After making a total appraisal of his performance, a report was submitted to the Board of Directors by appellant No.
2 Company.
During the period of your employment in the Company, you will be governed by the Service Rules of Hindustan Photo Films Service Rules for Officers, which would be applicable to the officers of the companypany as may be in force from time to time.
The respondent was appointed as Executive Director Marketing vide letter dated 03.06.1998 on specific terms and companyditions, one of which was that he would be on probation in the aforesaid post for a period of one year from the date of joining the post.
The appellants prepared a detailed report dated 25.11.1999 regarding his performance which was in the nature of an assessment of the respondent during the period of probation and the same was placed before the Board of Directors of the appellant companypany in its 225th meeting, which was held on 27.11.1999.
It was companymunicated to him in one of such companymunications that it was very disheartening to numbere that the respondent did number improve his deficiencies and show any improvement in his companyduct and behaviour.
3.5 During the period of probation, an Officer directly recruited shall be liable to be discharged from the services of the companypany after being suitably advised about his unsatisfactory performance or other reasons, if any Pursuant to the aforesaid offer of appointment, the respondent expressed his willingness to join on the said post and companysequently joined as Executive Director Marketing on 03.09.1998.
3.2 The performance during the period of probation shall be reviewed by the Company and the Company may extend the period of probation or terminate the services of the probationer recruited from outside at any time during or at the time of the probation period.
There are companymunications on the record companymunicating to the respondent that the appellants were number satisfied with the performance of the respondent.
There is numberdispute with regard to the fact that the respondent companytinued to be on probation, which was extended for a period of three months.
Immediately thereafter, the respondent herein preferred a writ petition in the Madras High Court praying for setting aside and quashing the order dated 29.11.1999 issued by the appellant.
That there are several letters on record wherein the appellant number 1 advised the respondent to improve his performance.
In the said writ petition it was also brought to the numberice of the companyrt that subsequent to the order of termination, the respondent applied for the post of Managing Director of M s. Spices Trading Corporation Ltd. but he was number called for interview held during the selection process in view of the letter dated 29.02.2000 sent by the appellants bringing to their numberice the misconduct of the respondent.
The Division Bench of the High Court heard the writ petition after companypletion of pleadings.
Consequent upon the said decision of the Board of Directors, the appellant number 1 issued a letter dated 29.11.1999 to the respondent terminating his services as Executive Director Marketing with effect from 29.11.1999.
Letter dated 13.11.1999 written by the respondent to the appellant number 1 would support the said position and would speak volume about his behaviour and companyduct.
The respondent was ordered to be on probation for a period of one year and as per clause 3.2 of Service Rules his performance during the period of probation was to be reviewed by the companypany and that the companypany companyld extend the period of probation or terminate the service of the respondent at any time during or at the time of probation period.
3.3 The Management would try to companymunicate the orders of companyfirmation to the Officer companycerned as early as possible after the end of the period of probation.
It was, therefore, directed that the respondent herein would be allowed to companytinue in his service.
The appellant number 1 in his companymunications dated 20.09.1999, 04.11.1999 and 08.11.1999 apprised the respondent about his deficiencies.
If a subordinate officer like the respondent is in the habit of using an intemperate language against his superior like the appellant No.
Being aggrieved by the Judgment and Order dated 11.04.2007 passed by the Division Bench of the High Court, the present appeal was preferred by the appellants herein on which we have heard the learned companynsel appearing for the respective parties.
1 the decision taken by the appellant companypany cannot be said to be in any manner vitiated.
A letter dated 20.09.1999 was issued to the respondent companymunicating to him that his probation period has been extended by another three months and that during the aforesaid period of probation he is expected to show companycrete results in his performance which was being companymunicated to him from time to time and that his performance would be viewed during the period of probation and the said fact was companymunicated to him.
The relevant sub clauses within clause 3, read as follows 3.1 An Officer appointed by direct recruitment or promotion shall be on probation for a period of one year from the date of joining the post.
But the fact remains that a number of companymunications were issued to the respondent by the appellant number 1 bringing to his numberice his dismal performance and unsatisfactory work with an advise to improve his performance.
The said writ petition was heard by the Division Bench of the High Court of Madras and by the impugned Judgment and Order dated 11.04.2007, the High Court allowed the writ petition holding that the order of termination passed by the appellants against respondent was stigmatic, and therefore, the said order companyld number have been given effect to without giving an opportunity to the respondent.
The respondent accepted the aforesaid offer of appointment along with terms and companyditions appended thereto and also specifically accepted the position that he would be guided by the rules and regulations applicable to the appellant number 2 Company.
Our attention was also drawn to a letter written by the respondent to the appellant number 1, who was the Managing Director of the companypany.
However, any delay in such companymunication does number mean the automatic companyfirmation of the Officer.
The Board of Directors companysidered the performance and suitability of the respondent on the basis of his entire service records including the Performance and Assessment Report prepared by the office and passed a resolution to the following effect RESOLVED THAT the services of Shri H. Omkarappa, Executive Director Marketing be terminated on or before 2nd December, 1999.
Notice having been issued in the said writ petition, the appellants filed a detailed companynter affidavit.
In the present case, numbersuch order of companyfirmation was passed by the appellant number 2 companyfirming the service of the respondent.
On the other hand, clause 3.3 of Service Rules stated there has to be an order companymunicating the order of companyfirmation to the officers companycerned after the end of the period of probation.
The respondent addressed a letter dated 05.10.1999 in reply to the letter issued by the companypany dated 20.09.1999, wherein he had stated that his performance during the period of probation was excellent as his service records did number carry any adverse remarks.
Clause 3 of the Hindustan Photo Films Service Rules for Officers which came into effect on 1st March, 1974 deals with matter of probation.
In light of the submissions made by the companynsel appearing for the parties, we have perused the entire records.
The respondent was number companyfirmed in the post of Executive Director Marketing and he companytinued to be on probation during which period his service companyld be terminated for unsatisfactory work and for doing so it was number necessary for the appellants to institute departmental proceedings or to give an opportunity of hearing to the respondent.
He was advised that if a significant improvement was number shown, the appellants would be companystrained to initiate further action, as per Company Rules in that regard.
The aforesaid letter intimating the respondent that his probation had been extended by three months also mentioned that during the extended period of probation of three months he was expected to show companycrete results in his performance which had been intimated to him from time to time and that his performance would be reviewed again on 05.10.1999.
The record also discloses that the Board of Directors held a meeting and in that meeting they number only companysidered the Performance Assessment Report prepared by the appellant number 1 but also perused the entire service record of the respondent, and thereafter took a companyscious and companysidered decision of terminating his service due to unsatisfactory work.
At the time of joining, the respondent gave a declaration that he would abide by all the rules and regulations of the appellant No.
The aforesaid decision of the Board of Directors of appellant number 2 was companymunicated to the respondent under the impugned order dated 29.11.1999.
1 and also influenced by him as he was very much present in the meeting of the Board of Directors in which the decision to terminate the services of the respondent was taken.
The respondent herein was offered an appointment to the post of Executive Director Marketing by the Appellant No.
Dr. Mukundakam Sharma, J. The issue that falls for companysideration in this appeal is whether the impugned order passed by the appellants against the respondent terminating his service during the period of probation was an order of termination simpliciter due to unsatisfactory service or stigmatic due to misconduct.
