SHAJI P.A. v. KERALA STATE ELECTRICITY BOARD

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, ``` ``` 1945 ``` ## `WP(C) NO. 1788 OF 2015` ## `PETITIONER:` ``` SHAJI.P.A., AGED 44 YEARS LINE MAN, GRADE-1, ELECTRICAL SECTION, PATTIKKAD, THRISSUR. BY ADVS. SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH ``` ## `RESPONDENTS:` - `1 KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695001.` - `2 THE CHIEF ENGINEER (HRM), KSEB,VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695001.` - `3 THE EXECUTIVE ENGINEER ELECTRICAL DIVISION, KSEB, VYDYUTHI BHAVAN, THRISSUR EAST-638003.` ``` BY ADV SMT.ANEETHA A.G., SC, KERALA STATE ELECTRICITY BOARD LIMITED ``` ## `OTHER PRESENT:` ``` SRI KS ANIL, SC KSEB. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P(C).1788/2015 2 ## **P. V. KUNHIKRISHNAN, J.** ## **------------------------------------------W.P(C).No.1788 of 2015** ## **------------------------------------------Dated this the 27[th] day of February, 2024** ## **JUDGMENT** The petitioner was appointed on probation for six months period as Mazdoor in the 1[st] respondent/Board and he joined duty on 18.02.2005. According to the petitioner, he was eligible for 1[st] increment with effect from 01.02.2006 on completion of one year in service. It is also submitted that the petitioner was included in the promotion list to the cadre of Line Man Grate-II as serial no.127 by the proceedings of the Chief Engineer (HRM). But it is submitted that, neither increment was sanctioned nor was promotion effected for the non declaration of completion of probation because of a private complaint pending against the petitioner. It is submitted that a private complaint was filed before the Criminal Court against the petitioner and 4 others on 21.02.2001 and the same was committed for trial to the Sessions Court, Thrissur which ultimately W.P(C).1788/2015 3 ended in acquittal under section 232 of the Cr.P.C. It is further submitted that the police verification report was issued on 20.12.2010 based on which probation was declared to have been completed as on the date of receipt of the verification. Ext.P1 is the order. As per Ext.P1, the probation was declared with effect from 22.12.2010. According to the petitioner, the probation ought to have been declared with effect from 18.08.2005, which is the date on which the petitioner completed the probation period. The petitioner also submit that, since the period of probation of the petitioner was not extended, there is a deemed confirmation of the probation. The petitioner relied on the judgment of the Apex Court in **High Court of M.P Through Registrar and Others v. Satya Narayan Jhavar** _[2001 KHC 1154]_ . The petitioner also submitted that, as per the Standing Orders for Workmen which was framed in exercise of the powers conferred under section 15 of the Industrial Employment (Standing Orders) 1946, the Kerala State Electricity Board framed Standing Orders to regulate the working conditions of all workmen under the Board. It is submitted that, as per Regulation 5, the period of probation of workmen shall W.P(C).1788/2015 4 ordinarily be for a continuous period of six months within a period of one year and the same can be extended for another six months provided the total continuous period of probation shall not exceed one year. Hence it is submitted that the declaration of probation with effect from 22.12.2010 instead of 18.08.2005 is illegal. When the petitioner approached the 1[st] respondent/Board, the 1[st] respondent also rejected the same as per Ext.P6. Aggrieved by the same, this Writ Petition is filed with the following prayers: i] A writ of certiorari quashing Ext.P6 order issued by the 1st respondent. ii] Writ of Mandamus directing the respondents to declare the completion of probation of the petitioner in the post of Mazdoor with effect from 18.8.2005, the date of completion of 6 months probation period from the date of joining in the interest of justice. iii] Any other writ or order that this Hon. Court may deem fit. **==> picture [32 x 13] intentionally omitted <==** 2. This Court considered the contention of the petitioner and the respondent Board. The Apex Court in **High Court of** W.P(C).1788/2015 5 ## **M.P’s** case (supra) considered the deemed confirmation in service jurisprudence. It will be better to extract paragraph 11 of the judgment. ‘11. The question of deemed confirmation in service Jurisprudence, which is dependent upon language of the relevant service rules, has been subject matter of consideration before this Court times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. Other line of cases is that 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. The inference in such cases is that officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry order of termination has not been W.P(C).1788/2015 6 passed. The last line of cases is where though under the rules maximum period of probation is prescribed, but the same require a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor the person concerned has passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired.’ 3. Regulation No.5 of the Standing Orders for Workmen under the 1[st] respondent is also important. The same is also extracted hereunder. ## ‘5. PERIOD OF PROBATION The period of probation of workmen shall ordinarily be for a continuous period of six months within a period of one year. But the same may be extended for another six months provided the total continuous period of probation shall not exceed one year. The services of a workman on probation on fresh appointment to a permanent vacancy shall be terminated and a workman on probation in a promotion post shall be reverted to the original post or the period of probation extended in either case, at any time during or at the end of the W.P(C).1788/2015 7 period of probation, including the extended period, for sufficient reasons. While terminating the probation with an intent to relieve a probationer on fresh appointment and to revert a promoted workman, sufficient notice should be given asking him to show cause as to why his services shall not be terminated in the case of the former and in the case of the latter why he should not be reverted. A Workman's service shall be counted for all eligible benefits with effect from the date of his initial appointment on probation in case he is made permanent.’ 4. This Court perused Ext.P6. I am of the considered opinion that, Ext.P6 is not a speaking order. The 1[st] respondent has to reconsider the matter in the light of the decision of the Apex Court and also in the light of Regulation No.5 of the Standing Orders. Therefore this Writ Petition is disposed of with the following directions: a) Ext.P6 is set aside. b) The 1[st] respondent is directed to reconsider the matter, after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate W.P(C).1788/2015 8 within four months from the date of receipt of a copy of the judgment. c) While deciding the matter, the 1[st] respondent will also consider Regulation No.5 of the Standing orders for Workmen and also the dictum laid down by the Apex Court in **High Court of M.P Through Registrar and Others v. Satya Narayan Jhavar** _[2001 KHC 1154]._ Sd/- **P. V. KUNHIKRISHNAN JUDGE** Sbna/ W.P(C).1788/2015 9 APPENDIX OF WP(C) 1788/2015 ## PETITIONER EXHIBITS EXT.P1 TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT DATED 3.1.2011 EXT.P2 TRUE COPY OF THE REPRESENTATION DATED 1.4.2011 - EXT.P3 TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT DATED 17.10.2011 - EXT.P4 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 22.3.2012 - EXT.P5 TRUE COPY OF THE ORDER OF APPOINTMENT ISSUED BY THE DEPUTY CHIEF ENGINEER,ELEECTRICAL CIRCLE,THRISSUR DATED 14.2.2005 - EXT.P6 TRUE COPY OF THE ORDER DATED 4.7.2014 PASSED BY THE 1ST RESPONDENT.