The Chief General Manager, State Bank of India & Anr. Vs. Shri Bijoy Kumar Mishra
Email(From the Judgment and Order dated 19.11.91 of the Orissa High Court in O.J.C.No.4075 of 1988)
(From the Judgment and Order dated 19.11.91 of the Orissa High Court in O.J.C.No.4075 of 1988)
K.K.Venugopal, Sr.Advocate, Sanjay Moni Tripathi and Ms.Rani Jethmalani, Advocates, with him for the Respondent.
Probation – Termination of service – State Bank of India Officers (Determination of terms and conditions of Service) order 1979 – Paragraphs 15 and 6 – Period of probation commence from 15.12.1980 – Absent on duty from 2.4.1981 – Not even in touch with Bank between 1984 to 1988 – Services termination on 4.10.1988 – Termination order quashed by High Court holding that respondent deemed to have been confirmed on that past on 14.12.1983 – Held High Court had misread Dharam Singh’s case to grant relief- Deemed confirmation is permissible only when it follows from positive act of employer permitting employee to continue to work even after completion of maximum period of probation – Appeal allowed – Dharam Singh’s case does not support respondent.
The contention of the respondent which has been accepted by the High Court is that on the expiry of the period of three years on 14.12.1983, in the absence of the termination order being issued before that date, the respondent is deemed to have been confirmed. The question is whether this is a correct reading of these provisions?
The point for decision has to be answered on the basis of the earlier decisions of this Court. The High Court has placed reliance on the decision of this Court in State of Punjab v. Dharam Singh , (1968) 3 S.C.R. 1 at p.4, in support of its con-clusion. We would presently show that this is not a correct reading of the decisions of this Court including Dharam Singh. The Constitution Bench held in Dharam Singh
The above quoted last extract on which reliance was placed by the High Court and on which emphasis was laid by Shri K.K. Venugopal, learned counsel for the respondent has to be read in the context and not divorced therefrom. In Substance, Dharam Singh held that where the Service Rules permitted continuance in service as a probationer beyond a certain period, an express order of confirmation is necessary to give the employee a sub-stantive right to the post, and the mere fact that he is allowed to continue in the post after the specified period of probation is not sufficient to hold that he should be deemed to have been confirmed; but where the maximum period of probation is provided in the Service Rules and the employee is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he must be deemed to have been confirmed in the post by implication.
In short, it is a rule of evidence applied to the facts of the case because the continuance in employment after the maximum period of probation is consistent only with the confirmation, and that follows from the employer’s conduct of permitting the em-ployee to continue to work on that post after the maximum period of probation.
It is obvious that the decision in Dharam Singh can have no application in a case where the employee was absent from duty from a date much prior to the expiry of the maximum period of probation and remained absent even thereafter for a long time. There was no occasion in such a case for a the employer to allow the employee (respondent) to continue to work on the post after the expiry of the maximum period of probation because he was absent and was not working on the post at the time of the expiry of the period of probation. Deemed confirmation results from the conduct of the employer in permitting continuance in service after the expiry of the maximum period of probation fixed by the rules. When there is no such conduct of the employer, the very foundation for the argument of deemed confirmation and reliance on Dharam Singh is not existent. In our opinion, this discussion alone is sufficient to indicate that the High Court has misread Dharam Singh to grant relief to the respondent. However, we may refer to some later decisions also to indicate that this is the correct position in law.
There can thus be no doubt that the deemed confirmation which is inferred from the employer’s conduct is permissible only when it follows from the positive act of the employer permitting the employee to continue to work on the post even after comple-tion of the maximum period of probation permitted under the Service Rules since no other inference is possible in such a situation from the employer’s conduct of continuing to take work from the employee after that period.
No separate discussion of Jai Kishan v. Commissioner of Police & Anr., 1995 Supp (3) SCC 364 and State of Punjab v. Baldev Singh Khosla,JT 1996 (5) SC78 = (1996) 9 SCC 190, is called for. In view of the clear law laid down in the Constitu-tion Bench decision of this Court in Dharam Singh and Samsher Singh as indicated above, those decisions cannot be treated as authorities for a proposition inconsistent with that laid down by the Constitution Bench. It must be mentioned that Shri K.K. Venugopal learned counsel for the respondent, made no attempt to rely on any of these decisions and he confined the respondent’s case to the reading of the Constitution Bench decision in Dharam Singh. As we have already indicated Dharam Singh does not support the respondent’s contention. (Para 4, 5, 6, 7, 8, 10 & 12)
2. Jai Kishan v. Commissioner of Police & Anr., 1995 Supp (3) SCC 364(Para 12)
3. Municipal Corporation, Raipur v. Ashok Kumar Misra, JT 1991 (2) SC 599 = (1991) 3 SCC 325(Para 11)
4. Smasher Singh v. State of Punjab & Anr., (1974) 2 SCC 831 at p. 853(Para 9)
5. Kedar Nath Bali v. State of Punjab,(1974) SCC 21 (Para 9)
6. State of Punjab v. Dharam Singh , (1968) 3 S.C.R. 1 at p.4 (Para 6)
1. The respondent Bijoy Kumar Mishra was appointed as a Proba-tionary Officer in the State Bank of India and posted at Jharsu-guda Branch in Bhubaneswar circle by an order dated 24.10.1980. The respondent joined duty on 15.12.1980 and his period of proba-tion commenced from that date. The respondent remained unauthor-isedly absent from duty from 2.4.1981 for a long period and the last date of his presence on duty was in the first week of August 1983. Thereafter, he was absent till the year 1988. The maximum permissible period of probation under the Service Rules was three years which expired in his case on 14.12.1983, when he was admit-tedly absent from duty. From May 1984 to 1988, he was not even in touch with the Bank. The respondent submitted a medical certifi-cate dated 26.5.1984 that he was suffering from viral infection from 6.2.1984 to 26.5.1984 and that he was fit to resume his duties on the date of his certificate. Even then he did not report for duty. The respondent joined M.Phil. Course in the Punjab University at Chandigarh in 1986-87 without permission. In these circumstances, the Bank issued an order dated 4.10.1988 terminating his service.
