SARADENDU.G EDATHUMPADICKAL v. UNION OF INDIA & ORS

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`FRIDAY, THE 8[TH] DAY OF SEPTEMBER 2023 / 17TH BHADRA, 1945`** ## **`WP(C) NO. 24350 OF 2016`** ## **`PETITIONER:`** ``` SARADENDU.G EDATHUMPADICKAL, THEKKEVILA P.O., KOLLAM 691 016. ``` ``` BY ADVS. SRI.K.JANARDHANA SHENOY V.K.PRASAD R.ROHITH V.N.RAJAPPAN ``` ## **`RESPONDENTS:`** ``` 1UNION OF INDIA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE, JEEVAN DEEP BUILDING, PARLIAMENT STREET, NEW DELHI 110 001. ``` ``` 2THE LIFE INSURANCE CORPORATION OF INDIA REPRESENTED BY ITS CHAIRMAN YOGAKSHEMA BUILDING, JEEVAN BIMA MARG, MUMBAI - 400 021. 3ZONAL MANAGER LIFE INSURANCE CORPORATION OF INDIA, SOUTHERN ZONE, LIC ZONAL OFFICE, LIC BUILDING, ANNASALAI, CHENNAI 600 002. ``` ``` 4THE SENIOR DIVISIONAL MANAGER, LIFE INSURANCE CORPORATION OF INDIA, DIVISIONAL OFFICE, JEEVAN PRAKASH, PATTOM, THIRUVANANTHAPURAM. ``` ``` 5BRANCH MANAGER LIFE INSURANCE CORPORATION OF INDIA CITY BRANCH OFFICE - 1, THIRUVANANTHAPURAM. ``` ``` 2 ``` ## **`WP(C) NO. 24350 OF 2016`** ``` BY ADVS. SHRI.M.L.SURESH KUMAR, CGC SRI.T.V.AJAYAKUMAR RIMJU P.H. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.08.2023, THE COURT ON 08.09.2023 DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 24350 OF 2016 ``` ``` 3 ``` ## **JUDGMENT** ## 1. Petitioner has approached this Court with the following prayers: - i) To call for the records leading to Exhibits P5 and P7 and quash the same by issuing a writ in the nature of certiorari; - ii) To declare that the termination of the petitioner effected vide Ext. P7 is unjust, illegal and arbitrary; - iii) To issue a writ in the nature of mandamus directing the respondents to reinstate the petitioner in service w.e.f. 28-05- 2016. - iv) To declare remit Rs. 25,000/- being liquidated damages is unjust, illegal and arbitrary. - v) To issue a writ in the nature of mandamus directing to pay the salary due to the petitioner for the month of May 2016 - vi) To issue a writ in the nature of mandamus directing the respondents to recalculate her stipend for the period of apprenticeship and salary for the period from 1-12-2013 in accordance with the corresponding revised scales as per the wage revision implemented in January, 2016 with retrospective effect from 01-082012 and pay the arrears due to the petitioner: - vii) Grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case including the costs of this writ petition” ``` WP(C) NO. 24350 OF 2016 ``` ``` 4 ``` 2. Vide order dated 27.05.2013 Ext.P1, petitioner was appointed as Apprentice Development Officer, Life Corporation of India in the City Branch, Thiruvananthapuram with effect from 01.06.2013. On completion of training as ADO, was appointed as Probationary Development Officer (hereinafter called ‘PDO’) on 01.12.2013 vide Ext.P2 with terms and conditions. As per Clause 2 of appointment letter, it was stipulated that the petitioner would be on probation initially for a period of twelve (12) months from the date of joining duty as probationer, but the Corporation, in its sole discretion, extended probation provisionally, provided that the total probation period including extended probation period “ **shall not”** exceed twenty four (24) months counted from the commencement of the probationary appointment. It was further made clear that during the period of probation or extended probationary period, shall liable to be discharged from the services of Corporation without any notice or cause. The initial period of probation of twelve months (12) months was completed on 30.11.2014 but the probation was extended for another period of six (6) months vide letter dated 01.12.2014 Ext.P3. When the ``` WP(C) NO. 24350 OF 2016 ``` ``` 5 ``` period of six (6) months expired on 31.05.2015, probation period was again extended vide letter dated 01.06.2015 Ext.P4 ie., total period of probation was twenty four (24) months. Petitioner received a communication from the Senior Divisional Manager that she would be considered for confirmation on the basis of performance during the probation period from 01.12.2014 to 30.11.2015 as per letter dated 02.11.2015 Ext.P5, making it clear that until the final decision was received, would be considered to be on probation. 