Calcutta High Court
Calcutta State Transport Corporation ... vs G.K. Bhattacharya And Ors. on 16 March, 1988
Equivalent citations: (1988)2CALLT238(HC)
JUDGMENT Dilip K. Basu, J.
1. This appeal is directed against the Judgment and Order, dated December 16, 1985, passed by a learned Trial Judge in Civil Order No. 9879 (W) of 1984, in which the learned Judge allowed the writ petition and set aside the Order of termination, dated 8th June, 1984, passed by the Chairman, Calcutta State Transport Corporation.
2. Petitioner in the writ petition, (respondent in this appeal), moved writ application, challenging the impugned Order, which is annexure F to the writ petition, dated 8th June, 1984, by which service of the petitioner, in the post of Deputy Director of Operation, under Calcutta State Transport Corporation, was terminated with effect from the forenoon of 11-6-1984.
3. Petitioner/respondent was appointed as Deputy Director of Operation in terms of the appointment letter issued on 24th August, 1982, on probation for a period of one year from the date of joining, at the first instance, on the specific term "You will be on probation for a period of one year from the date of your joining and your confirmation to the said post shall depend on your satisfactory performance during the period of probation and on your being found suitable for the post in all respects. The period of probation may at the discretion of the authority, be terminated or extended if be found to be so necessary". On 15th November, 1982, the petitioner, joined the said post, and after expiry of one year, i.e., on 15th November, 1.983, was awarded an increment, On 19th May, 1984, the Chairman of Calcutta State Transport Corporation (hereinafter referred to as CSTC), informed the petitioner that the period of probation was extended till 14th November, 1984, in terms of Clause 2 of the letter of appointment read with Section 17 of the Calcutta State Transport Corporation Employees Service Regulations (hereinafter referred to as Regulations). On 8th June, 1984, the petitioner/respondents was directed by the Chairman of CSTC not to attend the office with effect from 9th June, 1984, without giving any reason and also without giving any written intimation. On 9th June, 1984, petitioner made a representation to the Chairman, challenging the legality of the; said verbal Order, dated 8th June, 1984 and requested the Chairman, to withdraw the said verbal Order as well as Memo., dated 19th May, 1984, purporting to deconfirm the petitioner inasmuch as, according to Section 17A of CSTC Employees Service Regulation read with Clause 2 of the appointment letter, the petitioner should be deemed to be a permanent employee with effect from 15th December, 1983. The petitioner/respondent applied for leave on 11th June, 1984, for 9 days, i.e., from 11th June to 20th June, 1984. Only on 18th June, 1984, the petitioner respondent was served with an Order of termination passed and signed by the Chairman, CSTC, dated 8th June, 1984, which was the subject matter of challenge before the Trial Court.
4. The learned Judge allowed the writ petition and considered Regulations 17, 17A, 18 & 18A of CSTC Regulations and also the specific stipulation in the appointment letter that the probationary period would be. for one year from the date of joining and the confirmation to the post shall depend upon satisfactory completion of the probationary period. The Trial Judge also considered that admittedly, there was no complaint against the petitioner and increment was granted just after expiry of the probationary period, i.e., one year. In the determination by the learned Judge, it was observed that Regulation 17A of the CSTC Regulations provides a deeming Clause after expiry of the probationary period and the petitioner was confirmed on and from 15th November, 1983, after expiry of one year's probationary period in terms of Clause 17A read with Clause 2 of the appointment letter.
5. On behalf of the appellants, Mr. Samaresh Banerjee, learned Advocate, has invited our attention to the different provisions of CSTC Employees Service Regulations and has indicated and contended that absence of intimation on the part of the appellants to the writ petitioner, on completion of his initial period of probation, to the effect that his period of probation was further extended, cannot lead to automatic confirmation of the post, on the contrary, the same would amount to extension of his probationary period. Mr. Banerjee has indicated the scheme of Regulation 17 and tried to impress upon us that Regulation 17 & 17A should be considered together, for proper construction of the provisions. Mr. Banerjee further contended that Regulation 17 is required to be devided into two compartments. At the first instance, the employees shall be on probation for a period not exceeding one year and secondly, according to Mr. Banerjee, the said probation may be extended upto two years at the direction of the appointing authority. Mr. Banerjee has also invited our attention to Clause 17A & 18A, which were incorporated by an amendment of the said regulation by notification No. 7629-CSTC/IE-186/67-68, dated 14th October, 1977. Mr. Banerjee made specific reference to the following Regulations 17, 17A, 18 & 18A of the said CSTC Employees Regulations:
"17. Unless otherwise provided in any individual contract all employees except- employees on officiating appointments, shall be on probation for a period not exceeding one year which may be extended upto two years at the discretion of the appointing authority. During the period of probation the service of an employee may be terminated with 48 hours notice and without assigning any cause.
17A. An employee who has successfully completed the period of probation referred to in regulation 17 shall be deemed to be a permanent employee.
18. An employee may resign from the service of the Corporation on giving one month's notice :
Provided that in the case of technical personnel three months' notice shall be necessary.
