Darasram and Others vs Nagar Panchayat Kharsia

Dhirendra Mishra, J.—Heard.

The petitioners have filed this petition being aggrieved by the order of Annexures P-6 to P-10 dated 1.6.1998 and also against the order of the Collector, Raigarh dated 25.8.1998 of Annexure P-12 and the order of Additional Commissioner, Bilaspur Division, Bilaspur dated 18.2.1999 of Annexure P-14, whereby, Municipal Council discharged the petitioners from the post of Peon and the Appeal preferred by the petitioners against their removal from services has been subsequently dismissed by the Collector and Additional Commissioner.

Ms. Sharmila Singhai, learned Counsel appearing for the petitioners submits that petitioners were appointed as Peon by the Nagar Panchayat, Kharsia vide order of Annexures P-1 to P-5 dated 5.12.1995 on probation for a period of two years from the date of their appointment. However, they were discharged from services vide order dated 1.6.1998 with a tip that the establishment expenses of the Nagar Panchayat exceeded the prescribed limit and the services of the petitioners are no more required. She vehemently argued that the above termination orders were passed without issuance of any show-cause notice to the petitioners and without observing the principles of natural justice in contravention of Rule 49 of the Employees Recruitment and Conditions of Service Rules, 1968, (for short the `Rules of 1968'') as the major penalty of termination has been imposed without any notice. She further submits that in the meeting of Nagar Panchayat, the removal of the petitioners from services was not in agenda; however, the same was taken-up at the last moment and resolution was passed by the Nagar Panchayat contrary to Section 56(3) of the Chhattisgarh Municipalities, Act 1961 (for short the `Act of 1961''). The ground that establishment expenses exceeded from the permissible limit is factually incorrect, as after removal of the petitioners from establishment, 17 Shiksha Karmis were appointed by the respondent-Nagar Panchayat.

On the other hand, Shri Sanjay K. Agrawal with Shri Sudeep Agrawal, learned Counsel for the respondent-Nagar Panchayat submit that the appointment orders (Annexure P- 1 to P-5) of the petitioners reveals that they were appointed on probation for a period of two years. Sub-rule (3) of Rule 13 of the Rules of 1968, provides that "on the successful completion of probation, the probationer shall be confirmed in the service or post to which he has been appointed".

It is clear from the above provision that express order of confirmation is to be passed after successful completion of probation period. In the absence of any express order of confirmation, the services of the petitioners could not be deemed to be confirmed and thus, express order of confirmation is required to be passed after completion of the probation period of two years.

Repelling the argument of learned Counsel for the petitioners that no business other than specified in the notice relating thereto could be transacted in the meeting of Nagar Panchayat, Shri Agrawal contended that Sub-section (3) of Section 61 of the Act of 1961 empowers the Nagar Panchyat to transact any business with the consent of two-thirds of the elected (Councillors) present in the meeting. Reliance is placed in the matters of Registrar, High Court of Gujarat and Anr. v. C.G. Sharma & C.V. Satheeshchandran v. General Manager, UCO Bank and Ors.

It was argued that Sub-section (3) of Section 61 of the Act of 1961 empowers the Nagar Panchayat to transact any business with the consent of two-thirds of the (elected) Councillors present.

I have heard learned Counsel for the parties.

From the documents filed by the petitioners, it is evident that the petitioners were appointed on probation for a period of two years, whereas, the order of their removal has been passed after completion of probation period of 2 years & 5 months. It is also not in dispute that no formal order of confirmation was issued by the respondent-Nagar Panchayat to the petitioners.

So far as the argument that the respondent-Nagar Panchayat could not take-up any new agenda in its meeting is concerned, Sub-section (3) of Section 61 of the Act of 1961 empowers the Nagar Panchayat to transact any business with the consent of two-thirds of the (elected) Councillors present in the meeting. It is not in dispute that the resolution was passed with the consent of two-thirds of the (elected) Councillors of the Nagar Panchayat present in the meeting.