3. Vide letter dated 28.05.2016 Ext.P7 Senior Divisional Manager terminated the service of the petitioner on the ground of non-achievement of minimum business norms required to be completed and directed to remit sum of Rs.25,000/- (Rupees Twenty Five Thousand only) as liquidated damages in cash. 4. Learned counsel appearing on behalf of the petitioner contended that the maximum period of probation was twenty four (24) months. Petitioner completed twenty four (24) months probation and any further extension was not possible. Ext.P7 order made a reference to a letter dated 01.12.2015, though not ``` WP(C) NO. 24350 OF 2016 ``` ``` 6 ``` received, revealed that the probation for the third time was extended which could not have been done in terms of condition of Clause 2 as well as Section 2 of Life Insurance Corporation of India (Staff) Regulation, 1960, envisaging that the probation shall not exceed maximum period of two (2) years. Thus the petitioner, for all intends and purposes, was deemed to have been confirmed in terms of the judgment of the Constitution Bench of Supreme Court in **State of Punjab** v. **Dharam Singh** [AIR 1968 SC 1210]. 5. Though after the aforementioned judgment, there had been a ponderance upon the terms and conditions of the appointment letter and Rules/Regulations governing the probation holding that in the absence of any Rules and Regulations, there cannot be automatic/deemed confirmation in the absence of stipulation in the relevant Rules. Since the Rules and the appointment letter purely postulated a negative Clause that it will not exceed two (2) months, the ratio decidendi culled out in the judgment in **Durgabai Deshmukh Memorial Senior Secondary School and Others** v. **J.A.J. Vasu Sena and Others** [2019 (17) SCC 157] would not be applicable as the aforementioned judgment ``` WP(C) NO. 24350 OF 2016 ``` ``` 7 ``` was based upon reading of the plain and simple/unambiguous language of Rule 105 of Delhi School Education Rules, 1973. In the aforementioned judgment, the Supreme Court after considering the case law on the point by noticing all the judgments rendered on this point including the **State of Punjab** v. **Dharam Singh,** culled out the principle that continuation of service of probation beyond a maximum period of probation would amount to deemed confirmation of service only in the absence of stipulation in the relevant Rules requiring the probationer to pass a test or fulfill any other condition. Rule 105 of the Delhi School Education Rules stipulated the satisfaction of the appointment authority as a condition precedent. The expression “shall not exceed' was also in the appointment letter of the employee in **Dharam singh‘s case** as in the case of present case. Noticing the aforementioned that the appointing authority did not pass the formal orders of confirmation in writing, it was held that it should have been presumed to be passed orders of confirmation by allowing the petitioner to continue after a period of two (2) years ie., twenty four (24) months. The Rules specifically provided that the period of ``` WP(C) NO. 24350 OF 2016 ``` ``` 8 ``` probation shall not be extended and therefore Rules cannot be interpreted in a different manner as has been held in **Durgabai Deshmukh** . 6. On the contrary, learned counsel appearing on behalf of the contesting respondent also relied upon the ratio decidendi culled out in **Durgabai Deshmukh** (supra). It was contended that no doubt the appointment letter Ex.P2 specifically stated that the total probation period including the extended probation period shall not exceed twenty four (24) months, but the fact remains the petitioner could not satisfactorily complete the probation during the normal period of probation of two (2) years. Accordingly, the probation was extended twice for giving an opportunity to achieve required target, but unfortunately petitioner could not achieve target during the extended period of probation. In such circumstances, respondent could have terminated her probation on the expiry of period of probation, but in order to improve her performance and complete her probation satisfactorily, was given another opportunity by 2[nd] respondent though not provided under Ext.P8 Regulations. ``` WP(C) NO. 24350 OF 2016 ``` ``` 9 ``` 7. Despite having extended the probation for a third time, target allotted could not be achieved, her service was considered on a probation and therefore cannot take the benefit of deemed confirmation as there has to be a specific order of confirmation. The contents of letter Ext.P5 that until receipt of the final decision in the matter, would be considered on probation, would relate that there has to be specific confirmation order, thus urged this Court for dismissal of the writ petition. 8. I have heard the learned counsel for the parties and appraised the paper book. 9. The point for consideration before this Court is (i) whether the continuous service of probation by appointing authority beyond the maximum permissible period of probation constitute a violation of law. (ii) Whether in the absence of any stipulation in the relevant Rules like the one in **Dharam Singh‘s case** (supra), there would be a deemed confirmation or not and the termination without holding the enquiry would be justified or otherwise. 