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2012 (2) Supreme 621
SUPREME COURT OF INDIA
Dalveer Bhandari and Dipak Misra,JJ.
Head Master, Lawrence School Lovedale — Appellant
versus
Jayanthi Raghu & Anr. — Respondents
Civil Appeal No. 2868 of 2012
(Arising out of SLP (c) No. 21400 of 2008)
Decided on : 16-3-2012
Facts of the Case :
Questioning the legal acceptability of the Judgment and Order passed by the High Court whereby the finding recorded by Single Judge in Writ Petition to the effect that the order of termination in respect of respondent1, a teacher, being stigmatic in nature and having been passed without an enquiry warranted quashment was dislodged by the Division Bench on the foundation that order of termination did not cast any stigma, but concurred with the ultimate conclusion on the base that she was a confirmed employee and hence, holding of disciplinary enquiry before passing an order of termination was imperative, the present appeal by special leave has been preferred under Article 136 of the Constitution of India.
Findings of the Court :
A.When the language employed under Rule 4.9 is scrutinised, it can safely be concluded that entitlement to continue till the age of superannuation, i.e., 55 years, was not absolute- The power and right to remove is not obliterated. The status of confirmation has to be earned and conferred. Had the rule making authority intended that there would be automatic confirmation, Rule 4.9 would have been couched in a different language. That being not so, the wider interpretation could not be placed on the Rule to infer that the probationer gets the status of a deemed confirmed employee after expiry of three years of probationary period as -that would defeat the basic purpose and intent of the Rule which clearly postulates “if confirmed”. A confirmation, as is demonstrable from the language employed in the Rule, did not occur with efflux of time. As it is hedged by a condition, an affirmative or positive act is the requisite by the employer. An order of confirmation is required to be passed.
B. Division Bench clearly flawed by associating the words ‘if confirmed’ with the entitlement of age of superannuation without appreciating that use of said words as a fundamental qualifier negatives deemed confirmation.Thus, the irresistible conclusion was that principle of deemed confirmation was not attracted. Impugned judgment and order passed by High Court was set aside to the extent that respondent 1 had acquired the status of confirmed employee and, therefore, holding of enquiry was imperative. As far as the conclusion recorded by the Division Bench that no stigma was cast on the respondent was concerned, the same having gone unchallenged, the order in that regard was not disturbed. Appeal was allowed
JUDGMENT
Dipak Misra, J.
Leave granted.
2. Questioning the legal acceptability of the Judgment and Order dated 26.03.2008 passed by the High Court of Judicature at Madras in W.A. No. 4157 of 2004 whereby the finding recorded by the learned Single Judge in W.P. No. 15963 of 1997 to the effect that the order of termination in respect of the first respondent, a teacher, being stigmatic in nature and having been passed without an enquiry warranted quashment was dislodged - by the Division Bench on the foundation that the order of termination did not cast any stigma, but concurred with the ultimate conclusion on the base that she was a confirmed employee and hence, holding of disciplinary enquiry before passing an order of termination was imperative, the present appeal by special leave has been preferred under Article 136 of the Constitution of India.
3. The factual matrix lies in a narrow compass. The first respondent herein was appointed on the post of a Mistress with effect from 01.09.1993. It was stipulated in the letter of appointment that she would be on probation for a period of two years which may be extended for another one year, if necessary. In November 1995, while she was working as a Mistress in the appellant’s school, as alleged, she had received some amount from one Nathan. A meeting was convened on 09.09.1997 and in the proceeding, certain facts were recorded which need not be adverted to inasmuch as the said allegations though treated stigmatic by the learned Single Judge, yet the Division Bench, on a studied scrutiny of the factual scenario, has opined in categorical terms that the same do not cast any stigma. The said - conclusion has gone unassailed as no appeal has been preferred by the first respondent.
4. To proceed with the narration, after the proceeding was recorded on 18.06.1997, an order of termination was passed against the first respondent. As has been stated earlier, the order of termination was assailed before the Writ Court and the learned Single Judge axed the order on the ground that the same was stigmatic in nature. The order passed by the learned Single Judge was challenged in Writ Appeal under Clause 15 of the Letters Patent by the present appellant and at that juncture, a contention was canvassed by the first respondent that by virtue of the language employed in Rule 4.9 of the Rules of Lawrence School, Lovedale (Nilgiris) (for short, ‘the Rules’), she had earned the status of a confirmed employee having satisfactorily completed the period of probation and, therefore, her services could not have been dispensed with without holding an enquiry. In essence, the proponement was that she was deemed to have been a confirmed employee of the school and hence, it was obligatory on the part of the employer to hold an enquiry before putting an end to her services.
5. The Division Bench interpreted the Rule and placed reliance on a three-Judge Bench Decision of this Court in The High Court of Madhya Pradesh through Registrar and Others v. Satya Narayan Jhaver1 (2001) 7 SCC 161 : AIR 2001 SC 3234 and came to hold as follows:-
“In terms of Rule 4.9 of the Rules, the maximum period of probation would be only three years and the rule does not provide any further extension of probation. If that be so, the Headmaster of the school would be entitled to pass orders as to the confirmation before the expiry of the maximum period of three years i.e., 1.9.1996. Factually no such order was passed in this case and the teacher was allowed to serve beyond the period of 1.9.1996 till the order of termination dated 18.6.1997 was passed. In the absence of any provision for extension beyond a period of three years, in law, as stated by the Supreme Court, the services of the teacher would be treated as confirmed after 1.9.1996. Mr. K. R. Vijayakumar, learned counsel for the school has submitted that the said rule 4.9 contemplates that only “if confirmed” the probation would come to an end. The said submission is based on t
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