A. Pasayat, J.
1. Petitioner has prayed for a direction to the Mahanadi Coal Fields Ltd. (in short, 'MCL') to accept his resignation letter and release arrears due to him.
2. Factual position which is almost undisputed is as follows :
Petitioner completed M.B.B.S. in the year 1984 and completed M.S. in Orthopaedics in the year 1989. While serving in the Safdar Jang Hospital, New Delhi, he was selected by the M.C.L. for appointment as Medical Specialist of Orthopaedics in its Hospital, on 21.5.1993. Deputy Chief Personnel Manager issued an appointment letter requiring him to join as Medical Specialist of Orthopaedics in the Hospital of M.C.L. and to report for duty before the Chairman-cum-Managing Director, M.C.L. Bishop Compound, Sambalpur. Relevant terms of appointment letter read as follows :
'This offer of appointment is subject: to your acceptance the following terms and conditions :
1. This appointment will be on probation for a period of one year, which may be extended at the sole discretion of the Company. On successful completion of the probationary period of service and or receipt of a satisfactory report on your antecedents, you, may either be confirmed as a regular employee or allowed to continue in service as a temporary employee depending upon the availability or otherwise of a permanent post.
2. During the period of probation, including the extended period of probation, your services will be liable to termination without notice and without assigning any reason. Therefore, it will be liable to be terminated by giving one month's notice or salary in lieu thereof, for temporary employee, and three months' notice or salary in lieu thereof for regular employee who have been confirmed in writing'.
Petitioner actually joined on 13.10.1993 after getting extension of time for joining. On 8.8.1997, petitioner submitted his resignation to the Chairman-cum-Managing Director with a request to accept the same with effect from 8.8.1997. Petitioner enclosed bank draft of Rs. 1 1,649/- representing his one month's salary in lieu of notice. The C.G.M. (J.A.) forwarded the application to the G.N. (E.E.) for obtaining approval from the competent authority. It was mentioned therein that as per provisions of Para-15.3 of Chapter XV of Common Coal Cadre petitioner had submitted his resignation with a bank draft of Rs. 11,649/- representing one month's salary in lieu of one month's notice. Petitioner obtained a non-objection certificate from the authorities of M.C.L. for better engagement as per the advertisement published. It contained a stipulation that in case of selection, petitioner will be released only after one month's notice as per terms of the appointment order or one month's pay in lieu is paid. On 10.11.1997 and 17.12.1997 petitioner requested the Chairman-cum-Managing Director to accept his resignation letter so that he will be able to draw certain provident fund deposits, on 2.1.1998 the Chief Medical Officer intimated the petitioner that General Manager (E.E.), M.C.L., Sambalpur has requested him to deposit two months' more salary i.e. Rs. 23,298/- so that his resignation can be accepted. Petitioner submits that demand of two months' salary more is contrary to law.
3. In the counter affidavit filed, the M.C.L. has taken the stand that petitioner is a confirmed employee and therefore, payment of three months' salary is necessary. According to it, in terms of Clause 15(3) of the Common Coal Cadre, which provides that in case of a regular employee resignation can be submitted only by giving three months' notice or salary in lieu thereof, demand of two months' salary more is in order. Petitioner's stand on the contrary is that he is not a confirmed employee. According to him, confirmation can only be done in writing and not otherwise. Though it is fairly accepted by learned counsel for M.C.L. that confirmation is to be made by writing, it is submitted that petitioner was confirmed as he had worked for nearly four years and probation period was for one year which is over. It is stated that though confirmation was not communicated in writing, benefits of a confirmed employee were extended to petitioner. Reliance is placed on decisions of Apex Court in Dayaram Dayal v. State of MP and Anr. : AIR 1997 SC 3269 and The Chief General Manager, State Bank of India and Anr. v. Bijoy Kumar Mishra: 85 (1998) CLT 734 (SC) to contend that there can be deemed confirmation.
