Punjab-Haryana High Court
Ashok Kumar vs State Of Haryana And Ors on 27 October, 2022
Author: Arun Monga
Bench: Arun Monga
CWP No.9577 of 2017 (O&M)
Sr.No.218
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.9577 of 2017(O&M)
Reserved on : 27.10.2022
Pronounced on : 06.12.2022
Ashok Kumar ...Petitioner
Versus
State of Haryana and others ...Respondents
CORAM : HON'BLE MR. JUSTICE ARUN MONGA
Present : Mr. Keshav Gupta, Advocate
for the petitioner.
Mr. Saurabh Mohunta, D.A.G., Haryana.
***
ARUN MONGA, J.
Petition herein, inter alia, is for issuance of a writ in the nature of Certiorari for setting aside order dated 02/04.05.2016 (Annexure P-8), whereby services of the petitioner who was on probation were dispensed with, and order dated 13.07.2016 (Annexure P-10), whereby appeal filed by petitioner was dismissed.
2. Succinct facts first.
2.1. Petitioner was appointed as Jail Warden on regular basis and he joined service on 01.05.2013. He was put on probation for a period of 2 years i.e., upto 30.04.2015. However, he remained continuously absent from duty w.e.f. 17.10.2014 to 02.05.2016. Therefore, vide letter dated 21.04.2015 (Annexure P-4), he was asked to personally appear along with documentary proof regarding his absence. Petitioner replied thereto vide ASHISH 2022.12.09 12:26 I attest to the accuracy and integrity of this document Page 1 of 9 CWP No.9577 of 2017 (O&M) letter dated 28.04.2015 (Annexure P-5) allegedly along with medical certificate, stating that he was diagnosed with psychiatric illness which entails treatment for a prolonged period. Petitioner, however, did not appear personally. Vide letter dated 25.04.2016 (Annexure P-6) the petitioner was again asked to personally appear before the Superintendent, Head Quarters, Jails, Panchkula. Again, he did not personally appear but replied vide letter dated 12.04.2016 (Annexure P-7) requesting to allow him to rejoin duty. However, the Office of Superintendent, Head Quarters, Jails - respondent No.3 passed the impugned order dated 02/04.05.2016 (Annexure P-8) dispensing with the services of the petitioner. Aggrieved thereto, the petitioner approached the Director General of Police, Haryana by way of first appeal but the same was also dismissed vide impugned order dated 13.07.2016 (Annexure P-10).
Hence, the present petition.
3. The questions for consideration is (i) whether in the facts and circumstances of the case, the petitioner can be deemed to have been confirmed without any such order of confirmation during his unauthorized absence from duty under the relevant Service Rules; and(ii) whether the absence of the petitioner for such a long period was genuine. The relevant provisions of The Punjab Jails Department State Service (Class III Executive) Rules, 1963 (hereinafter referred to as 'Rules of 1963') are as below:-
"The Punjab Jails Department State Service (Class III Executive) Rules, 1963
10. Probation of members of service--
(1) Persons appointed to the Service shall remain on probation for a period of two years:-ASHISH 2022.12.09 12:26 I attest to the accuracy and integrity of this document Page 2 of 9 CWP No.9577 of 2017 (O&M)
(a) Any period, after appointment to the service spent on deputation on a corresponding or a higher post shall count towards the period of probation fixed under this rule;
(b) In the case of an appointment by transfer, any period of work in equivalent or higher rank prior to appointment to the Service may, at the discretion of the appointing authority be allowed to count towards the period of probation fixed under this rule; and
(c) An officiating appointment in the Service shall be reckoned as a period spent on probation but not member who has thus officiated shall on the completion of the prescribed period of probation, be entitled to be confirmed, unless he is appointed against a permanent post.
(2) If the work or conduct of a person appointed to the Service during the period of probation is in the opinion of the appointing authority, not satisfactory, it may:-
(a) dispense with his services, if recruited by direct appointment, or
(b) deal with him in such other manner as the terms and conditions of his previous appointment permit.
(3)On the completion of the period of probation of a person, the appointing authority may:-
(a) confirm such persons from the date of his appointment or any date following such appointment from which a permanent vacancy exists;
(b) if no permanent vacancy exists declare that he has completed his probation satisfactorily; or
(c) if his work or conduct has, in its opinion, not been satisfactory, dispense with his services, if recruited by direct appointment and if recruited otherwise revert him to his former post or deal with him in such other manner as the terms and conditions of his previous appointment permit; or
(d) extend his period of probation and thereafter pass such orders as it could have passed on the expiry of the first period of Probation;
Provided that the total period of probation including extension if any, shall not exceed three years." ASHISH 2022.12.09 12:26 I attest to the accuracy and integrity of this document Page 3 of 9 CWP No.9577 of 2017 (O&M) First Question
4. The respondent being directly appointed as Jail Warden, the period of his probation was two years according to sub-rule (1) of Rule
10. The provision for confirmation is contained in sub-rule (1) (c) of Rule 10 of the Rules of 1963. Sub-rule (2) requires the satisfaction of the competent authority. Sub-rule (3)(d) provides for the probation to be extended by a further period not exceeding one year. Sub-rule (3)(c) provides for dispensing with the services for a direct appointee during the period of probation. Thus, as per Rule 10 ibid the maximum period of probation cannot exceed 2+1 years, i.e., 3 years.
