1999(2) ALL MR 521
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)

R.K. BATTA AND J.A. PATIL, JJ.

Shri Mahesh Chodankar Vs. Captain Of Ports And Ors.

Writ Petition No.582 of 1993

21st January, 1999

Petitioner Counsel: A. AGNI
Respondent Counsel: Shri J. GODINHO

(A) Constitution of India, Arts.309 and 311 - O M No.44/1/59 dt.15-4-1959 Rr.2 and 3 - Petitioner appointed on probation for two years - No automatic confirmation in view of R.3 - Petitioner continued for some weeks without any order - No deemed confirmation.

The normal period of probation is two years but in suitable cases, it can be extended upto four years. Rule 3 makes it clear that there is no automatic confirmation of the probationer and he shall be deemed to have continued on probation as long as there is no specific order of confirmation or satisfactory completion of probation period. In the instant case, the petitioner was continued in service for about 7 weeks after the normal period of probation of two years was over, without any order of extension or satisfactory completion of probation or any order of confirmation. Therefore, in the face of the said rules, the petitioner's contention about deemed satisfactory completion of probation and deemed confirmation is untenable, and it will have to be held that his probation period was deemed to have been extended by such period. [Para 5,9]

(B) Constitution of India, Arts.309, 311 - Central Civil Services (Temporary Services) Rules (1965), R.5(2) - Petitioner appointed on probation - Satisfactory completion of probation one of terms and conditions of service - Service of petitioner terminated for not satisfactorily completing probation - Order is not penal in nature or casting any evil consequences - Interference is not called for. (Para 17)

Cases Cited:
(1996) 9 SCC 190 [Para 6]
1997 (8) Supreme 388 [Para 7]
1997 (8) Supreme 8 [Para 8]
(1998) 3 SCC 321 [Para 8]
1990 (1) Bom C.R. 97 [Para 10]
(1985) 2 SCC 5 [Para 11]
AIR 1974 SC 2192 [Para 13]
(1986) 3 SCC 277 [Para 14]
(1991) 1 SCC 691 [Para 15]
AIR 1958 SC 36 [Para 15]
(1997) 2 SCC 191 [Para 16]


JUDGMENT

J. A. PATIL, J. :- By an order dated 14.2.1991, the petitioner was appointed as incharge Marine Slipway in the pay scale of Rs.1640-2900. The said post is a Group B non-gazetted post under the Captain of Ports who is respondent no.1 herein. The order of appointment stated that the petitioner shall be on probation for a period of two years. The petitioner joined the post on 19.3.1991 and as such his probation period would end on 18.3.1993. The petitioner claims that his overall performance during the probation period was reported to be good. He was never informed that his probation period was extended. According to him, it is mandatory on the authorities to communicate to the employee on probation about the extension of the probation period within 8 weeks after the period of probation. Since the petitioner did not receive any communication, he claims that he must be deemed to have completed his probation period successfully. He further claims that he must be also deemed to have been confirmed in service and consequently to have become a regular employee of the respondent.

2. On 7.5.1993 the petitioner received a memo which stated that he had been directed to provide M. M. Mercury and Grab dredger on 4.5.1993 at 8.00 hours at Panaji jetty to proceed to Aguada bar and lay in its position a spare buoy. The memo further stated that M. M. Mercury reported at Panaji jetty on the said date at 10.00 a.m. was without grab dredger and therefore the work of removing the damaged buoy and laying in its place the spare buoy had to be cancelled as by that time calm water had already passed. The petitioner was therefore called upon to explain within 48 hours his failure to execute the said order. The petitioner offered his written explanation on 12.5.1993. Thereafter on 20.7.93, the petitioner received another memo whereby his explanation in connection with another order was called. The memo stated that on 15.7.1993 the Deputy Hydrographic Surveyor (DHS) was instructed to make arrangement for transportation of higher authority/V.I.P. by departmental launch M. L. Cabo. The DHS had made all arrangements for sailing the vessel and the petitioner was asked to go on board of the vessel on trip. It appears that the petitioner failed to report necessary compliance of the order and committed certain irregularities and acts of insubordination. The petitioner was given three days' time to submit his explanation. According to the petitioner, he received the said memo on 28.7.1993 and before he could submit his explanation, he was served with an order dated 29.7.1993 whereby his services were terminated forthwith with one month pay in lieu of notice. It is this order (page 31) (Exh-G) which the petitioner has impugned in this petition on various grounds.

