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Orissa High Court · body

2010 DIGILAW 72 (ORI)

Trinath Dash v. IDCOL Cement Ltd.

2010-02-05

B.K.PATEL, L.MOHAPATRA

body2010
JUDGMENT L. MOHAPATRA, J. — The petitioner in this writ application questions the legality of the order in Annexure-3 passed by oppo¬site party no.1 terminating his service by order dated 1.7.2002 with immediate effect. 2. The petitioner, who has done Masters in Labour and Social Welfare, had worked in different places in different capacities and in pursuance of an advertisement issued by oppo¬site parties 1 and 2 for filling up of the post of Deputy General Manager (HRD), he submitted his application and was selected by the selection committee for such appointment. By order dated 17.4.1999 (Annexure-1), he was appointed as Deputy General Manager (HRD). He joined the post in the year 1999 and continued as such till the order in Annexure-3 terminating his service was passed on 1.7.2002 in terms of Clause-8 of the appointment letter issued to him on 17.4.1999. It is the case of the petitioner that under Clause-5 of the appointment letter, the petitioner was required to work on probation for a period of one year from the date of joining which could be extended further, if so considered by the management and that he would continue to remain in proba¬tion till the probation is lifted in writing. Clause-8 of the appointment letter prescribes that the contract employment is terminable at any time without notice and without assigning any reason during the probationary period and after satisfactory completion of the probationary period at the option of either party on three months notice or on payment of compensation equiv¬alent to three months salary in lieu thereof. Though taking re¬course to the said Clause-8, the order of termination has been passed, the petitioner has challenged the same on the ground that he having continued for almost three years on probation, he is to be deemed to be permanent employee and any order of termination without notice would not only violate Clause-8 of the appointment letter but also Article-14 of the Constitution of India. A counter affidavit has been filed on behalf of opposite parties 1 and 2 wherein it is stated that in terms of Clause-8 of the appointment letter, the employment of the petitioner could be terminated at any time without notice and without assigning any reason during the probation period. Since the petitioner was continuing on probation till the date of termination, no notice was required to be served in terms of the aforesaid Clause. Since the petitioner was continuing on probation till the date of termination, no notice was required to be served in terms of the aforesaid Clause. According to opposite parties 1 and 2, Clause-5 of the appoint¬ment letter clearly stipulates that the petitioner would be on probation for a period of one year from the date of joining which could be extended further, if so considered, by the management and that he would continue on probation till such probation is lifted in writing. Admittedly there being no order lifting the probation, the petitioner continued to be on probation from the date of joining till the order of termination was passed and, therefore in terms of Clause-8, he is not entitled to any notice. Another technical question was raised in course of hearing with regard to maintainability of the writ application. It was con¬tended on behalf of the opposite parties that IDCOL Cement Ltd. has been taken over by the Associate Cement Companies Ltd. during pendency of the writ application and, therefore, no writ can be issued against a Private Company and any order passed in the writ application can not also be implemented by such private company under the terms of disinvestment. 3. As is evident from the averments made in the writ application, counter affidavit, rejoinder affidavit and the sub¬mission of the learned counsel appearing for the parties, the only question that is required to be adjudicated is as to whether the petitioner having continued for more than two years on proba¬tion, can be deemed to be confirmed in service and that as to whether the petitioner was entitled to any notice before the order of termination was passed. The order of appointment is Annexure-1 to the writ application and Clause 5, 8 and 14 of terms of appointment are quoted below:- “5) Probation: You will be on probation for a period of 1 (one) year from the date of your joining, which may be extended further, if so considered by the management and you will continue to remain in probation till the probation is lifted in writing. 8) The contract of employment is terminable at any time without notice and without assigning any reason during the proba¬tionary period & after satisfactory completion of the probation¬ary period at the option of either party on three months or on payment of compensation equivalent to three months salary in lieu thereof. 8) The contract of employment is terminable at any time without notice and without assigning any reason during the proba¬tionary period & after satisfactory completion of the probation¬ary period at the option of either party on three months or on payment of compensation equivalent to three months salary in lieu thereof. 14) This appointment is also subject to the approval of the Government, if any”. 4. As is evident from the aforesaid Clauses, the petition¬er was to work on probation for a period of one year but the said period of probation could be extended further, if so considered, by opposite parties 1 and 2 and the petitioner would continue to remain on probation till the same is lifted in writing. Admitted¬ly, in the present case though the petitioner joined service in April, 1999, he continued as such till the order of termination was passed on 1st July, 2002 and at no point of time the proba¬tion had been lifted in writing. There is no averment in the counter affidavit nor any document was produced before this Court to show that the period of probation had been extended beyond one year and at the same time no document has been produced before us to show that the petitioner was either confirmed in service or that the probation had been lifted in writing. Under the circum¬stances, the question that arises for consideration is as to whether the petitioner can be deemed to be confirmed in his post after completing one year