5. The point for decision has to be answered on the basis of earlier decisions. Learned counsel for the petitioner has relied upon a Constitution Bench judgment of the Supreme Court in State of Punjab vs. Dharam Singh1 wherein it was held as under:-
"This Court has consistently held that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation, he should be deemed to continue in his post as a probationer only, in the absence of any indication to the contrary in the original order of appointment or promotion or the service rules. In, such a case, an express order-of confirmation is necessary to give the employee a substantive right to the post, and from the mere fact that he is allowed to continue in the post after the expiry of the specified period of probation it is not possible to hold that he should deemed to have been confirmed...... In all these cases, the conditions of service of the employee permitted extension of the probationary period for an indefinite time and there was no service rule forbidding its extension beyond a certain maximum period.
xxxx xxxx xxxx In the present case, r. 6(3) forbids extension of the period of probation beyond three years. Where, as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended, 1 ASHISH AIR 1968 SC 1210 2022.12.09 12:26 I attest to the accuracy and integrity of this document Page 4 of 9 CWP No.9577 of 2017 (O&M) 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 negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication."
6. Per contra, the learned State counsel has relied upon a Full Bench judgment of the Supreme Court in Chief General Manager, State Bank of India and another vs. Bijoy Kumar Mishra2, wherein, after discussing Dharam Singh's case ibid, it was held as under:-
"7. The above-quoted last extract on which reliance was placed by the High Court and on which emphasis was laid by Shri K.K. Venugopal, learned counsel for the respondent, has to be read in the context and not divorced therefrom. In substance, Dharam Singh [AIR 1968 SC 1210 : (1968) 3 SCR 1] held that where the Service Rules permitted continuance in service as a probationer beyond a certain period, an express order of confirmation is necessary to give the employee a substantive right to the post, and the mere fact that he is allowed to continue in the post after the specified period of probation is not sufficient to hold that he should be deemed to have been confirmed; but where the maximum period of probation is provided in the Service Rules and the employee is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he must be deemed to have been confirmed in the post by implication. It is significant that the effect of permitting the employee to continue in the post even on completion of the maximum period of probation without an express order of confirmation results in the only logical inference that he has been confirmed in the post by implication. In other words, for drawing such inference, it is necessary that the employer should allow the employee to continue on the post even after expiry of the maximum period of probation which is consistent only with the fact of his confirmation on the post. This inference is drawn from the conduct of the employer which is consistent only with the fact of confirmation of the employee. In short, it is a rule of evidence applied to the facts of the case because the continuance in employment after the maximum period of 2 ASHISH (1997) 7 Supreme Court Cases 550 2022.12.09 12:26 I attest to the accuracy and integrity of this document Page 5 of 9 CWP No.9577 of 2017 (O&M) probation is consistent only with the confirmation, and that follows from the employer's conduct of permitting the employee to continue to work on that post after the maximum period of probation.
8. It is obvious that the decision in Dharam Singh [AIR 1968 SC 1210 : (1968) 3 SCR 1] can have no application in a case where the employee was absent from duty from a date much prior to the expiry of the maximum period of probation and remained absent even thereafter for a long time. There was no occasion in such a case for the employer to allow the employee (respondent) to continue to work on the post after the expiry of the maximum period of probation because he was absent and was not working on the post at the time of the expiry of the period of probation. Deemed confirmation results from the conduct of the employer in permitting continuance in service after the expiry of the maximum period of probation fixed by the rules. When there is no such conduct of the employer, the very foundation for the argument of deemed confirmation and reliance on Dharam Singh [AIR 1968 SC 1210 : (1968) 3 SCR 1] is not existent. In our opinion, this discussion alone is sufficient to indicate that the High Court has misread Dharam Singh [AIR 1968 SC 1210 : (1968) 3 SCR 1] to grant relief to the respondent. However, we may refer to some later decisions also to indicate that this is the correct position in law.
9. In Kedar Nath Bahl v. State of Punjab [(1974) 3 SCC 21] there was no maximum period of probation prescribed in the rules and, therefore, it was held that there could be no automatic confirmation. A seven-Judge Bench in Samsher Singh v. State of Punjab [(1974) 2 SCC 831 : 1974 SCC (L&S) 550] (SCC at p. 853) held that the provision regarding the maximum period of probation was directory and not mandatory and the decision in Dharam Singh [AIR 1968 SC 1210 : (1968) 3 SCR 1] was construed as under:
"70. ... In Dharam Singh case [AIR 1968 SC 1210 : (1968) 3 SCR 1] he was allowed to continue without an order of confirmation and therefore the only possible view in the absence of anything to the contrary in the Service Rules was that by necessary implication he must be regarded as having been confirmed."
