the expiry of the original probationary period, affording him an opportunity to make efforts towards self-improvement and that no written communications have been made to the petitioner in the perusal of the same. The last contention presented by the learned Counsel was that the petitioner services were terminated by the Secretary instead of the Chairman, who was the competent authority for appointment and termination of probationary services of a Director. Per Contra, the arguments submitted by learned Counsel for respondents, Mr J.K. Das, were that The O.M. is restricted in its application to the Ministries and Departments of the Union Government and is not applicable to autonomous corporations and bodies and since the Corporation is an autonomous body and the terms and conditions of services of its officers and employees are governed solely by the provisions made in 1957 Regulations, the O.M. would not be applicable in this case. The chairman, secretary had independently assessed and evaluated the working and conduct of the petitioner and found him unable to discharge the...

Probationer's Performance Assessment Is The Function Of Employer,Judicial Review Not Warranted Unless It Is Arbitrary and Capricious: Delhi High Court

Rashmi Bagri

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