4. Certain conditions and terms of petitioner's appointment order and relevant clauses of Common Coal Cadre need to be noted. They are as follows :
Appointment order
'1. This appointment will be on probation for a period of one year which may be extended at the sole discretion of the Company. On successful completion of the probationary period of service and on receipt of a satisfactory report on your antecedents, you may either be confirmed as a regular employee or allowed to continue in service as a temporary employee depending upon the availability or otherwise of a permanent post.
2. During the period of probation, including the extended period of probation, your services will be liable to termination without notice and without assigning any reason. Therefore, it will be liable to be terminated by giving one month's notice or salary in lieu thereof, for temporary employee, and three months' notice or salary in lieu thereof for regular employee who have been confirmed in writing.
xx xx xx'Common Coal Cadre
Clause 13.2 (i) Confirmed employees-meaning those, whose services have been confirmed in writing with the approval of the competent authority.
(ii) Temporary employees-meaning those, who have been appointed for limited period and those who have not been confirmed in writing.'
'15. 3 - Resignation -
An employee may resign from the job by informing the appointing authority through his controlling officer in writing of his intention to do so. While no notice for resignation is required during the initial period of probation of his employment in the company, a temporary employee whose probation period has been closed will have to give at least one month's notice or salary in lieu thereof. In the case of the regular employees confirmed in writing, resignation can be submitted only by giving three months, notice or salary in lieu thereof.
The controlling officer will make necessary recommendation to the appointing authority for acceptance or otherwise of the resignation and the employee will be relieved from his duties only after he is communicated the acceptance of resignation in writing.
Provided that the management reserves the right not to accept the resignation of the executives against whom disciplinary proceedings are pending or a decision has been taken by the competent authority to issue a charge-sheet etc. against him/ her.
Before the resignation is accepted, necessary NO DEMAND CERTIFICATE should be obtained from the concerned accounts section and other areas/divisions/sections where the employee was working and/or whose properties were under his control.
In respect of an employee who has executed a bond and is undergoing training or serving the period obligatory under the bond, the terms of appointment and the bond will also have to be fulfilled before his resignation is accepted.'
5. An examination of the rulings of the Apex Court on the question of probation and confirmation shows that in some cases Apex Court has held that mere continuation beyond the period of probation does not amount to confirmation unless the order of appointment of the rule contains a deeming provision while in some other cases, it has been held that in certain exceptional situations, it is permissible to hold that the services must be deemed to be confirmed. There is no real conflict between the two sets of decisions and it depends on the conditions contained in the order of appointment and the relevant rules that are applicable.
6. One line of cases has held that if in the rule or order of appointment a period of probation is specified and a power to extend probation is also specified and the officer is continued beyond the prescribed period of probation, he cannot be deemed to be confirmed, and there is no bar on the power of termination of the officer after the expiry of the initial period of probation. In the case before a Constitution Bench of Apex Court in Sukhbans Singh v. State of Punjab : AIR 1962 SC 1711, Rule 22 of the relevant rules provided a period of probation and contained a provision for extension of probation, Rule 23 for termination during probation and Rule 24 for substantive appointment on completion of probation. It was held that 'a probationer cannot .....automatically acquire the status of a permanent member of a service. unless of course the rules under which he is appointed expressly provides for such a result. The rules governing the Provincial Civil Services of Punjab do not contain any provision whereby a probationer at the end of the probation period is automatically absorbed as a permanent member of the Civil Service.' At the end of the probation, he is merely qualified or eligible for substantive permanent appointment. Thus termination after expiry of initial period of probation was held not invalid. Another Constitution Bench followed the above judgment (vide) G.S. Ramaswamy v. I.G. of Police, Mysore : (AIR 1966 SC 175) to say that Rule 486 of the relevant Hyderabad Rules did not provide for automatic confirmation after 2 years of probation unless the officers 'have given satisfaction'. Similar was the position in the case before another Constitution Bench in State of UP v. Akbar Ali Khan : (1966) 3 SCR 821 : (AIR 1966 SC 1842). Here also the Apex Court held that on completion of 2 years of probation as per rules, the officer continued to be a probationer until an order of confirmation was passed. Sukhbans Singh's case (supra) was followed and it was stated that unless the order of appointment or the rule said that at the end of the probationary period, if no order was passed, the officer is to be deemed to have been confirmed, the officer continued to be on probation. The facts in Kedar Nath v. State of Punjab : (1974) 3 SCC 21 : (AIR 1972 SC 373) decided by a three Judge Bench are also similar and the earlier rulings set out above were followed. In Dhanjibhai Ramjibhai v. State of Gujarat (1985) 2 SCC 50 : (AIR 1985) SC 603), also the period of probation fixed under the Rules was two years and there was also provision for extension but no maximum was prescribed. The termination was after the expiry of the period of 2 years of probation. A three Judge Bench took the view that there could be no automatic confirmation at the end of two years and that the termination after 2 years was valid.
