Case Note & Summary
The dispute arose from the termination of services of a probationary officer by the State Bank of India. The respondent, Bijoy Kumar Mishra, was appointed as a Probationary Officer and posted at Jharsuguda Branch on 24.10.1980, joining duty on 15.12.1980. He remained unauthorizedly absent from 2.4.1981, with his last presence in the first week of August 1983, and thereafter was absent until 1988. Under the applicable service rules, the maximum period of probation was three years, which expired on 14.12.1983 while the respondent was absent. Despite submitting a medical certificate dated 26.5.1984 stating he was fit to resume duty, the respondent did not report. He also joined an M.Phil. course at Punjab University in 1986-87 without permission. The Bank issued a termination order dated 4.10.1988. The respondent challenged this order in the Orissa High Court under Article 226 of the Constitution. The High Court held that since no action under Paragraph 16(3) of the service rules was taken before the expiry of the maximum probation period, the respondent must be deemed confirmed, and quashed the termination with a direction to reinstate with all consequential benefits. The Bank appealed to the Supreme Court by special leave. The core legal issue was whether a probationer who remained absent from duty before and after the expiry of the maximum probation period could be deemed confirmed without a specific order of confirmation. The relevant provisions were Paragraphs 15 and 16 of the State Bank of India Officers (Determination of Terms & Conditions of Service) Order, 1979. Paragraph 15(1) prescribed two years probation for direct recruits; Paragraph 16(2) allowed extension up to one year, making a maximum of three years. Paragraph 16(1) required satisfaction of the competent authority and passing of tests for confirmation; Paragraph 16(3) allowed termination during probation. The respondent argued that on expiry of three years on 14.12.1983, absence of termination order led to deemed confirmation, relying on State of Punjab v. Dharam Singh. The Bank countered that deemed confirmation arises only from the employer's conduct of allowing the employee to continue working, which was absent due to the respondent's unauthorized absence. The Supreme Court analyzed the Constitution Bench decision in Dharam Singh, which held that where service rules fix a maximum period of probation and the employee is allowed to continue after that period without an express order of confirmation, an inference of confirmed status arises. However, the Court clarified that this inference is drawn from the employer's positive act of permitting continued service. In the present case, the respondent was absent from duty much before the expiry of probation and remained absent thereafter, so there was no occasion for the employer to allow him to continue working. The Court also referred to subsequent decisions in Kedar Nath Bahl, Samsher Singh, Municipal Corporation Raipur, and others, reiterating that automatic confirmation is not permissible without such employer conduct. The Court concluded that the High Court misread Dharam Singh and that the respondent could not be deemed confirmed. Accordingly, the appeal was allowed and the termination order upheld.
Headnote
A) Service Law - Probation and Confirmation - Deemed Confirmation - State Bank of India Officers (Determination of Terms & Conditions of Service) Order, 1979, Paragraphs 15 and 16 - A probationer who remained unauthorizedly absent from duty before and after the expiry of the maximum permissible probation period cannot claim deemed confirmation on the ground that no termination order was issued before expiry. The Court held that deemed confirmation is inferred from the employer's positive conduct of allowing the employee to continue working after the maximum probation period; the employee's absence precludes such conduct. Held, the High Court erred in holding deemed confirmation. B) Service Law - Precedent - Interpretation of State of Punjab v. Dharam Singh - Constitution Bench decision in State of Punjab v. Dharam Singh, [1968] 3 SCR 1 - The principle of deemed confirmation in Dharam Singh applies only where the employer allowed the employee to continue in service after the maximum probation period, implying confirmation. It has no application when the employee is absent from duty and not working on the post. Held, the respondent could not rely on Dharam Singh. C) Service Law - Subsequent Precedents - Samsher Singh v. State of Punjab - (1974) 2 SCC 831 - The seven-Judge Bench in Samsher Singh clarified that deemed confirmation in Dharam Singh was based on the employee being allowed to continue without confirmation. Deemed confirmation requires the employer's continuation of service; decisions in Kedar Nath Bahl, Municipal Corporation Raipur, etc., do not support automatic confirmation absent such conduct. Held, no automatic confirmation.
Issue of Consideration
Whether a probationer who remained unauthorizedly absent from duty before expiry of the maximum permissible probation period can be deemed to have been confirmed in service without an order of confirmation under the relevant Service Rules.
Final Decision
The Supreme Court held that the respondent could not be deemed to have been confirmed because he was absent from duty and there was no employer conduct permitting continuation of service; the High Court misread State of Punjab v. Dharam Singh. The appeal was allowed, the High Court's order quashing termination was set aside, and the termination order dated 4.10.1988 was upheld.
Law Points
- Deemed confirmation requires positive employer conduct of allowing continuation in service after maximum probation period
- unauthorized absence before and after expiry of probation precludes deemed confirmation
- State of Punjab v. Dharam Singh distinguishable
- High Court misapplied Dharam Singh
- Paragraphs 15 and 16 of State Bank of India Officers Service Order interpreted
