Gujarat High Court
Dahyabhai Mangalpuri Gosai vs Cantonment Board Ahmedabad And Anr. on 21 June, 1993
JUDGMENT S. Nainar Sundaram, C.J.
1. This Letters Patent Appeal is directed against the order of the learned single Judge in Special Civil Application No. 3006 of 1981, The petitioner in the Special Civil Application is the appellant in this Letters Patent Appeal. The respondents in the Special Civil Application are the respondents in this Letters Patent Appeal. We prefer to refer to the parties as per their array in the Special Civil Application.
2. The petitioner, by an order dated 12-5-1978, was inducted into the services of the respondents and he was placed on probation for a period of two years with effect from 23-5-1978. As per the terms of the order, the period of probation would lapse at the and of 13-5-1980. But we find, as per the affidavit-in-reply filed on behalf of the respondents in the Special Civil application, there was a Resolution bearing No. 10 dt. 17-4-1980 under which the probation period of the petitioner was extended up to 15-6-1980. There had been no further extension of the period of probation. According to the respondents, they noticed a number of irregularities with regard to the working of the Cantonment board by its staff and the case of the petitioner was considered by the Cantonment Board on receipt of the Special Audit Report and on 23-5-1981, a notice was issued to the petitioner as per the provisions of Rule 8 (2) of the Cantonment Fund Servants Rules, 1937 (hereinafter referred to as "the Rules"). The petitioner gave his reply. Being dissatisfied with the reply given, by order dated 17-7-1981, the services of the petitioner were discharged. All these happened, obviously, after the lapse of the extended period of probation on 15-6-1980. The petitioner put the action of the respondents in discharging him, in issue on the special Civil application. It must be noted that the petitioner not forth a case that he was in fact, confirmed by an Office Order bearing No. 212 dated 21-2-1979. The learned single Judge, who dealt with the Special Civil application, found that the respondents have seriously disputed the genuineness of this office Order and they would allege that it is downright forgery and in view of this, the learned single Judge, opining that serious disputed questions of fact have arisen and this Court is not the proper forum to deal with the dispute, rejected the Special Civil Application. There was an alternative plea put forth by the petitioner that his period of probation not having had been further extended and no action to discharge him having had been taken before the lapse of the period of probation, he must be deemed to have been confirmed. The learned single Judge did not go into this alternative plea. As already noted, this Letters Patent Appeal is directed against the order of the learned single Judge.
3. We heard Miss Kusum M. Shah, learned counsel for the petitioner, the appellant herein. She would not press forth the theory of confirmation, built by her client on the Officer's Order No. 212 dated 21-2-1979 and would concentrate on the alternative plea apparently built on Rule 6 of the Rules specifically taken in the pleadings, to say that since before the lapse of the extended period of probation on 15-6-1980, the petitioner not having had been discharged and there having had been no further extension of the period of probation, her client must be deemed to have been confirmed by implication and hence, it is not possible to invoke Rule 8 (2) of the Rules, which would be available only in the case of discharge either during or at the end of the period of probation. In this behalf, Miss Kusum M. Shah, learned counsel for the petitioner, would place reliance on the pronouncement of the Supreme Court in Om Prakash Maurya v. U. P. Cooperative Sugar Factories Federation, Lucknow, 1988 II C. L. R. 427. The principle countenanced in the said pronouncement we find, comes to the aid of the petitioner's case, as advanced by his learned counsel. In that case, there was a consideration of Regulations 17 and 18 of U. P. Co-operative Societies Employees Service Regulations and taking note of the fact that the Regulations prescribe the maximum period of probation and further, they do not expressly lay down as to what would be the status of an employee on the expiry of the maximum period of probation where no order of confirmation is issued, the Supreme Court held that the necessary result would be, after the maximum period of probation, the employee would stand confirmed by implication. This relevant proposition deducible from the pronouncement runs thus :
" x x x x Regulations 17 and 18 read together, provide that appointment against a regular vacancy is to be made on probation for a period of one year, this a probationary period can be extended for a period of one year more. The proviso to Regulation 17 restricts the power of the appointing authority in extending the period of probation beyond the period of one year. An employee appointed against a regular vacancy cannot be placed on probation for a period more than two years and it during the period of probation the appointing authority is of the opinion that the employee has not made use of opportunity afforded to him he may discharge him from service or revert him to his substantive post but he has not power to extend the period of probation beyond the period of two years. Regulation 18 stipulates confirmation of an employee by an express order on the completion of the probationary period. The regulations do not expressly lay down as to what would be the status of an employee on the expiry of maximum period of probation where no order of confirmation is issued and the employee is allowed to continue in service. Since Regulation 17 does not permit continuation of an employee on probation for a period of more than two years the necessary result would follow that after the expiry of two years probationary period, the employee stands confirmed by implication. This is implicit in the scheme of Regulations 17 and 18. x x x x x."
