# R.P. Garg v. Indian Oil Corporation Ltd. and another

- **Citation:** (2007) 1 ILRA 255
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-12-01
- **Case number:** Civil Misc. Writ Petition No. 8502 of 1989
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/r-p-garg-v-indian-oil-corporation-ltd-and-another-40854
- **Pages:** 4

## Headnote

Constitution
of
India,
Art.
226Termination Order-appointment on one
year probation with stipulation that
confirmation of service shall be in
writing-even after expiry of one year
neither probation period extended-nor
confirmation order passed-performance
found excellent-held shall be deemed
automatically
confirmed-termination
held-illegal-in view of standing orderservices stood confirmed hence without
disciplinary proceeding without show
cause notices-termination not proper.

Held: Para 8

he impugned order has to be judged in
the light of what has been contained in it
and not on the basis of the stand or the
defence taken in the counter affidavit.
The respondents, by counter affidavit
cannot supplement reasons which are
not contained in the impugned order.
The above view is fortified by the
decision of the Supreme Court in case of
Mohinder Singh Gill & another Vs. The
Chief Election Commissioner, New Delhi
& Ors. AIR 1978 SC 851. The Apex Court
in the said decision ruled that when
statutory functionary makes an order
based on certain grounds, its validity
must be judged by the reasons so
mentioned and cannot be supplemented
by fresh reasons in the shape of affidavit
or otherwise. In view of the above it is
not possible to consider the defence
taken by the respondents in the counter
affidavit
and
to
read
the
reasons
mentioned therein for terminating the
services of the petitioner to be part of
the impugned order. Therefore, as the
services of the petitioner under the
Standing Orders stood confirmed he was
not liable to be terminated for the
reasons recorded in the impugned order
by treating him to be on probation.
Admittedly, no disciplinary proceedings
were initiated against the petitioner.
Accordingly,
the
impugned
order
is
unsustainable
and
is
liable
to
be
quashed.
Case law discussed:
AIR 1973 SC-2650
AIR 1978 SC-851
2006 (4) ADJ-772

## Text

1 All] R.P. Garg V. Indian Oil Corporation Ltd. and another
255
shall stand settled with him. However if
damages are not paid within six months
then this order shall stand automatically
vacated and writ petition shall stand
dismissed. Damages shall be deposited
before S.D.O concerned for being kept in
concerned Gaon Sabha fund.

Writ petition is accordingly disposed
of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.12.2006

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 8502 of 1989

R.P. Garg

...Petitioner
Versus
Indian Oil Corporation Ltd. and another

...Respondents

Counsel for the Petitioner:
Sri A.S. Diwakar
Sri V.K. Agarwal
Sri I.M. Kushwaha
Sri Rahul Sahai
Sri H.P. Pandey
Sri V.K. Verman

Counsel for the Respondents:
Sri V.R. Agarwal
Sri Vivek Ratan

Constitution
of
India,
Art.
226Termination Order-appointment on one
year probation with stipulation that
confirmation of service shall be in
writing-even after expiry of one year
neither probation period extended-nor
confirmation order passed-performance
found excellent-held shall be deemed
automatically
confirmed-termination
held-illegal-in view of standing orderservices stood confirmed hence without
disciplinary proceeding without show
cause notices-termination not proper.

Held: Para 8

he impugned order has to be judged in
the light of what has been contained in it
and not on the basis of the stand or the
defence taken in the counter affidavit.
The respondents, by counter affidavit
cannot supplement reasons which are
not contained in the impugned order.
The above view is fortified by the
decision of the Supreme Court in case of
Mohinder Singh Gill & another Vs. The
Chief Election Commissioner, New Delhi
& Ors. AIR 1978 SC 851. The Apex Court
in the said decision ruled that when
statutory functionary makes an order
based on certain grounds, its validity
must be judged by the reasons so
mentioned and cannot be supplemented
by fresh reasons in the shape of affidavit
or otherwise. In view of the above it is
not possible to consider the defence
taken by the respondents in the counter
affidavit
and
to
read
the
reasons
mentioned therein for terminating the
services of the petitioner to be part of
the impugned order. Therefore, as the
services of the petitioner under the
Standing Orders stood confirmed he was
not liable to be terminated for the
reasons recorded in the impugned order
by treating him to be on probation.
Admittedly, no disciplinary proceedings
were initiated against the petitioner.
Accordingly,
the
impugned
order
is
unsustainable
and
is
liable
to
be
quashed.
Case law discussed:
AIR 1973 SC-2650
AIR 1978 SC-851
2006 (4) ADJ-772

(Delivered by Hon'ble Pankaj Mithal, J.)

