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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.651 of 2017 (An application under Articles 226 & 227 of the Constitution of India) Susanta Kumar Mukherjee … Petitioner Ms. B.K.Pattanaik, Advocate -versus- Union of India and others … Opposite Parties Mr. H.Tripathy, Advocate for OP Nos. 5 to 8 CORAM: HON’BLE DR. JUSTICE B.R.SARANGI HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING AND JUDGMENT :25.04.2024 G. Satapathy, J. 1. In exercise of power under Articles 226 & 227 of the Constitution of India, the petitioner has filed this writ petition praying to quash the orders dated 30.12.1995 under Annexure-8, dated 11.12.1995 under Annexure-10 relieving him of his duty w.e.f. 07.12.19950 and terminating him from service respectively and order dated 06.12.2016 under W.P.(C) No.651 of 2017 Page 1 of 19 Annexure-11 by which the Central Administrative Tribunal, Cuttack Bench, Cuttack (hereinafter referred to as the “Tribunal”) has dismissed his Original Application in T.A. No. 17 of 2015. 2. Briefly stated, the relevant facts of the writ petition are that in response to an advertisement of Primary Teacher of Central School for Tibetans, the petitioner applied, appeared and was selected in the recruitment test. After his selection, he was offered with an appointment vide an order dated 02.03.1993 on certain terms and conditions and he accepted the offer of appointment by agreeing to the said terms and conditions. Accordingly the petitioner joined as a Primary Teacher in Central School for Tibetans at Chandragiri, Odisha on 17.03.1993 under a formal order of appointment. According to the petitioner, on 28.12.1994 the petitioner was, however, transferred by OP No.3 to Lobersing Branch of the School and he also completed his in-service training course for Primary Teachers conducted by the Central Tibetan Schools’ Administration, New Delhi with effect from W.P.(C) No.651 of 2017 Page 2 of 19 16.06.1994 to 25.06.1994 in Karnataka and also successfully completed the Teachers’ Training and evaluation workshop for English conducted by Central Institute of Indian language, Mysore at Masoorie from 16.08.1994 to 21.08.1994. According to the petitioner, he had successfully completed his provisional service for six months and probation for two years at Chandragiri Central School for Tibetans. In view of change of medium of instruction, personal and family difficulties and risk of career and life, on 06.12.1995 the petitioner made a representation to OP No.2 for his transfer and posting in some school at Darjeeling District of his native province in West Bengal, but when on 07.12.1995 the petitioner entered into the office of his Branch School, all of a sudden the Principal asked him to put his signature on a blank paper, but he refused and thereafter, on forcefully intervention of one Sonam and finding no alternative, the petitioner unwillingly signed on such paper and he went to the Office of the Principal as per instruction, but in vein and in the process, he W.P.(C) No.651 of 2017 Page 3 of 19 discharged his duty in the main school at Chandragiri till 13.12.1995 by signing the relevant Register, but on 12.12.1995 the petitioner on receipt of telephone call regarding his mother’s illness, left the school on 14.12.1995 by leaving an application of leave in the Office of Principal in his absence and thereafter, due to continuous illness of his mother, he remained on leave by sending letter through registered post and telegram till mid of February, 1996. However, the petitioner received relieve order bearing No. CSTC- P(SM)93-95/819 dated 30.12.1995 from opposite party by registered post on 10.01.1996. Against such
Legal Reasoning
order, the petitioner knocked the door of this Court in OJC No. 1147 of 1996 and in the counter affidavit to such proceeding, an order dated 11.12.1995 of OP No. 2 was annexed showing termination of service of the petitioner with effect from 11.12.1995. The aforesaid OJC was subsequently transferred to the Tribunal and renumbered as T.A. No. 17 of 2015 which was dismissed by the Tribunal vide Annexure- 11. Finding no way out, the petitioner again knocked W.P.(C) No.651 of 2017 Page 4 of 19 the door of this Court in this writ petition praying to quash Annexures-8, 10 & 11. 3. In the proceeding before the Tribunal, the Central Tibetans School Administration represented by its Secretary and the Principal who were OP Nos. 2 & 3 in T.A. No. 17 of 2015 had filed counter affidavit stating inter alia that the petitioner left the school on 07.12.1995 without permission and sanction of leave and remained in unauthorized absent from duty from 07.12.1995 onwards till the date of his relieve on 30.12.1995 and the petitioner was appointed purely on temporary basis terminable at any time without assigning any reason and the termination of the petitioner from service on 11.12.1995 was in terms of his appointment order and thereby, the petitioner is not entitled to any relief. It was also stated in the counter affidavit that the service of the petitioner was not confirmed and his termination was desirable in the interest of institution and exigency of public service and the Principal had accordingly informed the Central Tibetans School Administration, New Delhi W.P.