The same principle has been reiterated in a subsequent pronouncement of the Supreme Court in M. K. Agarwal v. Gurgaon Gramin Bank, 1988 1 C. L. R. 379 and M. N. Venkatachaliah, J. as he than was, has succinctly summed up the proposition in the following terms : (Para 8) "x x x x The first point need not detain us. The period of the probation was one year, in the first instance. The employer could extend it only for a further period of six more months. The limitation on the power of the employer to extend the probation beyond 18 months coupled with the further requirement that at the end of it the services of the probationer should either be confirmed or discharged render the inference inescapable that if the probationer was not discharged at or before the expiry of the maximum period of probation, then there would be an implied confirmation as there was no statutory indication, as to what should follow in the absence of express confirmation at the end of even the maximum permissible period of probation. In cases where, as here, these conditions coalesce, it has been held, there would be confirmation by implication. (see State of Punjab v. Dharam Singh, AIR 1968 SC 1210 : Om Prakash Maurya v. U. P. Cooperative Sugar Factories Federation, Lucknow, 1986 II CLR 427. x x x x."
4. Here Rule 6 of the Rules, with which we are concerned runs as follows;
"At first appointment under the Cantonment Board shall be made on probation for a period of six months in the cases of lower grade servants and two years in the case of others.
Provided that no person shall be confirmed in his first appointment till the appointing authority is satisfied that he is fit to hold such appointment.
Provided further that the appointing authority extend the period of probation by a further period not exceeding one year for reasons to be recorded in writing."
The main part of Rule 6 speaks about the initial period of probation, being six months in the case of lower grade servants, with which we are not concerned and two years in the case of other with which alone we are concerned. The first proviso speaks about the confirmation happening on the appointing authority being satisfied that the servant is fit to hold the appointment. But apparently, this satisfaction must happen and be arrived at before the end of the period of probation initial or extended. If there is dissatisfaction, the servant could be discharged either during or at the end of the period of probation, initial or extended. This in our view is the plain construction of this proviso, reading Rule 6 as a whole. The second proviso speaks about extension of the period of probation for a further period not exceeding one year for reasons to be recorded in writing. Admittedly, the only extension beyond the initial period of probation enured up to 15-6-1980. The petitioner was not discharged either during or at the end of the period of probation as a whole, which lapsed in the instant case on 15-6-1980 to bring the case under Rule 8 (2). We are not enlightened, by exposure of any factual material, that so far as the petitioner is concerned, the process of arriving at the satisfaction as to whether the should be confirmed or not commenced even before the lapse of the extended period of probation by 15-6-1980 even to test a theory, as advanced by Mr. A. J. Patel, learned counsel for the respondents that it would suffice the purpose if such a process of satisfaction had commenced before the lapse of the period of probation. Thus, we find that on the lapse of the extended period of probation on 15-6-1980, there was no possibility of holding that the petitioner was on probation, despite no confirmation order having had been issued. Here also Rule 6 does not expressly lay down as to what would be the status of the servant on the expiry of the period of probation initial or extended, where no confirmation takes place. As held by the Supreme Court in Om Prakash Maurya v. U. P. Co-operative Sugar Factories Federation Lucknow, 1980 II CLR 427 the necessary result would be after the expiry of the period of probation, which in the present case, lapsed, as per Resolution No. 10 dated 17-4-1980 at the end of 15-4-1980, the petitioner must be deemed to have been confirmed by implication. We find, on facts, there is no escape from this principle countenanced by the Apex Court in the land.
5. If this is the result, which we could arrive at then the question is, what is the relief, which we should accord to the petitioner in the present case. There has been a pungent note of dissatisfaction expressed over the discharge of duties by the petitioner an this is quite evident from the notice issued on 23-6-1981. Every many acts of omission and commission on the part of the petitioner had been noticed. If only a regular disciplinary action, on the basis that the petitioner stood confirmed, had been taken, the respondents would not have faced the present predicament and situation. The petitioner succeeds purely on a technical ground. Keeping this in mind, we find, while we could order reinstatement to be effective from 1st August 1993, we need not award back wages. Even in the case of M. K. Agarwal v. Gurgaon Gramin Bank, 1988 I CLR 379, it was opined that the Court, in appropriate cases, could decline reinstatement and that principle is in not doubt, but its application in a given case would require the balancing of diverse and conflicting interests and claims. Here, in the present case, on consideration of the the entire matter, we are convinced that while we could order reinstatement as above, we will be justified in not awarding back wages to the petitioner.
6. Accordingly, we make the following order in this Letters Patent Appeal :-
(i) The order, impugned in the Special Civil Application, dated 17-7-1981. Annexure 'D', will stand deleted and the petitioner will be entitled to reinstatement on and from 1st August 1993.
(ii) The petitioner shall be reinstated on the basis that he is a confirmed and a permanent employee; and
(iii) The petitioner is not entitled to back wages, but he will be entitled to the other service benefits on the basis that he continued to be in employment.
This letters patent appeal is allowed in the above terms.
7. We make no order as to costs.
8. Appeal allowed.