1997 Supreme(SC) 1264

1997(8) Supreme 388
SUPREME COURT OF INDIA
(From Orissa High Court)
J.S. Verma, CJI., B.N. Kirpal, J.
The Chief General Manager, State Bank of India & Anr. -Appellants
versus
Shri Bijoy Kumar Mishra -Respondent
Civil Appeal No. 2633 of 1992
Decided on 24-9-1997
Counsel for the Parties :
For the appellants, H.N. Salve, Sr. Advocate, Sanjay Kapur, Rajiv Kapur, Nikhil Sakhardande,, M.K. Michael, Advocates.
For the Respondent, K.K. Venugopal, Sr. Advocate, Sanjay Moni Tripathi, Ms. Rani Jethmalani, Advocates.

IMPORTANT POINT
In a case where the employee was absent from duty from a date much prior to the expiry of the maximum period of probation and remained absent even thereafter for a long time, rule of deemed confirmation is not applicable.

Headnote:(i) SERVICE LAW-Probation-Where maximum period of probation provided in Service Rules-Employee allowed to continue in that post after completion of maximum period of probation without express order of confirmation-He must be deemed to have been confirmed in the post by implication-Deemed confirmation permissible only when it follows from positive act of employer permitting continuance in service-Decision in Dharam Singh held not applicable where employee was absent from duty from a date much prior to expiry of maximum period of probation-(1968) 3 SCR 1 : Relied on.

       Held, where the maximum period of probation is provided in the Service Rules and the employee is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he must be deemed to have been confirmed in the post by implication. It is significant that the effect of permitting the employee to continue in the post even on completion of the maximum period of probation without an express order of confirmation results in the only logical inference that he has been confirmed in the post by implication. In other words, for drawing such inference, it is necessary that the employer should allow the employee to continue on the post even after expiry of the maximum period of probation which is consistent only with the fact of his confirmation on the post. This inference is drawn from the conduct of the employer which is consistent only with the fact of confirmation of employee. In short, it is a rule of evidence applied to the facts of the case because the continuance in employment after the maximum period of probation is consistent only with the confirmation, and that follows from the employer s conduct of permitting the employee to continue to work on that post after the maximum period of probation. (Para 7)

       Further held that the decision in Dharam Singh can have no application in a case where the employee was absent from duty from a date much prior to the expiry of the maximum period of probation and remained absent even thereafter for a long time. There was no occasion in such a case for the employer to allow the employee (respondent) to continue to work on the post after the expiry of the maximum period of probation because he was absent and was not working on the post at the time of the expiry of the period of probation. Deemed confirmation results from the conduct of the employer in permitting continuance in service after the expiry of the maximum period of probation fixed by the rules. When there is no such conduct of the employer, the very foundation for the argument of deemed confirmation and reliance on Dharam Singh is not existent. (Para 8)

       There can thus be no doubt that the deemed confirmation which is inferred from the employer s conduct is permissible only when it follows from the positive act of the employer permitting the employee to continue to work on the post even after completion of the maximum period of probation permitted under the Service Rules since no other inference is possible in such a situation from the employer s conduct of continuing to take work from the employee after that period. (Para 10)

       (ii) State Bank of India Officers (Determination of Terms & Conditions of Service) Order, 1979-Paras 15 and 16-Probation-Respondent appointed as Probationary Officer-Total period of probation being three years which expired on 14.12.1983-Respondent remained unauthorisedly absent from duty from 2.4.1981-Last date of his presence on duty was in August 1983-After that he did not report for duty-Order of termination-Challenged-Whether in the facts and circumstances of the case, respondent can be deemed to have been confirmed without any order of confirmation during his unauthorised absence? -(No)-Judgment of High Court set aside-Dharamsingh s case : Distinguished. (Paras 7 & 8)