Calcutta High Court
Debdas Ganguly vs Director, Zoological Garden At Alipore ... on 29 July, 1991
Equivalent citations: (1991)2CALLT353(HC)
Author: Altamus Kabir
Bench: Altamus Kabir
JUDGMENT Altamus Kabir, J.
1. This appeal is directed against an order dated 11th July, 1981, passed by the learned single Judge, in Civil Rule No. 795(W) of 1981, discharging the Rule while considering the appellant's application for extension of interim order.
2. From the writ petition filed by the appellant it appears that on 1st May, 1974, the appellant was appointed as a durwan of the Zoological Garden at Alipore, Calcutta-700 027. On 5th October, 1980, while appellant was on duty in the said Garden, the Assistant Superintendent of the Garden came to the entrance gate and charged the appellant of having 28 unpunched tickets in his possession. By his letter dated 9th October, 1980, the Director of the Garden placed the appellant under suspension pending disciplinary proceedings. The appellant was, thereafter, served with a charge-sheet dated 31st October, 1980, issued by the Honorary Secretary of the Garden and the appellant was directed to submit his written explanation in respect of the charges within 15 days of receipt of the said charge sheet. By his letter dated 4th November, 1980, the appellant asked for certain papers which were forwarded to the appellant by the Director of the Garden along with his letter dated 10th November, 1980. The appelant was not, however, supplied with the names of the witnesses proposed to be examined by the management and their statements, if any. On 24th November, 1980, the appellant submitted his written explanation with the observation that the same was not complete for want of the documents that, had not been supplied to the appellant and the other papers. On receipt of the said, explanation, the Director of the Garden sent a letter dated 4th January, 1980, to the appellant asking him to appear before the Respondent No. 5, who had been appointed as the Enquiry Officer, for the purpose of giving evidence. The appellant, thereupon, by his letter dated 6th January, 1981, prayed to the Enquiring Officer for permission to be allowed to be represented at the enquiry by a family friend, who also happened to be an advocate. By his letter dated 7th January, 1981, the Director of the Garden refused the appellant's prayer, without giving any reason for such refusal. Owing to illness, the appellant could not attend the enquiry on 12th January, 1981', and the enquiry was adjourned till 27th January, 1981. On 17th January, 1981, the appellant applied to the Enquiring Officer for a copy of the Garden Rules, since in the charge-sheet it had been mentioned that the appellant had acted in violation of the said Garden Rules. Despite the appellant's request, he was not provided with a copy of the Garden Rules.
3. At this stage, on 22nd January, 1981, the appellant moved the writ application out of which the present appeal emanates. The learned single Judge directed the matter to be listed on 27th January, 1981, and also directed that the departmental proceedings would continue, but no final order was to be passed therein. On 3rd February, 1981, the learned single Judge issued a Rule and further directed that the proceedings would continue but no final order should be passed till the disposal of the Rule. During the pendency of the Rule, the respondents stopped paying subsistence allowance to the appellant from the month of June, 1981. The appellant thereupon made a substantive application in the pending Rule, praying for a direction on the respondents to continue to pay subsistence allowance to the appellant. The said application for further interim directions came up for hearing before the learned single Judge on 21st July, 1981. On behalf of the respondents it was contended that the appellant had been appointed on a purely temporary basis for six months and such temporary appointment was extended from time to time upto 4th May, 1981. Since the appellant's services were not extended beyond 4th May, 1981, the question of payment of subsistence allowance after 4th May, 1981, did not arise at all. On behalf of the respondents it was further contended that on and from 5th May, 1981, since there was no relationship of master and servant between the appellant and the respondents, the question of continuing the disciplinary proceedings against the appellant did not also arise. It was also contended on behalf of the respondents that in view of the above, the writ application itself become infructuous.
4. Accepting the submissions made on behalf of the respondents, the learned single Judge not only dismissed the appellant's interlocutory application for extension of interim order, but discharged the Rule itself, upon holding that the same had become infructuous.
5. The learned single Judge held that as the appellant's services had come to an end, the disciplinary proceedings had also become infructuous. While discharging the Rule, the learned single Judge directed the respondents to pay to the appellant the balance of all salaries and allowances in full for the period upto 4th May, 1981.
6. The aforesaid order of the learned single Judge is the subject matter of the appeal before us.
7. Appearing for the appellant, Mr. Pronab Kumar Dutta, learned advocate, submitted that the learned single Judge acted erroneously in discharging the Rule while considering an interlocutory application for further interim orders.
8. Mr. Dutta submitted that the learned single Judge had erroneously held that the appellant's services had come to an end, on the basis of the submissions made on behalf of the respondents that the appellant's services, which were purely temporary in nature, had not been extended beyond 4th May, 1981.