10. To answer the aforementioned questions, it would be ``` WP(C) NO. 24350 OF 2016 ``` ``` 10 ``` necessary for this Court to extract relevant provisions of the appointment letter and Regulations: ## **Clause 2 and 11 of appointment letter** ## **PROBATIONARY PERIOD:** You shall be on probation initially for a period of twelve months from the date of your joining duties as a probationer, but the Corporation may, in its sole discretion, extend your probationary period, provided that the total probationary period including the extended probationary period shall not exceed 24 months counted from the commencement of the probationary appointment. During the probationary period (which includes extended probationary period, if applicable) you shall be liable to be discharged from the services of the Corporation without any notice and without any cause being assigned. ## **11.CONFIRMATION AND INCREMENTS:** I) On your satisfactorily completing the period of probation and your observance and compliance with all conditions set out in this letter of appointment. You will be confirmed in the services of the Corporation in Class II. Your confirmation will depend, inter alia, upon the fulfillment of the minimum business requirements set out in para 10 above and upon your record of post-sales services to the Corporation's policyholders and other functions performed by you in the area allotted to you to the satisfaction of the Competent Authority. ``` WP(C) NO. 24350 OF 2016 ``` ``` 11 ``` ii) The grant of increments to you shall be governed by the targets assigned to you as per this appointment letter read with Regulation 56 of LIC of India (Staff) Regulations, 1960 and such other rules as amended from time to time. ## **Section 2 of Staff Regulations 1960** Probation: - (i) Persons appointed to posts belonging to Classes I & II shall on the first appointment in the Corporation's service be required to be on probation for a period of one year from the date of appointment. - (2) Persons appointed to posts belonging to Classes III & IV shall on the first appointment in the Corporation's - service, be required to be on probation for 6 months. - (3) Subject to the provisions of any law for the time being in force the appointing authority may, at its discretion, dispense with reduce or extend the probationary period but in no case shall the total period of probation exceed - (a) In case of employees belonging to Classes 1 & II Two years - (b) In other cases One year **Provided that the period of probation shall not be reduced of more than the period of training of an employee, falling under Clause (b) subsequent to his selection for appointment to the service of the Corporation. ``` WP(C) NO. 24350 OF 2016 ``` ``` 12 ``` - (4) During the period of probation an employee shall be liable to be discharged from service without any notice. 11. On perusal of aforementioned terms and conditions of the appointment letter as well as Section 2, it has been clearly deciphered that the period of probation “ **shall not”** exceed maximum period of two (2) months. The same very Clause also existed in the appointment letter as well as Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961, envisages such condition. The said condition extracted in **Dharam Singh‘s** **case** reads as under: “6(1). Members of the Service, officiating or to be promoted against permanent posts, shall be on probation in the first instance for one year. (2) Officiating service shall be reckoned as period spent on probation, but no member who has officiated in any appointment for one year shall be entitled to be confirmed unless he is appointed against a permanent vacancy. (3) On the completion of the period of probation the authority competent to make appointment may confirm the member in his appointment or if his work or conduct during the period of probation has been in his opinion unsatisfactory he may dispense with his services or may extend his period of probation by such period as he may deem fit or revert him ``` WP(C) NO. 24350 OF 2016 ``` ``` 13 ``` to his former post if he was promoted from some lower post: Provided that the total period of probation including extensions, if any, shall not exceed three years. (4) Service spent on deputation to a corresponding or higher post may be allowed to count towards the period of probation, if there is a permanent vacancy against which such member can be confirmed. 