18A. The appointing authority may, by order, terminate the service of a permanent employee:
Provided that no order of termination shall be passed except after an enquiry in which the said employee has been informed of the reason for such termination and given a reasonable opportunity of being heard in the matter."
6. Mr. Banerjee has contended that the petitioner/respondent was appointed on 15th November, 1982, and thereafter, on 19th May, 1984, the probation period was extended till 14th November, 1984. The second extension of the probationary period was in conformity with the Regulation 17 and the Chairman, CSTC, terminated the service of the petitioner/respondent in terms of 17 of the said Regulation and according to Mr. Banerjee, the said termination Order was issued in accordance with the Regulations and also with proper authority. According to Mr. Banerjee, the learned Judge, in his determination, misconstrued the regulation No. 17 & Regulation 17A. It was indicated by Mr. Banerjee that under Regulation 17, the authority concerned can fix the initial probationary period of an employee for one year and the said period may be extended upto 2 years. If the subsequent extension is made within the extended period of 2 years, as contemplated in Regulation 17, the action of the Chairman CSTC by according such extension, would be very much within his competence and in accordance with the law. It has been contended further by Mr. Banerjee that under Regulation 17, the authority concerned has got power to put an employee on probation for a maximum period of two years and under Regulation 17A, the employee, who has successfully completed the aforesaid maximum period of probation, as referred to in Regulation 17, can only be deemed to be a permanent employee. It was further indicated that though the petitioner/respondent had completed his initial period of probation for one year, did not complete the maximum period of probation within the meaning of Regulation 17 and more so he was never intimated that he has successfully completed his period of probation and therefore the petitioner/respondent cannot claim advantage of the deeming provision to become a permanent employee as contemplated in Regulation 17A. Mr. Banerjee further contended that the letter dated 19th May, 1984, cannot be treated as confirmation order as alleged by the petitioner. According to Mr. Banerjee, by issuing the letter dated 19th May, 1984, the probationary period was further extended beyond one year and upto the maximum limit as contemplated in Regulation 17 read with the appointment order. According to Mr. Banerjee, the intimation, disclosed in the letter dated 19th May, 1984, is an intimation for extension of the initial period of probationary period of the writ petitioner.
7. Mr. Banerjee further contended that the finding of the learned Judge, in holding that payment of increment to the writ petitioner, on completion of his initial period of probation, is a presumption for satisfactory completion of the probationary period, is misconceived, as according to Mr. Banerjee, the annual increment is a routine increment, irrespective of the status of the employees. Increment, usually, is awarded to all the employees of the Corporation including a probationer as and when the employee completes one year in time scale of pay, in which he is employed and that too in case of an employee on probation. Mr. Banerjee further contended that this award of increment has no nexus with satisfactory performance of his duties as probationer and accordingly, the petitioner cannot claim as of right, the benefit of the deeming provision, i.e., Regulation 17A, that the petitioner had completed the period of probation successfully. Mr. Banerjee also contended that there is no rule in the State Transport Corporation providing for allowing annual increment to a probationer on condition of his successfully completing the period of probation only. The increment, awarded to the petitioner, is a part of the routine payment by the corporation, unless there is a specific order for withholding such annual increment in respect of a particular employee. In support of his contention that a probationer does not automatically acquire status of permanent members after expiry of probationary period, Mr. Banerjee cited S. Sukhbans Singh v. The State of Punjab; in which it was held "A probationer cannot, as rightly pointed out by the Division Bench, automatically acquire the status of a permanent member of a service, unless of course the rules under which he is appointed expressly provide for such a result. The rules governing the Provincial Civil Services of Punjab do not contain any provision whereby a probationer, at the end of probationary period, is automatically absorbed as a permanent member of the Civil Service. What happens to such a person is clearly set out in Rule 24 cit sup. Under the aforesaid rule such a probationer is merely qualified for substantive permanent appointment. Reading Rules 23 and 24 together it would appear that where a probationer is not reverted by the Government before the termination of his period of probation he continues to be a probationer but acquires the qualification for substantive permanent appointment."
8. Mr. Banerjee further contended that the probationary period of the petitioner/respondent was extended after completion of his first year and by such extension, the appellants had acted in conformity with Regulation 17 read with Clause 2 of the appointment letter. According to Mr. Banerjee the petitioner continues as a probationer even after expiry of one year unless service of the petitioner is terminated or unless he is confirmed on satisfactory completion of his probationary period. In support of his contention, Mr. Banerjee has invited our attention to the case of Management of the Express News Papers (Pvt. Ltd.), Madurai v. The Presiding Officer, Labour Court, Madurai and Anr., , in which, K. C. Das Gupta, J, observed that "There can, in our opinion, be no doubt about the position in law that an employee appointed on probation for six months continues as a probationer even after the period of six months if at the end of the period his services had either not been terminated or he is confirmed. It appears clear to us that without anything more an appointment on probation for six months gives the employer no right to terminate the service of an employee before six months had expired--except on the ground of misconduct or other sufficient reasons in which case even the services of a permanent employee could be terminated. At the end of the six months period the employer can either confirm him or terminate his services, because his service is found unsatisfactory. If no action is taken by the employer either by way of confirmation or by way of termination, the employee continues to be in service as a probationer".
