Telangana High Court

Superindent Of Police, vs M.Jayapal Ex.Pc 1931 on 20 March, 2025

Author: P.Sam Koshy

Bench: P.Sam Koshy

          THE HON'BLE SRI JUSTICE P.SAM KOSHY
                          AND
    THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA

                 WRIT PETITION NO.13101 OF 2005

ORDER:

(per Hon'ble Sri Justice P.SAM KOSHY)

The instant Writ Petition has been preferred by the petitioners

assailing the order, dated 09.12.2002, in O.A.No.3573 of 1993

passed by the Andhra Pradesh Administrative Tribunal, Hyderabad

(for short, 'the Tribunal').

2. Vide impugned order, the Tribunal has set aside the

order of termination and ordered for reinstatement of the respondent

into service forthwith with all consequential benefits including

seniority and counting the length of service for the purpose of

pension and increments, however,restricted payment of back wages

to 50% only.

3. The brief facts relevant for adjudication of the case are

that the respondent was appointed as a Police Constable w.e.f.

16.07.1989. He was on probation for a period of two years i.e., from

16.07.1989 to 15.07.1991. During the period of probation, the

respondent was found to have gone unauthorized absence w.e.f.

19.04.1991 to 28.04.1991 and again on 12.08.1991. For the said

period, he was inflicted with punishment of postponement of

increment for a period of two years with cumulative effect.

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Subsequently, on completion of the initial period of two years of

probation, the Government found that the services of the respondent

are not to be satisfactory, extended the probation period by another

one year vide order dated 25.07.1991. Thereafter also, there was

unauthorized absence on the part of the respondent the period

between 22.07.1991 to 07.08.1991, for which he was again inflicted

another punishment of postponement of increment by one year vide

order 10.07.1992 and further postponement annual increment by

one year vide order 13.08.1992. However, while extending the

probation period, advised the respondent to improve upon his work.

However, subsequently, the respondent again went on unauthorized

absence for a considerable long period from 15.05.1992 to

14.10.1992 i.e., for a period of 153 days. Since the respondent did

not improve upon his conduct and being continued to remain

regularly absent from duty unauthorizedly for long durations, the

authorities by an order dated 17.10.1992 discharged him from

service on the ground of unsatisfactory performance in work.

4. Aggrieved by the said order, the respondent preferred an

appeal before the Deputy Inspector General of Police, Karimnagar,

who in turn vide order, dated 25.01.1993, rejected the appeal. The

order of discharge from service and the order passed by the Deputy

Inspector General of Police were subject to challenge before the

Tribunal by filing O.A.No.3573 of 1993 under the provisions of

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Section 19 of the Administrative Tribunals Act, 1985. The Tribunal,

after hearing learned counsel for both the parties, vide order dated

09.12.2002 in O.A.No.3573 of 1993 allowed the said O.A. setting

aside the order of termination, dated 17.10.1992. The order of the

Tribunal was under challenge in the instant writ petition by the

State.

5. The Writ Petition is of the year 2005. In the year 2005,

the petitioners obtained stay of operation of the order passed by the

Tribunal as a consequence till date the respondent remains out of

service.

6. Learned counsel for the petitioners at the outset

questioned the order of the Tribunal stating that the findings given

by the Tribunal are per se bad and illegal considering the factual

matrix of the case and hence, he prays to set aside the order passed

by the Tribunal.

7. Learned counsel appearing for respondent strongly

contended that it is a case where while extending the period of

probation, the authorities had not intimated the respondent for

improving upon his work. The nature of lapses or deficiencies on the

part of the respondent while in service were not intimated or

disclosed by the petitioners. If respondent had given an opportunity

to improve upon his work, perhaps the respondent would have

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improved upon his work and such action would not had arisen and

hence, he prays to dismiss the writ petition by confirming the order

of the Tribunal.

8. It is also the contention of the respondent that it is a

case where because of certain compelling circumstances, he could

not report for duties at different intervals, for which, he made a

request for grant of leave but the petitioners without taking any

sympathetic view on the respondent, passed the order of termination

from service. The Tribunal, after considering the entire material on

record, has set aside the order of termination and permitted the

respondent to resume his duties. If the order passed by the Tribunal

upheld the respondent would get some financial assistance at this

fag end of his career. In support of his contentions, he also placed

reliance upon the judgment of the Hon'ble Supreme Court in Sumati

P.Shere v. Union of India 1

9. According to learned counsel to the petitioners, the

factual matrix of the case in the instant case is not in dispute. The

respondent was initially appointed as a Police Constable on

16.07.1989. The probation period initially being two years i.e., from

16.07.1989 to 15.07.1991. In between, there had been instances of

unauthorized absence on the part of the respondent in discharging

duties. The period of probation was extended vide order, dated

(1989) 3 SCC 311

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25.07.1991 yet another one year with a caution intimating that the

respondent should improve upon his work. According to the

petitioners, there is no dispute so far as the respondent being

inflicted with two punishments, dated 10.07.1992 and 13.08.1992.

