Head Master,Lawrence School,Lovedale vs Jayanthi Raghu & Anr

by the Division Bench on the foundation that the order of termination did not cast any stigma, but concurred with the ultimate conclusion on the base that she was a confirmed employee and hence, holding of disciplinary enquiry before passing an order of termination was imperative, the present appeal by special leave has been preferred under Article 136 of the Constitution of India.

3. The factual matrix lies in a narrow compass. The first respondent herein was appointed on the post of a Mistress with effect from 01.09.1993. It was stipulated in the letter of appointment that she would be on probation for a period of two years which may be extended for another one year, if necessary.

In November 1995, while she was working as a Mistress in the appellant's school, as alleged, she had received some amount from one Nathan. A meeting was convened on 09.09.1997 and in the proceeding, certain facts were recorded which need not be adverted to inasmuch as the said allegations though treated stigmatic by the learned Single Judge, yet the Division Bench, on a studied scrutiny of the factual scenario, has opined in 3 categorical terms that the same do not cast any stigma. The said

4. To proceed with the narration, after the proceeding was recorded on 18.06.1997, an order of termination was passed against the first respondent. As has been stated earlier, the order of termination was assailed before the Writ Court and the learned Single Judge axed the order on the ground that the same was stigmatic in nature. The order passed by the learned Single Judge was challenged in Writ Appeal under Clause 15 of the Letters Patent by the present appellant and at that juncture, a contention was canvassed by the first respondent that by virtue of the language employed in Rule 4.9 of the Rules of Lawrence School, Lovedale (Nilgiris) (for short, `the Rules'), she had earned the status of a confirmed employee having satisfactorily completed the period of probation and, therefore, her services could not have been dispensed with without holding an enquiry.

In essence, the proponement was that she was deemed to have been a confirmed employee of the school and hence, it was 4 obligatory on the part of the employer to hold an enquiry before putting an end to her services.

12. In State of Uttar Pradesh v. Akbar Ali Khan4, another Constitution Bench ruled that if the order of appointment itself states that at the end of the period of probation, in the absence of any order to the contrary, the appointee will acquire a substantive right to the post even without an order of confirmation. In all other cases, in the absence of such an order or in the absence of such a service rule, an express order of confirmation is necessary to give him such a right. Where after the period of probation, an appointee is allowed to continue in the post without an order of confirmation, the only possible view to take is that by implication, the period of probation has been extended, and it is not a correct proposition to state that an appointee should be deemed to be confirmed from the mere fact that he is allowed to continue after the end of the period of probation.

including extensions, if any, shall not exceed three years. This Court referred to the earlier view which had consistently stated that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation, he should be deemed to continue in his post as a probationer only in the absence of any indication to the contrary in the original order of appointment or promotion or the service rules. Under these circumstances, an express order of confirmation is imperative to give the employee a substantive right to the post and from the mere fact that he is allowed to continue in the post after the expiry of the specified period of probation, it is difficult to hold that he should be deemed to have been confirmed. When the service rules fixed a certain period of time beyond which the probationary period cannot be extended and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he 13 cannot be deemed to continue in that post as a probationer by implication. It is so as such an implication is specifically -

Thus, the irresistible conclusion is that the present case would squarely fall in the last line of cases as has been enumerated in paragraph 11 of Satya Narayan Jhaver (supra) and, therefore, the principle of deemed confirmation is not attracted.

24. In the result, the appeal is allowed and the judgment and order passed by the High Court are set aside to the extent that 24 the first respondent had acquired the status of confirmed employee and, therefore, holding of enquiry is imperative. As far as the conclusion recorded by the Division Bench that no stigma was cast on the respondent is concerned, the same having gone

unchallenged, the order in that regard is not disturbed. The parties shall bear their respective costs.

March 16, 2012.

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