9. Mr. Banerjee has pursuaded us to examine the correctness of the proposition that even if the probationary period of the petitioner is not extended after the expiry of the first year of probation, no right is accrued to the petitioner that petitioner should be deemed to be confirmed from the mere fact that he was allowed to continue for some time without any communication of extension of the probationary period for the second phase. In support of his contentions Mr. Banerjee referred to the case of State of Uttar Pradesh v. Akbar Ali Khan, , which has also followed Sukhbans Singh v. State of Punjab (Supra), where the respondent was posted as a Tahasildar and placed on probation for two years. The initial period of probation was liable to be extended by the Board of Revenue or by the Governor. In the aforesaid case, there was no rule that on the expiry of the period of probation, the probationer shall be deemed to have been confirmed in the post which he was holding as a probationer. On the facts and circumstances, Supreme Court observed that "If a probationer was found not to have made sufficient use of his opportunities or had failed to pass the departmental examinations "completely" or if he had otherwise failed to give satisfaction he may be referred to his substantive appointment. Again confirmation in the appointment at the end of the period of probation could only be made if the probationer had passed the departmental examination for Tahasildars completely and the Commissioner reported that he was fit for confirmation and that is integrety was unquestionable." Mr. Banerjee further invited our attention to the specific portion of Clause 2 of the appointment letter that "The period of probation may at the discretion of the authority be terminated or extended if be found to be so necessary" and also to Regulation 17, in order to determine the modalities of confirmation in the post, where a probationer is allowed to continue beyond the period of probationary period at the first phase. Regulation 17 and also Clause 2 of the appointment letter contemplate that the period of probation would be for one year at the first instance with liberty to the employer to extend the probationary period and that too, not exceeding two years. Mr. Banerjee, relying on State of Uttar Pradesh v. Akbar Ali Khan (Supra), has contended that "The scheme of the rules is clear confirmation in the post which a probationer is holding does not result merely from the expiry of the period of probation, and so long as the order of confirmation is not made, the holder of the post remains a probationer. It has been held by this Court that when a first appointment or promotion is made on probation for a specified period and the employee is allowed to continue in the post, after the expiry of the said period without any specific order of confirmation he continues as a probationer only and acquires no substantive right to hold the post. If the order of appointment itself states that at the end of the period of probation the appointee will stand confirmed in the absence of any order to the contrary, the appointee will acquire a substantive right to the post even without an order of confirmation. In all other cases, in the absence of such an order or in the absence of such a service rule, an express order of confirmation is necessary to give him such a right. Where after the period of probation an appointee is allowed to continue in the post without an order of confirmation, the only possible view to take is that by implication the period of probation has been extended, and it is not a correct proposition to state that an appointee should be deemed to be confirmed from the mere fact that he is allowed to continue after the end of the period of probation."
10. Mr. Banerjee has suggested that if a probationer is allowed to continue in the post after expiry of the maximum period of probation, the effect obviously would be otherwise. Mr. Banerjee has referred to the particular scheme provided in Regulation 17 read with Clause 2 of the appointment letter and has contended that the petitioner/respondent was never allowed to continue beyond the maximum limit of two years in terms of Regulation 17 and more particularly during his tenure as a probationer, of course after expiry of the first phase and before completion of the maximum period of probation, service was not confirmed as petitioner did not complete his period of probation successfully. Mr. Banerjee in support of his contentions cited a decision, State of Punjab v. Dharam Singh, , in which it was held, inter alia, "In the present case, Rule 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 appointed or promoted to a post on probation is allowed to continue 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 implication. The reason is that such an implication is negative 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 implication." Mr. Banerjee has also invited us to consider an extreme proposition; even if the respondent/petitioner is allowed to complete the probationary period at the first instance and if his service is terminated sometime after he has put in a further period of service, even then, the petitioner/respondent does not enjoy any greater right to confirmation. Relying on a decision in Dhanji Bhai Ramji Bhai v. State of Gujarat, , wherein it has been observed, inter alia, "The second contention on behalf of the appellant is that the appellant must be deemed to have been confirmed inasmuch as he was allowed to continue in service even after the expiry of the period of probation of two years specified in the order of appointment. We are of opinion that when the order of appointment recited that the petitioner would be on probation for a period of two years, it confirmed to Rule 5 of the Recruitment Rules which prescribes such period of probation. The Rule states further that the period of probation may be extended in accordance with the rules. The period of two years specified in the Rule is merely the initial period for which an officer may be appointed on probation. As the terms of the same Rule indicate, the period of probation may be extended. The period of two years does not represent the maximum period of probation.
It is next urged that as no rules have been framed indicating the manner for extending the period of probation, there is no power to extend the period of probation, the argument suffers from a fallacy. The power to extend the period of probation must not be confused with the manner in which the extension may be effected. The one relates to power, the other to mere procedure. Merely because procedural rules have not been framed does not imply a negation of the power. In the absence of such rules, it is sufficient that the power is exercised fairly and reasonably, having regard to the context in which the power has been granted.