3. Smt. A. Agni, the learned Advocate appearing for the petitioner contended before us that there was a deemed confirmation of the petitioner on the post of Incharge Marine Slipway since he completed his probationary period of two years successfully. She pointed out that the Recruitment Rules do not contemplate any extension of probation period and as such, at the conclusion of two years probation period, the petitioner got automatically confirmed in service. Smt. Agni further contended that though the impugned order appears to be termination simpliciter, yet in fact, it is by way of punishment for his alleged misconduct as mentioned in the memos dated 7.5.93 and 20.7.95. According to Smt. Agni, the termination of the petitioner's service is totally arbitrary and without jurisdiction since it is made without following the due procedure as contemplated by Central Civil Services (Conduct) Rules. She pointed out that the petitioner's services were terminated all of a sudden without giving him any opportunity to put forth his defence. Shri Godinho, the learned Additional Government Advocate for the respondent no.1 to 3 on the other hand submitted that there cannot be any automatic confirmation in service merely on completion of probation period. He pointed out that confirmation by D.P.C. is necessary. Shri Godinho further submitted that termination of petitioner's services is a termination simpliciter, as the Government thought it fit to terminate the Petitoner's services under Rule 5 of the Temporary Service Rules. In support of their respective submissions, both Smt. Agni and Shri Godinho relied upon several decisions.

4. Admittedly, the petitioner was appointed on probation for a period of two years. Since the petitioner joined his post on 19.3.1991, the two years period would complete on 18.3.1993. There was no formal extension of the probation period and the petitioner was continued in service after 19.3.1993 till his services were terminated on 7.5.1993. The period between 19.3.93 to 7.5.93 was not specified as extended probation period. The main contention of the petitioner is that he stood automatically confirmed in the service since he completed the requisite probation period of two years because there was no further extension of probation period.

5. The first question for our consideration is therefore, whether there was an automatic confirmation of the petitioner in service ? The O.M. No.44/1/59 dated 15.4.1959 contains general principles on all aspects of appointment on probation in various services. The said O.M. was subsequently reviewed and modified from time to time. It is not disputed before us that the said O.M. is applicable to this state which was previously an Union Territory and that it has been adopted and followed after Goa became a State. Rules 2 and 3 of the said O.M. are relevant for our purpose and they read:

"(2). On expiry of the period of probation steps should be taken to obtain the assessment reports on the probationer and to -

(i) Confirm the probationer/issue orders regarding satisfactory termination of probation, as the case may be, if the probation has been completed to the satisfaction of the competent authority; or

(ii) Extend the period of probation (in terms of para 1. (viii) of the O.M. dated 15.4.1959) or discharge the probationer or terminate the service of the probationer, as the case may be in accordance with the relevant rules and orders, if the probationer has not completed the period of probation satisfactorily.

(3). The date from which confirmation should be given effect to is the date following the date of satisfactory completion of the prescribed period of probation or the extended period of probation, as the case may be. The decision to confirm the probationer or to extend the period of probation, as the case may be, should be communicated to the probationer normally within 6 to 8 weeks. Confirmation of the probationer after completion of the period of probation is not automatic but is to be followed by formal orders. As long as no specific orders of confirmation or satisfactory completion of probation are issued to a probationer, such probationer shall be deemed to have continued on probation.

In the instant case, the appointment order (Ex.A page 15) states that the petitioner shall be on a probation for a period of two years. Rule 2, clause (ii) however provides for extension of the probation period in terms of paragraph 1 (viii) of the O.M. dated 15.4.1959 which reads as under:

"(viii) While the normal probation may certainly be extended in suitable cases, it is not desirable that an employee should be kept on probation for years as happened occasionally at present. It is therefore, suggested that save for exceptional reasons, probation should not be extended for more than a year and no employee should be kept on probation for more than double the normal period."

It will thus be seen that the normal period of probation is two years but in suitable cases, it can be extended upto four years. Rule 3 makes it clear that there is no automatic confirmation of the probationer and he shall be deemed to have continued on probation as long as there is no specific order of confirmation or satisfactory completion of probation period. In the instant case, the petitioner was continued in service for about 7 weeks after the normal period of probation of two years was over on 18.3.1993, without any order of extension or satisfactory completion of probation or any order of confirmation. Therefore, in the face of the said rules, the petitioner's contention about deemed satisfactory completion of probation and deemed confirmation is untenable, and it will have to be held that his probation period was deemed to have been extended from 19.3.1993 to 7.5.1993.

6. Smt. Agni however relied upon certain decisions to make out her point that continuation of the petitioner after expiry of two years probation period amounted to his confirmation in service. The first of them is State of Punjab Vs. Baldev Singh (1996) 9 S.C.C. 190. In that case the facts were that the respondent was promoted to the post of Assistant registrar of Co-operative Societies. The relevant rules enjoined that the promotees or direct recruits would be put on probation for a period of two years and that probation period was extendable by such period that the total period of probation, including extension would not exceed three years in any case. The respondent's probation period was extended from time to time and even after completion of three years' probation period, he was continued on the promotional post and thereafter reverted to his original post. On respondent's challenging the reversion order, the High Court held that since he was not reverted before expiry of three years period, he must be deemed to have been confirmed. In appeal, the Supreme Court pointed out that the rules contemplated a positive order of confirmation and observed that continuation of the respondent beyond three years would not mean that he was deemed to have been confirmed. The Supreme Court therefore directed the appointing authority to consider whether the respondent was fit to be confirmed.

