1.Superi ntendartof Police, Karimnagar v. M.Jayapal Ex.PC 1931

Petition Under section 151 cpc praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to vacate the interim orders dt, 30-6-2005 passed in wpMp No. 16642/2005 in wp NO. 13101/2005 t.A.NO:4 OF 20 PMP. NO: 16642 oF 2005) Petition Under section 'l5i cpc praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to suspend the operatron of the orders dated og-12-20o2 passed in o.A.No.3573/1993 on the file of Andhra pradesh administrative Tribunat, Hyderabad pending disposal of the above writ petition. Counsel for the Petitioners : Gp FOR SERVICES -l Counsel for the Respondent : SRI S.SATYAM REDDY The Court made the foltowing ORDER 1 THE HON'BLE SRI JUSTICE P.SAM KOSITY AND THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA WRIT PETITION NO.131O1 OF 2OO5 ORDER:@er llon'ble Sri Justice P.SAM KOSHY) The instant Writ Petition has been preferred by the petitioners assailing the order, dated 09 '12.2OO2, in O.A.No.3573 of 1993 passed by tl.e Andhra Pradesh Administrative Tribunal' Hyderabad (for short, 'the Tribunal').

2. Vide impugned order, the Tribunal has set aside the order of termination and ordered for reinstatement of the respondent into service forthwith with all consequential benefits including seniority and counting the length of service for the purpose of pension and increments, however,restricted payment of back wages to 50% oniy.

3. The brief facts relevant for adjudication of the case are that the respondent was appointed as a Police Constable w.e .f'

16.07.1989. He was on probation for a period of two years i.e.' from 16.07 .1g8g to 15.O7. 199 1. During the period of probation, the respondent was found to have gone unauthorized absence w.e.f. lg.O4.Lggl to 28.04.1991 and again on 12.O8.1991. For the said period, he was inflicted with punishment of postponement of increment for a period of two years with cumulative effect. I 2 PSU&NRR,J wp_13101_2m5 Subsequently, on completion of the initial period of two years of probation, the Govemment found that t}le services of t.he respondent are not to be satisfactory, extended the probation period by anotl,rer one year uide order dated 25.O7.1991. Thereafter a1so, there was unauthorized absence on the part of the respondent the period between 22.07.1991 to 07.08.1991, for which he was again inflicted another punishment of postponement of increment by one year vide order 1O.O7. 1992 and further postponement annual increment by one year uide order 13.08.1992. However, while extending the probation period, advised the respondent to improve upon his work. However, subsequently, tJle respondent again went on unauthorized absence for a considerable long period from I S.O5.1992 to 14.10.1992 i.e., for a period of 153 days. Since the respondent did not improve upon his conduct and being continued to remain regularly absent from duty unauth orizedly for long durations, the authorities by ar order dated 17.10.1992 discharged him from service on tlie ground of unsatisfactory performance in work.

4. Aggrieved by the said order, the respondent preferred an appeal before the Deputjr Inspector General of police, Karimnagar, who in turn uide order, dated 2S.01.1993, rejected the appeal. The order of discharge from service ald the order passed by the Deputy Inspector General of Police were subject to challenge before the Tribunal by filing O.A.No.3573 of 1993 under the provisions of 3 PSKJ&NRRJ wp_13101_200s Section 19 of the Administrative Tribunals Act, 1985. The Tribunal, after hearing learned counsel for both the parties, uide order dated Og.l2.2OO2 in O.A.No.3573 of 1993 allowed the said O.A. setting aside the order of termination, dated 17.10. 1992- Ttle order of the Tribunal was under challenge in the instant writ petition by the State.

5. The Writ Petition is of the year 2OO5. In the year 2005, the petitioners obtained stay of operation of the order passed by the Tribunal as a consequence till date the respondent remains out of serylce.

6. [rarned counsel for the petitioners at the outset questioned the order of the Tribunal stating that the findings given by the Tribun a1 ar:e per se bad and iliegal considering t}:.e factual matrix of the case and hence, he prays to set aside the order passed by the Tribunal. 7, Learned counsel appearing for respondent strongly contended that it is a case where while extending the period of probation, the authorities had not intimated the respondent for improving upon his work. The nature of lapses or deltciencies on the part of the respondent while in service were not intimated or disclosed by the petitioners. If respondent had given an opportunity to improve upon his work, perhaps t}re respondent would have -t I I I I 4 PS(J&NRR,J wp_13101,2m5 improved upon his work and such action would not had arisen and hence, he prays to dismiss the writ petition by confirming the order of the Tribunal.