A distinction is sought to be drawn between a probationer whose services are terminated on the expiry of the period of two years and a probationer, who has completed the normal span of two years and whose services are terminated some time later after he has put in a further period of service. We are unable to see any distinction. It is perfectly possible that during the initial period of probation the confirming authority may be unable to reach a definite conclusion on whether the candidate should be confirmed or his services should be terminated. Such candidate may be allowed to continue beyond the initial period of two years in order to allow the confirming Authority to arrive at a definite opinion. It seems to us difficult to hold that a candidate enjoys any greater right to confirmation if he is allowed to continue beyond the initial period of probation."
11. Mr. Jayanta Mitra, the learned Advocate, appearing on behalf of the respondent/petitioner, supported the finding of the learned Trial Judge and has indicated and contended that pursuant to the amended Regulation 17A, the respondent/petitioner shall be deemed to be a permanent employee after expiry of one year of probationary period. It was contended that during the period of 1st year under probation, the respondent was not communicated any adverse remarks against his performance nor the performance was considered unsatisfactory by the appellant. Our attention was drawn to the stipulation provided in the appointment letter and Mr. Mitra has tried to impress upon us that the petitioner was appointed on probation for a period of one year from the date of his joining and simultaneously, invited our attention to the opening words of Regulations 17 in specific terms, namely, "unless otherwise provided in any individual contract" and contended that Regulation 17 is required to be considered in terms of the stipulation in the appointment order and as such, the 'period of probation would not exceed one year and after expiry of the probationary period, deeming provision, as prescribed in Regulation 17A would be attracted. The learned Judge, while observing the stipulations, provided in the appointment letter, has not considered the part of the stipulation, where the appointing authority was given liberty to extend the probationary period after expiry of the 1st year of probation. Perhaps, that part of the stipulation was not placed before the learned Judge at the time of hearing at the Trial Court. The learned Judge ought to have considered the liberty given in Regulation 17 and also in Clause 2 of the Appointment Order, where appointing authority was given liberty to extend the probationary period but in any event, the probationary period would be limited upto two years, i.e., maximum limit as prescribed in Regulation 17. Therefore the learned Judge, according to us, was not right in holding that the discretion must and ought to be exercised within the period of one year probationary period otherwise probationary period of one year would be meaningless by reason of Regulation 17A. If the learned Judge meant by all these that a probationer must be deemed to have been confirmed in his post by just after expiry of the 1st year of probation, we think that he was in error.
12. It has been further contended that 2nd part of Regulation 17, giving liberty to the appointing authority to extend the probationary period upto two years, does not come into operation in view of the deeming clause provided in Regulation 17A. According to Mr. Mitra, deeming provision will be attracted as soon as the initial year of probation expires. Mr. Mitra in support of his contentions referred to a decision:- Smt. Khatiza Bai Mohomed Ibrahim v. Controller of Estate Duty, reported in AIR, 1960, Bombay, page-61, suggesting the effect of the deeming provision wherein it was held "There is another and an important aspect of the same matter. The argument of Mr. Palkhiwalla, when analysed comes to this; (1) The provisions of the two Acts are in pan materia : (It is now accepted law in England that S. 1 and Section 2(1) (b) are mutually exclusive; (2) Section 2(1) (b) is a provision relating to property to be deemed to pass on death; (3) the other provisions of S. 2(1) (a), 2(1) (c) and 2(1) (d) are also provisions relating to property to be deemed to pass on death. Therefore, the moment it is shown that in a given case there is actual passing of property, none of the provisions relating to property to be deemed to pass can have any application. They must be excluded from consideration because Ss. 1 and 2(1) ('b) are mutually exclusive. There can be many answers to this syllogism of which the premises themselves are highly debatable. We shall only mention one or two answers since we are only governed with the interpretation of S. 12 of our Act read with S. 5 of it. Firstly, no such analogy is really permissible in interpretation of statutes. Secondly argument assumes many points. Section 12 speaks of property to be deemed to pass and it is of vital importance to note what is it that is to be deemed to pass. The expression "deemed" is used a great deal in many modern statutes and for many purposes. It is at times used to give a special glossary or paraphrase to an expression or an artificial construction to a word or a phrase. It is at times used to introduce artificial conceptions which are intended to go beyond settled legal principles. It is at times used to remove uncertainty or leave no scope for doubts and debates which may involve refined and ingenious points. At times it is used to give extended or restricted operation to a rule which cannot be given to it if it be read as enacted. This last is of considerable importance when the legislature lays down a rule the extent and operation of which according to ordinary canons of construction would be confined - we shall take an illustration close to the case before us - to property or interest in property of a particular nature or type or class and the intention is that the rule should have wider extent and embrace more than what it states. In such a case the Legislature may well lay down and add that more than what is stated in the rule shall be deemed to be included, in the meaning and concept of the words or phrase used in the rule. In such a case the language of the rule notwithstanding the operation and extent of it is widened by the 'deeming' provision. This is precisely what the Legislature has done by inacting S. 12 and the ambit of S. 1, the charging Section, has been expressly extended by S. 3(3) to include what is stated in S. 12. We may quote the following observations of the Supreme Court although they are made in a different context in State of Bombay v. Pandyrang Vinayak, :
"When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion." Their Lordships of the Supreme Court went on to quote a passage from a judgment of Lord Asquith which has already become locus classicus. It is not necessary in the present context to reproduce that passage."
