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2004 DIGILAW 255 (ALL)

Chandan Lal Sahajwani v. Union of India(UOI)

2004-02-10

K.S.RAKHRA

body2004
JUDGMENT : K.S. RAKHRA, J. 1. This is a second appeal against the judgment and decree dated 18.3.1985 passed by the Additional District Judge, Lucknow allowing the Civil Appeal No. 200 of 1984 of the Respondent and setting aside the judgment and decree dated 6.2.1984 passed by the learned Tribunal Court in Regular Suit No. 368 of 1982. 2. I have heard Sri. L.P. Shukla advocate for the Appellant and Mohd. Arif Khan advocate for Respondent. 3. The Appellant was selected and appointed as Rakshak in R.P.F. in the year 1977. He was under probation which was to expire in June, 1980 but prior to that, he was issued a show cause notice on 22.8.1979 by the Respondent No. 3. After considering his reply, the probation of the Appellant was terminated on 5.9.1979 by the order of Respondent No. 3. The Appellant preferred a departmental appeal which was rejected by the Respondent No. 2 on 14.11.1979. The Appellant then, filed regular suit in the civil court, which was decreed but the decree has been reversed in appeal by the first Appellant court. The impugned order was passed by the Respondent No. 3 in purported exercise of powers conferred on him by Rule 25 of the Railway Protection Force Rules, 1959. Admittedly, the Appellant had also executed an agreement in the form in Appendix-A to the said Rules in accordance with Rule 23 of the said Rules. 4. The substantial question of law raised in this appeal are: (1) Whether during the period of probation, the Respondent No. 3 who was below the rank of Chief Security Officer but was admittedly, the appointing authority, could issue a show cause notice and take action against the Appellant in exercise of powers conferred under Rule 25 of the R.P.F. Rules, 1959 and could pass the order dated 5.9.1979 terminating the probation of the Appellant. (2) Whether in view of the terms of agreement executed by the Appellant under Rule 23 of the R.P.F. Rules, 1959, the competent authority to terminate the probation of the Appellant was only the Chief Security Officer. 5. Admittedly, the rank of 'Rakshak' falls within the definition of Member of Force and the Chief Security Officer and the Respondent Nos. 2 and 3 are superior officers as defined under Clause (f) of Section 2 of the R.P.F. Act, 1957. 5. Admittedly, the rank of 'Rakshak' falls within the definition of Member of Force and the Chief Security Officer and the Respondent Nos. 2 and 3 are superior officers as defined under Clause (f) of Section 2 of the R.P.F. Act, 1957. Section 6 of the Act prescribes that the appointment of member of the Force, shall vest with the Chief Security Officer who shall exercise that power in accordance with Rules made under the Act. Provided that the power of appointment under this section may also be exercised by such other superior officers as the Chief Security Officer concerned may, by order specify in this behalf. Section 9 of the Act confers power on the superior officer to pass an order of dismissal ; removal, etc. on the members of the force. The Railway Protection Force Rules, 1959 have been framed in exercise of powers conferred by Section 21 of the Act. 6. In the case of Union of India (UOI) and Others Vs. Rajendra Singh, AIR 1993 SC 205 , the Apex Court while interpreting these provisions held that any superior officer defined under the Act, could exercise the powers mentioned in Section 9 (1) and (2) of the Act. Thus, there is no dispute that the Respondent No. 3 could also take action in the matter as appointing authority. 7. The argument of the learned Counsel for the Appellant is that the agreement executed in compliance of Rule 23 of the aforesaid Rules, limits the exercise of powers of termination of service to the Chief Security Officer. The said agreement clause reads as follows: 2. I understand and agree that my services can be terminated: (a) by the Chief Security Officer at any time during the period of any initial training or the period of my probation thereafter on issue of notice of one month or the tender of one month's pay in lieu of such notice ; or (b) by the appointing authority, without notice, on my failure to pass the final examination of the initial training course. 8. The contention of the learned Counsel for the Respondent is, however, that the clause in the agreement, does not exclude nor does it eclipse the powers of the appointing authority conferred by Rule 25 of the Rules. Both of them deal with different situation. Rule 25 of the Rules reads as follows: 25. 8. The contention of the learned Counsel for the Respondent is, however, that the clause in the agreement, does not exclude nor does it eclipse the powers of the appointing authority conferred by Rule 25 of the Rules. Both of them deal with different situation. Rule 25 of the Rules reads as follows: 25. Probation.-(1) All appointments by direct recruitment or promotion shall be on probation for two years subject to the provision that the appointing authority may extent this period in special cases. (2) The appointing authority shall, on the expiry of the period of such probation or such extended period, pass an order declaring that the probationer has completed the period of probation satisfactorily and is suitable for confirmation in that rank. If he considers him unsuitable, the probationer shall be informed in writing of the reasons for terminating his probation and given an opportunity to submit any representation he may wish to make within a reasonable time and any representation submitted within that time shall also be considered and final orders passed by such authority. 9. A perusal of Sub-rule (2) of Rule 25 of the Rules, clearly shows that the appointing authority has to take a decision with regard to a member of the Force on probation. If on the expiry of period of probation or extended period of probation, the probationer's performance has been found to be satisfactory and is found suitable for confirmation, the appointing authority may pass an order that he is suitable for confirmation. However, if the performance of the probationer has not been satisfactory and is found unsuitable, a procedure is prescribed for taking appropriate action. Under Sub-rule (2) of Rule 25 of the Rules, in case of unsatisfactory performance of the probationer and his unsuitability in the opinion of the appointing authority the probationer has to be informed in writing of the reasons for terminating his probation. He is to be given an opportunity to submit any representation within a reasonable time and the said representation shall have to be considered and final orders passed by the appointing authority. The said procedure was followed in the present case. 10. The agreement entered into by the Appellant in compliance of Rule 23 of the Rules, however, deals with a different situation. The said procedure was followed in the present case. 10. The agreement entered into by the Appellant in compliance of Rule 23 of the Rules, however, deals with a different situation. Clause (a) of para 2 of the agreement provides that the Chief Security Officer at any time during the period of initial training or the period of probation of a member of the Force, may terminate his services on issue of notice of one month or the tender of one months' pay in lieu of the notice. There is no requirement in this clause to inform the probationer, member of the force of the reasons for terminating his probation or giving him opportunity to make representation or to consider his representation. Clause (b) of para 2 of the agreement also deals with a different situation where the services of a member of the force can be terminated by the appointing authority without notice on failure of the said member to pass the final examination of the training course. 11. Thus, Rule 23 and the agreement executed thereunder, does not eclipse provisions of Rule 25 of the Rules. I, therefore, agree with the conclusion drawn by the first appellate court. The Appellant was a member of the force appointed on probation and during or at the end of the period of probation his services could be terminated in accordance with the above mentioned Rules read with Rule 41 in accordance with the terms of his appointment or the Rules and Orders governing the probation. Such a termination is also not treated as a penalty within the meaning of Rule 41 of the Rules. 12. In view of discussion made above, the appeal has no force and is liable to be dismissed. 13. The appeal is accordingly dismissed.