S. B. Sinha, J. - (1.) Leave granted.
(2.) Appellant was a major in the Army. He joined the Respondent Municipal Corporation (the Corporation) as a Vigilance Officer on or about 21.12.1999. He was put on probation for a period of six months. The power to appoint on a temporary basis is conferred on the Municipal Commissioner under the 2nd proviso appended to Section 53(3) of the Bombay Provincial Municipal Corporation Act, 1949 (BPMC Act). The period of probation provided for therein is six months. It reads as under: "Save as otherwise provided in this Act, the power of appointing municipal officers and servants whether permanent or temporary vests in the Commissioner : Provided that such power in respect of permanent appointments shall be subject to the statement for the time being in force prepared and sanctioned under Section 51: Provided further that no temporary appointment shall be made by the Commissioner for any period exceeding six months and no such appointment carrying a monthly salary exceeding such amount as may be fixed in this behalf, by a general or special order, from time to time by the State Government in the case of each Corporation shall be renewed by the Commissioner on the expiry of the said period of six months without the previous sanction of the Standing Committee."
(3.) Although there does not exist any statutory provision in this behalf, the probation period was extended from time to time. At the first instance, it was extended by an order dated 4.7.2000 upto 31.12.2000 and yet again upto 31.12.2001 by an order dated 07.01.2001. The period of probation was yet again extended till 31.12.2002 by an order dated 31.02.2002. No further order of extension of probation was passed. Appellant continued to function as a Vigilance Officer. He, however, allegedly informed his superior officer that he had been suffering from some illness. He applied for leave. He proceeded on leave on and from 3.2.2003. The period of leave, however, expired. He did not join as allegedly he continued to suffer from the ailments. He telephonically informed his officer for extension of leave. He was, however, served with a show cause notice on or about 22.03.2003 asking him to show cause as to why his services should not be terminated for alleged misconduct of remaining absent from duty without prior leave. The show cause notice reads as under : "You were assigned various duties of importance requiring expeditious attention. It is the primary responsibility of a vigilance officer to keep vigil and investigate and report, however, in your case you have gone on long leave and your absence has created stagnation and when such stagnation cannot be tolerated in public utility services when work has to be completed in a particular time frame. You had been on leave from 3.2.2003 to 6.2.2003 for a period of 4 days and you ought to have reported on 7.2.2003, however, till date you have not reported for duty. You have not given any oral or written intimation till date, you are absent from 7.2.2003 till today. Such long absence in such an important assignment cannot be confessed. There is also breach of condition No.4/6 of the appointment order dated 22.12.1999. Also there has been negligence, carelessness in discharge of your duties and on evaluation it is found that you have shown absolute disregards towards your duties. Therefore, why should you not be discharged from service in accordance with Section 56(2) of BPMC Act, 1949 after office hours on 31.3.2003. This final notice is given to you as and the reply within 7 days from require thereof. If it is not so that it will be presumed that you do not want to submit any reply.";