7. Smt. Agni then relied upon the decision in Chief General Manager, State Bank of India Vs. Bojoy Kumar 1997 (8) Supreme 388 wherein it was held that where an employee is allowed to continue in service after completion of the maximum period of probation, then he must be deemed to have been confirmed by implication. It was observed that confirmation is permissible only when it follows from positive act of the employer permitting the continuance of the employee.

8. The third decision cited by Smt. Agni is Dayaram Dayal Vs. State of Madhya Pradesh 1997 (8) Supreme 8 which lays down that if the Service Rules provide for a maximum period of probation, then at the end of the said period the probationer must be deemed to have been confirmed unless special provision in the Rules could negative such an intention. In Wasim Beg Vs. State of Uttar Pradesh (1998) 3 S.C.C. 321 to which also Smt.Agni made a reference, the question was whether an employee at the end of the probationary period automatically gets confirmation or whether an order of confirmation or any specific act on the part of the employer confirming the employee is necessary. The Supreme Court held that it will depend upon the provisions in the relevant Service Rules relating to probation and confirmation. It was held that where the rules provided for a maximum period of probation beyond which the probation cannot be extended, then at the end of the maximum period of probation, there will be a deemed confirmation of the employee unless the rules provide to the contrary.

9. Upon the consideration of the aforesaid decisions, it will be seen that none of them applies to the present case, on facts. The rules contained in O.M. which govern the case of the petitioner, contemplate extension of probation period upto two years and clearly lay down that as long as orders of satisfactory completion of probation or confirmation are not issued, the probationer shall be deemed to have continued on probation. The rules in our case enjoin making of positive order to that effect. Admittedly, no such positive order of satisfactory completion of probation or confirmation was made in favour of the petitioner and he was just allowed to continue for about seven weeks beyond the normal period of probation of two years. It is material to note that the petitioner's continuation was not beyond the maximum probation period of four years but it was much within it. Clause 3 of the O.M. gives six to eight weeks time to appointing authority after the completion of initial period of probation, to take decision as to whether the probation should be confirmed or whether his period of probation should be extended. The decision to terminate the petitioner's services was taken within the said stipulated period. It will thus be seen that the mere continuation of the petitioner beyond the initial period of two years probation does not mean that he was confirmed in the post at the end of two years period particularly when the O.M. specifically rules out automatic confirmation.

10. Smt. Agni also relied upon the decision in Sumati Vs. Union of India 1990 (1) Bombay C.R. 97 wherein the facts were that the petitioner was appointed as Assistant Surgeon on ad-hoc basis on 16.2.1982 for a period of six months or until a regular candidate from U.P.S.C. became available, whichever was earlier. The petitioner was continued for three years by giving her successive extensions and ultimately her services were terminated with effect from 15.2.1985. The termination was not on the ground that a regular candidate from U.P.S.C. had become available. The Supreme Court set aside the termination order but made it clear that the petitioner would not claim the status of a regular employee unless her services were regularised in accordance with the rules. This is not a case pertaining to probation and therefore it is not useful for our purpose.

11. Shri Godinho, the learned Additional Government Advocate relied upon the decision in Dhanjibhai Vs. State of Gujarat (1985) 2 S.C.C. 5 wherein the appellant was appointed as Sales Tax Officer on 22.3.1972 on probation of two years. The said period expired and the appellant continued in service without any order of confirmation. On 31.3.75 the appellants' services were terminated. The Writ Petition filed by the appellant was dismissed by the High Court and the appeal filed by him was dismissed by the Supreme Court. It was contended inter alia that after expiry of two years period of probation, the appellant must be deemed to have been confirmed in service. The Supreme Court, while negativing this contention pointed out that the period of two years did not represent the maximum period of probation but it was only initial period which could be extended in accordance with the rules. It was further observed:

"There was no right in the appellant to be confirmed merely because he had completed the period of probation of two years and had passed the requisite tests and completed the prescribed training. The function of confirmation implies the exercise of judgment by the confirming authority on the over all suitability of the employee for permanent absorption in service."

11(A) It will thus be seen that the petitioner had no right to be confirmed merely on the ground that he was continued in service after expiry of initial period of two years probation. In fact he did not satisfactorily complete his probation period and he was not confirmed. He was thus a temporary Government servant whose services could be and have been terminated in accordance with Rule 5 of the Central Civil Services - Temporary Service Rules.