on probation in absence of an order of confirmation. In this connection, reference may be made to a decision of the Hon’ble Supreme Court in the case of Wasim Beg Vrs. State of U.P. and Others reported in (1998) 3 SCC 321 . The question for consideration before the Hon’ble Supreme Court in the said case was whether an employee at the end of the proba¬tionary period automatically gets confirmation in the post or whether an order of confirmation or any specific act on the part of the employer confirming the employee is necessary. There are broadly two sets of authorities of the Hon’ble Supreme Court dealing with such question and decisions take two different views depending on provision in the relevant Service Rules relating to probation and confirmation. There are broadly two sets of authorities of the Hon’ble Supreme Court dealing with such question and decisions take two different views depending on provision in the relevant Service Rules relating to probation and confirmation. 1) In one set of cases, it was held by the Hon’ble Supreme Court that in cases where Rules provide for the maximum period of probation beyond which probation cannot be extended, at the end of maximum probationary period there will be deemed confirmation of the employee unless Rules provide to the contrary. 2) The second set of authorities held that even when the Rules prescribe a maximum period of probation, if there is a further provision in the Rules for continuation of such probation beyond the maximum period, an exception can be made and it can be said that there will be no deemed confirmation in such cases and the probation will be deemed to be extended. 3) The other line of cases deals with Rules where there is no maximum period prescribed for probation and either there is a Rule providing for extension of probation or there is a Rule which requires a specific act on the part of the employer (either by issuing an order of confirmation or any similar act) which would result in confirmation of the employee. In these cases, unless there is an order of confirmation, the period of probation would continue and there would be no deemed confirmation at the end of the prescribe probationary period. 5. Learned counsel for the opposite parties also referred to some other decisions of the Hon’ble Supreme Court in relation to probation and confirmation and such decisions are the cases of AIR 2002 SC 23 (Pavanendra Narayan Verma Vrs. Sanjay Gandhi P.G.I. of Medical Sciences and others), AIR 1987 SC 2408 (Ravindra Kumar Mishra Vrs. U.P. State Handloom Corporation Ltd. and anoth¬er), AIR 1988 SC 286 (M.K. Agrawal Vrs. Gurgaon Gramin Bank and others) and AIR 1991 SC 1402 (Municipal Corporation Raipur Vrs. Ashok Kumar Mishra). 6. On perusal of these decisions, we find that the law laid down in the aforesaid cases have been taken note of in the case of Wasim Beg Vrs. State of U.P. and others (Supra) and three categories of decisions have been referred to in the said deci¬sion. Ashok Kumar Mishra). 6. On perusal of these decisions, we find that the law laid down in the aforesaid cases have been taken note of in the case of Wasim Beg Vrs. State of U.P. and others (Supra) and three categories of decisions have been referred to in the said deci¬sion. On analysis of all these decisions, it appears that the question as to whether an employee shall be deemed to be con¬firmed on completion of maximum period of probation or not shall depend on the Rule or the Clause contained in the appointment letter. 7. So far as petitioner is concerned Clause-5 of the appointment letter clearly provides that he will be on probation for a period of one year from the date of joining, which may be extended further, if so considered by the management and that he will continue to remain in probation till the proba¬tion is lifted in writing. It was submitted by the learned coun¬sel for the petitioner that the Clause provides for a maximum period of one year as probation whereafter the employees is deemed to be confirmed. We are unable to accept such contention in view of what has been decided by the Hon’ble Supreme Court in the decision referred to earlier. Law laid down by the Hon’ble Supreme court in the said decision is that even when the Rules prescribe a maximum period of probation, if there is a further provision in the Rules for continuation of such probation beyond the maximum period, there will be no deemed confirmation in such cases and probation period of will be deemed to be extended. Admittedly, in this case the petitioner has not been confirmed at any point of time nor there is any order extending the period of probation. However, in view of existence of a Clause that the period of one year of probation may be extended further, if so considered by the management, there will be no deemed confirma¬tion and the probation period will be deemed to have been extend¬ed. It may not be necessary on the part of the employer to issue order extending the period of probation beyond one year and under such circumstances, it will be deemed that the period of proba¬tion has been extended. It may not be necessary on the part of the employer to issue order extending the period of probation beyond one year and under such circumstances, it will be deemed that the period of proba¬tion has been extended. We therefore do not find the law laid down by the Hon’ble Supreme Court to be in favour what is con¬tended by the learned counsel on behalf of the petitioner. Admit¬tedly, the petitioner having continued from the date of joining till the date of termination on probation and no stigma having been attached while terminating the services of the petitioner, there was no requirement for service of a notice before such termination. In terms of Clause-8, the contract employment is ter¬minable at any time without notice and without assigning any reason during the probation period, and, therefore, we do not find any infirmity in the order in Annexure-3 terminating the service of the petitioner while on probation without assigning any rea¬son. 8. Since, we do not find any infirmity in the order of termination for the reasons stated above, it is not necessary for us to go into question of maintainability of the writ application or refer to the decisions cited by the learned counsel for the parties in this regard. The writ application being devoid of any merit is dismissed. Application dismissed.