13. In support of his contention Mr. Mitra further referred to the decision of the Supreme Court, State of Bombay v. Pandurang Binayk and Ors. , which was followed by the Bombay High Court, in Khatiza Bai's case (Supra) we do not think that there is any dispute so far the Construction of deeming provision is concerned and we will discuss the effect of deeming provision in the instant case, hereinafter.
14. Now, if we put the area of dispute in a short compass, we can set out the proposition namely, whether the appointee was allowed to continue as a Probationer after expiry of the probationary period which includes also the extended period, as prescribed in Regulation 17 read with Clause 2 of the Appointment Order, obviously the answer will be in the negative. There is no dispute as to the interpretation of the deeming provision of Section 17A of the said Regulation. On proper construction of Regulation 17 & 17A, we cannot over-rule the contention put forward by Mr. Banerjee that the appointing authority, within the scheme of Regulation 17, has been authorised to appoint a person on probation for one year at the first instance and the said appointment may be extended upto two years unless the probationary period of the employee is terminated. After expiry of the extended period of probation, i.e., two years, as contemplated in Regulation 17, the appointee shall only be deemed to be a permanent employee in terms of Regulation 17A, provided he has successfully completed the period of probation, i.e., not one year but the extended period is upto two years. In the instant case, the respondent/petitioner was initially appointed to the post of Dy. Director of operation on probation, for a period of one year in the first instance and thereafter, the period of probation was extended in conformity with the term of appointment so also according to the scheme of Regulation 17. Mr. Mitra has also indicated that by issuing further extension of the probationary period on 19th May, 1984, the Appointing Authority virtually deconfirmed the respondent/petitioner as the respondent/petitioner became a permanent employee by successfully completing the initial period of probation. The contention of Mr. Mitra that on proper construction of Regulation 17 & 17A, it cannot be said that the Appointing Authority could extend the period of probation beyond one year and according to Mr. Mitra, the Appointing Authority cannot extend the period of probation as the deeming provision comes into operation, immediately after expiry of the probationary period at the first instance. On proper construction of Regulations 17 & 17A read with Clause 2 of the Appointment Order, we are unable to accept the submissions advanced by Mr. Mitra.
15. Mr. Mitra has relied upon several decisions in support of his contention that the specific rule will be the guideline in deciding the status of a, appointee after expiry of the probationary period. According to Mr. Mitra, in the instant case, the specific rule will be attracted as soon as the initial year of probation expires. Mr. Mitra specifically has relied upon Sukhbans Singh v. State of Punjab (Supra), where in paragraphs 9, 11 & 12, Supreme Court held "It is common ground that the period of probation of the appellant was not extended by the Governor in exercise of the power conferred upon him by one of the provisions to Rule 22. The question to be first considered is what was the position of the appellant after the expiry of his probationary period of eighteen months? Upon this point the learned single Judge, after quoting the observation of Khosla J. in another case said :
"Thus according to this Court a man who is on probation does not merely because his probation continues for more than the period prescribed by the rules become a permanent servant of the State, but if the period of probation is unduly prolonged or the confirmation is unduly delayed, confirmation will be assumed. In the present case the petitioner was recruited to the Provincial Civil Service with effect from the 31st May, 1945 and he continued to work as an officer of the service upto the 17th May, 1952. According to the rules the period of probation was eighteen months and there is no indication that his period of probation was by order of the Governor extended..........I am, therefore, of the opinion that the petitioner was not on probation as is submitted by the State."
"No rule has been cited and I do not know of any which would show that a person who has been recruited by the Public Service Commission can after having been in service for seven years or so be reverted merely on the ground that he is officiating. If the learned Judge meant by all this that a probationer must be deemed to have been confirmed in his post by sheet lapse of time we think, with respect, that he was in error. A Probationer cannot, as rightly pointed out by the Division Bench, automatically acquire the status of a permanent member of a service, unless of course the rules under which he is appointed expressly provide for such a result. The rules governing the Provincial Civil Services of Punjab do not contain any provision whereby a probationer at the end of the probationary period is automatically absorbed as a permanent member of the Civil Service. What happens to such a person is clearly set out in Rule 24 cit sup. Under the aforesaid rule such a probationer is merely qualified for substantive permanent appointment. Reading Rs. 23 and 24 together it would appear that where a probationer is not reverted by the Government before the termination of his period of probation he continues to be a probationer but acquires the qualification for substantive permanent appointment.
It has been held by this Court in Parshotam Lal Dhingra v. Union of India that Article 311 makes no distinction between permanent and temporary posts and extends its protection equally to all Government servants holding permanent or temporary posts or officiating in any of them. But the protection of Article 311 can be available only where dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. One of the tests laid down in that case for determining whether the termination of service was by way of punishment or otherwise is whether under the Service Rules, but for such termination the servant has the right to hold the post.
