B.S. Sokhi vs The Chairman-Cum-Managing ...
1994 Latest Caselaw 639 Del

JUDGMENT

J.K. Mehra, J.

(1) The petitioner in the present case has impugned the order of reversion dated 30th March 1994 passed on the conclusion of extended period of probation on the management finding his performance to be not satisfactory for the post to which he was promoted on probation.

(2) In the present petition, the petitioner has sought the following reliefs:- "(a) issue a writ, order or direction including a writ of certiorari/mandamus or any other appropriate writ quashing and setting aside the impugned order of reversion dated 30.3.1994 (Annexure-1). (b) issue a writ,, order or direction including a writ of certiorari/mandamus or any other appropriate writ directing the respondent authorities to permit the petitioner to work at the post of Senior Manager or any other equivalent post in Middle Management Grade Scale Iii at the appropriate place of posting at Delhi; (c) issue a writ, order or direction including a writ of mandamus or any other appropriate writ directing the respondent authorities to grant seniority, promotions and other benefits to the petitioner as if the impugned order of reversion dated 30.3.1994 was never in existence; (d) grant any other relief which this Hon'ble court deems fit and proper in the circumstances of the case; (e) award exemplary damages in favor of the petitioner and against the Respondent and also award costs to the petitioner and against the respondent;"

(3) Before proceeding further, it will be appropriate to notice a few facts. The petitioner who was serving as an officer in the Middle Management Grade Scale Ii was promoted to Middle Management Grade Scale Iii on 20th November 1991 on probation for a period of one year. However, the petitioner was absent from duty from 17th July 1992 to 15.4.93 which comes almost to 10 months. Since the Management did not get one year to watch his performance in the new position and whatever they had noticed of his performance up to the time he absented himself, they were not satisfied with his performance in the new position. The period of probation was first extended up to 31st March 1993 and thereafter was extended from time to time and last it was extended on 8th December 1993 up to 31st March 1994. He was finally reverted back to his original position as the management did not find him suitable for the job he was promoted to.

(4) It is contended by the petitioner that the management having once fixed the period of probation under Regulation 15(3) could not extend the same and even though the Regulations do not provide that the probation could not be extended beyond a certain period that there will be automatic confirmation, he should be deemed to have been confirmed on the expiry of the 1st term of probation.

(5) The relevant Regulations which have been referred to by both sides read as under:- "15.Probation (1) An officer directly appointed to the Junior Management Grade shall be on probation for a period of two years. (2) An employee of the Bank promoted as an officer in the Junior Management Grade shall be on probation for one year. (3) An officer appointed to any other grade shall be on probation for such period as may be decided by the Bank. Provided that the Competent Authority may, in the case of any officer reduce the period of probation or dispense with probation. 16.Confirmation: (1) An officer shall be confirmed in the service of the Bank, if in the opinion of the Competent Authority, the officer has satisfactorily completed the training in any institution to which the officer may have been deputed for training and the in-service training in the Bank; Provided that an officer directly recruited to the Junior Management Grade may be required also to pass a test in a language other than his mother tongue. (2) If in the opinion of the Competent Authority an officer has not satisfactorily completed either or both the trainings referred to in sub-regulation (1), or if the officer has not passed the test referred to therein, the officer's probation may be extended by further period not exceeding one year. (3) Whether during the period of probation, including the period of extension, if any, the Competent Authority is of the opinion that the officer is not fit for confirmation; (a) in the case of a direct appointee, his services may be terminated by one month's notice, or payment of one month's emoluments in lieu thereof; and (b) In the case of a promotee from the Bank's service, he may be reverted to the Grade or Cadre from which he was promoted."

(6) We are concerned with Regulations 15(3) and 16(3) only. Both parties concede that Regulations 15(1) and (2) and Regulation 16(1) and (2) are not applicable to the present case. The main emphasis by the counsel for the petitioner is laid on the proviso to clause (3) of Regulation 15 which states that the management under the said proviso could either dispense with the probation altogether or reduce the period of probation. It is contended that by implication, it follows that the Management had no power to extend the period of probation. Counsel for the petitioner submits that under Clause (3) of Regulation 15, it was open to the Management to fix any period of probation once. He conceded that the management could have fixed 2 years or 2-1/2 years or any period on the first occasion, but having fixed that period once, they were not left with any power to extend it beyond the period so fixed. He has contended that Regulation 16(3) has no application to the cases covered by Regulation 15(3) since no specific provision has been made for extension of probation under proviso to Regulation 15(3).

(7) He has placed strong reliance on the decision in the case of 0m Prakash Maurya v. U.P. Cooperative Sugar Factories . A perusal of that authority shows that there were administrative instructions wherein it had been provided that even if the order of confirmation is required to be passed, but no such order is passed after the period of probation, then after the expiry of the period of probation, the officer would be deemed to have been confirmed. In the present case, there are no such administrative instructions.

