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TMI Blog1998 (3) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... 983 he was allowed to cross the Efficiency Bar. It is the contention of the respondent that initially the work of the appellant was good but subsequently his work and performance deteriorated as a result of which the Corporation had to suffer losses. The appellant was given several warnings but his performance did not improve. At the meeting of the Board of Directors of the respondent- Corporation held on 8th of February, 1985, the entire service record of the appellant together with the report of the Managing Director was placed before the Board. After perusing the report and the service record of the appellant, the Board took a decision to terminate the services of the appellant. This decision was confirmed at the next meeting of the Board of Directors held on 31st of March, 1985. Thereupon, an order dated 31st of March, 1985 was issued terminating the services of the appellant. The order stated that the appellant was discharged from the service of the Corporation with immediate effect and that in lieu of three months' notice he will be paid three months pay. The pay for three months was deposited in the account of the appellant by the respondents. From 31st of March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y appointed or promoted to any post in the Corporation shall be deemed to have become a confirmed employee in that grade after he has successfully completed the period of probation. A confirmed employee may be discharged from the service of the corporation under the orders of the competent authority on three months notice or by giving 3 months salary in lieu thereof. The competent authority for purposes of this Rule will be the next higher level than the appointing authority for that category of post. The competent authority on getting a recommendation from the appointing authority for the discharge of a confirmed employee with reasons therefore, may give an opportunity to the employee concerned for explaining himself before coming to a decision. This provision in the Rules should obviously be sparingly and discreetly used only top weed out inefficient employees who is spite of a number of warnings and admonition have failed to correct themselves or employees who are in the opinion of the Board of Directors or the Managing Directors as the case may be not suitable for continued employment of the Corporation. The discharge shall be only on grounds of continued inefficiency or dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority for purposes of this Rule will be next higher level than the appointing authority for that category of post. The competent authority of getting a recommendation from the appointing authority for the discharge of a confirmed employee with reasons thereof, may give an opportunity to the employee concerned for explaining himself before coming to a decision. This provision in the Rule should obviously be sparingly and discreetly used only to weed out inefficient employees who in spite of a number of warnings and admonition have failed to correct themselves or employees who are in the opinion of the Board of Directors or the Managing Directors, as the case may be, not suitable for continued employment of the Corporation. The discharge shall be only on grounds of continued inefficiency or dishonesty, serious dereliction of duty or conviction by a court involving moral turpitude and is not be considered as a punishment under the disciplinary proceedings. ........................ The appellant was appointed on probation as Divisional Manager on 10.1.1978. The letter of appointment mentioned that his probation was for a period of one year. under the earlier Service Rules th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant worked on regular basis, is significant because it shows the end of the probationary period of one year from the date of hi appointment on 10.1.1978. The respondent- Corporation, therefore, did not contend before the High Court, however, has held that the appellant was a probationer on the basis of the Service Rule which was then in force. Whether an employee at the end of probationary period automatically gets confirmation in the post or whether an order of confirmation or any specific act on the part of the employer confirming the employee is necessary, will depend upon the provisions in the relevant Service Rules relating to probation and confirmation. There are broadly two sets of authorities of this Court dealing with this question. In those cases where the Rules provide for a maximum period of probation beyond which probation cannot be extended, this Court had held that at the end of the maximum probationary period there will be deemed confirmation of the employee unless Rules provide to the contrary. This is the line of cases starting with State of Punjab v. Dharam Singh (1968 [3] SCR 1), M.K. Agarwal v. Gurgaon Gramin Bank Ors. (1987) Supp. SCC 643), Om Prakash Mau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich one of us was a party) all these cases have been analysed and it has been held that where the Rules provide that the period of probation cannot be extended beyond the maximum period there will be a deemed confirmation at the end of the maximum probationary period unless there is anything to the contrary in the Rules. In the present case under the Service Rules in force at the time when the appellant was appointed on probation, there was no time-limit on the period up to which probation can be extended. The appointing authority was required to issue a certificate of the appellant having satisfactorily completed the period of probation. The provision relating to deemed confirmation would come into effect on his satisfactorily completing probationary period. From the affidavit filed by the respondent-Corporation as also looking to the report which was submitted by the Managing Director to the Board of Directors on 8.2.1985, it is clear that the appellant was considered by the respondents as having satisfactorily completed his period of probation on 9.1.1979, an d he was considered as a regular employee form 10.1.1979. In the affidavit of the respondent-Corporation before the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplaining himself before coming to a decision regarding his discharge. The Rule provides that the competent authority on getting a recommendation from the appointing authority for the discharge of a confirmed employee with reasons thereof, may give an opportunity to the employee concerned for explaining himself before coming to a decision. Although the word used is 'may', in the context it has to be construed as 'shall' so that the principles of natural justice are complied with when the principles of natural justice are complied with when the competent authority considers the question of discharge of an employee for reasons which are set out in the Rule. Even if one assumes that the earlier service Rules apply to the appellant, the earlier service Rules are also similar and they also require that the employee should be heard before taking a decision on the discharge of an employee. This was not done in the present case although very serious allegations were levelled against the appellant in the report of the Managing Director, and the appellant's conduct in respect of a number of contracts had been seriously questioned in the report. Apart from anything else, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the passing of he termination order dated 31st of March, 1985. No re-joinder affidavit has been filed. Taking all the facts and circumstances stated in the counter-affidavit, we are of opinion that the present case is not fit for granting any injunction. In the event of success of the writ petition, the petitioner will be entitled to salary for the period his services remain terminated. We reject the application and the interim order of stay dated 19.4.1985 is vacated . The appellant has thus not worked in the respondent- Corporation since the date of his termination. His salary upto to October, 1985 has been paid to him as directed by the High Court. The record which is before us does not show what the appellant has earned from October, 1985 upto date. But looking to the fact that he has not worked with the respondent-Corporation and that they stay order which enabled him to work in the Corporation had to be vacated on account of the appellant's conduct which shows that he was not desirous of working in the respondent's organisation, in the totality of circumstances of the present case, a monetary compesation of ₹ 2 lakhs would be adequate to compensate t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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