12. After **Dharam Singh‘s case** the question of deemed confirmation arose on different occasions ie., in **Deputy Director of Education** v. **Veena Sharma** [(2010) 175 DLT 311 (DB)], **High Court of MP** v. **Satya Narayan Jhavar** [(2001) 7 SCC 161], **Kedar Nath Bahi** v. **State of Punjab** [(1974) 3 SCC 21], **Head Master, Lawrence School, Lovedale** v. **Jayanthi Raghu** [(2012) 4 SCC 793] . All the judgments were considered as late as in **Durgabai Deshmukh** (supra). Noticing all aforementioned conditions including the **Dharam Singh,** and by noticing the provisions of Rule 105 (1) of the Delhi School Education Rules, 1973, it was held in **Durgabai Deshmukh** (supra) that on expiry of period of probation, appointing authority is required by law either to confirm the service of the probationer or terminate the ``` WP(C) NO. 24350 OF 2016 ``` ``` 14 ``` service. The continuation of services of a probationer by appointing authority under Rule 105 of 1973 Rules beyond the maximum permissible period of probation, though may constitute a violation of law, but there is no provision for deemed confirmation at the best the conduct of management may result in some other consequences. In paragraph 41 by noticing the ratio decidendi culled out in **Dharamsingh** (supra), it was observed as under: **41.** The High Court relied on the Constitution Bench judgment of this Court in **Dharam Singh** to hold that upon the expiry of the probationary period, the first Respondent is deemed to be confirmed in service. In **Dharam Singh** this Court interpreted Rule 620 of the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961. The Rules stipulated that the period of probation shall be one year and the total period of probation shall not exceed three years, The Court granted relief to the claimants as their services were continued beyond three years and the relevant Rules and the appointment letter did not stipulate the issuance of any order of confirmation. The Court held thus. **9** . Immediately upon completion of the extended period of probation on October 1, 1960, the appointing authority could dispense with the services of the Respondents if their work or conduct during the period of probation was in the opinion of the authority unsatisfactory. Instead of dispensing with their services on completion of the extended period of probation, ``` WP(C) NO. 24350 OF 2016 ``` ``` 15 ``` the authority continued them in their posts until sometime 1963) and allowed them to draw annual increments of salary including "the increment which fell due on October 1, 1962. **The Rules did not require them to pass any test or to fulfil any other condition before confirmation.** There was no compelling reason for dispensing with their services and reemploying them as temporary employees on October 1, 1960, and the High Court rightly refused to draw the inference that they were so discharged from services and reemployed. In these circumstances, the High Court rightly held that the Respondents must be deemed to have been confirmed in their posts. **Though the appointing authority did not pass formal orders of confirmation in writing, it should be presumed to have passed orders of confirmation by so allowing them to continue in their posts after October 1, 1960.** In **Dharam Singh,** the Constitution Bench held that the continuation of the services of a probationer beyond the maximum period of probation would amount to a deemed confirmation of service **only in** the absence of a stipulation in the relevant Rule requiring the probationer to pass a test or fulfill any other condition. In the present case, Rule 105(2) stipulates the satisfaction of the appointing authority as a condition precedent to the issuance of an order of confirmation. The High Court has thus failed to notice the distinguishing features wich emerge from the judgment of this Court in Dharam Singh.” 13. In all other judgments, there were no stipulation in the ``` WP(C) NO. 24350 OF 2016 ``` ``` 16 ``` Rules or appointment letter that the period of probation will be curtailed for a period of two (2) months. However, the expression 'shall not' was also similar in Rule 6 of the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961, extracted above. The condition of 'shall not exceed three (3) years' as contained in the Rule 6 of the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961 is para materia to the Clause 2 and Section 2 of the appointment letter and the Regulations. No doubt, Clause 11 of the appointment letter extracted above clearly specified that the petitioner will be confirmed in services of operation in Class II which would depend upon fulfillment of minimum business required set out in paragraph 10 ie., minimum business of Rs.14,75,813/- (Rupees fourteen lakhs seventy five thousand eight hundred and thirteen only). In the instant case, the period of appointment was on 01.12.2013 period of twelve (12) months ie., one year expired on 30.11.2012 and by granting two (2) extensions of six-six months, the total period of twenty (24) months expired on 30.11.2015. 