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Chief General Manager, State Bank Of India And Another v. Bijoy Kumar Mishra .
Factual and Procedural Background
Bijoy Kumar Mishra was appointed as a Probationary Officer in the State Bank of India (SBI) by order dated 24-10-1980 and joined duty on 15-12-1980. Although his two-year probation commenced on that date, he remained unauthorisedly absent from 2-4-1981, last attending work in the first week of August 1983. During the absence he forwarded a medical certificate dated 26-5-1984 but did not resume duty and later pursued an M.Phil. course (1986-87) without permission. No contact with the Bank occurred between May 1984 and 1988. As the maximum permissible probation (two years plus a possible one-year extension) expired on 14-12-1983, SBI issued an order terminating his services on 4-10-1988.
Mishra challenged the termination through a writ petition under Article 226 before the Orissa High Court. The High Court held that, because SBI had taken no action under paragraph 16(3) of the State Bank of India Officers (Determination of Terms and Conditions of Service) Order, 1979, Mishra should be deemed confirmed on completion of three years’ probation and consequently quashed the termination on 19-11-1991, directing reinstatement with full benefits. SBI obtained special-leave to appeal to the Supreme Court.
Legal Issues Presented
- Whether, under the 1979 Service Order, an employee who was unauthorisedly absent can be deemed to have been confirmed on completion of the maximum probationary period without any express order of confirmation.
Arguments of the Parties
Respondent’s Arguments
- Relying on paragraph 16(3) of the 1979 Service Order and the Constitution Bench decision in State of Punjab v. Dharam Singh, the respondent contended that because no order terminating or extending probation was issued before 14-12-1983, he stood automatically confirmed on that date; consequently the 1988 termination was illegal.
Appellant’s Arguments
The opinion does not contain a detailed account of the appellant’s legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Punjab v. Dharam Singh, AIR 1968 SC 1210 | An employee allowed to continue beyond the maximum probationary period without express order may be deemed confirmed, provided the employer permits such continuance. | Distinguished; the Court held Dharam Singh inapplicable because Mishra was absent and was not permitted to work after the maximum period, eliminating the factual basis for deemed confirmation. |
| Kedar Nath Bahl v. State of Punjab, (1974) 3 SCC 21 | No automatic confirmation where rules prescribe no maximum probation. | Cited to reinforce that automatic confirmation depends on the structure of the service rules. |
| Samsher Singh v. State of Punjab, (1974) 2 SCC 831 | Deemed confirmation flows from the employer’s act of allowing service beyond the maximum probation; the maximum-period clause is directory. | Used to explain that confirmation by implication requires the employer’s conscious continuance of the employee after the probationary ceiling. |
| Municipal Corporation, Raipur v. Ashok Kumar Misra, (1991) 3 SCC 325 | Effect of service rules permitting continuance without extension or confirmation. | Held distinguishable because the SBI rules did not contain a parallel provision. |
| Jai Kishan v. Commissioner of Police, 1995 Supp (3) SCC 364 | Referenced in the judgment; precise principle not elaborated. | Court noted that it does not override the Constitution Bench law on probation. |
| State of Punjab v. Baldev Singh Khosla, (1996) 9 SCC 190 | Referenced; principle not detailed in the opinion. | Similarly acknowledged as not altering the governing Constitution Bench precedent. |
Court's Reasoning and Analysis
The Supreme Court examined paragraphs 15 and 16 of the 1979 Service Order. Paragraph 15(1) prescribes a two-year probation for direct recruits, and paragraph 16(2) allows a one-year extension, capping probation at three years. Paragraph 16(1) conditions confirmation on the competent authority’s satisfaction regarding training and tests; paragraph 16(3) provides for termination during probation.
Invoking Dharam Singh, the High Court had presumed confirmation. The Supreme Court clarified that Dharam Singh draws an inference of confirmation only when the employer, by positive conduct, permits the employee to work after the maximum probation period, making such continuance “consistent only with confirmation.” Because Mishra was absent well before—and after—the three-year mark, SBI never faced the choice of allowing him to continue working. Therefore, the factual premise necessary to imply confirmation was absent.
