Punjab-Haryana High Court
Pankaj Sharma vs Education Tribunal Punjab And Ors on 17 September, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
CWP No. 19330 of 2014 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 19330 of 2014
Date of decision: 17.09.2014
Pankaj Sharma ...Petitioner(s)
Versus
The Education Tribunal, Punjab and others ...Respondent(s)
CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA
Present: Mr. P.S. Khurana, Advocate,
for the petitioner.
G.S.SANDHAWALIA, J. (Oral)
Challenge in the present writ petition is to the order dated 05.05.2014 (Annexure P-29) passed by the Education Tribunal, Punjab whereby, the termination of the services of the petitioner effected by respondents no. 2 and 3 was upheld.
The settled facts are that the petitioner was appointed as a Music Instructor with respondent no. 1-college on 05.11.2004 w.e.f.
03.08.2004. As per the appointment letter, he was on probation for a period of 2 years. During the appointment, there was a dispute pertaining to the terms of appointment and the management had sought to remove him and he challenged the letters dated 02.03.2006 and 06.03.2006 in CWP No. 4877 of 2006 wherein, interim protection was granted to him on 28.03.2006.
Eventually, the writ petition was disposed of on 15.10.2007 whereby, the Division Bench observed that the services of the petitioner would not be terminated for want of qualification or for want of work but the respondents SHIVANI GUPTA 2014.09.24 15:28 I attest to the accuracy and integrity of this document Chandigarh CWP No. 19330 of 2014 2 would be free to take action on any other ground in accordance with law.
Vide order dated 15.07.2008 (Annexure P-19), his services as Music Instructor were terminated with immediate effect after giving him salary of one month in lieu of the notice period to the tune of `10,051/-. Resultantly, he approached the Tribunal under the Punjab Affiliated Colleges (Security of Service of Employees) Act, 1974 (in short 'the Act'), which has dismissed the said claim of the petitioner by holding that the petitioner was on probation and there was no principle of automatic confirmation and there should be an express order or circumstance from which a reasonable inference could be drawn that the management wanted to confirm the employee. An additional factor which weighed with the Tribunal was that there was no student left in the subject of Music and, therefore, his services were dispensed with while he was on probation and only if the management wanted to exercise its right under Section 7 of the Act to retrench the petitioner, then it was necessary to seek prior approval of the DPI (Colleges). A legal remedy was available to them in accordance with law and, therefore, it thought proper to avail the remedy under Section 6 of the Act and dispensed with the services of the petitioner. The judgment of the Apex Court in Paramjit Singh vs. Director, Public Instructions and others, 2010 (14) SCC 416 was distinguished while dismissing the petition on the ground that the case pertained to one under the Punjab Privately Managed Recognized Schools Employees (Security of Service) Act, 1979, where there was a specific provision of prior approval of the Director.
Counsel has vehemently submitted that since the matter was pending before this Court and even if the period spent in the litigation is excluded once a period of two years has expired, the petitioner would be an SHIVANI GUPTA 2014.09.24 15:28 I attest to the accuracy and integrity of this document Chandigarh CWP No. 19330 of 2014 3 employee and, therefore, the protection of the Act would flow to him.
The said submission does not merit acceptance by this Court.
Admittedly, as per the appointment letter dated 05.11.2004, the petitioner was on probation for a period of 2 years and only if his work and conduct was found satisfactory, he was to be confirmed and during probation, service could be terminated by giving 30 days' notice, which admittedly has been done. The relevant part of the clause reads thus:-
"With reference to your application for the post of music instructor in DAG College of Education Abohar. I write to inform you that you have been selected for the above post in the same of pay of Rs.4400-7000 plus usual admissible allowance w.e.f. 3.8.2004 on probation for two years on the following terms and conditions.
1. On the termination of probation period you will be confirmed in your post. In case your work and conduct found satisfactory. Your next increment will fall due w.e.f. the date of your confirmation.
2. During the period of probation your services may be terminated by 30 days notice on either side. After confirmation services can be terminated by three months notice on either side."
