Jharkhand High Court
Sunit Kumar vs The State Of Jharkhand on 5 July, 2018
Author: D.N.Patel
Bench: Amitav K. Gupta, D.N.Patel
IN THE HIGH COURT OF JHARKHAND, RANCHI
L.P.A. No. 267 of 2016
Sunit Kumar, Son of Shri Amir Paswan, R/o Malhipur, P.O.-Shaligrami,
P.S.- Sahebpur Kamal, Dist.-Begusari, (Bihar), presently Shantinagar-
Bokaro, P.O.,P.S.-Sahebganj Dist.- Sahebganj, (Jharkhand)
.....Appellant
Versus
1. The State of Jharkhand
2. The D.I.G., Jharkhand Armed Police, Sector-II, Qr. No.- E/305,
Dhurwa, P.O. & P.S.- Dhurwa, Dist.-Ranchi- 834004
3. The Commandant, Jharkhand Armed Police -9, Sahebganj, P.O. &
P.S.- Sahebganj, Dist.-Sahebganj, Jharkhand ... Respondents
-----------
CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE AMITAV K. GUPTA
---------
For the Appellant : Mr. Satish Prasad, Advocate
For the Respondents : A.C. to A.G.
----------
13/ Dated 05.07.2018:
(Oral Order)
Per D.N.Patel, A.C.J.
1. This Letters Patent Appeal has been preferred by the original petitioner whose writ petition being W.P. (S) No.4551 of 2011 was dismissed by the learned Single Judge vide judgment and order dated 13th April, 2016 whereby, the prayer for quashing and setting aside of order for dismissal was passed by respondent was not accepted by the learned Single Judge. Hence, the original petitioner has preferred the present Letters Patent Appeal.
2. Having heard the counsels for both the sides and looking to the facts and circumstances of the case, it appears that this appellant is the original petitioner who was appointed as Constable on 21st August, 2005. Looking to the show-cause notice issued to this appellant which is at Anexure-1 to the memo of this Letters Patent Appeal dated 26th April, 2010, it appears that on more than one dozen time, this appellant (original petitioner) has remained absent unauthorizedly.
3. The detail of absenteeism period has been mentioned in show- cause notice at Annexure-1. In fact, when the show-cause notice was issued, the appellant was supposed to give reply within 15 days, but, the same was not given within 15 days.
4. It appears that thereafter this appellant was dismissed from -2- the services vide order dated 25th May, 2010 which is at Annexure- 3 to the memo of this Letters Patent Appeal in which it has been stated that on more than one dozen occasions he has remained unauthorizedly absent and in total service of 1670 days he has remained unauthorizedly absent without permission of respondent, for 277 days and his services were also not confirmed by the respondent.
5. This appellant was also given chance to prefer an appeal. A department appeal was also preferred and his departmental appeal has also been dismissed vide order dated 25th June, 2011 which is at Annexure-6 to the memo of this Patent Letters Appeal. At length, the order has been passed and the behavior of this appellant of remaining auauthorisedly absent has been pointed out in detail by the appellate authority also.
6. Looking to the facts and circumstances of the case, it appears that this appellant is not interested in the job of the Government as a Constable. He is working with a disciplined force, but, this appellant has nothing to do with any types of discipline. The rules of discipline have been more observed in breach than in compliance. Such type of habitual absenteeism cannot be permitted in the Police Department and that too, within such a short span of service. If such type of behavior of this appellant is allowed, it will encourage the other Constables also to violate the basic rules of service discipline. It appears that the respondent-Government has waited enough so that this appellant can get a chance to improve his behavior and habits of going on leave without permission. But, looking to the fact that on 14 different occasions, he has remained absent without permission of the respondent and hence, no error has been committed by the respondent in terminating his services. These aspects of the matter have been properly appreciated by the learned Single Judge while dismissing writ petition being W.P. (S) No.4551 of 2011 vide judgment and order dated 13th April, 2016. We see no other reason to take any other view than what is taken by the learned -3- Single Judge.