(8) Mr. Kapoor has also placed reliance on the ratio in the case of State of Punjab v. Dharam Singh: . That was also a case where the condition of service held placed a maximum limit on the period for which a person could be kept on probation. That case related to Punjab Educational Service (Provincialised Cadre) Class Iii Rules, 1961, where a proviso to Rule 6 (3) prohibited extension of period of probation beyond 3 years and it was in the light of such prohibition that the Supreme Court had laid down that - "3.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 be deemed to have been confirmed. This view was taken in Sukhbans Singh V. State of Punjab, , G.S.Ramaswamy v. Inspector General of Police, Mysore btate, Bangalore, , Accountant General,. Madhya Pradesh, Gwalior v. Beni Prasad Bhatnagar, Civil Appeal No.548 of 1962, D.00 23.1.1964 (SC), D.A. Lyall v. Chief Conservator of Forests, LI.P., Civil Appeal No.259 of 1963, D.00 24.2.1965 (SC) and State ofU.P. v. Akbar Ali, . The reason for this conclusion is that where on the completion of the specified period of probation the employee is allowed to continue in the post without an order of confirmation the only possible view to take in the absence of any- thing to the contrary in the original order of appointment or promotion or the service rules, is that the initial period formation has been extended by necessary implication. In all these case, 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. "

(9) The Hon'ble Supreme Court took note of Rule 6(3) which had forbidden the extension of the period of probation beyond 3 years and had observed as under:- "5.In the present case. Rule 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, 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 cask, 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."

(10) Thus, it was in the exceptional circumstances of there being a specific term in the contract of employment forbidding the extension of period of probation beyond 3 years and in the light of the fact that probationer was allowed to continue beyond permissible maximum period of probation that the Supreme Court had laid down that in such an event, it was not possible to presume that the competent authority had extended the probationary period or that the respondents continue to hold their posts as probationers. The view expressed in the earlier rulings as noticed by the Supreme Court is held to be good law and has not been over-ruled that the probationer until confirmed will remain a probationer, unless there is a specific term to the contrary in the contract of employment or rules governing the probationers. '

(11) MR.KAPOOR has also cited in support of the same proposition the case of Paramjit Singh and others v. Ram Raklw and others : . The said case relates to the interpretation of Punjab Police Service Rules and in that case also in the rules, there was a limit on the powers of the State Government and it was found by the court that the Government did not possess the power to extend probation for more than one year as was specifically provided in the rules and if a person is allowed to continue on probation for initial period of 2 years and extended ' period of one year, he should be deemed to have been confirmed. He has further cited the case of S.P.Gupta v. Union of India and others: to canvass mainly the proposition that if any word has not been provided in the Regulations, the Court or the Management cannot read that to exist in the said Regulations. Similarly he has cited the case of State of Gujarat v. Akhilesh C. Bhava and others: , which was based on specific guidelines issued by the Ministry of Home Affairs which provided specifically that "Save for exceptional reasons, the period of probation should not, therefore, be extended by more than one year and no member of the service should, by convention, be kept on probation for more than double the normal period i.e. four years. Accordingly, a probationer, who does not complete the probationers' final examination within a period of four years, should ordinarily be discharged from the service."

(12) The counsel for the petitioner has further contended that the decision in the case of M.K. Agarwal v. Gurgaon Gramin Bank and others: 1987 (Sup?) S.C.C.643 is also incidentally based on the law laid down in the case of State of Punjab v. Dharam Singh (supra) and in this, the law laid down in the earlier case by the Constitutional Bench of the Supreme Court of India has not been faulted.

(13) Mr. Kapoor has also cited the decision in the case of Ajit Singh and others v. State of Punjab and another: , which concerns mainly with the .power of the employer to reduce the period of probation and it was not a case which dealt with the question of deemed confirmation. The Court in that case was concerned with and has upheld that the relevant rule had conferred a discretion on the State Government to prescribe a shorter period of probation than the maximum set out in the relevant rules. We find that no help can be obtained by the petitioner from this ruling. He has further relied upon the decision in the case of Dhanjibhai Ramjibhai v. State of Gujarat : , wherein the ' Hon'ble Supreme Court has observed as'under:- "11.A distinction is sought to be drawn between a probationer whose services are terminated on the expiry of the period of two years and a probationer, who has completed the normal span of two years and whose services are terminated some time later after he has put in a further period of service. We are unable to see any distinction. It is perfectly possible that during the initial period of probation the confirming authority may be unable to reach a definite conclusion on whether the candidate should be confirmed or his services should be terminated. Such a candidate may be allowed to continue beyond the initial period of two years in order to allow the confirming authority to arrive at a definite opinion. It seems to us difficult to hold that a candidate enjoys any greater right to confirmation if he is allowed to continue beyond the initial period of probation."