14. The termination letter dated 28.05.2016 Ext.P7 is ``` WP(C) NO. 24350 OF 2016 ``` ``` 17 ``` worthwhile to mention. The relevant portion of the same reads as under: “This is further to our letter dated 01.12.2015, extending your probation for the 3rd time, ie.from 1.12.2014 to 31.05.2015, 01.06.2015 to 30.11.2015 and 01.12.2015 to 31.3.2016) wherein the business norms required to be fulfilled by you were informed to you. Your attention is also invited to our earlier communications, reminding you about non fulfillment of business norms. It is noted that you have not achieved the minimum business norms required to be completed by you as stated in para 10 of the letter dated 30.11.2013 putting you on probation. The business performance as on 31.3.2016 is as follows. |NORMS|TARGET|ACHIEVEMENT| |---|---|---| |NOP|300|556| |Agents to be recruited|15|15| |SFYPI Required|**|1049892.40(COST<br>RATIO-30.95%)| ****(During the probationary period you shall secure through the agents recruited at your instance minimum completed life business yielding a Scheduled First Year Premium Income not less than an amount to come within the applicable cost ratio. (applicable cost ratio for B class city is 20% and for C class city is 21% ) provided, however, that in case the pay and/or allowance admissible to you, under Clause I** ``` WP(C) NO. 24350 OF 2016 ``` ``` 18 ``` **(mentioned in your probationary appointment letter) are increased during the period, the minimum business and the premium income which you should secure shall be increased proportionately)** As you have not fulfilled the business norms, the competent authority has decided to terminate your services with the Corporation with effect from 28.05.2016. As per the indemnity bond executed by you, kindly remit Rs.25,000/- as liquidated damages at cash counter by cash only.” 15. In the aforementioned letter, even after expiry of two (2) yearss there is a reference to further extension from 01.12.2015 to 31.03.2016 ie., another period of six (6) months ie., the third time. However, the said copy of the letter has not seen in the light of the day either through pleadings in the writ or through counter affidavit. There could not have been a third extension as stipulated in appointment letter and Regulations. Similar condition was there in the case of **Dharam Singh** as noticed above, where while noticing the facts, it was held that respondent ie., the Government therein, allowed the employee to continue even beyond the period of two (2) years and did not pass termination order. In other words, could have passed the formal ``` WP(C) NO. 24350 OF 2016 ``` ``` 19 ``` orders of confirmation in writing and in the absence of the same, there is a presumption of orders of confirmation by allowing the petitioner to continue after 30.11.2015. Thus the ratio decidendi culled out in **Durgabai Deshmukh** based upon the interpretation of Regulation 105 of 1973 would not be applicable to the facts and circumstances of the case, but the ratio in **Dharam Singh** would be applicable. 15. As an upshot of my findings, the termination order in the absence of any charge sheet or enquiry would not be sustainable. Question raised is answered in favour of the petitioner. The termination order Ext.P7 is quashed. Writ petition is allowed. Respondents are directed to pay salary due to the petitioner considering her to be deemed to be in service and also consequential benefits, as, at the time of filing the writ petition petitioner was thirty three (33) years of age, but now would have been 40 years, within a period of two months from the receipt of certified copy of the order. ## **Sd/-** **AMIT RAWAL** nak **JUDGE** ``` WP(C) NO. 24350 OF 2016 ``` ``` 20 ``` ## **`APPENDIX OF WP(C) 24350/2016`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1 ``` ``` A COPY OF THE APPOINTMENT ORDER DATED 27/5/2016 ISSUED BY THE 4TH RESPONDENT SENIOR DIVISIONAL MANAGER ``` - `EXHIBIT P2 A COPY OF THE LETTER OF APPOINTMENT AS PROBATIONARY DEVELOPMENT OFFICER` - `EXHIBIT P3 A COPY OF THE LETTER DATED 1/12/2014 ISSUED BY THE 4TH RESPONDENT` - `EXHIBIT P4 A COPY OF THE LETTER DATED 1/6/2015 ISSUED BY THE 4TH RESPONDENT` ``` EXHIBIT P5A COPY OF LETTER DATED 2/11/2015 ISSUED BY THE 4TH RESPONDENT ``` - `EXHIBIT P6 A TRUE COPY OF THE LIST DATED 20/1/2016` ``` EXHIBIT P7A TRUE COPY OF THE LETTER DATED 28/5/2016 ISSUED BY THE 4TH RESPONDENT ``` ``` EXHIBIT P8A COPY OF THE RELEVANT PAGES OF LIFE INSURANCE CORPORATION OF INDIA (STAFF) REGULATIONS 1960. ``` ``` EXHIBIT P9A TRUE COPY OF THE INDEMNITY BOND EXECUTED BETWEEN THE PETITIONER AND THE 1ST RESPONDENT LIC. ```