(C) No.651 of 2017 Page 5 of 19 about the abscondance of the petitioner since 12.12.1995 and the petitioner was accordingly terminated. 4. Ms.B.K.Pattanaik, learned counsel appearing for the petitioner has emphatically submitted that since the petitioner has successfully completed the probation period as a teacher in the Central Tibetans School, Chandragiri, his service was deemed to have been confirmed and therefore, the petitioner having terminated from service by OP No.3 unilaterally without any Disciplinary Proceeding, such termination order cannot sustain in the eye of law. She further submits that the petitioner was duly selected to the post of Primary Teacher in Central School of Tibetans and was also offered with an appointment on 02.03.1993 and the petitioner accordingly joined his service on 17.03.1993 and discharged his duty till he availed leave on 12.12.1995, but in absence of any proceeding, how come he would be terminated from service with effect from 11.12.1995 on the ground of unauthorized absence from duty and such order is W.P.(C) No.651 of 2017 Page 6 of 19 non-est in eye of law since he was terminated from service on a day he was in service, but being oblivious of the aforesaid facts, which is clearly established by documents, the learned Tribunal has failed to appreciate the facts and circumstance of the case and erroneously dismissed the TA which is not only arbitrary, unsustainable, but also liable to be quashed. In relying upon the decision in Mir Mohmmad Khasim vrs Union of India and others; AIR 2004 SC 3256, Ms. Pattanaik has urged before this Court that since the service of the petitioner was deemed to have been confirmed for completing the probation period, the petitioner cannot be terminated from service without any regular Disciplinary Proceeding initiated against him and thereby, the order passed by OP No.3 at Annexures-8 & 10 are liable to be quashed, so also the order of the Tribunal at Annexure-11. Ms. Pattanaik has accordingly prayed to allow the writ petition by quashing Annexures-8, 10 & 11. W.P.(C) No.651 of 2017 Page 7 of 19 As against these submissions, Mr.H.Tripathy, learned counsel for OP Nos. 5 to 8 has submitted that since the appointment of the petitioner was purely on temporary basis and his service having not been confirmed, the action of OP No.3 terminating the petitioner from service cannot be questioned, more particularly when he remained in unauthorized absence from duty for a indefinite period with effect from 07.12.1995 and therefore, the learned Tribunal has rightly appreciated the facts and documents and accordingly dismissed the TA of the petitioner. Mr.Tripathy has further submitted that the confirmation of service in this case is purely dependent upon successful completion of probation period for two years which is six months after the trial period and therefore, for confirmation of service, the petitioner has to establish that he had successfully completed two years probation period in addition to satisfactory performance of six months for trial period, but the petitioner having not done so and remained in unauthorized absence before completing W.P.(C) No.651 of 2017 Page 8 of 19 the probation period, the order of termination of the petitioner cannot be legally questioned in any forum. Mr.Tripathy by relying upon the decision in Khazia Mohammed Muzammil vrs State of Karnataka and another; (2010) 8 SCC 155 has submitted that the petitioner cannot be considered to have deemed to have been confirmed in service and therefore, the actions of OP No.3 being legally sound cannot be interfered with and the writ petition is accordingly liable to be dismissed. 5. None appears for the rest of the opposite parties, even though they had entered appearance through learned counsel initially, but they have not participated in the hearing. 6. After having considered the rival submissions upon perusal of record, the solitary question emerges for consideration in this writ petition is whether the order of termination of the petitioner from service under Annexure-10 is unsustainable in the eye of law for want of any regular Disciplinary Proceeding since the service of the petitioner was deemed to have W.P.