The above observations in no way support the petitioner.

(14) Dr. Anand Prakash has drawn our attention to Regulation 16 which deals with "confirmation" and has specifically referred to Clause (3) thereof. He has further contended that under Regulation 15(3), the power granted to the management to put the petitioner on probation is not exhausted after having been exercised once and that the management does not loose the power to enlarge or extend the period of probation. He has placed reliance on the judgments in the case of Sukhbans Singh V. State : , G.S. Ramaswamy v. Inspector General of Police, Mysore State, Bangalore : . He has further relied upon Kedar Nath Bahl v. The State of Punjab and others , wherein it was held - "WHERE a person is appointed as a probationer in any post and a period 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."

(15) Dr. Anand Prakash has also placed reliance on the decision in the case of The Management of the Express Newspapers (Private) Limited Madurai v. The Presiding officer, Labour Court, Madurai and another: . The main thrust of Dr. Anand Prakash's argument is that Regulation 15(3) does not prescribe or provide for any ceiling or maximum limit on the period of probation and as such, there cannot be a deemed confirmation in the case where the probation is extended. He has further argued that in the case of an officer who has even during his probation abstained from duty for a considerable length of time, it could not be deemed that he had performed to the satisfaction of the management and should have been confirmed. He contended that the management must in all fairness have a reasonable opportunity to judge his work in the promoted position. All the aforesaid rulings cited by either side lay down one clear principle of law that if any ceiling on the duration of probation is imposed by the Regulations or by contract of employment and if the management permits the promotee or the new recruit to continue in service beyond that maximum limit, he would be deemed to be confirmed, but if where no such ceiling is provided in the Regulations, there will be no presumption of the probationer having been confirmed at the expiry of the initial period of probation.

(16) In our opinion, power to reduce or waive period of probation does not imply that the Management had no power to extend probation. The word "period" provided in Regulation 15(3) would also include "periods". A reference be made in this behalf to Section 13 of the General Clauses Act, 1897 wherein it is provided that in all Central Acts and Regulations, unless, there is anything repugnant in the subject or context, words in the singular shall include the plural, and vice versa. We feel. that the same principle could be adopted for construing the said regulations. Dr. Anand Prakash contended that the right of the management has not been restricted under the Regulations, and that it could not be said that the management even though it found the performance of the probationer unsatisfactory should treat the probationer as deemed to be confirmed in the promoted position. The present case is not one where the management had not communicated the extension of probation or the reasons therefore and that the employee was simply allowed to continue in service without any extension of the term of probation.

(17) In Regulation 15(3), we do not find any words which would go to restrict the management's power to extend the probation. In any event, the probationer accepted the extension of probation without any demur or protest and took full advantage of serving in the promoted position even though on probation. It cannot be said that the management had divested itself of all powers to extend the period of probation by fixing initial one year period under Regulation 15(3). As already observed above the power of Management to extend probation does not get exhausted after fixing the initial period of probation. Mr. Kapoor's argument is that maximum period of probation is required to be stated where power to extend probation is there and when no specific power to extend is provided no extension of period of probation was permissible. In fact the law laid down by the Hon'ble Supreme Court is to the contrary. The said rulings referred to hereinabove are still holding the field. In fact, the law is that unless and until a ceiling is specifically imposed on the management's power to extend the period of probation beyond a certain period the Management continues to have power to extend probation and a probationer would not be deemed to have been confirmed as contended by the petitioner. Reference be made to the cases Dhanji Bhai Ramji Bhai, Sukhbans Singh and that of G.S. Ramaswamy (supra). There is no substance in Mr. Kapoor's submission that a person who is promoted does not require any express confirmation. It may be so in a case where person is promoted without being placed on probation, but in a case where the promotion is granted only on probation, the confirmation has to follow unless it becomes a case of deemed confirmation in terms of the law laid down in Dharam Singh's case (supra).

(18) Even if Dr. Anand Prakash's submission relating to interpretation of Regulation 16(3) that this regulation should be deemed to govern the cases covered by Regulation 15(3) is not accepted and it is deemed to be governing the cages falling under Regulation 16(1) and (2), we feel, there will be no difficulty to conclude that the management in the circumstances of the present case was within its rights and justified in extending the probation of the petitioner and if the petitioner who was put on probation was not confirmed because his work was not found satisfactory, the management had a right to revert him to the previous post which he was occupying prior to his promotion. Inspite of our having inquired, neither counsel has pointed out any other regulation which would be applicable in the present case.

(19) In the circumstances and in the light of the discussion above, we are not in agreement with the submissions of the petitioner and for that reason, this petition fails and is dismissed. In the circumstances of the case, there will be no order as to costs.