1. The petitioner was appointed as
Electrician Gr. III with Indian Oil
Corporation
Ltd.
vide
letter
of
appointment dated 21.4.1986. The said
256 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
appointment of the petitioner was on
probation. According to the appointment
letter the probation was for a period of six
months from the date of joining and was
liable
to be extended
or reduced.
However,
condition
No.
3
of
the
appointment
letter
stated
that
the
petitioner was not liable to be treated as
confirmed unless a letter of confirmation
to that effect is issued. The petitioner
alleges that he had worked satisfactorily
and he had completed the probation
period which was never extended. Under
the model standing orders framed under
the
Industrial
Employment
Standing
Orders Act, which are applicable, the
maximum period of probation provided is
one year and on completion of the said
period of probation, the services of the
petitioner
were
deemed
to
be
automatically confirmed. These Model
Standing Orders being statutory in nature
supersedes the terms and conditions
contained in the letter of the appointment.
Therefore, the petitioner stood confirmed
after he had put in over one year of
service. However, his services were
abruptly terminated without any notice or
opportunity of hearing vide order dated
26.4.1989 on the ground that he is on
probation and his services are no longer
required. The said termination order is
under challenge by the petitioner.

2. In the counter affidavit, the
respondents have tried to justify the
termination by stating that the petitioner,
before joining his duties had given a
declaration
suppressing
material
information
and
containing
false
information.
The
petitioner
in
the
declaration form had concealed about his
last employment, which was with U.P.
Rajya Vidyut Utpadan Nigam Ltd. On
inquiries
it
was
revealed
that
the
petitioner was sponsored for training by
the Nigam from 3rd February 1986 to 4th
July 1986 but the petitioner deserted
training on 19th May 1987 by submitting
his resignation which was in violation of
the contract which was for a period of
three years. Therefore, he had rendered
himself disqualified for appointment.

3. The first question which arises for
determination is whether the services of
the petitioner stood confirmed or he
continued to be on probation on the date
on which his services were terminated.

4.

Undisputedly
under
the
appointment letter the petitioner was
appointed on probation and the probation
was
to
continue
till
a
letter
of
confirmation
was
issued
to
him.
Admittedly no letter of confirmation was
ever issued to the petitioner.

5. However, according to the
petitioner he stood confirmed under the
Model Standing Orders as he had
continued in service beyond 12 months,
the
maximum
period
of
probation
provided therein. Learned counsel for the
petitioner
Sri
Rahul Sahai
in
this
connection
placed
reliance
upon
a
decision of the Hon'ble Supreme Court in
the case of Western Indian Match
Company Ltd. Vs. Workman AIR 1973
SC 2650. In this case the Apex Court held
that where the terms of the agreement
were inconsistent with the Standing
Order, the terms of employment as per the
Standing Order would prevail over the
express terms of the contract of service. In
other words, the terms and conditions of
employment
inconsistence
with
the
Standing Orders would not survive. Thus,
from the above it is evident that the
Standing Orders, which have the statutory
1 All] R.P. Garg V. Indian Oil Corporation Ltd. and another
257
force would prevail over the terms and
conditions of the letter of appointment.
The Standing Order provides for a
probation of a maximum period of 12
months.
Therefore,
the
period
of
probation of the petitioner cannot exceed
the above period. Since the petitioner
satisfactorily continued in service for
three
years
he
stood
automatically
confirmed on the expiry of the above
probation period of 12 months and as
such was a confirmed employee when his
services were terminated.

6. Sri V.K. Agrawal, Senior
Advocate assisted by Sri Vivek Ratan
emphasized that since the petitioner was
guilty of concealment of facts and of
making false declaration, his services
have rightly terminated as the corporation
does not want to retain such type of
persons in employment.

7. I have examined the record of the
writ petition and have perused the
impugned termination order dated 26th
April
1989.
The
impugned
order
specifically states "You were on probation
and no confirmation letter is yet issued to
you. Your services cannot therefore be
regarded as confirmed. Your services are
no longer required by the Corporation
and hence terminated with immediate
effect". The contents of the impugned
order demonstrates that the service of the
petitioner had been terminated by treating
him to be on probation and for no other
ground much less for the reasons stated in
the counter affidavit. The termination
order does not say that the services of the
petitioner are being terminated on the
ground of concealment of facts and for
making a false declaration at the time of
seeking the employment.