(C) No.651 of 2017 Page 9 of 19 been confirmed and consequently, the order relieving him from duties under Annexure-8 is liable to be quashed. It is not in dispute that the petitioner was offered with an appointment vide an order dated 02.03.1993 which is placed at Annexure-1, but paragraph-2 of such order clearly discloses the terms and appointment of the petitioner, which reads as under:- The Post is purely temporary but is “The Terms and appointment are as follows:- (i) likely to continue, (ii) His/her appointment shall be treated as provisional for the first six months from the date of appointment and his/her continuance beyond that period shall be determined only after obtaining a special report in respect of his/her work during this period. If his/her appointment is continued beyond the first six months, he/she shall be kept on probation for the date of two years beginning with appointment. (iii) After the trial period for as long as he/she is appointed in a temporary capacity, the appointment may be terminated at any time by one month’s notice given on either side viz. (by appointee or the appointing authority) without assigning any reason. The appointing authority however reserves the right of terminating the service of the appointee forthwith or before the expiry of the stipulated period of notice by making W.P.(C) No.651 of 2017 Page 10 of 19 payment to him/her a sum equivalent to the Pay and Allowances for the period of notice of the unexpired portion thereof”. A subtle glance of Annexure-1 would go to reveal that the post in which the petitioner was appointed was purely temporary in nature and such appointment was being treated as provisional for the first six months from the initial date of appointment and the continuation of the petitioner beyond that period of six months would have to be determined only after obtaining a special report. It further reveals that had the appointment of the petitioner continued beyond the first six months, then he would have to remain in probation for a period of two years with effect from the date of his initial appointment. The appointment order of the petitioner herein stipulates that after the trial period, for as long as the petitioner was appointed in a temporary capacity, the appointment can be terminated at any time by one month’s notice given on either side without assigning any reason, but the Appointing Authority, however, reserved the right of terminating the service of the W.P.(C) No.651 of 2017 Page 11 of 19 appointee forthwith. One of the factual aspect of this case is that the petitioner was terminated vide order under Annexure-10 by the school authority by giving one month salary in lieu of notice in terms of offer of appointment vide memorandum dated 02.03.1993. Much argument was advanced with regard to deemed confirmation service of the petitioner, but in absence of any statutory rules, the offer of appointment would be considered appropriate to decide the nature of service of the petitioner and whether his service was confirmed or not. Learned counsel for the petitioner, however, acknowledges that no order was passed with regard to confirmation of service of the petitioner, but she, however, urges to this Court to consider that the service of the petitioner was deemed to have been confirmed in view of his completion in service for two years service in the post. 7. The principle that is normally followed in Service Jurisprudence for confirmation of service is no more res-integra and when probation period is W.P.(C) No.651 of 2017 Page 12 of 19 prescribed for a post, the same by itself mean that the service of the incumbent would be confirmed only on successful completion of probation period by the incumbent in the post. In this case, neither any document nor any material was produced before this Court to show that the petitioner has satisfactorily completed the period of probation for the post of Primary Teacher in Central School for Tibetans at Chandragiri. Once it is found that the probation period is not successfully completed, the service of the petitioner cannot be considered to be deemed to have been confirmed merely on the ground that the petitioner has worked in the school for some period and that too, his appointment was purely on temporary basis. The decision in Mir Mohmmad Khasim(supra) as relied on by the petitioner is respectfully considered, but found distinguishable from the facts of the present case inasmuch as in the relied on case, there was a declaration in favour of the applicant for satisfactory completion of period of probation, but the same situation is not here in this W.P.(C) No.651 of 2017 Page 13 of 19 case. On the other hand, in Khazia Mohammed Muzammil(supra), the Apex Court in paragraph-19 has held thus:- xx xx xx xx xx xx xx “The act is not a mere formality but a mandatory requirement which has to be completed by due application of mind. The suitability or unsuitability, as the case may be, has to be recorded by the authority after due application of mind and once it comes to such a decision the other requirement is that a specific order in that behalf has to be issued and unless such an order is issued it will be presumed that there shall not be satisfactorily completion of probation period. The Rules, being specific and admitting no ambiguity, must be construed on their plain language to mean that the concept of confirmation’ or ’automatic confirmation’ cannot be applied in the present case.” ‘deemed 8. This Court, however, on this point believes that a probationer remains on probation, unless he has successfully completed the probation period which needs to be evaluated on the basis of work and performance of the probationer. In absence of any statutory rules with regard to manner and procedure for declaration of successful completion of probation W.P.