7. In the case of G.S. Ramaswamy v. I.G. Police reported in (1964) 6 SCR 279: AIR 1966 SC 175 it has been held by Hon'ble the Supreme Court as under:
"8. It has further been urged on the basis of Rule 486 that as the petitioners had worked for more than two years on probation, they became automatically confirmed under the said Rule, and reliance is placed on the following sentence in Rule 486, namely, "promoted officers will be confirmed at the end of their probationary period if they have given satisfaction." The law on the question has been settled by this Court in Sukhbana Singh v. State of Punjab. It has been held in that case that a probationer cannot after the expiry of the probationary period 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. Therefore even though a probationer may have continued to act in the post to which he is appointed on probation for more than the initial period of probation, he cannot become a permanent servant merely because of efflux of time, unless the Rules of service which govern him specifically lay down that the probationer will be automatically confirmed after the initial period of probation is over. It is contended on behalf of the petitioners before us that the part of Rule 486 (which we have set out above) expressly provides for automatic confirmation after the period of probation is over. We are of opinion that there is no force in this contention. It is true that the words used in the sentence set out above are not that promoted officers will be eligible or qualified for promotion at the end of their probationary period which are the words to be often found in the Rules in such cases; even so, though this part of Rule 486 says that "promoted officers will be confirmed at the end of their probationary period", it is qualified by the words "if they have given satisfaction". Clearly therefore the Rule does not contemplate automatic confirmation after the probationary period of two years, for a promoted officer can only be confirmed under this Rule if he has given satisfaction. This condition of giving satisfaction must be fulfilled before a promoted officer can be confirmed under this Rule and this condition obviously means that the authority competent to confirm him must pass an order to the effect that the probationary officer has given satisfaction and is therefore confirmed. The petitioners therefore cannot claim that they must be treated as confirmed circle inspectors simply because they have worked for more than two years on probation; they can only become confirmed circle inspectors if an order to that effect has been passed even under this Rule by the competent authority. The first contention therefore that the petitioners before us have an indefeasible right to promotion once their names are put in the eligibility list and that they are entitled to continue as circle inspectors thereafter if they have once been promoted, on temporary or officiating basis, cannot be sustained."
(emphasis supplied)
8. In the case of Kedar Nath Bahl v. State of Punjab reported in (1974) 3 SCC 21 it has been held by Hon'ble the Supreme Court as under:
-4-"9. It was next contended that even if it is assumed that he was not confirmed by the Government in the post, it must be held that he was automatically confirmed in the post after the first six months of probation. He was a government servant before he accepted this post and under the terms of appointment already referred to, he was on probation for six months. The period of probation was over on May 5, 1955. It is the contention of the appellant that on the expiry of this period of probation he was automatically confirmed. The record, however, shows that the probationary period was extended by the Government from time to time though the orders were made with retrospective effect. The appellant contends that these orders extending the period of probation were irregular and illegal. Either he should have been discharged within the first six months of probation, or, if he was not so discharged he was entitled to automatic confirmation. We do not think that this contention is correct. The law on the point is now well settled. Where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if no order is passed in that behalf. Unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period, or there is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. At the end of the period of probation an order confirming the officer is required to be passed and if no such order is passed and he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer. See: Narain Singh Ahluwalia v. State of Punjab; Accountant General Madhya Pradesh, Gwalior v. Beni Prasad Bhatnagar, G.S. Ramaswamy v. Inspector-General of Police, Mysore State. The terms of appointment do not show that the appellant would be automatically confirmed on the expiry of the first six months of probation nor is any rule brought to our notice which has the effect of confirming him in the post after six months of probation. The position of the appellant, therefore, till the abolition of the post on November 4, 1958, was that he continued to be a probationer and has no right to the post. It, therefore, follows that when the tenure of the post came to an end, he was automatically reverted to his original post as an Inspector on which he had the lien."
(emphasis supplied)
9. In the case of High Court of M.P. v. Satya Narayan Jhavar, (2001) 7 SCC 161, reported in 2001) 7 SCC 161 it has been held by Hon'ble the Supreme Court as under:
"11. The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in -5- the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired."
(emphasis supplied)
10. In view of the aforesaid decisions, there is no automatic confirmation into the services of the respondent, even if, the period of probation is over. In the facts of the present case, this appellant was never confirmed by the respondent and looking to the habit cultivated by this appellant to go on leave without permission and that too on several occasions as stated in Annexure-3 which was confirmed by order at Annexure-6, such type of appellant's services cannot be confirmed by the respondent. This appellant has no respect at all for the discipline to be maintained in the Police Department. Basically, he is not fit to continue as a Constable with the respondent- Government. Hence, no error has been committed by the respondent-authorities nor by the learned Single Judge while dismissing W.P. (S) No.4551 of 2011 vide judgment and order dated 13th April, 2016. Hence, there is no substance in this Letters Patent Appeal, and the same is therefore, dismissed with cost of Rs.25,000/- (twenty five thousand) which shall be deposited before the Secretary, Women & Child Development and Social Welfare, Government of Jharkhand, Ranchi towards Juvenile Justice Fund. This amount will be deposited in Bank Account no. 3734498462-5, Jharkhand Juvenile Justice Fund, State Bank of India, Project Bhawan, Hatia, Ranchi, either by cheque or Bank draft with a period of four months from today. This amount shall be utilized for the welfare of the juveniles, as per the duties assigned to the State under the Juvenile Justice (Care & Protection of Children) Act, 2015.
-6-11. Copy of this order will be sent to:
(a) The Secretary, Department of Women and Child Development & Social Welfare, Government of Jharkhand and
(b) The Member Secretary, Jharkhand State Legal Services Authority, Nyay Sadan, Doranda, Ranchi.
(D.N. Patel, A.C.J.) (Amitav K. Gupta, J.) NKC/Tarun