S K Pattanayak v. Ministry of Railways & Ors

judgment read as under: "7. 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 therefrom. In substance, Dharam Singh [AIR 1968 SC 1210 : (1968) 3 SCR 1] 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 the 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 deemed to have been confirmed; but where the maximum period of

probation is provided in the Service 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 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 confirmation on the post. This inference is drawn from the conduct of the employer which is consistent only with the fact of confirmation of the 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 period of probation.

¶8It is obvious that the decision in Dharam Singh [AIR 1968 SC 1210 : (1968) 3 SCR 1] 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 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 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 [AIR 1968 SC 1210 : (1968) 3 SCR 1] is not existent. In our opinion, this discussion alone is sufficient to indicate that the High Court has misread Dharam

Singh [AIR 1968 SC 1210 : (1968) 3 SCR 1] 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.

¶10There 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 situation from the employer's conduct of continuing to take work from the employee after that period."

¶45This Court has carefully gone through the aforesaid judgment. In the present case there was no order of confirmation issued at any point in time and within a period of 30 days proposal was initiated in respect of the Petitioner for non-confirmation. The Petitioner was not cleared from the vigilance angle and finally complaint forwarded by the CVC was investigated by Vigilance Directorate of the Ministry. Even proposal was sent to PESB and DoPT on 06.04.2018 for deferment of confirmation process of the Officer for a period of 3 months. Not only this, the CVC on

05.06.2018 advised initiation of major penalty proceedings and also advised on 07.06.2018 to withdraw sensitive work from the Appellant. Finally, the DoPT conveyed approval for ACC for the premature termination of the Appellant on the post of MD, IRFC with immediate effect and consequential orders were issued on 26.07.2018. A relieving order was also issued on

26.07.2018. Furthermore, The Appellant has also attained the age of superannuation.

¶46Therefore, in view of the aforesaid circumstances, the judgment relied upon in the case of Chief G.M., State Bank of India v. Bijoy Kumar

Mishra, (1997) 7 SCC 550 does not help the Appellant in any manner. Accordingly, the Court does not find any reason to interfere with the order passed by the Respondents as well as the order passed by the Learned Single Judge.

¶47In view of the aforesaid, the present LPA stands dismissed.

SATISH CHANDRA SHARMA, CJ

SANJEEV NARULA, J. OCTOBER 11, 2023 aks

* IN THE HIGH COURT OF DELHI AT NEW DELHI + Date of Decision: 11.10.2023 % LPA 541/2019 and CM APPL. 37728/2019 & CM APPL. 8208/2020 S K PATTANAYAK ..... Appellant Through: Mr. Sudarshan Rajan and Mr. Hitain Bajaj, Advocates. versus MINISTRY OF RAILWAYS & ORS ..... Respondent Through: Ms. Bharathi Raju, SPC for UOI. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJEEV NARULA SATISH CHANDRA SHARMA, CJ. (ORAL) 1. The present LPA is arising out of the judgment dated 01.07.2019 passed by the Learned Single Judge in W. P. (C) 8310/2018 titled as "S.K. Pattanayak v. Ministry of Railways and Ors." by which the services of the Petitioner/Appellant as Managing Director (MD) (Tenure appointment for five years) were put to an end. It is pertinent to mention herein that the Appellant, in the present case has already attained the age of superannuation. 2. The facts of the case as revealed from the record states that the Appellant after completing his Post Graduation (PG) in Applied Geology was appointed as a Scientist in the Cement Research Institute, Ballabhgarh, Haryana in June 1985. Subsequently, he has worked as a Geologist with the Oil & Natural Gas Commission ("ONGC"), West Bengal from June 1986 to August 1989, and later on was selected as a Group "A" Officer of Indian Railways Accounts Services after clearing Civil Services Examination, 1989. The Appellant after his appointment was posted on probation training up to August, 1991. During the period he was regularly promoted and rose from the Rank of Junior Accounts Officer to FA & CAO (equivalent to a Joint Secretary in Government of India) in Railways. 3. Thereafter, the Appellant joined Heavy Engineering Corporation Ltd., Ranchi as Director (Finance) after his selection by the Public Enterprises Selection Board ("PESB"). The Appellant was later on selected as Managing Director ("MD") on 09.03.2017 in Indian Railways Finance Corporation Ltd. ("IRFC") by the PESB and his terms and conditions were detailed in order dated 16.05.2017. 4. The Appellant"s contention is that as per the terms and condition of his appointment order, he was appointed for a period of five years with effect from 09.03.2017 and the appointment order also included that the appellant"s services may be terminated during this period by giving three months notice or on payment of three months salary in lieu of notice by other side. 5. The Appellant further stated that he completed one year of his service on the said post on 08.03.2018 and as per the guidelines of PESB and DOPT OM he was a deemed confirmed employee on the post of MD. The record further reveals that the Appellant/ Petitioner has made an attempt to establish that his performance was unblemished and excellent, the Corporation saw unprecedented growth during his tenure. 6. The Appellant/ Petitioner further stated that despite having completed one period required for deemed confirmation to post of MD he was not still not confirmed formally. Instead of confirmation, the Appellant got wind that the Ministry was contemplating proposal for non-confirmation of Appellant. Accordingly, the Appellant submitted a representation on 05.06.2018 to the Cabinet Secretary on the issue of his non-confirmation. However, the Ministry took a decision on 27.06.2018 divesting the Appellant of all powers of the MD of IRFC with immediate effect. Thereafter, charge-sheet was also issued against the Appellant on 16.07.2018 under Rule 25 of the Indian Railway Finance Corporation Ltd. (Conduct, Discipline &Appeal) Rules, 2008. 7. The Appellant after receiving the Charge-sheet again filed a representation on 23.07.2018 to the Cabinet Secretary protesting against the order divesting him of the charge of MD. The Appellant also denied all the charges leveled against him and submitted a reply on 25.07.2018, however, by an order dated 26.07.2018, the Ministry approved and communicated the decision to prematurely terminate the Appellant with immediate effect. 8. The Appellant befor