DAHYABHAI MANGALPUR GOSAI Vs. CANTONMENT BOARD AHMEDABAD

JUDGEMENT

(1.) This Letters Patent is directed against the order of the learned Single Judge Special Civil Application No 3006 of 1981. The petitioner in the Special Civil Application is the appellant in this Letters Patent Appeal. We prefer to refer to the parties as per their array in the Special Application

(2.) The petitioner by an order dated 12-5-1978 was inducted into the services of the respondents and he was placed on probation for a period of two years with effect from 23-5-1978 As per the terms of the order the period of probation would lapse at the end of 23-5-1980. But we find as per the affidavit-in-reply filed on behalf of the respondents in the Special Civil Application there was a Resolution bearing No. 10 dated 17 under which the probation period of the petitioner was extended upto 15-6-1980. There had been no further extension of the period of probation According to the respondents they noticed a number of irregularities with regard to the working of the Cantonment Board by its staff and the case of the petitioner was considered by the Cantonment Board on receipt of the Special Audit Report and on 23-5-1981 a notice was issued to the petitioner as per the provisions of Rule 8 of the Cantonment Fund Servants Rules 1937 (hereinafter referred to as the Rules). The petitioner gave the reply Being dissatisfied with the reply given by order dated 17-7-1981 the service of the petitioner were discharged All these happened obviously after the lapse of the extended period of probation on 15-6-1980. The petitioner put the action of the respondents in discharging him in issue in the Special Civil Application. It must be noted that the petitioner put forth a case that he was in fact confirmed by an office order bearing No. 212 dated 21 The learned Single Judge who dealt with the Special Civil Application found that the respondents have seriously disputed the genuineness of this Office Order and they allege that it is downright forgery and in view of this the learned Single Judge opining that serious disputed questions of facts have arisen and this Court is not the proper forum to deal with the dispute rejected the Special Civil Application. There was an alternative plea put forth by the petitioner that his period of probation not having had been further extended and no action to discharge him having had been taken before the lapse of he period of probation he must be deemed to have been confirmed. The learned Single Judge did not go into this alternative plea As already noted this Letters Patent Appeal is directed against the order of the learned Single Judge.

(3.) We heard Miss Kusum M Shah learned Counsel for the petitioner the appellant herein. She would not press forth the theory of confirmation built by her client on the Office Order No. 212 dated 21 and would concentrate on the alternative plea apparently built on Rule 6 of the Rules specifically taken in the pleadings to say that since before the lapse of the extended period of probation on 15-6-1980 the petitioner not having had been discharged and there having had been no further extension of the period of probation her client must be deemed to have been confirmed by implication and hence it is not possible to invoke Rules 8(2) of the Rules which would be available only in the case of discharge either during or at the end of the period of probation. In this behalf Miss Kusum M. Shah learned Counsel for the petitioner would place reliance on the pronouncement of the Supreme Court in Om Prakash Maurya v. Co-operative Sugar Factories Federation Lucknow and Others AIR 1986 SC 1844. The principle countenanced in the said pronouncement we find comes to the aid of the petitioners case as advanced by his learned Counsel. In that case there was a consideration of Regulations 17 & 18 of U. P. Co-operative Societies Employees Service Regulations and taking note of the fact that the Regulations prescribe the maximum period of probation and further they do not expressly lay down as to what would be the status of an employee on the expiry of the maximum period of probation where no order of confirmation is issued the Supreme Court held that the necessary result would be after the maximum period of probation the employee would stand confirmed by implication. The relevant proposition deducible from the pronouncement runs thus