Telangana High Court
Superindent Of Police, vs M.Jayapal Ex.Pc 1931 on 20 March, 2025
Author: P.Sam Koshy
Bench: P.Sam Koshy
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA
WRIT PETITION NO.13101 OF 2005
ORDER:(per Hon'ble Sri Justice P.SAM KOSHY) The instant Writ Petition has been preferred by the petitioners assailing the order, dated 09.12.2002, in O.A.No.3573 of 1993 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (for short, 'the Tribunal').
2. Vide impugned order, the Tribunal has set aside the order of termination and ordered for reinstatement of the respondent into service forthwith with all consequential benefits including seniority and counting the length of service for the purpose of pension and increments, however,restricted payment of back wages to 50% only.
3. The brief facts relevant for adjudication of the case are that the respondent was appointed as a Police Constable w.e.f. 16.07.1989. He was on probation for a period of two years i.e., from 16.07.1989 to 15.07.1991. During the period of probation, the respondent was found to have gone unauthorized absence w.e.f. 19.04.1991 to 28.04.1991 and again on 12.08.1991. For the said period, he was inflicted with punishment of postponement of increment for a period of two years with cumulative effect. 2
PSK,J&NRR,J wp_13101_2005 Subsequently, on completion of the initial period of two years of probation, the Government found that the services of the respondent are not to be satisfactory, extended the probation period by another one year vide order dated 25.07.1991. Thereafter also, there was unauthorized absence on the part of the respondent the period between 22.07.1991 to 07.08.1991, for which he was again inflicted another punishment of postponement of increment by one year vide order 10.07.1992 and further postponement annual increment by one year vide order 13.08.1992. However, while extending the probation period, advised the respondent to improve upon his work. However, subsequently, the respondent again went on unauthorized absence for a considerable long period from 15.05.1992 to 14.10.1992 i.e., for a period of 153 days. Since the respondent did not improve upon his conduct and being continued to remain regularly absent from duty unauthorizedly for long durations, the authorities by an order dated 17.10.1992 discharged him from service on the ground of unsatisfactory performance in work.
4. Aggrieved by the said order, the respondent preferred an appeal before the Deputy Inspector General of Police, Karimnagar, who in turn vide order, dated 25.01.1993, rejected the appeal. The order of discharge from service and the order passed by the Deputy Inspector General of Police were subject to challenge before the Tribunal by filing O.A.No.3573 of 1993 under the provisions of ` 3 PSK,J&NRR,J wp_13101_2005 Section 19 of the Administrative Tribunals Act, 1985. The Tribunal, after hearing learned counsel for both the parties, vide order dated 09.12.2002 in O.A.No.3573 of 1993 allowed the said O.A. setting aside the order of termination, dated 17.10.1992. The order of the Tribunal was under challenge in the instant writ petition by the State.
5. The Writ Petition is of the year 2005. In the year 2005, the petitioners obtained stay of operation of the order passed by the Tribunal as a consequence till date the respondent remains out of service.
6. Learned counsel for the petitioners at the outset questioned the order of the Tribunal stating that the findings given by the Tribunal are per se bad and illegal considering the factual matrix of the case and hence, he prays to set aside the order passed by the Tribunal.
7. Learned counsel appearing for respondent strongly contended that it is a case where while extending the period of probation, the authorities had not intimated the respondent for improving upon his work. The nature of lapses or deficiencies on the part of the respondent while in service were not intimated or disclosed by the petitioners. If respondent had given an opportunity to improve upon his work, perhaps the respondent would have ` 4 PSK,J&NRR,J wp_13101_2005 improved upon his work and such action would not had arisen and hence, he prays to dismiss the writ petition by confirming the order of the Tribunal.
8. It is also the contention of the respondent that it is a case where because of certain compelling circumstances, he could not report for duties at different intervals, for which, he made a request for grant of leave but the petitioners without taking any sympathetic view on the respondent, passed the order of termination from service. The Tribunal, after considering the entire material on record, has set aside the order of termination and permitted the respondent to resume his duties. If the order passed by the Tribunal upheld the respondent would get some financial assistance at this fag end of his career. In support of his contentions, he also placed reliance upon the judgment of the Hon'ble Supreme Court in Sumati P.Shere v. Union of India 1
9. According to learned counsel to the petitioners, the factual matrix of the case in the instant case is not in dispute. The respondent was initially appointed as a Police Constable on 16.07.1989. The probation period initially being two years i.e., from 16.07.1989 to 15.07.1991. In between, there had been instances of unauthorized absence on the part of the respondent in discharging duties. The period of probation was extended vide order, dated 1 (1989) 3 SCC 311 ` 5 PSK,J&NRR,J wp_13101_2005 25.07.1991 yet another one year with a caution intimating that the respondent should improve upon his work. According to the petitioners, there is no dispute so far as the respondent being inflicted with two punishments, dated 10.07.1992 and 13.08.1992. Both punishments being postponement of increment of one year without cumulative effect.
10. Learned counsel for the petitioners referring to the provisions of the Andhra Pradesh State and Subordinate Service Rules, 1963 and contends that the employer had right and power to decide whether the services of a probationer and his probation period needs to be extended beyond the period of two initial years, if the service is found to be unsatisfactory. At the same time, learned counsel for the petitioners also contended that the employer has also right to discharge the employee on probation on the ground of unsatisfactory performance even without granting extension.