2. The respondent filed a writ petition under Article 226 of the Constitution of India in the Orissa High Court challenging the termination order. The High Court has taken the view that it shall be presumed that the competent authority had confirmed the petitioner after 24.10.1983 as no action contemplated by Para-graph 16(3) of the relevant Service Rules had been taken. In short, the High Court has held that on expiry of the maximum permissible period of probation, the respondent was deemed to have been confirmed on the post. On this basis, by the impugned order dated 19.11.1991, the termination order dated 4.10.1988 has been quashed and a direction given to reinstate the respondent in service with all consequential benefits with permission to the Bank to proceed against the petitioner in accordance with law. Hence this appeal by special leave.
3. The only question for consideration is whether in the facts and circumstances of the case, the respondent can be deemed to have been confirmed without any order of confirmation during his unauthorised absence from duty under the relevant Service Rules. The relevant provisions are Paragraphs 15 & 16 of the State Bank of India Officers (Determination of Terms & Conditions of Serv-ice) Order 1979, which are as under:
“Probation
15(1) A person appointed as a Probationary Officer or a Trainee Officer shall be on probation for a period of two years.
(2) Any other employee of the Bank promoted as an officer to the Junior Management Grade shall be on probation for a period of one year.
(3) Any other person appointed to any grade including junior management grade shall be on probation for such period as may be decided by the competent authority.
Provided that the competent authority may, in the case of any officer, reduce or dispense with the period of probation.”
“Confirmation
16(1) An officer referred in paragraph 15 shall be confirmed in the service of the Bank, if, in the opinion of the competent authority, the officer has satisfactorily completed the training in any institution to which the officer may have been deputed for training, and the in-service training the Bank.
Provided that an officer directly recruited to the junior management grade may be required also to pass a test in a language other than his mother tongue.
(2) If, in the opinion of the competent authority, an officer has not satisfactorily completed either or both the trainings referred to in sub-paragraph (1) or if the officer has not passed the test referred to therein or an officer’s service is not satisfactory, the officer’s probation may be extended by a further period not exceeding one year.
(3) Where during the period of probation, including the period of extension, if any, the competent authority is of the opinion that the officer is not fit for confirmation :
(a) in the case of a direct appointee, his services may be terminated by one month’s notice or payment of one month’s emoluments in lieu thereof, and
(b) in the case of a promotee from the Bank’s service, he may be reverted to the grade or cadre from which he was promot-ed.”
4.The respondent being directly appointed as Probationary Officer, the period of his probation was two years according to sub-paragraph (1) of Paragraph 15. The confirmation is provided in Paragraph 16. Sub-paragraph (1) of Paragraph 16 requires the satisfaction of the competent authority and also the passing of the specified tests for confirmation in the service of the Bank. Sub-paragraph (2) of Paragraph 16 provides for the officer’s probation to be extended by a further period not exceeding one year. If in the opinion of the competent authority, the officer does not fulfil the requirement, he cannot be confirmed. Accord-ing to Paragraph 16(2), the maximum period of probation, read with Paragraph 15(1) cannot exceed 2+1 years, i.e., 3 years. Sub-paragraph (3) provides for termination of the service of a direct appointee during the period of probation by one month’s notice or payment of one month’s emoluments in lieu thereof and in the case of a promotee, his reversion to the grade or cadre from which he was promoted. Thus, the combined effect of Paragraphs 15 & 16 particularly sub-paragraph (1) of Paragraph 15 and sub-paragraph (2) of Paragraph 16 is that the total period of probation of a direct appointee cannot exceed three years.
5. The contention of the respondent which has been accepted by the High Court is that on the expiry of the period of three years on 14.12.1983, in the absence of the termination order being issued before that date, the respondent is deemed to have been confirmed. The question is whether this is a correct reading of these provisions?