Coming to the next submission that after completion of 2 years of successful probation period, services of the petitioners is deemed to be confirmed and therefore, their removal from the post constitutes major penalty as defined under Rule 49 of the Rules of 1968 and, therefore, major penalty could not be imposed without following the principles of natural justice and without issuing any show-cause notice is concerned, Sub-rule (3) of Rule 13 of the Rules of 1968 provides as under:

(3) On the successful completion of probation, the probationer shall be confirmed in the service or post to which he has been appointed.

The above provisions clearly indicates that express order confirming the services of the probationer after successful completion of probation period is required to be issued and the probationer does not attain automatically the status of confirmed employee after completion of probation period.

The Hon''ble Supreme Court in the matter of Registrar, High Court of Gujarat and Anr. (supra) while dealing with the identical situation has held in para 26 as under:

26.A large number of authorities were cited before us by both the parties. However, it is not necessary to go into the details of all those cases for the simple reason that Sub- rule (4) of Rule 5 of the Rules is in pari materia with the Rule which was under consideration in the case of State of Maharashtra v. Veerappa R. Saboji and we find that even if the period of two years expires and the probationer is allowed to continue after a period of two years, automatic confirmation cannot be claimed as a matter of right because in terms of the Rules, work has to be satisfactory which is a prerequisite or precondition for confirmation and, therefore, even if the probationer is allowed to continue beyond the period of two years as mentioned in the Rule, there is no question of deemed confirmation. The language of the Rule itself excludes any chance of giving deemed or automatic confirmation because the confirmation is to be ordered if there is a vacancy and if the work is found to be satisfactory. There is no question of confirmation and, therefore, deemed confirmation, in the light of the language of this Rule, is ruled out. We are, therefore, of the opinion that the argument advanced by learned Counsel for the respondent on this aspect has no merits and no leg to stand. The learned Single Judge and the learned Judges of the Division Bench have rightly come to the conclusion that there is no automatic confirmation on the expiry of the period of two years and on the expiry of the said period of two years, the confirmation order can be passed only if there is vacancy and the work is found to be satisfactory. The Rule also does not say that the two years'' period of probation, as mentioned in the Rule, is the maximum period of probation and the probation cannot be extended beyond the period of two years. We are, therefore, of the opinion that there is no question of automatic or deemed confirmation, as contended by the learned Counsel for the respondent. We, therefore, answer this issue in the negative and against the respondent.

Similar view has been taken in the matter of C.V. Satheeshchandran (Supra) and the Hon''ble Supreme Court has held in Para-13 as under:

13.Under Clause 3.8.2, on promotion to the officers'' cadre, the employee would be on probation for a period of one year and the period of probation may, if necessary, be extended to a total period of two years at the discretion of the Bank. Clause 3.8.2 does not provide for automatic confirmation of the probationer after a period of one year. The confirmation would not occur automatically by efflux of time. The order of appointment also does not clearly indicate that the confirmation of the appellant on the officer''s post would automatically follow at the end/expiry of the period of one year. The service rules, which we have mentioned, do not specifically provide for such eventuality. The expiry of the probation period does not necessarily mean confirmation. At the end/expiry of the period of probation, normally an order confirming the officer is required to be passed and if no such order is passed, he shall be deemed to have continued on probation unless the terms of appointment or the relevant rules governing the service conditions provide otherwise.

If the ratio of law laid down in the aforesaid judgments is applied to the facts of the present case, it is seen that there is no stipulation in the appointment orders (Annexures P-1 to P-5) of the petitioners that their services shall automatically be confirmed after their successful completion of probation period. Rule 13 (3) of the Rule of 1968 applicable to the petitioners makes provision for passing of separate order of confirmation in the service or post to which the probationer was appointed. Since no such order of confirmation has been admittedly passed in case of the petitioners, they cannot be considered to be deemed to be confirmed after completion of probation period. Their removal is discharge simplictor without any stigma and, therefore, there was no requirement of law to observe principles of natural justice before removal of the petitioners from services. There is no illegality or infirmity in the impugned orders warranting interference in exercise of the jurisdiction under Article 226/227 of the Constitution of India.

In the result, the petition being devoid of substance deserves to be dismissed and is, accordingly, dismissed. There shall be no order as to cost.