important point
In absence of any statutory provision for extension of probation period, the employee will be deemed to have been confirmed on expiration thereof.

Headnote:(a)Service Law – Termination – The tests governing termination of probation is no longer res integra – The termination order after rejecting the explanation/show cause and full scale formal enquiry, would be held to be stigmatic – The language used therein may also show that there was something over and above the assertion that the officer was found unsuitable for the job – Instantly also, the language used in the impugned order is ex facie stigmatic and the impugned order was issued after rejecting the show cause and conducting full scale enquiry – When a report in a disciplinary proceeding form the foundation for the order, the order would be stigmatic in nature. (Paras 9, 10 and 24)
       (2005) 5 SCC 569; (2006)4 SCC 469; (2002) 9 SCC 636; (1997) 2 SCC 191 – Relied upon.
       (b)Service Law – Confirmation – Municipal Corporation is competent to appoint a person on temporary basis – When there is no statutory provision for extension of the probation period, then appellant will be deemed to have been confirmed on expiry of the period of probation. (Para 11)
       (c)Service Law – Discharge – Satisfactory or otherwise performance of the employee during period of probation is a relevant factor and the same can form foundation for passing an order of discharge; provided principles of natural justice are followed. (Para 21)
       (1999) 3 SCC 60 – Relied upon.
       (d)Service Law – Termination –When impugned order was punitive and stigmatic in nature, the appellant was entitled to full scale enquiry and opportunity of hearing as would be required by the principles of natural justice – Impugned judgment of High Court could not be sustained. (Para 27)
       (2000) 3 SCC 239; (1999) 2 SCC 21 – Relied upon.
       Facts of the case:
       1.Appellant was a major in the Army. He joined the Respondent Municipal Corporation as a Vigilance Officer on or about 21.12.1999. The power to appoint on a temporary basis was conferred on the Municipal Commissioner under 2nd proviso appended to Section 53(3) of Bombay Provincial Municipal Corporation Act, 1949.
       2.Appellant was put on probation for a period of six months and although there does not exist any statutory provision in this behalf, the probation period was extended from time to time.
       3.Appellant proceeded on leave on and from 3.2.2003 on medical ground. The period of leave, however, expired but he did not join as allegedly he continued to suffer from the ailments. He telephonically informed his officer for extension of leave.
       4.He was served with a show cause notice on or about 22.03.2003 as to why his services should not be terminated for alleged misconduct of remaining absent from duty without prior leave.
       5.The cause shown by him was not found to be satisfactory and was rejected. No departmental enquiry was conducted. A finding of fact was arrived at to the effect that the enquiry proceedings which were pending against him were not brought to its logical end. It was concluded that his period of probation was extended up to 30.4.2003 without assigning any reason whereas there was no such power in the appointing authority. His services were therefore discharged.
       6.Appellant’s writ application against the order of discharge was dismissed by the Gujarat High Court.
       Findings of the Court:
       The impugned order of discharge being stigmatic and punitive, could not have been passed without full scale enquiry following principles of natural justice.
       Result : Appeal allowed.

judgment

S.B. Sinha, J. —

1.Leave granted.

2.Appellant was a major in the Army. He joined the Respondent Municipal Corporation (the Corporation) as a Vigilance Officer on or about 21.12.1999. He was put on probation for a period of six months. The power to appoint on a temporary basis is conferred on the Municipal Commissioner under the 2nd proviso appended to Section 53(3) of the Bombay Provincial Municipal Corporation Act, 1949 (BPMC Act). The period of probation provided for therein is six months. It reads as under:

“Save as otherwise provided in this Act, the power of appointing municipal officers and servants whether permanent or temporary vests in the Commissioner;

Provided that such power in respect of permanent appointments shall be subject to the statement for the time being in force prepared and sanctioned under Section 51:

Provided further that no temporary appointment shall be made by the Commissioner for any period exceeding six months and no such appointment carrying a monthly salary exceeding such amount as may be fixed in this behalf, by a general or special order, from time to time by the State Government in the case of each Corporation shall be renewed by the Commissioner on the expiry of the said period of six months without the previous sanction of the Standing Committee.”

3.Although there does not exist any statutory provision in this behalf, the probation period was extended from time to time. At the first instance, it was extended by an order dated 4.7.2000 upto 31.12.2000 and yet again upto 31.12.2001 by an order dated 07.01.2001. The period of probation was yet again extended till 31.12.2002 by an order dated 31.02.2002. No further order of extension of probation was passed. Appellant continued to function as a Vigilance Officer. He, however, allegedly informed his superior officer that he had been suffering from some illness. He applied for leave. He proceeded on leave on and from 3.2.2003. The period of leave, however, expired. He did not join as allegedly he continued to suffer from the ailments. He telephonically informed his officer for extension of leave. He was, however, served with a show cause notice on or about 22.03.2003 asking him to show cause as to why his services should not be terminated for alleged misconduct of remaining absent from duty without prior leave. The show cause notice reads as under :

“You were assigned various duties of importance requiring expeditious attention. It is the prenary responsibility of a vigilance officer to keep vigil and investigate and report however in your case you have gone on long leave and your absence has created stagnation and when such stagnation cannot be tolerated in public utility services when work has to be completed in a particular time frame. You had been on leave from 3.2.2003 to 6.2.2003 for a period of 4 days and you ought to have reported on 7.2.2003, however till date you have not reported for duty. You have not given any oral or written intimation till date you are absent from 7.2.2003 till today. Such long absence in such an important assignment cannot be confessed.There is also breach of condition No. 4/6 of the appointment order dated 22.12.1999. Also there has been negligence, carelessness in discharge of your duties and on evaluation it is found that you have shown absolute disregards towards your duties.

Therefore, why should you not be discharged from service in accordance with Section 56(2) of BPMC Act, 1949 after office hours on 31.3.2003. This final notice is given to you as and the reply within 7 days from require thereof. If it is not so that it will be presumed that you do not want to submit any reply.”

4.Cause was shown by him. The same having been found to be unsatisfactory was rejected. No departmental enquiry was conducted. A finding of fact was arrived at to the effect that the enquiry proceedings which were pending against him were not brought to its logical end. His period of probation was extended upto 30.4.2003 without ass

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2007 Supreme(SC) 1430

2007(7) Supreme 553Supreme Court of india(From Gujarat High Court)S.B. Sinha & Harjit Singh Bedi, JJ.Jaswantsingh Pratapsingh Jadeja — PetitionerversusRajkot Municipal Corporation & Anr. — RespondentsAppeal (civil) 4812 of 2007(Arising out of SLP (C) 1981 of 2006)Decided on : 11-10-2007

important pointIn absence of any statutory provision for extension of probation period, the employee will be deemed to have been confirmed on expiration thereof.

Cases Referred (6)

important point
In absence of any statutory provision for extension of probation period, the employee will be deemed to have been confirmed on expiration thereof.