Reliance is placed upon Rule 24 of the Punjab Civil Service Rules and it is said that since it qualifies a probationer for being absorbed in a substantive permanent appointment it gives him a right and the reversion of such a person deprives him of that right and thus amounts to punishment. The provisions of Article 311(2) are said to be attracted to the situation and where as here, they have not been complied with the reversion must be regarded as illegal.
This argument assumes that a probationer who continues to be such without being reverted after the expiry of the period of probation has a legal right to be confirmed or to be treated as if he were confirmed. The rule in question says no more than this that at the end of the probationary period the probationer, unless reverted or absorbed in a substantive post will be eligible for being made permanent In other words it means that he will continue to be a probationer unless he is reverted or absorbed in a permanent post. But the very fact that a person is a probationer implies that he has to prove his worth, his suitability for the higher post in which he is officiating. If his work is not found to be satisfactory he will be liable to be reverted to his original post even without assigning any reason. It would, therefore, not be correct to say that a probationer has any right to the higher post in which he is officiating or a right to be confirmed. A probationer being merely made eligible for being absorbed in a permanent post is in no better position."
16. Mr. Mitra tried to distinguish by referring Management of the Express News Papers (Pvt. Ltd.) v. The Presiding Officer, Labour Court, Madurai, (Supra) which was also cited by Mr. Banerjee. But we do not find any substance in the submission of Mr. Mitra. As in the instant case of the Management of the Express News Papers, the concerned employee, one, Mr. Brain Bobb, who was working journalist, was appointed on probation on 28-2-1957 for six months in the first instance. On a specific stipulation that during the period of probation, the service would be confirmed on completion of the probationary period satisfactorily. Before expiry of the probationary period of the six months, the management found the working of the said Journalist unsatisfactory and probationary period was terminated on 11th July, 1957. It was contended in the case of Management of the Express News Papers, that High Court was wrong in law in thinking that once the period of six months expired, Mr. Bobb still continued to be in service of the appellant as a probationer. On behalf of the court K. C. Das Gupta, J, observed that, "In our oninion, we have no doubt about the position in law that an employee appointed on probation for six months continues as a probationer even after the period of six months if at the end of the period his service had either not been terminated or he is confirmed." It appears clear to us that without anything more, an appointment on probation for six months gives the employer no right to terminate the service of an employee before six months had expired, except on the ground of misconduct or other sufficient reasons in which case, even the services of a permanent employee could be terminated. At the end of the six months period, the employer can either confirm him or terminate his service, because his services were found unsatisfactory. If no action is taken by the employer, either by way of confirmation or by way of termination, the employee continues to be in services as a probationer. So far the instant case in concerned, the respondent petitioner was allowed to continue by an express order of extension and that too upto a period of two years and within the extended period of probation, the probationary period was terminated. Therefore, the contentions of Mr. Mitra, cannot be accepted.
17. Mr. Mitra, in support of his contention, relied on State of Uttar Pradesh v. Akbar Ali Khan (Supra) and has taken us to paragraphs 5 & 6 of the said decision, which according to us cannot lend any support to Mr. Mitra. In the said decision Supreme Court through J. C. Shah, J, held "The respondent was posted as a Tahsildar and placed on probation for two years. The initial period of probation was liable to be extended by the Board of Revenue or by the Governor. There is no rule that on the expiry of the period of probation the probationer shall be deemed to have been confirmed in the post which he is holding as a probationer. If a probationer was found not to have made sufficient use of his opportunities or had failed to pass the departmental examination "completely" or if he had otherwise failed to give satisfaction he may be reverted to his substantive appointment again confirmation in the appointment of the end of the period of probation could only be made if the probationer had passed the departmental examination for tahsildars "completely" and the Commissioner reported that he was fit for confirmation and that his integrity was unquestionable. It is common ground in this case that the respondent had not passed the departmental examination before 1955. He had, therefore, not qualified himself for confirmation.
The scheme of the rules is clear : confirmation in the post which a probationer is holding does not result merely from the expiry of the period of probation, and so long as the order of confirmation is not made, the holder of the post remains a probationed. It has been held by this Court that when a first appointment or promotion is made on probation for a specified period and the employee is allowed to continue in the post, after the expiry of the said period without any specific order of confirmation he continues as a probationer only and acquires no substantive right to hold the post. If the order of appointment itself states that at the end of the period of probation the appointee will stand confirmed in the absence of any orded to the contrary, the appointee will acquire a substantive right to the post even without an order of confirmation. In all other cases, in the absence of such an order or in the absence of such a service rule, an express order of confirmation is necessary to give him such a right. Where after the period of probation an appointee is allowed to continue in the post without an order of confirmation, the only possible view to take is that by implication the period of probation has been extended, and it is not a correct proposition to state that an appointee should be deemed to be confirmed from the mere fact that he is allowed to continue after the end of the period of probation".