It is not disputed inter se that there was litigation earlier in 2006, reference of which has been made and no specific order of confirmation has been passed. The concept of deemed confirmation was examined by a three Judge Bench of the Apex Court in The High Court of Madhya Pradesh through Registrar and others vs. Satya Narayan Thavar, 2001 (7) SCC 161. The earlier judgments of the Apex Court were all taken into consideration including Sukhbans Singh vs. State of Punjab, 1963 (1) SCR 416; Shamsher Singh vs. State of Punjab and another, 1974 (2) SCC SHIVANI GUPTA 2014.09.24 15:28 I attest to the accuracy and integrity of this document Chandigarh CWP No. 19330 of 2014 4 831 and Dayaram Dayal vs. State of M.P. and another, 1997 (4) SCT 304 to hold that the question of confirmation of a probationer is dependent upon his fitness for such confirmation and which is to be considered at the end of the probation period which is to be examined by the appointing Authority and a positive act of confirmation has to be there on the part of the employer. The argument that if the maximum period of probation had been provided, at the end of the period, the probationer would be deemed to be confirmed was rejected. The relevant observations read thus:-
"36. In the case on hand, correctness of the interpretation given by this Court to rule 24 of the Rules in the case of Dayaram Dayal (supra) is the bone of contention. In the aforesaid case, no doubt, this Court has held that a maximum period of probation having been provided under sub-rule (1) of rule 24, if a probationers service is not terminated and he is allowed to continue thereafter it will be a case of deemed confirmation and the sheet anchor of the aforesaid conclusion is the Constitution Bench decision of this Court in the case of Dharam Singh (supra). But, in our considered opinion in the case of Dayaram Dayal (supra), rule 24 of the Rules has not been interpreted in its proper perspective. A plain reading of different sub-
rules of rule 24 would indicate that every candidate appointed to the cadre will go for initial training for six months whereafter he would be appointed on probation for a period of 2 years and the said period of probation would be extended for a further period not exceeding 2 years. Thus, under sub-rule (1) of rule 24 a maximum period of 4 years probation has been provided. The aforesaid sub-rule also stipulates that at the end of the probation period the appointee could be confirmed SHIVANI GUPTA 2014.09.24 15:28 subject to his fitness for confirmation and to have I attest to the accuracy and integrity of this document Chandigarh CWP No. 19330 of 2014 5 passed the departmental examination, as may be prescribed. In the very sub-rule, therefore, while a maximum period of probation has been indicated, yet the question of confirmation of such a probationer is dependent upon his fitness for such confirmation and his passing of the departmental examination by the higher standard, as prescribed. It necessarily stipulates that question of confirmation can be considered at the end of the period of probation, and on such consideration if the probationer is found suitable by the Appointing Authority and he is found to have passed the prescribed departmental examination then the Appointing Authority may issue an order of confirmation. It is too well settled that an order of confirmation is a positive act on the part of the employer which the employer is required to pass in accordance with the Rules governing the question of confirmation subject to a finding that the probationer is in fact fit for confirmation. This being the position under sub-rule (1) of rule 24, it is difficult for us to accept the proposition, broadly laid down in the case of Dayaram Dayal (supra), and to hold that since a maximum period of probation has been provided thereunder, at the end of that period the probationer must be held to be deemed to be confirmed on the basis of the judgment of this Court in the case of Dharam Singh (supra).
37. In the case of the Judicial Officers who are respondents before us, it is the positive case of the High Court that their case for confirmation was considered while they were continuing on probation but the Full Court did not consider them suitable for confirmation and they were given a further opportunity of improving themselves. Even notwithstanding such opportunity they having failed to improve themselves and the High Court SHIVANI GUPTA 2014.09.24 15:28 I attest to the accuracy and integrity of this document Chandigarh CWP No. 19330 of 2014 6 having considered them unsuitable for confirmation the order of termination emanated. It is difficult for us to comprehend that a probationer while continuing on probation, on being considered is found unsuitable for confirmation by the Appointing Authority and yet it can be held to be a deemed confirmation because of maximum period of probation indicated in the rule, merely because instead of termination of the services he was allowed to continue and was given an opportunity for improving and even after the opportunity he failed to improve and finally the Appropriate Authority finding him unsuitable directs termination of his services. The very fact that sub-rule (1) of rule 24 while prescribing a maximum period of probation therein entitles a probationer for being considered for confirmation and confers a right on the Appointing Authority to confirm subject to the fitness of the probationer and subject to his passing the higher standard of all departmental examination must be held to be an inbuilt provision in sub-rule (1) which would negative the inference of a confirmation in the post by implication, as interpreted by this Court in the case of Dharam Singh (supra) while interpreting rule 6 of the Punjab Educational Services (Provincialised Cadre) Class III Rules, 1961.
38. Ordinarily a deemed confirmation of a probationer arises when the letter of appointment so stipulates or the Rules governing service condition so indicate. In the absence of such term in the letter of appointment or in the relevant Rules, it can be inferred on the basis of the relevant Rules by implication, as was the case in Dharam Singh (supra). But it cannot be said that merely because a maximum period of probation has been provided in Service Rules, continuance of the probationer thereafter would ipso facto must be held to SHIVANI GUPTA 2014.09.24 15:28 I attest to the accuracy and integrity of this document Chandigarh CWP No. 19330 of 2014 7 be a deemed confirmation which would certainly run contrary to Seven Judge Bench Judgment of this Court in the case of Samsher Singh (supra) and Constitution Bench decisions in the cases of Sukhbans Singh (supra), G.S. Ramaswamy (supra) and Akbar Ali Khan (supra)."
In the present case, once the petitioner had not been confirmed, he cannot seek the protection of the Act and it is on this ground that the Tribunal has dismissed the application. The judgment relied upon in Paramjit Singh's case (supra) also is on the same lines that the termination of a probationer can never be treated as a penal act and the relevant observations read thus:-
"10. It is a settled legal position that termination of a probationer on account of his non-satisfactory performance can never be treated as 'penal'. In spite of the said settled legal position, the Tribunal considered termination as 'penal' and the said view was confirmed by the High Court. In the circumstances, we do not approve the reasoning of the Tribunal confirmed by the High Court that the termination of the aforestated teachers was penal in nature. As the termination was not penal in nature, no departmental inquiry was required to be conducted before the termination."
The Division Bench of this Court in S.M.D.R.S.D. College Society vs. State of Punjab and others, 2009 (1) SCT 333, has also held to the same effect that there cannot be any automatic confirmation, unless there is a positive act or conduct of the employer.
Accordingly, this Court is of the opinion that the Tribunal has passed a well reasoned order dismissing the application and no fault can be found in the well reasoned order passed by the Tribunal and the present writ SHIVANI GUPTA 2014.09.24 15:28 I attest to the accuracy and integrity of this document Chandigarh CWP No. 19330 of 2014 8 petition is dismissed in limine.
17.09.2014 (G.S. SANDHAWALIA)
shivani JUDGE
SHIVANI GUPTA
2014.09.24 15:28
I attest to the accuracy and
integrity of this document
Chandigarh