7. The other line of cases are those where while there is a provision in the rules for initial probation and extension thereof a maximum period for such extension is also provided beyond which it is not permissible to extend probation. Question as to its effect arose before the Constitution Bench in State of Punjab v. Dharmam Singh : (1968) 3 SCR I : (AIR 1968 SC 1210). The relevant rule there provided initially for one year probation and then for extension thereof subject to a maximum of three years. The petitioner in that case was on probation from 1.10.1957 for one year and was continued beyond the extended period of three years (in all four years) and terminated in 1963 without any departmental inquiry. A Constitution Bench of Apex Court referred Sukhbhan Singh; G.S. Ramaswamy and Akbar Ali's case (supra) and distinguished the same as cases where the rules did not provide for a maximum period of probation but that if the rule, as in the case before them provided for a maximum, then that was an implication that the officer was not in the position of a probationer after the expiry of the maximum period. The presumption of his continuing as a probationer was negatived by the fixation of a maximum time-limit for the extension of probation. The termination after expiry of four years, that is after the maximum period for which the probation could be extended was held to be invalid. This view has been consistently followed in Om Prakash Maurya v. U.P.Co-op. Sugar Factories Federation : 1986 (Suppl.) SCC 95 : (AIR 1986 SC 1844) : M.K. Agarwal v. Gurgaon Gramin Bank : 1987 Supp. SCC 643 : (AIR 1988 SC 286) and State of Gujarat v. Akhilesh C. Bhargav (1987) 4 SCC 482 : (AIR 1987 SC 2135) which are all cases in which a maximum period for extension of probation was prescribed and termination after expiry of the said period was held to be invalid inasmuch as the officer must be deemed to have been confirmed.
8. The decision of the Constitution Bench in State of Punjab v. Dharam Singh : (AIR 1968 SC 1210) was accepted by the Seven Judge Bench in Samsher Singh v. State of Punjab : (1974) 2 SCC 83) : (AIR 1974 SC 2192). However, it was distinguished on account of a further special provision in the relevant rules applicable in Samsher Singh's case (supra). The rule there provided for an initial period of 2 years of probation and for a further period of one year as the maximum. One of the officers, Ishwar Chand Agarwal in that case completed the initial period of 2 years on 11.11.1967 and the maximum on 11.11.1968, and after completion of total 3 years his services were terminated on 15.12.1969. But still Dharam Singh's case was not applied because the Rules contained a special provision for continuation of the probation even beyond the maximum of 3 years. The Explanation to Rule 7 (1) stated that the period of probation shall be deemed extended if a Subordinate Judge is not confirmed on the expiry of his period of probation. The Apex Court held that this provision applied to the extended period of probation. It observed :
'This explanation in the present case does not mean that the implied extension of the probationary period is only between two or three years. The explanation on the contrary means that the provisions regarding the maximum period of probation of three years is directory and not mandatory unlike in Dharm Singh's case : (AIR 1968 SC 1210) and that a probationer is not in fact confirmed till an order of confirmation is made.'
