Holding

Deemed confirmation is permissible only when the employer’s conduct positively allows the employee to continue in post after the maximum probation period; absent such conduct, the employee is not deemed confirmed.

Summary

Bijoy Kumar Mishra was appointed as a probationary officer of the State Bank of India in October 1980. He remained unauthorisedly absent from duty from April 1981 and, after a brief appearance in August 1983, was absent until 1988. The bank’s service rules fixed a maximum probation period of three years, which expired in December 1983 while Mishra was absent. The bank terminated his service in October 1988. The Orissa High Court quashed the termination, holding that Mishra was deemed to have been confirmed after the expiry of the probation period. The Supreme Court allowed the appeal, ruling that deemed confirmation can arise only when the employer’s conduct positively permits the employee to continue in post after the maximum probation period; such conduct was absent here, so the termination was valid. The Court set aside the High Court’s order and upheld the bank’s termination.

Issues considered

Whether an employee who is unauthorisedly absent during and after the maximum period of probation can be deemed to have been confirmed in service without an express order of confirmation.

Legislation cited

Constitution of Indias. Article 226

Subjects

probationdeemed confirmationtermination of serviceservice rulesState Bank of Indiaunauthorised absenceemployment law

Judgment

A THE CHIEF GENERAL MANAGER,
ST ATE BANK OF INDIA AND ANR.
v.
SHRI BIJOY KUMAR MISHRA

SEPTEMBER 24, 1997
B
[J.S. VERMA, CJ. AND B.N. KIRPAL, J.]

Service /aw-Probationer-Termination of Service-Continuation of
C probationer in service beyond the maximum period of probation fixed by the
rules without any express order of confirmation-Whether amounts to deemed
confirmation-Reid, deemed confirmation is permissible only when it follows
from positive act of the employers permilling employee to continue to work
even after completion ofmaximum period ofprobation-Probationer remaining
absent from duty for a long time during the period of probation as also
D thereafter-There was no occasion for the employer-Bank to allow him to
continue to work after completion of his probation period-Hence, termination
of his service held valid-State Bank of India Officers (Determination of
Terms and Conditions of Services) Order, 1979-Paras 15 and I 6.

The respondent was appointed as a Probationery Officer in a Bank on
B 24-10-1980. He joined duty on 15-12-1980 and his period of probation
commenced from that date. The respondent unauthorisedly remained absent
from duty from 2-4-1981 for a long period and the last date of his presence
on duty was in the first week of August 1983. Thereafter, he was absent till
the year 1988.
F
The maximum period of probation under the Service Rules was three
years, which expired in his case on 14-12-1983, when he was admittedly absent
from duty. From May 1984 to 1988 he was not even in touch with the Bank.
Hence, on 4-10-1988, the Bank issued an order of termination of his service.

G The respondent filed a Writ Petition, challenging the 'lrder of
termination. The High Court quashed the termination order on the ground
that on the expiry of the maximum permissible period of probation, the
respondent was deemed to have been confirmed on the post. Hence, this appeal.

Allowing the appeal, this Court
H 214
C.G.M.S.B.I. v. B.K. MISHRA 215
HELD: 1.1 The deemed confirmation is inferred from the employer's A
conduct and is permissible only when it follows from the positive act of the
employer permitting the employee to contin.ue to work on the post even after
completion of the maximum period of probation permitted under the Service
Rules. [221-B]
B
State of Punjab v. Dharam Singh, (19681 3 SCR 1, explained and
distinguished and Municipal Corporation, Raipur v. Ashok Kumar Mishra,
[1991) 3 sec 325, distinguished.