8. [t is also the contention of the regpondent t]rat it is a case where because of certain compelling circumstances, he could not report for duties at different intervals, for which, he made a request for grant of leave but the petitioners without taking any sympathetic view on the respondent, passed the order of termination from service. The Tribunal, after considering the entire material on record, has set aside the order of termination and permitted the respondent to resume his duties. If the order passed bll the Tribunal upheld the respondent would get some financial assistance at this fag end of his career. In support of his contentions, he also placed reliance upon the judgment of tJle Hontrle Supreme Court in Sumatl P.Shere v. Union of Indiar

9. According to learned counsel to the petitioners, the factual matrLt of the case in the instant case is not in dispute. The respondent was initially appointed as a police Constable on L6.O7.19a9. The probation period initially being two years i.e., from

16.07.1989 ro 15.O7. 1991. In between, there had been instances of unauthorized absence on the part of tl.e respondent in discharging duties. The period of probation was extended vide order, dated # '1t9891 s scc str 5 PS(r&NR&J wp 13101_2005

25.07.1991 yet another one year with a caution intimating that the respondent should improve upon his work. According to the petitioners, there is no dispute so far as the respondent being inflicted with two punishments, dated 10.07. 1992 and 13.08.1992. Both punishments being postponement of increment of one year without cumulative effect.

10. kamed counsel for the petitioners referring to the provisions of the Andhra Pradesh State and Subordinate Service Rules, 1963 and contends that the employer had right and power to decide whether the services ofa probationer and his probation period needs to be extended beyond the period of two initial years, if the service is found to be unsatisfactory. At the same time, learned counsel for the petitioners also contended that the employer has also right to discharge the employee on probation on the ground of unsatisfactory performalce even without granting extension.

11. Learned counsel for the petitioners further contends that in the instant case taking liberal and sympathetic view' the Government had granted extension of time, hoping that the respondent would in between improve his work by extending the probation period by one year vide order, dated 25.07.1971.\n spite of extension being granted and the caution for improving the work and the same being mentioned in the extension order, the respondent continued to remain absent unauthorizedly for considerable length of I Lr i I i I 6 PS(J&NRR,J wp 13101-2m5 time. In the instant case, the respondent during the extended period itself, went on unauthorizcd absence for a period of 153 days. Thus, it was in those compelling circumstances that the petitioners have decided discharging from service for unsatisfactory performance.

12. Heard the contentions put forth by learned counsel on either side and perused the materia,l on record.

13. A plain reading of the provisions of the relevant rules clearly gives an indication as to how the services of a probationer has to be regulated Rule 24 of ttre Andhra pradesh State and Subordinate Services Rules, 1962 (for short, .the Rules, 1962), deals with the services of a probationer.

14. For ready reference, Rule 24 of the Rules, 1962 dealing with Suspension, termination or extension of probation is reproduced as under: "(a) Where the special rules of any sewice prescribe a period of probation for appointment as a full member of the service, tJ-e appointing authority may at any time before the expiry of such period. (i) (i) Suspend the probation ofa probationer and discharge him from the service for want of vacancy; or At its discretion by order either extend the period of probation of ttre probationer in case the probation has not been extended under Rule 16 or terminate his probation and discharge him from service after grving him one montht notice or pay in.lieu of such notice. 7 PSK,]&NRR,.J wp 13101 2m5 (iii) At its discretion by order post the probationer under another officer to male sure that the previous report was not biased one if he is reported upon adversely by a superior officer during the period of probation..."

