1961 Supreme(Cal) 150

HIGH COURT OF CALCUTTA
P. C. Mallick
JYOTIRMOYEE SHARMA - Appellant
Versus
UNION OF INDIA - Respondent
Suit 2288  Of  1952
Decided On : AUGUST 2, 1961

After the expiry of the probationary period, the plaintiff became a permanent incumbent in the office though for a period of two years she would be on probation. During the probationary period of two years, her probation and service is liable to be terminated. But if the Government chooses not to terminate the probation and service within the probationary period of two years the plaintiff acquires the full status of a permanent officer on the expiry of the two years. There was no power reserved to the Government to extend the probationary period.

Headnote:

CONSTITUTION OF INDIA, 1950 - ARTICLE 311(2) - GOVERNMENT OF INDIA ACT, 1935 - SECTION 240(3) - FUNDAMENTAL RULES - RULE 55B - CIVIL SERVICE - TERMINATION OF SERVICE - WRONGFUL DISMISSAL - DAMAGES - LIMITATION ACT, 1908 - SECTION 80 - NOTICE - ESTOPPEL - RATIFICATION - PROBATIONARY PERIOD - CONFIRMATION - NATURAL JUSTICE - SHOW CAUSE NOTICE - ENQUIRY - PUNISHMENT - STIGMA - CONTRACT OF EMPLOYMENT - DAMAGES FOR WRONGFUL DISMISSAL - MEASURE OF DAMAGES.

Fact of the Case:

The plaintiff, an M.A. and Ph.D. of the Chicago University in Sociology, was offered a permanent post of Anthropologist by the Government in the Department of Anthropology in the Indian Museum on June 7, 1949, which offer she accepted. Prior to this appointment, she was working in the same department as a temporary Anthropologist which office she relinquished before accepting the new appointment. In the new post, she was to be on probation for 2 years. The plaintiff's service was terminated by a letter dated June 2, 1952, addressed to her by the Director Of Anthropology Sri. B. S. Guha. Prior to this, she was charge-sheeted. She denied the charges and demanded a judicial enquiry.

Finding of the Court:

The court held that the plaintiff was appointed in a permanent post on June 7, 1949, but she should be on probation for two years. Two years expired on June 7, 1951. On the expiry of the period, neither she was expressly confirmed in her service nor her service terminated. What then was her position in service after June 7, 1951? The court held that after the expiry of the probationary period, the plaintiff became a permanent incumbent in the office though for a period of two years she would be on probation. During the probationary period of two years, her probation and service is liable to be terminated. But if the Government chooses not to terminate the probation and service within the probationary period of two years the plaintiff acquires the full status of a permanent officer on the expiry of the two years. There was no power reserved to the Government to extend the probationary period. It cannot, therefore, be contended that in the absence of actual confirmation she automatically continues to be a probationer till the date of actual confirmation or till the date of termination of her service.

Issues: 1) Is there any valid and binding contract of service between the plaintiff and the, defendant in view of the provisions of Section 175 (3) of the Government of India Act, 1935. 2) Did the plaintiff have the permanent post of Anthropology as mentioned in paragraph 3 of the plaint. 3) Did the plaintiff have any opportunity of defending herself? Was there any enquiry held therefor. 4) Was the principle of natural justice observed and followed as mentioned in paragraph 12 of the plaint. 5) Is the plaintiff entitled to the declaration asked for. 6) Is the plaintiff entitled to any damage as mentioned in paragraph 15 of the plaint. 7) Has the plaintiff any cause of action. 8) Is the plaintiff entitled to any relief.

Ratio Decidendi: The court held that the plaintiff was appointed in a permanent post on June 7, 1949, but she should be on probation for two years. Two years expired on June 7, 1951. On the expiry of the period, neither she was expressly confirmed in her service nor her service terminated. What then was her position in service after June 7, 1951? The court held that after the expiry of the probationary period, the plaintiff became a permanent incumbent in the office though for a period of two years she would be on probation. During the probationary period of two years, her probation and service is liable to be terminated. But if the Government chooses not to terminate the probation and service within the probationary period of two years the plaintiff acquires the full status of a permanent officer on the expiry of the two years. There was no power reserved to the Government to extend the probationary period. It cannot, therefore, be contended that in the absence of actual confirmation she automatically continues to be a probationer till the date of actual confirmation or till the date of termination of her service.

Final Decision: The court held that the plaintiff was entitled to a declaration that the order of dismissal of the plaintiff by the defendant is wrongful, illegal void, inoperative and of no consequence whatsoever. The court also held that the plaintiff still remains entitled to hold the office of Anthropologist in the Department of Anthropology as mentioned in the foregoing plaint from which the plaintiff was removed by an illegal order of the defendant. The court further held that the plaintiff is entitled to a decree for Rs. 30,000/- as damages for wrongful dismissal.