Samsher Singh v. State of Punjab and Anr., [1974] 2 SCC 831, relied
on. c
Kedar Nath Bahl v. State of Punjab, [1974] SCC 21; Jai Kishan v.
Commissioner ofPolice and Anr., [1995) Supp. 3 SCC 364 and State of Punjab
v. Baldev Singh Khosla, [1996] 9 SCC 190, referred to.
D
1.2. The continuance in employment after the. maximum period of
probation is consistent only with confirmation, and that follows from the
employer's conduct of permitting the employee to continue to work on that
post after the maximum period of probation. The employee in the present case
was absent from duty from a date much prior to the expiry of the maximum
period of probation and remained absent even thereafter for a long time. There E
was no occasion for the employer to allow the employee/respondent to continue
to work on the post after the expiry of the maximum period of the probation
because he was absent and was not working on the post at the time of the
expiry of the period of probation. There was no such conduct of the employer,
permitting respondent to continue in service and as such there is no foundation F
for argument of deemed confirmation. [220-C-E)
..
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2633 of 1992.

From the Judgment and Order dated 19.11.91 of the Orissa High Court G
in O.J.C. No. 4075 of 1988.

H.N. Salve, Sanjay Kapur, Rajiv Kapur, Nikhil Sakhardande and M.K.
Michael for the Appellants.

K.K. Venugopal, Sanjay Moni Tripathi and Ms. Rani Jethmalani for the H
216 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A Respondent.

The Judgement of the Court was delivered by

VERMA, CJI. The respo!ident, Bijoy Kumar Mishra was appointed as
a probationary Officer in the State Bank of India and posted at Jharsuguda
B Branch in Bhubaneswar circle by an order dated 24.10.1980. The respondent
joined duty on 15.12.1980 and his period of probation commenced from that
date. The respondent remained unauthorisedly absent from duty from 2.4.1981
for a long period and the last date of his presence on duty was in the first
week of August 1983. Thereafter, he was absent till the year 1988. The
C maximum permissible period of probation under the Service Rules was three
years which expired in his case on 14.12.1983, when he was admittedly absent
from duty. From May 1984 to 1988, he was not even in touch with the Bank.
The respondent submitted a medical certificate dated 26.5.1984 that he was
suffering from viral infection from 6.2.1984 to 26.5.1984 and that he was fit to
D resume his duties on the date of his certificate. Even then he did not report
for duty. The respondent joined M. Phil. Course in Punjab University at
Chandigarh in 1986-87 without permission. In these circumstances, the Bank
issued an order dated 4.10.1988 terminating his service.

The respondent filed a writ petition under Article 226 of the Constitution
E ,,f indi;; in tl1e Orissa High Court challenging the termination order. The High
Court has taken the view that it shall be presumed that the competent authority
had confirmed the petitioner after 24.10.1983 as no action contemplated by
paragraph 16(3) of the relevant Service Rules had been taken. In short, the
High Court has held that on expiry of the maximum permissible period of
probation, the respondent was deemed to have been confirmed on the post.
F On this basis, by the impugned order dated 19 .11.1991, the termination order
dated 4.10.1988 has been quashed and a direction given to reinstate t~e
respondent in service with all consequential benefits with permission to the
Bank to proceed against the petitioner in accordance with law. Hence this
appeal by special leave.
G
The only question for consideration is whether in the facts and
circumstances of the case, the respondent can be deemed to have been
confirmed without any order of confirmation during his unauthorised absence
from duty under the relevant Service Rules. The relevant provisions are
Paragraphs 15 & 16 of the State Bank oflndia officers (Determination of Terms
H & Conditions of Service) order 1979, which are as under:
C.G.M.s.B:I. v. B.K. MISHRA [VERMA, CJ.] 217
"Probation A
IS (1) A person appointed as a probationary Officer or a Trainee
Officer shall be on probation for a period of two years.

(2) Any other employee of the Bank promoted as an officer to the
Junior Management Grade shall be on probation for a period of one B
year.

(3) Any other person appointed to any grade including junior
management grade shall be on probation for such period as may be
decided by the competent authority.

Provided that the competent authority may, in the case of any C
officer, reduce or dispense with the period of probation. "

"Confirmation

16 (1) An officer referred in paragraph 15 shall be confirmed in the
service of the Bank, if, in the opinion of the competent authority, the D
officer has satisfactorily completed the training in any institution to
which the officer may have been deputed for training, and the in-
service training in the Bank.