18. Mr. Mitra further invited our attention to the decision referred by Mr. Banerjee in the State of Punjab v. Dharam Singh, (Supra), where the service rules fixed a certain period of time beyond which the probationary period could not be extended. If an employee, appointed to a particular post on probation, is allowed to continue 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 implication. 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 was allowed to continue in the post on completion of the maximum period of probation, has been confirmed in the post by implication. In the aforesaid case, i.e., State of Punjab v. Dharam Singh, Rule 6 of the Punjab Educational Service (Provincialised Cader) Clause III Rules (1961) was considered and Rule 6(3) was considered by the Supreme Court in deciding the issue. Rule 6(3) contemplates "on the completion of probation the authority competent to make appointment may confirm the member in his appointment or if his work or conduct during the period of probation has been in his opinion unsatisfactory, he may dispense with his services or may extend his period of probation by such period as he may fit or revert him to his former post if he was promoted from some lower post:
Provided that the total period of probation including extension, if any, shall not exceed 3 years"
Supreme Court speaking through R. S. Bachawat, J, following Sukhbans Singh v. State of Punjab (Supra), State of U.P. v. Akbar Ali (Supra), has observed that "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 the present case, Rule 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 appointed or promoted to a post on probation is allowed to continue 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 implication. The reason is that such an implication is negative 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 implication." This decision is of no assistance to Mr. Mitra, inasmuch as Rule 17A of the Regulation cannot be said to be identical and the period of probation was subsequently extended and therefore, the deeming provision under Section 17 A could be attracted if the appointee was allowed to continue after completion of his extended period of two years, which is a maximum limit of probation, contemplated in Regulation 17. Accordingly, Dharam Singh's case as relied by Mr. Mitra, has no nexus with the subject matter of dispute in the instant appeal.
19. From a plain reading of Regulation 17 & Clause 2 of the Appointment Order, we do not find any necessity for interpretation of the scheme of the regulation and it is also not necessary to interpret otherwise, contrary to the intention and/or scheme of the Regulation 17. We do not think that there is any ambiguity in Regulation 17 and the Appointment Order, which requires any assistance from the court for interpretation. Interpretation of a Regulation and/or any Statute is necessary where a particular Regulation or Statute is not clear or where no reasonable meaning can be given to such regulation and/or statute. Though we have been called upon to interpret the scheme of Regulations 17 & 17A, we think that no interpretation is necessary, so far Regulation 17 is concerned and we have no doubt that the Appointing Authority has got authority to appoint any person on probation initially for one year and thereafter, can extent the probationary period for a period of two years. The extreme proposition was also discussed by the Supreme Court in Dhanji Bhai Ramji Bhai v. State of Gujrat, (Supra) that the power to extend the period of probation must not be confused with the manner in which the extention may be effected. The one relates to the power and the other to mere procedure. The observation in the aforesaid case clears the cloud created by Mr. Mitra, when Supreme Court observed, inter alia, "it is perfectly possible that during the initial period of probation the confirming Authority may be unable to reach a definite conclusion on whether the candidate should be confirmed or his services should be terminated. As such, appointee may be allowed to continue beyond the initial period of two years, in order to allow the confirming authority to arrive at a definite opinion. It seems to us difficult to hold that a candidate enjoys any greater right to confirmation if he is allowed to continue beyond the initial period of probation." Exactly that has happened in this case the Respondent/petitioners' service was extended on 19th May, 1984, i.e., few months after expiry of the 1st year of probation, he., 15th November, 1983, extending the probationary period till 14th November, 1984, he. upto a limit as prescribed in Regulation 17. On 8th June, 1984, a notice terminating the respondent's services was issued, though the same was received on. 13th June, 1984. Termination was effected within the extended period. Even if the contention of Mr. Mitra is accepted that the respondent/petitioner became permanent employee after expiry of one year and thereafter on 8th June, 1984, services of the respondent/petitioner was terminated, it will not improve his position in any manner in view of the decision in Dhanji Bhai & Ramji Bhai v. State of Gujrat (Supra). The view expressed by the Supreme Court in Dhanji Bhai Ramji Bhai case is not an exception. It supports the views expressed in S. Sukhbans Singh v. State of Punjab (Supra), Express News Papers Pvt. Ltd. v. The Presiding Labour Court, Madurai and Anr. (Supra), and State of Uttar Pradesh v. Akbar Ali Khan and we respectfully agree with the decisions as above and we accordingly hold that the appellant, by terminating the service of the probationer within the maximum period of probation, as prescribed in Regulation 17, has acted within the limit of their authority and in accordance with the law.