8. The impugned order has to be
judged in the light of what has been
contained in it and not on the basis of the
stand or the defence taken in the counter
affidavit. The respondents, by counter
affidavit
cannot
supplement
reasons
which are not contained in the impugned
order. The above view is fortified by the
decision of the Supreme Court in case of
Mohinder Singh Gill & another Vs. The
Chief
Election
Commissioner,
New
Delhi & Ors. AIR 1978 SC 851. The
Apex Court in the said decision ruled that
when statutory functionary makes an
order based on certain grounds, its
validity must be judged by the reasons so
mentioned and cannot be supplemented
by fresh reasons in the shape of affidavit
or otherwise. In view of the above it is not
possible to consider the defence taken by
the respondents in the counter affidavit
and to read the reasons mentioned therein
for terminating the services of the
petitioner to be part of the impugned
order. Therefore, as the services of the
petitioner under the Standing Orders
stood confirmed he was not liable to be
terminated for the reasons recorded in the
impugned order by treating him to be on
probation. Admittedly, no disciplinary
proceedings were initiated against the
petitioner. Accordingly, the impugned
order is unsustainable and is liable to be
quashed.

9. Sri Agrawal then relied upon the
decision in the case of Ramesh Prasad
Patel Vs. Union of India & Ors. 2006 (4)
ADJ 772 (Alld.) and submitted that even
if the petitioner is treated to be a
confirmed employee since his services
have been terminated on the ground as
stated in the counter affidavit i.e. for
making wrong declaration, which was
subsequent found to be false as such the
258 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
principles of natural justice are not
attracted and the appointment of the
petitioner itself stand vitiated under law.
The above argument is devoid of any
substance in as much as the impugned
termination order has otherwise been
found to be invalid without going into the
question of it having been passed in
violation of the principles of natural
justice. Moreover, the respondents have
not chosen to cancel the appointment of
the petitioner on the alleged ground of
misrepresentation or concealment of fact
which may have possibly be done without
affording any opportunity of hearing to
the petitioner.

10. In view of the above discussion,
the impugned termination order dated
26th April 1989 (Annexure 3 to the writ
petition)
is
quashed.
However,
the
respondents are at liberty to pass a fresh
order if they so desire in accordance with
law.

The writ petition is allowed. No
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.10.2006

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE VIKRAM NATH, J.

Income Tax Reference No.73 of 1993

M/s Nainu Mal Het Chand, Kanpur

...Applicant
Versus
Commissioner of Income Tax, Kanpur

 ...Respondent

Counsel for the Applicant:
Sri K.N. Kumar

Counsel for the Respondent:
Sri A.N. Mahajan
S.C.

Income Tax Act, 161, Section 271 (c)-
Imposition of penalty applicant-assessed
income tax during assessment year
1989-90-assessee
concealed
the
particulars of income of Rs.1,65,000/-
held-the satisfaction can be concluded
from assessment order itself-penalty
proceeding rightly initiated.

Held: Para 20

So far as the two decisions of the Delhi
High Court are concerned, we find that
under the provisions of the Act, the
Income Tax Officer is not required to
record his satisfaction in a particular
manner or reduce it in writing. It can be
gathered from the assessment order
itself. In D.M. Mansavi (supra) the Apex
Court has clearly held that the Income
Tax Officer should be satisfied during the
course of the assessment proceeding
that the assessee had concealed his
particulars of income or has furnished
inaccurate particulars of such income.
The satisfaction can be gathered from
the assessment order. In the present
case, we find that the Income Tax Officer
had material before him for being
satisfied
that
the
applicant
has
concealed the particulars of his income
and, therefore, penalty proceeding have
rightly been initiated. We are, therefore,
with great respect unable to persuade
ourselves to follow the view taken by the
Delhi High Court in the aforesaid two
cases.
Case law discussed:
(1991) 189 I.T.R. 41 (Bom)
(1994) 210 ITR 103 (Cal.)
(1999) 235 ITR-461 (G)
(2000)164 CTR 209 (Guj)
(2000) 246 ITR-568 (Delhi)
(2000) 246 ITR-571
(2003) 263 ITR-484 (P & H)
(1972) 86 ITR-557