· Provided that an officer directly recruited to the junior management
grade may be required also to pass a test in a language. other than E
his mother tongue.

(2) If, in the opinion of the competent authority, an officer has not
satisfactorily completed either or both the trainings referred to in sub-
paragraph (I) or if the officer has not passed the test referred to F
therein or an officer's service is not satisfactory, the officer's probation
may be extended by a further period not exceeding one year.

(3) where during the period of probation, including the period of
extension, if any, the competent authority is of the opinion that the
officer is not fit for confirmation :
G
(a) in the case of a direct appointee, his services may be terminated
by one month's notice or payment of one month's emoluments
in lieu thereof, and
(b) in the case of a promotee from the Bank's service, he may be
reverted to the grade or cadre from which he was promoted." H
218 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A The respondent being directly appointed as Probationary Officer, the
period of his probation was two years according to sub-paragraph (I) of
Paragraph 15. The confirmation is provided in paragraph 16. Sub-Paragraph
(I) of Paragraph 16 requires the satisfaction of the competent authority and
also the passing of the specified tests for confirmation in the service of the
B Bank. Sub-Paragraph (2) of Paragraph 16 provides for the officer's probation
to be extended by a further period not exceeding one year. If in the opinion
of the competent authority, the officer does not fulfil the requirement, he
cannot be confirmed. According to Paragraph 16 (2), the maximum period of
probation, read with Paragraph 15(1) cannot exceed 2+ I years, i.e., 3 years.
Sub-paragraph (3) provides for termination of the service of a direct appointee
C during the period of probation by one month's notice or payment of one
month's emoluments in lieu thereof and in the case of a promotee, his
reversion to the grade or cadre from which he was promoted. Thus, the
combined effect of Paragraphs 15 & 16 particularly sub-paragraph (I) of
paragraph 15 and sub Paragraph (2) of paragraph 16 is that the total period
of probation of a direct appointee cannot exceed three years.
D
The contention of the respondent which has been accepted by the High
Court is that on the expiry of the period of three years on 14.12.19~3, in the
absence of the termination order being issued before that date, the respondent
is deemed to have been confirmed. The question is whether this is a correct
E reading of these provisions?

The point for decision has to be answered on the basis of the earlier
decisions of this Court. The High Court has placed reliance on the decision
of this Court in State of Punjab v. Dharam Singh, [ 1968] 3 SCR I at p. 4, in
support of its conclusion. We would presently show that this is not a correct
p reading of the decisions of this Court including Dharam Singh.

The Constitution Bench held in Dharam Singh as under :

"This Court has consistently held 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
G 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. In such a case, an express order of
confirmation is necessary to give the employee a substantive right to
H the post, and from the mere fact that be is allowed to continue in the
C.G.M.S.B.l. v. B.K. MISHRA [VERMA, CJ.] 219
post after the expiry of the specified period of probation it is not A
possible to hold that he should be deemed to have been corifirmed .. .ln
all thes~ cases, the conditions of service of the employee permitted
extension of the probationary period for an indefinite time and there
was no service rule forbidding its extension beyond a certain maximum
period.
B
•
xxx xxx xxx xxx

In the present case, r. 6 (3) forbids extension of the period of
probation beyond three years. Where, as in the present case, the
service rules fix a certain period of time beyond which the probationary C
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 cannot be deemed to continue in that post
as a probationer by implication. The reason is that such an implication
is negatived by the service rule forbidding extension of the D
probationary period beyond the maximum period fixed by it.

In such a case, it is permissible io draw the inference that the
employee allowed to continue in the post on completion of the
maximum period of probation has been confirmed in the post by
implication. " E
r·
(Emphasis Supplied)

