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1999 Supreme(Ori) 411
IN THE HIGH COURT OF ORISSA
P.C. Naik, A. Pasayat, JJ.
DR. MADAN MOHAN SAHU - APPELLANT
Versus
THE CHAIRMAN-CUM-MANAGING DIRECTOR, MAHANADI COAL FIELDS LTD. AND OTHERS - RESPONDENT
O.J.C. No. 1365 of 1998
Decided On : 05-03-1999
U.K. Samal, B.R. Barik and C.D. Sahu, for the Appellant; S. Mohanty, S.C. Samantray, N.C. Sahoo, S.P. Panda, A.K. Patnaik, D. Mohanty (for opp. parties 1 and 2), N.C. Sahu and S.P. Panda (for opp. party No. 3), for the Respondent
In the absence of a written confirmation of service, an employee cannot be deemed to be confirmed, even if he continues in service beyond the probation period, if the terms of his appointment allow for such continuation as a temporary employee.
Headnote:
EMPLOYMENT - RESIGNATION - CONFIRMATION - DEEMED CONFIRMATION - MAXIMUM PERIOD FOR EXTENSION OF PROBATION - SPECIAL PROVISIONS IN RULES - EFFECT ON DEEMED CONFIRMATION.
Fact of the Case:
Petitioner, a medical specialist, was appointed by MCL on probation for one year, extendable at the sole discretion of the company. After serving for nearly four years, he submitted his resignation with one month's salary in lieu of notice. MCL demanded two months' more salary, claiming that the petitioner was a confirmed employee and therefore, payment of three months' salary was necessary.
Finding of the Court:
The court held that the petitioner was not a confirmed employee and therefore, payment of three months' salary was not necessary. The court distinguished the case from previous rulings where deemed confirmation was held to have occurred due to the presence of special provisions in the rules.
Issues: Whether the petitioner was a confirmed employee and therefore, payment of three months' salary was necessary.
Ratio Decidendi: The court held that the petitioner was not a confirmed employee because there was no written confirmation of his service, as required by the terms of his appointment. The court also held that the MCL could not rely on the petitioner's continuation in service beyond the probation period as evidence of deemed confirmation, as the terms of his appointment clearly stated that he could be continued in service as a temporary employee after the expiry of the probation period.
Final Decision: The court allowed the writ petition and directed the MCL to issue acceptance of the petitioner's resignation letter within three weeks from the date of the judgment.
JUDGMENT :
A. Pasayat, J. - Petitioner has prayed for a direction to the Mahanadi Coal Fields Ltd. (in short, 'MCL') to accept his resignation letter and release arrears due to him.
2. Factual position which is almost undisputed is as follows :
Petitioner completed M.B.B.S. in the year 1984 and completed M.S. in Orthopaedics in the year 1989. While serving in the Safdar Jang Hospital, New Delhi, he was selected by the M.C.L. for appointment as Medical Specialist of Orthopaedics in its Hospital, on 21.5.1993. Deputy Chief Personnel Manager issued an appointment letter requiring him to join as Medical Specialist of Orthopaedics in the Hospital of M.C.L. and to report for duty before the Chairman-cum-Managing Director, M.C.L. Bishop Compound, Sambalpur. Relevant terms of appointment letter read as follows :
"This offer of appointment is subject: to your acceptance the following terms and conditions :
1. This appointment will be on probation for a period of one year, which may be extended at the sole discretion of the Company. On successful completion of the probationary period of service and or receipt of a satisfactory report on your antecedents, you, may either be confirmed as a regular employee or allowed to continue in service as a temporary employee depending upon the availability or otherwise of a permanent post.
2. During the period of probation, including the extended period of probation, your services will be liable to termination without notice and without assigning any reason. Therefore, it will be liable to be terminated by giving one month's notice or salary in lieu thereof, for temporary employee, and three months' notice or salary in lieu thereof for regular employee who have been confirmed in writing".
Petitioner actually joined on 13.10.1993 after getting extension of time for joining. On 8.8.1997, petitioner submitted his resignation to the Chairman-cum-Managing Director with a request to accept the same with effect from 8.8.1997. Petitioner enclosed bank draft of Rs. 1 1,649/- representing his one month's salary in lieu of notice. The C.G.M. (J.A.) forwarded the application to the G.N. (E.E.) for obtaining approval from the competent authority. It was mentioned therein that as per provisions of Para-15.3 of Chapter XV of Common Coal Cadre petitioner had submitted his resignation with a bank draft of Rs. 11,649/- representing one month's salary in lieu of one month's notice. Petitioner obtained a non-objection certificate from the authorities of M.C.L. for better engagement as per the advertisement published. It contained a stipulation that in case of selection, petitioner will be released only after one month's notice as per terms of the appointment order or one month's pay in lieu is paid. On 10.11.1997 and 17.12.1997 petitioner requested the Chairman-cum-Managing Director to accept his resignation letter so that he will be able to draw certain provident fund deposits, on 2.1.1998 the Chief Medical Officer intimated the petitioner that General Manager (E.E.), M.C.L., Sambalpur has requested him to deposit two months' more salary i.e. Rs. 23,298/- so that his resignation can be accepted. Petitioner submits that demand of two months' salary more is contrary to law.
3. In the counter affidavit filed, the M.C.L. has taken the stand that petitioner is a confirmed employee and therefore, payment of three months' salary is necessary. According to it, in terms of Clause 15(3) of the Common Coal Cadre, which provides that in case of a regular employee resignation can be submitted only by giving three months' notice or salary in lieu thereof, demand of two months' salary more is in order. Petitioner's stand on the contrary is that he is not a confirmed employee. According to him, confirmation can only be done in writing and not otherwise. Though it is fairly accepted by learned counsel for M.C.L. that confirmation is to be made by writing, it is submitted that petitioner was confirmed as he had worked for nearly four years and