6. The point for decision has to be answered on the basis of the earlier decisions of this Court. The High Court has placed reliance on the decision of this Court in State of Punjab v. Dharam Singh , (1968) 3 S.C.R. 1 at p.4, in support of its con-clusion. We would presently show that this is not a correct reading of the decisions of this Court including Dharam Singh. The Constitution Bench held in Dharam Singh as under
“This Court has consistently held that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation, he should be deemed to continue in his post as a probationer only, in the absence of any indication to the contrary in the original order of appointment or promotion or the service rules. In such a case, an express order of confirmation is necessary to give the employee a substantive right to the post, and from the mere fact that he is allowed to continue in the post after the expiry of the specified period of probation it is not possible to hold that he should be deemed to have been confirmed…. In all these cases, the conditions of service of the employee permitted extension of the probationary period for an indefinite time and there was no service rule forbidding its extension beyond a certain maximum period.
XXX XXX
In the present case, r. 6(3) forbids extension of the period of probation beyond three years. Where, as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee ap-pointed or promoted to a post on probation is allowed to con-tinue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implica-tion. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implica-tion.”
(Emphasis Supplied)
7. The above quoted last extract on which reliance was placed by the High Court and on which emphasis was laid by Shri K.K. Venugopal, learned counsel for the respondent has to be read in the context and not divorced therefrom. In Substance, Dharam Singh held that where the Service Rules permitted continuance in service as a probationer beyond a certain period, an express order of confirmation is necessary to give the employee a substantive right to the post, and the mere fact that he is allowed to continue in the post after the specified period of probation is not sufficient to hold that he should be deemed to have been confirmed; but where the maximum period of probation is provided in the Service Rules and the employee is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he must be deemed to have been confirmed in the post by implication. It is significant that the effect of permitting the employee to contin-ue in the post even on completion of the maximum period of proba-tion without an express order of confirmation results in the only logical inference that he has been confirmed in the post by implication. In other words, the drawing such inference, it is necessary that the employer should allow the employee to continue on the post even after expiry of the maximum period of probation which is consistent only with the fact of his confirmation on the post. This inference is drawn from the conduct of the employer which is consistent only with the fact of confirmation of em-ployee. In short, it is a rule of evidence applied to the facts of the case because the continuance in employment after the maximum period of probation is consistent only with the confirma-tion, and that follows from the employer’s conduct of permitting the employee to continue to work on that post after the maximum period of probation.
8. It is obvious that the decision in Dharam Singh can have no application in a case where the employee was absent from duty from a date much prior to the expiry of the maximum period of probation and remained absent even thereafter for a long time. There was no occasion in such a case for a the employer to allow the employee (respondent) to continue to work on the post after the expiry of the maximum period of probation because he was absent and was not working on the post at the time of the expiry of the period of probation. Deemed confirmation results from the conduct of the employer in permitting continuance in service after the expiry of the maximum period of probation fixed by the rules. When there is no such conduct of the employer, the very foundation for the argument of deemed confirmation and reliance on Dharam Singh is not existent. In our opinion, this discussion alone is sufficient to indicate that the High Court has misread Dharam Singh to grant relief to the respondent. However, we may refer to some later decisions also to indicate that this is the correct position in law.
9. In Kedar Nath Bali v. State of Punjab,(1974) SCC 21, there was no maximum period of probation prescribed in the rules and, therefore, it was held that there could be no automatic confirma-tion. A Seven-Judge Bench in Smasher Singh v. State of Punjab & Anr., (1974) 2 SCC 831 at p. 853, held that the provision regard-ing the maximum period of probation was directory and not manda-tory and the decision in Dharam Singh was construed as under :
“In Dharam Singh’s case he was allowed to continue without an order of confirmation and therefore the only possible view in the absence of anything to the contrary in the Service Rules was that by necessary implication he must be regarded as having been confirmed.”
10. There can thus be no doubt that the deemed confirmation which is inferred from the employer’s conduct is permissible only when it follows from the positive act of the employer permitting the employee to continue to work on the post even after comple-tion of the maximum period of probation permitted under the Service Rules since no other inference is possible in such a situation from the employer’s conduct of continuing to take work from the employee after that period.
11. The decision by Two-Judge Bench in Municipal Corporation, Raipur v. Ashok Kumar Misra,JT 1991 (2) SC 599 = (1991) 3 SCC 325, is distinguishable. In that case, the note under Clause (2) of Rule 8 permitted continuance in service without extension of the probationary period or confirmation or discharge from service at the end of the period of probation.
12. No separate discussion of Jai Kishan v. Commissioner of Police & Anr., 1995 Supp (3) SCC 364 and State of Punjab v. Baldev Singh Khosla,JT 1996 (5) SC78 = (1996) 9 SCC 190, is called for. In view of the clear law laid down in the Constitu-tion Bench decision of this Court in Dharam Singh and Samsher Singh as indicated above, those decisions cannot be treated as authorities for a proposition inconsistent with that laid down by the Constitution Bench. It must be mentioned that Shri K.K. Venugopal learned counsel for the respondent, made no attempt to rely on any of these decisions and he confined the respondent’s case to the reading of the Constitution Bench decision in Dharam Singh. As we have already indicated Dharam Singh does not support the respondent’s contention.
13. Consequently, this appeal is allowed and the impugned judg-ment of the High Court is set aside.