9. In this connection, Mr. Dutta submitted that the appellant was appointed as a durwan on 1st May, 1979, on a temporary basis, initially for a period of six months, which period could be extended at the discretion of the competent authority. If the appellant failed to discharge his duties during the period of trial to the complete satisfaction of the Garden authorities, he would be liable to be discharged from service. The terms of appointment further provided that the appellant's services could be terminated at any time by a month's or 30 days' notice given by either side, without assigning any reason. The appointing authority reserved the right of terminating the appellant's services forthwith or before the expiration of the stipulated period of notice by making payment to the appellant of a sum equivalent to the pay and allowances for the period of notice or the unexpired portion thereof. Other conditions of service of the appellant would be governed by the relevant rules and orders in force from time to time.
10. Mr. Dutta submitted that after the expiry of the initial trial period of six months, the appellant's services were admittedly extended on three occasions, each time for a period of six months. The first extension was granted with effect from 4th November, 1979. The second extension was granted with effect from 4th May, 1980, and the third extension was granted with effect from 4th November, 1980. As a result of such extensions, the appellant completed two years' uninterrupted service on 4th May, 1981. Mr. Dutta then referred to the. Services (Training and Examination) Rules, West Bengal, published in Finance Department Memo. No. 297-OPM dated 28th April, 1976, which stipulated the general rules regulating the probation and training of officers appointed on probation to I.A.S., I.P.S., West Bengal Provincial Services, West Bengal General Services and Subordinate Service. In the said Rules, a probationer has been defined to mean a government servant appointed on probation on trial in or against a substantive vacancy. A government servant so appointed remains a probationer until he is confirmed. Rule 4 of the said Rules provides that on completion of the period of probation or extended period of probation, the appointing authority shall record an order either confirming the probationer or discharging him or extending the period of probation, after obtaining the special sanction of the government Under Rule 3. The said Rule further provides that unless any specific decision is taken by the appointing authority, the period of probation shall be deemed to have been automatically extended until further orders.
11. Mr. Dutta also referred to the West Bengal Services (Appointment, Probation and Confirmation) Rules, 1979, which came into effect from 1st June, 1979. Rule 5 of the said Rules provides that a government employee shall be deemed to be on probation on completion of continuous temporary service for two years, after his initial appointment in a post or service or cadre. The said Rule further provides that a government employee shall be confirmed and made permanent on satisfactory' completion of the period of probation, which was to be for one year, and no formal declaration would be necessary in respect of appointment on probation.
12. Mr. Dutta submitted that in view of the aforesaid Rules, it could not be contended that the appellant's services had come to an end merely because his services were not extended beyond 4th May, 1981. Mr. Dutta submitted that the learned trial Judge erred in arriving at the finding that the appellant's services had come to an end, thereby rendering the Rule issued by this court infructuous. Mr. Dutta submitted that without going into the merits of the case, the learned single Judge ought not to have discharged the Rule as having become infructuous at an interlocutory stage, when he was only considering the appellant's application for extension of interim order or further interim orders.
13. During the hearing of the appeal, Mr. Dutta produced the initial appointment letter of the appellant and the subsequent letters extending the appellant's services from time to time. These documents were not before the learned single Judge as the same had not been annexed to the writ petition, but as Mr. Nigam Chakraborty, learned counsel for the Zoological Garden authorities, also chose to refer to the same, we allowed Mr. Dutta to place the same before us, only for the purpose of ascertaining the manner, in which the appellant had been initially appointed and the manner in which his services had been subsequently extended.
14. Mr. Chakraborty also relied on the initial letter of appointment issued to the appellant which contained the terms and conditions under which the appellant had been appointed.
14a. In support of his submissions, Mr. Dutta referred to and relied upon several decisions, both of the Supreme Court and this Court.
15. Relying on the aforesaid Rules, Mr. Dutta submitted that on the completion of two years' uninterrupted service on a temporary basis, it must be deemed that the appellant had become a probationer, even though no formal letter had been issued to the appellant in that regard. Merely because the appellant's services had not been extended after two years in writing, it could not be contended that the appellant's services had automatically come to an end. In support of his submission, Mr. Dutta referred to the following cases :
(i) State of Punjab v. Dharam Singh, .
(ii) Partap Singh v. Union Territory of Chandigarh and Anr. .
(iii) Express Newspapers Ltd. v. Labour Court, Madras, and Anr. reported in 1964(1) LLJ at Page 9.
(iv) Satyabrata Kar Mahapatra v. State of West Bengal and Ors. reported in 1981(2) CHN at Page 20.
16. The ratio of the aforesaid decisions is that the services of a probationer does not come to an end automatically at the expiry of the period of probation. In the absence of any express order of discharge or confirmation, the period of probation is deemed to be extended.
17. Mr. Dutta also referred to the case of T.K. Das, I.P.S. v. Union of India and Ors., reported in 1980(1) CHN at Page 255, in support of his submission that while the disciplinary proceedings were continuing against the appellant his services could not be discontinued by passing an order of compulsory retirement.
