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2004 DIGILAW 392 (MP)

Ram Vinod v. Union of India

2004-04-23

RAJEEV GUPTA, S.K.KULSHRESTHA

body2004
Judgment ( 1. ) THEY are heard. This petition has been filed by the petitioner assailing the order dated 11-7-2002 passed by the Jabalpur Bench of the Central Administrative Tribunal in O. A. No. 869/96, by which the Tribunal has dismissed the application of the petitioner assailing the legality and propriety of the order (Annexure P-2), by which his appointment was terminated. ( 2. ) THE petitioner is a handicapped person who was granted contract appointment by the respondents by order (Annexure R-I), dated 30-7-96 on the post of Extra-Departmental Branch Post Master (EDBPM ). Soon thereafter, however, his appointment was terminated by the impugned order (Annexure P-2) without assigning any reason. Having failed in his challenge to the said termination before the Central Administrative Tribunal, the petitioner has filed the instant petition before this Court. ( 3. ) THE learned Senior Counsel for the petitioner has invited attention to the order of appointment and the provisions of rules namely; Post and Telegraphs Extra-Departmental Agents (Conduct and Service) Rules, 1964, hereinafter referred to as the Rules, and submitted that even the contract appointment of the petitioner could not have been terminated without notice as per proviso to Rule 6 or without payment of an amount equivalent to the basic allowance plus dearness allowance for the period of notice. Attention has also been drawn to the statutory Form-II prescribed under Rule 6 which requires that the fact that the amount is being paid for the notice period be mentioned in the notice. The learned Counsel for the respondents, per contra, has submitted that even if it is found that there was absence of recital about the entitlement of the petitioner to receive a sum equivalent to the amount of the basic allowance plus dearness allowance for the period of notice, the petitioner can, at the most, claim allowance for the notice period only. ( 4. ) IN view of the contentions raised by the parties as aforesaid, the moot question that arises in the present petition is as to whether for want of recital in regard to the entitlement of the petitioner to the pay and dearness allowance for the period of notice or payment thereof on termination of his service, the termination is liable to be quashed. Rule 6 of the Rules regulating the service in the respondents department reads as follows :- "6. Rule 6 of the Rules regulating the service in the respondents department reads as follows :- "6. Termination of services.-- (a) The services of an employee who has not already rendered more than three years continuous service from the date of his appointment shall be liable to termination at any time by a notice in writing given either by the employee to the appointing authority or by the appointing authority to the employee; (b) The period of such notice shall be one month : Provided that the service of any such employee may be terminated forthwith and no such termination, the employee shall be entitled to claim a sum equivalent to the amount of his Basic Allowance plus Dearness Allowance for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or, as the case may be, for the period by which such notice falls short of one month. Note :-- Where the intended effect of such termination has to be immediate, it should be mentioned that one months Basic Allowance plus Dearness Allowance is being remitted to the ED Agent in lieu of the notice of one month through money order. " ( 5. ) THE forms which have been prescribed in the Rules are also relevant. The Form-II for termination of service reads as under :- FORM-II Order of termination of service issued under the proviso to Rule 6 (b) of P and TED As (Conduct and Service) Rules, 1964 In pursuance of the proviso to Rule 6 (b) and the Note below Rule 6 (b) of P and T EDAs (Conduct and Service) Rules, 1964, I,. . . . . . . . . . . . . . . . . . . . . . . . . . (name and designation), hereby terminate (forthwith) the services of Shri/smt. /kumari. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (name and designation), hereby terminate (forthwith) the services of Shri/smt. /kumari. . . . . . . . . . . . . . . . . . . . . . . (name and designation) and direct that he/she shall be entitled to claim a sum equivalent to the amount of his/her basic allowance plus dearness allowance for the period of notice at the same rates at which he/she was drawing them immediately before the termination of his/her service, or, as the case may be, for the period by which such notice falls short of one month. The due amount of basic allowance plus dearness allowance is being remitted in lieu of the notice of one month or for the period by which such notice falls short of one month. . Station: Date: Signature of the Appointing Authority" ( 6. ) IT is clear from Rule 6 that service of an employee can be terminated by a notice in writing and the period of such notice has been prescribed to be one month. As per the proviso, it is permissible to terminate an employee forthwith by intimating to the employee that he shall be entitled to a sum equivalent to the amount of the basic allowance plus dearness allowance for the period of notice at the same rate at which he was drawing immediately before the termination of his service. For this purpose Form-II, as hereinabove reproduced, is the relevant form. In the present case it is clear that neither a months notice was given to the petitioner nor it was mentioned in Annexure P-2 that he would be entitled to receive basic allowance plus dearness allowance for the period of notice in lieu of notice. ( 7. ) THE learned Counsel for the respondent though has placed reliance on the decision of the Apex Court in Raj Kumar v. Union of India and Ors. , reported in (1975) 4 SCC 13 , and Municipal Corporation of Delhi (MCD) v. Prem Chand Gupta and Anr. , reported in (2000) 10 SCC 115 , but the cases relied upon by the learned Counsel do not relate to a situation where the rule itself prescribed mentioning of the entitlement of notice pay. ( 8. , reported in (1975) 4 SCC 13 , and Municipal Corporation of Delhi (MCD) v. Prem Chand Gupta and Anr. , reported in (2000) 10 SCC 115 , but the cases relied upon by the learned Counsel do not relate to a situation where the rule itself prescribed mentioning of the entitlement of notice pay. ( 8. ) WE are, therefore, of the considered view that the order (Annexure P-2) by which the service of the petitioner was terminated, does not stand the scrutiny of law and deserves to be quashed. , ( 9. ) ACCORDINGLY, the order (Annexure P-2), dated 29-11-96 is quashed. However, the respondents shall be at liberty to proceed afresh in the matter if so desired. There shall be no order as to costs.