Both punishments being postponement of increment of one year

without cumulative effect.

10. Learned counsel for the petitioners referring to the

provisions of the Andhra Pradesh State and Subordinate Service

Rules, 1963 and contends that the employer had right and power to

decide whether the services of a probationer and his probation period

needs to be extended beyond the period of two initial years, if the

service is found to be unsatisfactory. At the same time, learned

counsel for the petitioners also contended that the employer has also

right to discharge the employee on probation on the ground of

unsatisfactory performance even without granting extension.

11. Learned counsel for the petitioners further contends that

in the instant case taking liberal and sympathetic view, the

Government had granted extension of time, hoping that the

respondent would in between improve his work by extending the

probation period by one year vide order, dated 25.07.1971. In spite of

extension being granted and the caution for improving the work and

the same being mentioned in the extension order, the respondent

continued to remain absent unauthorizedly for considerable length of

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time. In the instant case, the respondent during the extended period

itself, went on unauthorized absence for a period of 153 days.

Thus, it was in those compelling circumstances that the petitioners

have decided discharging from service for unsatisfactory

performance.

12. Heard the contentions put forth by learned counsel on

either side and perused the material on record.

13. A plain reading of the provisions of the relevant rules

clearly gives an indication as to how the services of a probationer has

to be regulated Rule 24 of the Andhra Pradesh State and

Subordinate Services Rules, 1962 (for short, 'the Rules, 1962'), deals

with the services of a probationer.

14. For ready reference, Rule 24 of the Rules, 1962 dealing

with Suspension, termination or extension of probation is

reproduced as under:

"(a) Where the special rules of any service prescribe a period of probation for appointment as a full member of the service, the appointing authority may at any time before the expiry of such period.

(i) Suspend the probation of a probationer and discharge him from the service for want of vacancy; or

(ii) At its discretion by order either extend the period of probation of the probationer in case the probation has not been extended under Rule 16 or terminate his probation and discharge him from service after giving him one month's notice or pay in lieu of such notice.

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(iii) At its discretion by order post the probationer under another officer to make sure that the previous report was not biased one if he is reported upon adversely by a superior officer during the period of probation..."

15. Considering the aforesaid provision of law what is now to

be decided is whether action assailing by the petitioners in

discharging the respondent from services can be said to be in any

manner arbitrary or contrary to the Rules. The period of absence on

regular intervals by itself speaks volumes so far as the work and

conduct of the respondent is concerned. Apart from the fact that the

respondent was also twice inflicted with punishment of

postponement of annual increment by one year without cumulative

effect, yet there was no sign of improvement on the part of the

respondent. In spite of all this taking sympathetic and linent view

towards respondent, the period of probation was extended vide order,

dated 25.07.1991. However, even during this extended probation

period, the respondent went in unauthorized absence for a period of

153 days at a stretch from 15.05.1992 onwards till 14.10.1992. It

was then the petitioners have decided to discharge the respondent

from services. Given the fact that the respondent was a probationer

and in the probation period, least that is expected from an employee

is that he will show full dedication, sincerity and obedience in

discharging of his duties. It is only thereafter on evaluation of service

record of the employee, the employer takes a decision whether to

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continue him in service or to discharge him from service for his

unsatisfactory work.

16. It is pertinent to mention that in Registrar, High Court of

Gujrat and another v. C.G.Sharm 2, wherein the Hon'ble Supreme

Court at Paragraph No.43 it was held as under:

"43. But the facts and circumstances in the case on hand are entirely different and the administrative side of the High Court and the Full Court were right in taking the decision to terminate the services of the respondent, rightly so, on the basis of the records placed before them. We are also satisfied, after perusing the confidential reports and other relevant vigilance files, etc. that the respondent is not entitled to continue as a judicial officer. The order of termination is termination simpliciter and not punitive in nature and, therefore, no opportunity needs to be given to the respondent herein. Since the overall performance of the respondent was found to be unsatisfactory by the High Court during the period of probation, it was decided by the High Court that the services of the respondent during the period of probation of the respondent be terminated because of his unsuitability for the post. In this view of the matter, order of termination simpliciter cannot be said to be violative of Articles 14, 16 and 311 of the Constitution. The law on the point is crystallised that the probationer remains a probationer unless he has been confirmed on the basis of the work evaluation. Under the relevant Rules under which the respondent was appointed as a Civil Judge, there is no provision for automatic or deemed confirmation and/or deemed appointment on regular establishment or post, and in that view of the matter, the contentions of the respondent that the respondent's services were deemed to have been continued on the expiry of the probation period, are misconceived."

17. In the instant case, there is nothing which has been

brought on record on behalf of the respondent to show that the

petitioners' in the course of deciding to discharge the

respondent from his duties to be in any manner vindictive or

arbitrary. In fact, the Government could have at the first

(2005) 1 Supreme Court Cases 132

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instance itself discharged for unsatisfactory work, however, yet

taking lenient and sympathetic view had granted extension of

time. Even then the respondent did not show any sign to

improve his work.

18. In the said circumstances, the action taken by the