18. Mr. Dutta submitted that what could not be done directly, could not be done indirectly by simply claiming that the appellant's services had come to an end. Mr. Dutta, therefore, submitted that the order of the learned single Judge should be set aside, and the appellant should be given all his service benefits from 5th May, 1981, onwards, the date on which the appellant's service were claimed to have come to an end.
19. Mr. Nigam Chakraborty, learned advocate for the Zoological Garden authorities, submitted that the writ petition itself was not maintainable 6ince the appellant was not a government servant and was an employee of the Garden.
20. Mr. Chakraborty submitted that neither the Managing Committee, constituted under the Alipore Zoological Garden (Management) Rules, 1957, framed Under Section 4(2) of the Bengal Public Parks Act, 1904, which had appointed the appellant and' had subsequently extended his services from time to time, nor its members, had been made parties to the writ proceedings and as such the writ application was liable to be dismissed on the said ground alone.
21. Mr. Chakraborty further submitted that, although, the appellant was claiming the benefit of the Rules referred to by Mr. Dutta, he had not disclosed his status in the writ petition, and, as such, the appellant was not entitled to the benefit of the said Rules, as the said Rules were applicable only to government employees, and the appellant was not a government employee, but an employee of the Zoological Garden.
22. Mr. Chakraborty also submitted that the facts being sought to be disclosed before the Appeal Court had not even been pleaded in the writ petition.
23. In this connection, Mr. Chakraborty referred to a Bench decision of this Court, in the case of Secretary to the Government of West Bengal, Home Department and Ors. v. Ram Chandra Choudhury, , in which my learned Brother had occasion to appear, wherein this Court had held that mere assertion of malafides was not sufficient in the complete absence of any facts in the pleading. Mr. Chakraborty also referred to the case of Kedar Nath Bahl v. State of Punjab and Ors. . In the said case the appellant had been appointed on a temporary basis and he was aware that his appointment was to come to an end on a particular date. Inspite of having such knowledge, the appellant claimed that he was entitled to three months' notice. Negativating the appellant's claim, the Supreme Court held that such claim was unfounded, as the appellant was fully aware of his precarious tenure from month to month. Applying the facts of the said case to the present case, Mr. Chakraborty submitted that the learned single Judge had not committed any error in discharging the Rule, since no notice was required to be given to the appellant, and the Garden authorities were not under any compulsion to extent the appellant's services beyond 4th May, 1981, when his last extension of service came to an end. The appellant's services having come to an end, there was no further necessity of continuing with the disciplinary proceedings.
24. Having considered the facts and circumstances of the case and the submissions made on behalf of the respective parties, we are of the view that the learned single Judge ought not to have discharged the Rule itself at the interlocutory stage, when he was only considering an application for extension of interim orders or further interim orders. While considering the said application, the learned single Judge had no occasion to consider the enactments and Rules cited before us and/or the arguments advanced before us relating to the maintainability of the writ petition. The learned single Judge simply proceeded on the basis that since the appellant's services had not been renewed and such service was of a temporary nature, the appellant's services had automatically come to an end, and the Garden authorities were in no way obligated to continue with the disciplinary proceedings, and the relief prayed for in the writ petition had been rendered infructuous.
25. We are, however, of the view that the writ petitioner's case should be considered in the light of the relevant Rules relating to his service conditions. We cannot shut our eyes to the various decisions where it has been; held that on the expiry of the probationary period of an employee's services, his services do not stand automatically terminated. Neither can we ignore the other decisions where it has been held that on completion of temporary service, an employee acquire quasi permanent status on the basis of the service rules governing the conditions of his service. These questions were not gone into, when the writ petition was dismissed.
26. We accordingly, allow the appeal and set aside the order of the learned single Judge dismissing the writ application and discharging the Rule. Having regard to the peculiar facts of the case, the learned Judge may consider disposing of the writ application at an early date, according to the convenience of the learned Judge. The Garden authorities are directed to allow the appellant to resume his duties within a week from date.
27. This will not, however, prevent the Garden authorities from placing the appellant under suspension once again and from proceeding with the disciplinary proceedings from the stage it was discontinued.
28. If any final order is passed, the same is not to be given effect to, without the leave of the Court.
29. Although, we have directed the Garden authorities to allow the appellant to resume his duties, the appellant will not be entitled to any salary or other emoluments for the period from 5th May, 1981, till the date he is allowed to resume his duties, as he has not worked during the said period and the charges against him are of a grave nature.
30. There will be no order as to costs.
Prayer for stay made on behalf of the Garden authorities is considered and refused.
Let xerox copy of the operative part of this judgment be given to both parties on their undertaking to observe all necessary formalities.
Paritosh Kumar Mukherjee, J.
31. I agree.