Thus, Samsher Singh's case while it accepted Dharam Singh's case, it still not covered by that case because of the special Explanation which clearly deemed the probation as continuing the maximum period of probation as long as no confirmation order was passed.
9. Similarly, the case in Municipal Corporation, Raipur v. Ashok Kumar Mishra : (1991) 3 SCC 325: (1991 AIR SCW 1241) accepted Dharam Singh's case (supra) and the cases which followed it but distinguished that line of cases on account of another special provision in the rules. There the relevant rule provided for a maximum of one year for the extended period of probation but there was a Note under Rule 8 (2) of the Madhya Pradesh Govt. Servants' General Conditions of Service Rules, 1961 : Rule 8 (2) of the Rules and the Note read :
'8 (2) the appointing authority may, for sufficient reasons, extend the period of probation by a further period not exceeding one year.
Note - A probationer whose period of probation is not extended under this sub-rule, but who has neither been confirmed nor discharged from service at the end of the period of probation shall be deemed to have been continued in service, subject to the condition of his service being terminable on the expiry of a notice of one calendar month given in writing by either side.'
It was held by Apex Court as follows :
'Under the Note to Sub-rule (2) if the probationer is neither confirmed nor discharged from service at the end of the period of probation, he shall be deemed to have been continued in service as probationer subject to the condition if his services being terminated on the expiry of a notice of one calendar month given in writing by either side.'
The consequence of the Note was explained further as follows :
'As per Sub-rule (6), on passing the prescribed departmental examination and on successful completion of the period of probation, the probationer shall be confirmed in the service or post to which he has been appointed. Then he becomes an approved probationer. Therefore, after the expiry of the period of probation and before its confirmation, he would be deemed to have been continued in service as a probationer. Confirmation or probation would be subject to satisfactory completion of probation or to pass in the prescribed examination. Expiry of the period of probation therefore, does not entitle him with a right of deemed confirmation. The rule contemplates to pass an express order of confirmation in that regard. By issue of notice of one calendar month in writing by either side, the tenure could be put an end, which was done in this case.'
It is clear that the Apex Court distinguished Dharam Singh, Om Prakash Maurya, M. K. Agarwal and Akhilesh Bhargava's case (supra) because of the Note under Rule 8(2), even though Rule itself provided a maximum of one year for extension of probation.
10. Thus, even though the maximum period for extension could lead to an indication that the officer is deemed to be confirmed, still special provisions in such rules could negative such an intention.
The position was reiterated in Dayaram Dayal's case (supra).
11. Even on a bare reading of decisions referred to above, it is apparent that statutory provisions which were under consideration in those cases were conceptually and contextually different. In Chief General Manager's case (supra) maximum period of probation was provided and on expiry thereof if an employee continued, deemed confirmation is inferable. Reference to Dayaram Dayal's case (supra) has been made in that context. But in the present case, as terms of appointment clearly indicated that even after expiry of probation period, an employee can be continued in service as a temporary employee. Period of such temporary engagement is not limited. That being the position, stand of the opp. parties that there was deemed confirmation is not acceptable. Manner in which confirmation has to be done is clearly laid down and it has to be in writing. That also is the ratio in Dayaram Dayal's case (supra). The stand that though there was no written confirmation, by conduct the M.C.L. had confirmed service is clearly contrary to requirements and cannot be accepted. In that view of the matter, the authorities were not justified in demanding three months' salary in lieu of notice. Offer of one month's salary which has been done is in conformity with the requirement. The opposite parties are directed to issue acceptance of resignation letter within three weeks from today.
The writ application is allowed, but in the peculiar circumstances of the case, there shall be no order as to costs.
P.C. Naik, J.
I agree.