The above quoted last extract on which reliance was placed by the High
Court and on which emphasis was laid by Shri K.K. Venugopal, learned
counsel for the respondent has to be read in the context and not divorced F
therefrom. In substance, Dharam Singh held that where the Service Rules
permitted continuance in service as a probationer beyond a certain period, an
express order of confirmation is necessary to give the employee a substantive
right to post, and the mere fact that he is allowed to continue in the post after
the specified period of probation is not sufficient to hold that he should be G
deemed to have been confirmed; but where the maximum period of probation
is provided in the Se~ice Rules and the employee is allowed to continue in
that post after completion of the maximum period of probation without an
express order of confirmation, he must be deemed to have been confirmed in
the post by implication. It is significant that the effect of permitting the
employee to continue in the post even on completion of the maximum period H
220 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A of probation without an express order of confirmation results in the only
logical inference that he has been confirmed in the post by implication. In
other words, for drawing such inference, it is necessary that the employer
should allow the employee to continue on the post even after expiry of the
maximum period of probation which is consistent only with the fact of his
B confirmation on the post. This inference is drawn from the conduct of the
employer which is consistent only with the fact of confirmation employee. In
short, it is a rule of evidence applied to the facts of the case because the
continuance in employment after the maximum period of probation is consistent
only with the confirmation, and that follows from the employer's conduct of
permitting the employee to continue to work on that post after the maximum
C period of probation.

It is obvious that the decision in Dharam Singh can have no application
in a case where the employee was absent from duty from a date much prior
to the expiry of the maximum period of probation and remained absent even
thereafter for a long time. There was no. occasion in such a case for the
D employer to allow the employee (respondent) to continue to work on the post
after the expiry of the maximum period of probation because he was absent
and was not working on the post at the time of the expiry of the period of
probation. Deemed confirmation results from the conduct of the employer in
permitting continuance in service after the expiry of the maximum period of
E probation fixed by the rules. When there is no such conduct of the employer,
the very foundation for the argument of deemed confirmation and reliance on
Dharam Singh is not existent. In our opinion, this discussion alone is sufficient
to indicate that the High Court has misread Dharam Singh to grant relief to
the respondent. However, we may refer to some later decisions also to indicate
that this is the correct position in law.
F
In Kedar Nath Bahl v. State of Punjab, [1974] SCC 21, there was no
maximum period of probation prescribed in the rules and, therefore, it was held
that there could be no automatic confirmation. A Seven-Judge Bench in
Samsher Singh v. State of Punjab & Anr., [1974] 2 SCC 831 at p. 853, held
G that the provision regarding the maximum period of probation was directory
and not mandatory and the decision in Dharam Singh was construed as
under :

"In Dharam Singh's case he was allowed to continue without an order
of confirmation and therefore the only possible view in the absence
H of anything to the contrary in the Service Rules was that by necessary
C.G.M.S.B.I. v. B.K. MISHRA [VERMA, CJ.] 221

implication he must be regarded as having been confirmed." A
There can thus be no doubt that the deemed confirmation which is
inferred from the employer's conduct is permissible only when it follows from
the positive act of the employer permitting the employee to continue to work
on the post even after completion of the maximum period of probation permitted
under the Service Rules since no other inference is possible in such a B
situation from the employer's conduct of continuing to take work from the
employee after that period .

• The decision by Two-Judge Bench in Municipal Corporation, Raipur
v. Ashok Kumar Misra, (1991] 3 SCC 325, is distinguishable. In that case, the C
note under Clause (2) of Rule 8 permitted continuance in service without
extension of the probationary period or confirmation or discharge. from service
at the end of the period of probation.

No separate discussion of Jai Kishan v. Commissioner of Police &
Anr., [1995] Supp. 3 SCC 364 and State of Punjab v. Baldev Singh Khosla, D
(1996] 9 SCC 190, is called for. In view of the clear law laid down in the
Constitution Bench decision of this Court in Dharam Singh and Samsher
Singh as indicated above, those decisions cannot be treated as authorities
for a proposition in consistent with that laid down by the Constitution Bench.
It must be mentioned that Shri K.K. Venugopal, learned counsel for the
respondent, made no attempt to rely on any of these decisions and he E
confined the respondent's case to the reading of the Constitution Bench
decfsion in Dharam Singh. As we have already indicated Dharam Singh does
not support the respondent's contention.

Consequently, this appeal is allowed and the impugned judgment of the
High Court is set aside. F
B.K.S. Appeal allowed ..