10. There can thus be no doubt that the deemed confirmation which is inferred from the employer's conduct is permissible only when it follows from the positive act of the employer permitting the employee to continue to work on the post even after completion of the maximum period of probation permitted under the Service Rules since no other inference is possible in such a situation from the employer's conduct of ASHISH continuing to take work from the employee after that period. 2022.12.09 12:26 I attest to the accuracy and integrity of this document Page 6 of 9 CWP No.9577 of 2017 (O&M)
11. The decision by a two-Judge Bench in Municipal Corpn. v. Ashok Kumar Misra [(1991) 3 SCC 325 : 1991 SCC (L&S) 1046 : (1991) 16 ATC 927] is distinguishable. In that case, the note under clause (2) of Rule 8 permitted continuance in service without extension of the probationary period or confirmation or discharge from service at the end of the period of probation.
12. No separate discussion of Jai Kishan v. Commr. of Police [1995 Supp (3) SCC 364 : 1995 SCC (L&S) 1233 :
(1995) 31 ATC 148] and State of Punjab v. Baldev Singh Khosla [(1996) 9 SCC 190 : 1996 SCC (L&S) 1210] is called for. In view of the clear law laid down in the Constitution Bench decision of this Court in Dharam Singh [AIR 1968 SC 1210 : (1968) 3 SCR 1] and Samsher Singh [(1974) 2 SCC 831 : 1974 SCC (L&S) 550] as indicated above, those decisions cannot be treated as authorities for a proposition inconsistent with that laid down by the Constitution Bench. It must be mentioned that Shri K.K. Venugopal, learned counsel for the respondent, made no attempt to rely on any of these decisions and he confined the respondent's case to the reading of the Constitution Bench decision in Dharam Singh [AIR 1968 SC 1210 : (1968) 3 SCR 1] . As we have already indicated Dharam Singh [AIR 1968 SC 1210 :
(1968) 3 SCR 1] does not support the respondent's contention.
13. Consequently, this appeal is allowed and the impugned judgment of the High Court is set aside."
7. Learned State counsel has also relied upon a Division Bench judgment of this Court in Baldev Singh vs. State of Punjab and others3, wherein speaking for this Court M.M. Kumar, J. (as he then was in this Court) while discussing Bijoy Kumar Mishra's case ibid and High Court of M.P. vs. Satya Narayan Jhavar4, has held that once show cause notice of commissions or omissions is served during probation period or punishments have been effected, the employee cannot claim having completed probation period satisfactorily.
3 2007(3) S.C.T. 763 4 ASHISH 2001(3) SCT 1114 2022.12.09 12:26 I attest to the accuracy and integrity of this document Page 7 of 9 CWP No.9577 of 2017 (O&M)
8. Perusal of the aforesaid judgments makes it amply clear that the term 'deemed confirmation' have no application in a case where the employee was absent from duty from a date much prior to the expiry of the maximum period of probation and remained absent even thereafter for a long time. There was no occasion in such a case for the employer to allow the employee to continue to work on the post after the expiry of the maximum period of probation because he was absent and was not working on the post at the time of expiry of the period of probation. Deemed confirmation results from the conduct of the employer in permitting continuance in service after the expiry of the maximum period of probation fixed by the rules. When there is no such conduct of the employer, the very foundation of the argument of deemed confirmation is missing and reliance on Dharam Singh's case ibid is misplaced.
Hence, this question is answered against the petitioner. Second Question
9. Learned counsel for the petitioner has relied upon the judgment of the Supreme Court in Krushnakant B. Parmar vs. Union of India and another5to contend, that there is a difference between wilful absence and unauthorized absence and unless the latter is proved, the services of the employee cannot be terminated on the ground of misconduct.
10. Per contra, the learned State counsel has argued that the judgment relied upon by the learned counsel for the petitioner cannot be made applicable in the facts and circumstances of the present case as it has come on record in inquiry, that the petitioner could not produce any 5 ASHISH 2012(3) SCC 178 2022.12.09 12:26 I attest to the accuracy and integrity of this document Page 8 of 9 CWP No.9577 of 2017 (O&M) original medical record/OPD documents in support of the claim of illness/treatment to justify his absence which itself reflects misconduct on his part.
11. Even during the course of arguments, the learned counsel for the petitioner is unable to produce any document showing any genuine cause for his absence from duty. He was even asked to appear personally on several occasions but he failed to do so. Hence, the second question is also answered against the petitioner.
12. As an upshot of the discussion above, I find no fault with the findings given in the impugned orders.
13. Petition is accordingly dismissed.
14. Pending civil miscellaneous applications, if any, also stand disposed of.
December 06, 2022 (ARUN MONGA)
ashish JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
ASHISH
2022.12.09 12:26
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