The Court further cited Samsher Singh to underscore that deemed confirmation hinges on employer conduct, and noted that subsequent two-Judge decisions cannot override the Constitution Bench rulings. As Mishra was not working and SBI did not permit continuance, no implication of confirmation could arise; consequently the High Court’s interpretation was legally untenable.
Holding and Implications
APPEAL ALLOWED; HIGH COURT JUDGMENT SET ASIDE.
The termination order dated 4-10-1988 stands restored, and the respondent is not entitled to reinstatement or consequential benefits. The decision re-affirms the established principle that deemed confirmation requires the employer’s active continuation of service beyond the probationary ceiling; it sets no new precedent but clarifies the application of existing Constitution Bench authority to cases involving prolonged unauthorised absence.
Verma, C.J— The respondent, Bijoy Kumar Mishra was appointed as a Probationary Officer in the State Bank of India and posted at Jharsuguda 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 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. 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 resume his duties on the date of his certificate. Even then he did not report for duty. The respondent joined M.Phil course in the Punjab University at Chandigarh in 1986-87 without permission. In these circumstances, the Bank issued an order dated 4-10-1988 terminating his service.
2. The respondent filed a writ petition under Article 226 of the Constitution of India in the 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. 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 the 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.
3. 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 and 16 of the State Bank of India Officers (Determination of Terms and Conditions of Service) Order, 1979, which are as under:
“Probation
15. (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 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 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 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 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 (1) or if the officer has not passed the test referred to 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:
(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.”
4. The respondent being directly appointed as Probationary Officer, the period of his probation was two years according to sub-paragraph (1) of paragraph 15. The confirmation is provided in paragraph 16. Sub-paragraph (1) 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 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+1 years, i.e, 3 years. Sub-paragraph (3) provides for termination of the service of a direct appointee 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 and 16 particularly sub-paragraph (1) 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.
5. 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 14-12-1983, 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 reading of these provisions?
6. 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 AIR 1968 SC 1210, (1968) 3 SCR 1 (SCR at p. 4) in support of its conclusion. We would presently show that this is not a correct reading of the decisions of this Court including Dharam Singh AIR 1968 SC 1210, (1968) 3 SCR 1. The Constitution Bench held in Dharam Singh AIR 1968 SC 1210, (1968) 3 SCR 1 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 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 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 not possible to hold that he should be deemed to have been confirmed. … In all these 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.
In the present case, Rule 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 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 probationary period beyond the maximum period fixed by it. In such a case, it is permissible to 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.”
(emphasis supplied)
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.
8. It 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.
9. In Kedar Nath Bahl v. State of Punjab (1974) 3 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 (1974) 2 SCC 831 (SCC at p. 853) held that the provision regarding the maximum period of probation was directory and not mandatory and the decision in Dharam Singh AIR 1968 SC 1210, (1968) 3 SCR 1 was construed as under: (SCC para 70)
“70. … In Dharam Singh case AIR 1968 SC 1210, (1968) 3 SCR 1 he was allowed to continue without an order of confirmation and therefore the only possible view in the absence of anything to the contrary in the Service Rules was that by necessary implication he must be regarded as having been confirmed.”
10. 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 situation from the employer's conduct of continuing to take work from the employee after that period.
11. The decision by a two-Judge Bench in Municipal Corpn. v. Ashok Kumar Misra (1991) 3 SCC 325, (1991) 16 ATC 927 is distinguishable. In that case, the 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.
12. No separate discussion of Jai Kishan v. Commr. of Police 1995 Supp (3) SCC 364, (1995) 31 ATC 148 and State of Punjab v. Baldev Singh Khosla (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 AIR 1968 SC 1210, (1968) 3 SCR 1 and Samsher Singh (1974) 2 SCC 831 as indicated above, those decisions cannot be treated as authorities for a proposition inconsistent 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 confined the respondent's case to the reading of the Constitution Bench decision in Dharam Singh AIR 1968 SC 1210, (1968) 3 SCR 1. As we have already indicated Dharam Singh AIR 1968 SC 1210, (1968) 3 SCR 1 does not support the respondent's contention.
13. Consequently, this appeal is allowed and the impugned judgment of the High Court is set aside.
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