12. Smt. Agni contended that the impugned order is penal in nature and it is not termination simpliciter. She drew our attention to the letter dated 16th July, 1992 addressed by respondent no.1 to the petitioner wherein his overall performance was reported to be good. Smt. Agni submitted that on the basis of the alleged lapses stated in the Memos dated 7.5.93 and 20.7.93, the petitioner's services were terminated without holding any inquiry. On a careful consideration we find it difficult to accept this submission. Though in the letter dated 16.7.92, the petitioner's overall performance was reported to be good still it cannot be ignored that by the same letter he was ...

"... advised to put in more result oriented effort to get the Marine Slipway in order and work from the sailors in keeping all vessels in seaworthy condition."

Smt. Agni pointed out that the impugned order of termination came to be passed nine days after the petitioner was given the second memo. She therefore finds a nexus between the two memos and the impugned order. Therefore according to her, the termination is by way of punishment. The affidavit filed by respondent no.2 at the time of admission however shows that the proposal to terminate the petitioner's services was mooted long back in December, 1992 but the process took a long time; one of the reasons being the change of incumbent in the post of the Chief Minister. It will thus be clear that the impugned order of termination had nothing to do with any of the two memos dated 7.5.93 and 20.7.93. Consequently, the attempt of Smt. Agni to establish a nexus between the two is futile.

13. The termination order Exh.C para 31, is innocuously worded and does not cast any stigma or aspersion on the competency of the petitioner. However, as observed in Samsher Singh Vs. State of Punjab AIR 1974 Supreme Court 2192 what is decisive is not the form but the substance of the order. It was observed:

"No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct or inefficiency, or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311 (2) of the Constitution.

Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequency for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this."

14. The Apex Court in Jarnail Singh and ors. Vs. State of Punjab and ors. (1986) 3 S.C.C. 277 reiterated that mere form of the order is not sufficient to hold that the order of termination was innocuous and it was a termination simpliciter but it is the substance of the order that is the attendant circumstances as well as the basis of the order that has to be taken into consideration while deciding the question whether the termination is in the nature of termination simpliciter, or in the nature of punishment.

15. In State of Uttar Pradesh and anr. Vs. Kaushal Kishore Shukla (1991) 1 S.C.C. 691 the Apex Court had reviewed the entire case law on the subject. In this judgment, after taking note of Parshotam Lal Dhingra's case (AIR 1958 Supreme Court 36) it was pointed out by the Apex Court that it must be borne in mind that the temporary Government servant has no right to hold the post and termination of such Government servant does not visit him with any evil consequences. The termination of service of the temporary Government servant in accordance with the terms and conditions of service does not amount to punishment since the appropriate authority has power to terminate a temporary Government servant either by discharging him under the terms and conditions of the contract or the relevant rules.

16. Shri Godinho relied upon the decision in Kunwar Arun Kumar Vs. U.P. Hills Electronics Corporation Ltd. (1997) 2. S.C.C. 191 wherein the petitioner was appointed on probation of 12 months. The appointment letter stated that the probation period might be extended from time to time at the discretion of the Management and that the petitioner's services also could be terminated during the probation period without assigning any reasons. The petitioner's services were terminated at the end of the probation period of 12 months on the ground that during the probation period his work performance was found unsatisfactory. The Writ Petition filed by the petitioner was dismissed by the High Court. The S.L.P. filed by the petitioner, was dismissed by the Supreme Court by observing:

"During the period of probation, the authorities are entitled to assess the suitability of the candidates and if it is found that the candidate is not suitable to remain in service they are entitled to record a finding of unsatisfactory performance or work and duties during the period of probation. Under these circumstances necessarily the appointing authority has to look into the performance of the work and duties during the period of probation and if they record a finding that during that probation period, the work and performance of the duties were unsatisfactory, they are entitled to terminate the service in terms of the letter of appointment without conducting any enquiry. That does not amount to any stigma. If the record does not support such a conclusion reached by the authorities, a different complexion would arise. In this case, they have recorded the finding that the petitioner was regularly absent on one ground or the other. Under these circumstances, the respondents terminated his services. We do not find any illegality in the action taken by the respondents."

17. We have already rejected the contention of the petitioner regarding deemed confirmation. The record shows that the services of the petitioner were not found to be satisfactory during the period of probation and in fact the proposal to terminate the petitioner's services was mooted long back in December 1992 since he was not found suitable. In view of this assessment of suitability of the petitioner for the job, it was thought proper to terminate his services under Rule 5(2) of the Central Civil Services - Temporary Service Rules. The termination is thus in accordance with the terms and conditions of service, that is satisfactory completion of the probation period. The petitioner having not satisfactorily completed the period of probation, his services have been terminated in accordance with terms and conditions of service. The termination cannot be said to be penal in nature or casting any evil consequences as such, due to which, the order of termination does not call for any interference. For the aforesaid reasons, we do not find any merit in this petition and the same is hereby rejected. Rule is accordingly discharged. In the facts and circumstances, there shall be no order as to costs.

Petition dismissed.