(C) No.651 of 2017 Page 14 of 19 period by the probationer, the Competent Authority of the institution/organization has to seriously evaluate the work performance of the probationer, but that too, not to be done in an arbitrary, casual or cavalier manner. The concerned authority has to apply its mind judiciously to take a decision with regard to suitability or unsuitability of the probationer to the post or further extension of probation period of the probationer by taking into pragmatic consideration while evaluating the work performance of the probationer vis-(cid:224)-vis the duties and responsibilities attached to the post. It is, however, made clear that unless the probationer has successfully completed the probation period on the basis of work evaluation, he cannot be confirmed in service merely because he has completed some period in the service which has not been evaluated by the authority, but the same principle is not applicable universally, more particularly when the authority demonstrates latches or negligence to evaluate the W.P.(C) No.651 of 2017 Page 15 of 19 performance of the probationer after the prescribed period without any reason. 9. Reverting back to the factual aspect of the writ petition, the petitioner himself has stated in the writ petition that on 06.12.1995 he made representation to O.P.No.2 for transfer, but on 07.12.1995 he unwillingly signed on a plain paper on coercion by Principal and another person and on 14.12.1995, he went on leave by leaving an application for leave and headquarter leaving permission in the Office of the Principal in his absence and on 14.12.1995, on his way at Bolpur, he sent a telegram to the Principal for recording his leave. Again on 23.12.1995, he requested for extension of his leave till 30.12.1995 by sending letter through Registered Post. Further, he states that due to continuance of illness of his mother, he extended his leave on 30.12.1995, 03.01.1996 & 23.01.1996 by sending letter through Registered Post and in the process he extended his leave till mid of February, 1996, but the petitioner only could produce a typed W.P.(C) No.651 of 2017 Page 16 of 19 letter under Annexure-6 stated to have been submitted by him without his signature and without any proof to have sent it to the authority nor could he produce any scrap of paper to evidence that he went on leave and extended such leave till mid of February, 1996. On the other hand, Annexure-8 to the writ petition discloses that with reference to the Secretary, C.T.S.A., Telegram and telegram confirmation letter No.4-20/93-CTSA-S-III dated 11.12.1995, the petitioner was relieved of his duty with effect from 07.12.1995. Further, Annexure-9 also discloses that in response to the Telegram No.1520 dated 10.09.1996 regarding extension of leave, the petitioner was communicated not to make unnecessary correspondence, especially when his service has been terminated vide HQ S Order No.F-4- 20/93-CTSA-SIII dated 11.12.1995. The above narration of facts quite reveal that the petitioner had remained absent from the school without any permission, but since the service of the petitioner was not confirmed and his service was purely on W.P.(C) No.651 of 2017 Page 17 of 19 temporary basis, the school authority terminated his service and relieved him from his duty which can neither be considered as illegal, arbitrary or unreasonable in the circumstance nor can it be considered as violative or contrary to the terms of appointment of the petitioner. 10. On wholesome analysis of the facts and order impugned in this writ petition which was passed by the Tribunal under Annexure-11, it appears to the Court that the Tribunal on analysis of facts and documents has rightly come to a conclusion that since the appointment of the petitioner is purely temporary and there is no order of confirmation, no fault can be found with the order of termination simplicitor as the authorities are not bound to assign reason for such termination, when it is followed by one month’s salary in lieu of notice which is the primary terms and conditions of the appointment. Thus, such finding being on proper appreciation of law and facts, this Court is reluctant to interfere with the order of the Tribunal. Consequently, no ground is W.P.(C) No.651 of 2017 Page 18 of 19 made out by the petitioner to grant any relief to the petitioner. 11. Resultantly, the writ petition being devoid of merit stands dismissed on contest, but no order as to costs. (G. SATAPATHY) JUDGE Dr. B.R.Sarangi, J. I Agree (DR. B.R. SARANGI) JUDGE Orissa High Court, Cuttack, Dated the 25th day of April, 2024/Kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 30-Apr-2024 10:35:54 W.P.(C) No.651 of 2017 Page 19 of 19