11. Learned counsel for the petitioners further contends that in the instant case taking liberal and sympathetic view, the Government had granted extension of time, hoping that the respondent would in between improve his work by extending the probation period by one year vide order, dated 25.07.1971. In spite of extension being granted and the caution for improving the work and the same being mentioned in the extension order, the respondent continued to remain absent unauthorizedly for considerable length of ` 6 PSK,J&NRR,J wp_13101_2005 time. In the instant case, the respondent during the extended period itself, went on unauthorized absence for a period of 153 days. Thus, it was in those compelling circumstances that the petitioners have decided discharging from service for unsatisfactory performance.
12. Heard the contentions put forth by learned counsel on either side and perused the material on record.
13. A plain reading of the provisions of the relevant rules clearly gives an indication as to how the services of a probationer has to be regulated Rule 24 of the Andhra Pradesh State and Subordinate Services Rules, 1962 (for short, 'the Rules, 1962'), deals with the services of a probationer.
14. For ready reference, Rule 24 of the Rules, 1962 dealing with Suspension, termination or extension of probation is reproduced as under:
"(a) Where the special rules of any service prescribe a period of probation for appointment as a full member of the service, the appointing authority may at any time before the expiry of such period.
(i) Suspend the probation of a probationer and discharge him from the service for want of vacancy; or
(ii) At its discretion by order either extend the period of probation of the probationer in case the probation has not been extended under Rule 16 or terminate his probation and discharge him from service after giving him one month's notice or pay in lieu of such notice.
` 7 PSK,J&NRR,J wp_13101_2005
(iii) At its discretion by order post the probationer under another officer to make sure that the previous report was not biased one if he is reported upon adversely by a superior officer during the period of probation..."
15. Considering the aforesaid provision of law what is now to be decided is whether action assailing by the petitioners in discharging the respondent from services can be said to be in any manner arbitrary or contrary to the Rules. The period of absence on regular intervals by itself speaks volumes so far as the work and conduct of the respondent is concerned. Apart from the fact that the respondent was also twice inflicted with punishment of postponement of annual increment by one year without cumulative effect, yet there was no sign of improvement on the part of the respondent. In spite of all this taking sympathetic and linent view towards respondent, the period of probation was extended vide order, dated 25.07.1991. However, even during this extended probation period, the respondent went in unauthorized absence for a period of 153 days at a stretch from 15.05.1992 onwards till 14.10.1992. It was then the petitioners have decided to discharge the respondent from services. Given the fact that the respondent was a probationer and in the probation period, least that is expected from an employee is that he will show full dedication, sincerity and obedience in discharging of his duties. It is only thereafter on evaluation of service record of the employee, the employer takes a decision whether to ` 8 PSK,J&NRR,J wp_13101_2005 continue him in service or to discharge him from service for his unsatisfactory work.
16. It is pertinent to mention that in Registrar, High Court of Gujrat and another v. C.G.Sharm 2, wherein the Hon'ble Supreme Court at Paragraph No.43 it was held as under:
"43. But the facts and circumstances in the case on hand are entirely different and the administrative side of the High Court and the Full Court were right in taking the decision to terminate the services of the respondent, rightly so, on the basis of the records placed before them. We are also satisfied, after perusing the confidential reports and other relevant vigilance files, etc. that the respondent is not entitled to continue as a judicial officer. The order of termination is termination simpliciter and not punitive in nature and, therefore, no opportunity needs to be given to the respondent herein. Since the overall performance of the respondent was found to be unsatisfactory by the High Court during the period of probation, it was decided by the High Court that the services of the respondent during the period of probation of the respondent be terminated because of his unsuitability for the post. In this view of the matter, order of termination simpliciter cannot be said to be violative of Articles 14, 16 and 311 of the Constitution. The law on the point is crystallised that the probationer remains a probationer unless he has been confirmed on the basis of the work evaluation. Under the relevant Rules under which the respondent was appointed as a Civil Judge, there is no provision for automatic or deemed confirmation and/or deemed appointment on regular establishment or post, and in that view of the matter, the contentions of the respondent that the respondent's services were deemed to have been continued on the expiry of the probation period, are misconceived."
17. In the instant case, there is nothing which has been brought on record on behalf of the respondent to show that the petitioners' in the course of deciding to discharge the respondent from his duties to be in any manner vindictive or arbitrary. In fact, the Government could have at the first 2 (2005) 1 Supreme Court Cases 132 ` 9 PSK,J&NRR,J wp_13101_2005 instance itself discharged for unsatisfactory work, however, yet taking lenient and sympathetic view had granted extension of time. Even then the respondent did not show any sign to improve his work.
18. In the said circumstances, the action taken by the petitioners cannot be found fault with either on facts or law governing the service conditions.
19. For the aforesaid reasons, we find it difficult to sustain the order passed by the Tribunal, dated 09.12.2002 in O.A.No.3573 of 1993 and the same is therefore, set aside and the O.A. is ordered to be dismissed and the consequential order, dated 17.10.1992 discharging the respondent from service is upheld.
20. Accordingly, the Writ Petition is allowed. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this writ petition shall stand closed.
_________________________________ JUSTICE P.SAM KOSHY _____________________________________________ JUSTICE NARSING RAO NANDIKONDA Date: 20.03.2025 YVL `