20. Mr. Mitra has indicated and contended that the Memo, dated 19th May, 1984, extending the period of probation for a further period of one year with effect from and after the date of expiry of the probationary period for one year, i.e., upto 14th November, 1984, amounts to deconfirmation of the probationary period inasmuch as, by virtue of the deeming provision contemplated in Regulation 17A, the respondent/petitioner became a permanent employee and confirmed in his service. Mr. Mitra further contended that before issuing the Memo., dated 19th May, 1984 the petitioner ought to have given reasonable opportunity of hearing and by not doing so, the respondents have acted in flagrant violation of the principles of natural justice and the said deconfirmation under Memo., dated 19th May, 1984, is unauthorised, illegal and arbitrary. Mr. Mitra further indicated that the respondent served the probationary period from 15th November, 1982 to 14th November, 1983, satisfactorily and there was no adverse report against the respondents. By issuing the notice on 19th May,. 1984, the appellant virtually denied the status of the respondent, which he acquired after expiry of one year of-probation and as Such, the denial of such stands and right, accrued therefrom by the appellant, is illegal. In support of the said contention, Mr. Mitra has contended that after issuing the aforesaid Memo., dated 19th May, 1984, the termination notice was issued on 8th June, 1984, which is ex facie, illegal, motivated, mala fide and arbitrary. To supplement the aforesaid, contention Mr. Mitra has also contended that by issuing termination notice on 8th June, 1984, the appellant has denied the status of permanency and also other statutory protection as enjoyed by the petitioner and also without holding any enquiry as contemplated under regulation 18A. According to Mr. Mitra respondent became a permanent employee after expiry of the probationary period of one year and without observing formalities, as prescribed in regulation 18A of the said regulation, the termination notice issued to the respondent on 18th June, 1984, was illegal and liable to be quashed.
21. Mr. Mitra has supported the aforesaid proposition on the basis of the principle that after expiry of the probationary period, the respondent became a permanent employee under the State Transport Corporation. The aforesaid contention was not accepted by us and more particularly, in view of the decisions cited at the Bar, we are unable to agree with Mr. Mitra that the respondent became a permanent employee after expiry of the initial year under probation and as such, covered under Regulation 18A. As we have already held that the appellant had the authority to extend the probationary period upto a maximum limit of two years and actually, the appellant had extended the probationary period on 19th May, 1984, in consonance with the scheme of Regulation 17 and also in accordance with the stipulation No. 2 of the Appointment Order issued to the respondent, the second limb of submission made by Mr. Mitra is not sustainable.
22. The third limb of the argument of Mr. Mitra takes us to the factum of payment of increment to the respondent and presumption therefrom. According to Mr. Mitra, the appellants had considered the status of permanency by according increment and accordingly the subsequent Memo., dated 19th May, 1984 and termination notice, dated 8th June, 1984 were illegal. We have already discussed the scheme and scope of the regulation and also the stipulation of the appointment letter but we do not think that by giving increment to the respondent any presumption can be drawn in favour of the respondent. Instances were given by the appellants that in some other cases increments were given but we do not think that there is any scope for drawing presumption in favour of the respondent. The claim of the respondent may be based on presumption but presumption cannot over ride the stipulations of the Appointment Order and provisions of the regulation unless those are ambiguous. According to us the increment is a routine exercise which the appellants had awarded to the respondent and just by giving increment to the respondent, we do not think that the appellants did consider the status of the respondent in any manner whatsoever. Just by giving an increment the appellants cannot be allowed to give a go by to the scheme of the regulations and also to the stipulations contained in the Appointment Order and accordingly, we hold that just by receiving an increment from the appellants the respondent has not acquired any better status.
23. Mr. Mitra further tried to impress upon us that by issuing the Order on 19th May, 1984, the Chairman has exceeded his jurisdiction and at the material time, the Chairman has had no authority to pass such Order. This was contested by the appellants by denying the aforesaid contention. Our attention was drawn to a minute of the meeting of the board of the Corporation, held on 28th Jarisuary, 1972, in which, power was delegated to the Chairman. Our attention was also drawn to paragraphs 10, 12a, b & c of the affidavit-in-opposition filed by the appellants in the Trial Court, which was duly considered by the learned Judge, inasmuch as, the learned Judge accepted the contention of the appellants in regard to competency of the Chairman of the Corporation to issue the impugned Order of termination. The learned Judge was pleased to observe "suffice it to say however by reason of specific deligated authority, competency of the Chairman cannot be questioned." Though Mr. Mitra has not seriously contested this point, but Mr. Mitra, in course of his argument, also invited our attention to this part of the illegality in the impugned Orders. In the Trial Court this point was considered by the learned Judge against the respondent and more particularly, the respondent has not preferred any appeal against the findings of the learned Judge at the first instance nor the respondent has filed any cross appeal. Possibly, we should not allow Mr. Mitra to raise this point before us. Though no cross appeal was filed against the order of the Trial Court, even then, for ends of justice, we have considered that part of the submissions made in respect of the authority of the Chairman and we have also persued the copy of the Minute and also the averments, made in the affidavit, filed by the respective parties and we find no reason to disagree with the learned Judge, so far the observation made in the matter of competency of the Chairman to issue the impugned orders.
24. In the result, we hold that the Order issued on 19th May, 1984, and also the termination notice issued on 8th June, 1984, are legal and passed in accordance with the scheme of the said regulations and accordingly, we allow the appeal and set aside the Order of the learned Trial Judge. All interim Orders are vacated.
25. There will be no Order as to costs.
M.N. Roy, J.
26. I agree.