15. Considering the aforesaid provision of law what is now to be decided is whether action assailing by ,the petitioners in discharging the respondent from services can be said to be in any manner arbitrary or contrary to the Rules. The period of absence on regular intervals by itself speaks volumes so far as the work and conduct of the respondent is concerned. Apart from the fact that the respondent was also twice inflicted with punishment of postponement of annuai increment by one year without cumulative effect, yet there was no sign of improvement on the part of the respondent. In spite of all this taking sympathetic arld linent view towards respondent, the period of probation was extended vide order, dated 25.07.1991. However, even during this extended probation period, the respondent went in unauthorized absence for a period of 153 days at a stretch from 15.05.1992 onwards till 14.10.1992. It was then the petitioners have decided to discharge the respondent from services. Given the fact that the respondent was a probationer and in the probation period, least that is expected from an employee is that he will show full dedication, sincerity and obedience in discharging of his duties. It is only thereafter on evaluation of service record of the employee, the employer takes a decision whether to ,/ .i I l I 8 PSU&NRR,.' wp_13101 2005 continue him in service or to discharge him from service for his unsatisfacton. r,r'ork

16. It is pertinent to mention that in Registrar. High Court of Gujrat and another v. C.G.Sharm2, wherein -the Hon,ble Supreme Court at Paragraph No.43 it was held as under: '43. But the facts and. clratmstances in the cq:ie on haLnd are entlrelg dilJerent d.nd. the administrdtloe side of the lligh Coutt and the Full Court uere ,.lght ln tdklng the d.ecislor. to terrnir:dte the seruices ol tltre respond.ent, rightlg so, on the basis oJ the record.s ptaced before them. We are qlso satisfied., afier pentsing the conJidential reports dnd other releaant uigilo;nce Jiles, eti. that the respond.ent is not entitled. to contlnue a.s a judlcial officer. The order of terrninatlon is terTnination stnpllclter and. not punitiae in nature o'nd, therefore, no opportunltg needs to be glaen to the respond.ent herein. Since the oaerq.ll perfontance oJ the respond.ent was found to be unsatislactory W ttle High Court ,ltcing the period of probation, it uas d,ecided bg the High Court that_the serzices of the respond.eat d.uring the period. o.f probation oJ the respondent be terminated becd,use of his unsuitab ity for the post. In this uieut of the matter, ord.er of terrnination sirnpliciter cannot be said to be alolative of A*icies .14, 16 and 377 of the Constitution- The lau oa the point is crystq.llised. thalt the p"obationer remains a probationer unless he has been co,tfi./tned on the bq.sis of the work evaluqtion. tlnd.er the releaant Ruks under .a,htch the respondent uas appolnted. qs a Civil .Irdge, there is no prouision for o;utomo;tic or deerned. coalirandtion and/or deetned qppointment ort regular establishment or post, and in that deu of the mqtte", the contentions of the respond.ent tho, the respond.ent,s sentices utere deetaed to haae been continued. on the expiry of the probatlon period., are misco nc eiaed,. n

17. In the instant case, there is nothing which has been brought on record on behalf of the respondent to show that the petitioners' in the course of deciding to discharge the respondent from his duties to be in any manner vindictive or arbitrar5r. In fact, the Government could have at the first '120051 1srp."r" court Cases 132 / instance itself discharged for unsatisfactory work, however, yet 9 P5(J&NRR,J wp_13101 2m5 taking lenient and sympathetic view had granted extension of time. Even then the respondent did not show any sign to improve his work.

18. In the said circumstances, the action taken by the petitioners cannot be found fault with either. on facts or law governing the service conditions.

19. For the aforesaid reasons, we find it diffrcult to sustain the order passed by the Tribunal, dated O9.12.2OO2 in O.A.No.3573 of 1993 and the same is therefore, set aside and the O.A. is ordered to be dismissed and the consequential order, dated 17.10.1992 discharging the respondent from service is upheld. I

20.. Accordingly, the Writ Petition is allowed. There sha'll be no order as to costs. Miscellaneous petitions, if any, pending in this writ petition shall stand closed. ihat Rule Nisi has been absolute Witness the Hon'ble the Acting C Thursday, the Twentieth daY of M as above. hief Justice SUJOY PAUL, on this arch, Two Thousand and TwentY five' \ //TRUE coPY// SD/.N. SRIHARI DEPUTY REGISTRAR ( SECTIdN OFFICER To'- 1. T*o cc,s to Gp FOR SERVICES- l, High court for the State of Telangana at Hyderabad. [OUTI , iji,;-bCi;dnr s.'snwerl REDDY, Advocate [oPUc] 3. Two CD CoPies SA BS \y I HIGH COURT DATED:2010312025 14-'-- y''* reti, t) /. /!! I .s t. ,, .\ \rs * () ./ ORDER WP.No.13101 of 2005 ALLOWING THE W.P WITHOUT COSTS. @ { 1l