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2008 DIGILAW 1043 (CAL)

Barun Bandyopadhyay v. UNION OF INDIA

2008-12-04

INDIRA BANERJEE

body2008
JUDGMENT:- (1). In this writ application, the petitioner who was a Constable of the Central Reserve Police Force (CRPF) has challenged an order No. LX- MISC, 07-169-EC-ll dated 10th August, 2007 passed by the Commandant, 169 Battalion, CRPF terminating the service of the petitioner. (2). The petitioner submits that the said order of termination is in flagrant violation of the principles of natural justice inasmuch as no opportunity of hearing and/or representation has been given to the petitioner. The order of termination has apparently been issued in exercise of power conferred under Rule 5 of the Central, Civil Services (Temporary Service) Rules, 1965, hereinafter referred to as the Service Rules. (3). Rule 5(1) of the Service Rules is extracted here in below for convenience:-"5. Termination of Temporary Service (1)(a) The services of a temporary Government servant shall be liable to termination at any time by a notice in writing given either by the Government servant to the Appointing Authority or by the Appointing Authority to the Government servant. (b) the period of such notice shall be one month: Provided that the service of any such Government servant may be terminated forthwith and on such termination, the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances 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." (4). Rule 5(2)(a) of the Service Rules provides that where notice is given by the appointing authority, terminating the service of a temporary Government servant or where the service of such Government servant is terminated, either on the expiry of the notice period, or forthwith upon payment of notice pay, the Central Government or any other authority specified by the Central Government in this behalf or a Head of the Department, if the appointing authority is subordinate to him may, of its own motion or otherwise, reopen the case, and after making such enquiry as it deems fit, either confirm the action taken by the appointing authority or withdraw the notice and reinstate the Government servant in service or make such order as it might consider proper. (5). (5). The order of termination of service is extracted here in below for convenience:-"In pursuance of the proviso to Govt. of India decision No. 3, below Rule 5(1) of Central Civil Services (Temporary Services) Rules, 1965 read with Govt. of Indias instructions No. 2, below Rule 11 of Part-V of CCS (CCA) Rules, 1, ONKAR SINGH CHARAK, COMMANDANT 169 BN, CRPF, Ambikapur (Chattisgarh) hereby terminate forthwith the services of No. 061773284 CT/GD Barun Bandhopadhyay of this unit and direct that he shall be paid a sum equivalent to the amount of pay plus allowances for the period by which the said notice fall short of one month, calculated at the same rates at which he was drawing them immediately before the date of this order. Accordingly, he is struck off the strength of this unit w.e.f. 10.8,2007 A.N." (6). Mr. Sanyal appearing on behalf the petitioner submitted that the order of termination was, in effect, and substance punitive. As such it was incumbent to give the petitioner an opportunity of hearing. (7). Mr. Chattopadhyay appearing on behalf of the respondents took a preliminary objection to the territorial jurisdiction of this Court to entertain the writ application. (8). Mr. Chattopadhyay submitted that the writ petitioner had, in this writ petition, challenged an order of termination, issued by the Commandant, 169 Battalion, C.R.P.F. having his office at Ambikapur in the State of Chattisgarh, out side the territorial jurisdiction of this Court. (9). Mr. Chattopadhyay argued that no cause of action had arisen with the jurisdiction of this Court. In any case, this writ application ought to be rejected upon application of the principle of forum-non-conveniens. (10). Mr. Chattopadhyay next pointed out that the petitioner had been found in an intoxicated state and had resorted to acts unbecoming of a member of a disciplined force. (11). Mr. Chattopadhyay submitted that the petitioner was upon medical examination, found to have consumed liquor. Under the influence of liquor, the petitioner had abused civilians and quarrelled with them. On the basis of a preliminary enquiry, the service of the petitioner was terminated. (12). Mr. Chattopadhyay further pointed out that an appeal preferred by the petitioner before the Inspector General of Police, Eastern Sector C.R.P.F., Kolkata-106 against the order of termination, had been rejected. There was no reason to interfere with the order of punishment. (13). Mr. Chattopadhyay submitted that the order was not stigmatic. (12). Mr. Chattopadhyay further pointed out that an appeal preferred by the petitioner before the Inspector General of Police, Eastern Sector C.R.P.F., Kolkata-106 against the order of termination, had been rejected. There was no reason to interfere with the order of punishment. (13). Mr. Chattopadhyay submitted that the order was not stigmatic. The petitioner was terminated in accordance with the Service Rules applicable to the petitioner by issuance of notice. (14). There can be no doubt that for discharge simpliciter, no charge- sheet is required to be issued. Now the question is whether the order of termination is punitive in nature or whether the petitioner has been discharged simpliciter. Mr. Sanyal submitted that the order of termination was in effect punitive in nature. (15). As held by the Supreme Court in Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha, reported in AIR 1980 SC 1809, cited by Mr. Sanyal the form of the order of termination or the language in which it is couched is not conclusive. The Court could lift the veil to examine the true nature of the order. Inference of punishment might be drawn if two factors co-exist, that is, there is termination of service and the termination of service is on the ground of misconduct. If the aforesaid two conditions are fulfilled, the order of termination would be punitive, even though no reasons might have been disclosed in the order itself. (16). In D. B. Banerjee v. S. N. Bose National Centre for Basic Sciences, Calcutta cited by Mr. Sanyal, the Supreme Court held that whether an order of termination of a probationer could be said to be punitive, depended on whether there were certain allegations which were the cause of the termination. If findings of misconduct were arrived at in an enquiry, behind the back of the officer or without a regular departmental enquiry, the simple order of termination would have to be treated as founded on the allegations and would be bad. (17). In Mathew P. Thomas v. Kerala State Civil Supply Corporation Ltd., reported in AIR 2003 SC 1789 , cited by Mr. Sanyal, the Court once again laid down the proposition for determining whether an order of termination was termination simpliciter or punitive termination. (17). In Mathew P. Thomas v. Kerala State Civil Supply Corporation Ltd., reported in AIR 2003 SC 1789 , cited by Mr. Sanyal, the Court once again laid down the proposition for determining whether an order of termination was termination simpliciter or punitive termination. The Supreme Court held as follows:-"In cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and at ending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simpliciter but the real face behind it is to get rid of services of a probationer on the basis of misconduct. In such cases it becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct." (18). In Chandra Prakash Shahi v. State of U.P., reported in AIR 2000 SC 1706 , the Supreme Court held as follows:- "Now, it is well-settled that the temporary Government servants or probationers are as much entitled to the protection of Article 311 (2) of the Constitution as the permanent employees despite the fact that temporary Government servants have no right to hold the post and their services are liable to be terminated at any time by giving them a months notice without assigning any reason either in terms of the contract of service or under the relevant statutory rules regulating the terms and conditions of such service. The Courts can, therefore, lift the veil of an innocuously worded order to look at the real face of the order and to find out whether it is as innocent as worded." (19). In this case, it is admitted that the service of the petitioner was terminated on the basis of an enquiry which revealed that the petitioner had abused civilians and quarrelled with them under the influence of alcohol. Mr. Chattopadhyay submitted that the petitioner had resorted to acts unbecoming of a member of a disciplined force. The allegations constitute misconduct. (20). In this case, it is admitted that the service of the petitioner was terminated on the basis of an enquiry which revealed that the petitioner had abused civilians and quarrelled with them under the influence of alcohol. Mr. Chattopadhyay submitted that the petitioner had resorted to acts unbecoming of a member of a disciplined force. The allegations constitute misconduct. (20). Having regard to the law laid down by the judgments of the Supreme Court referred to above, this Court is constrained to hold that the order is punitive, even though the language and form of the order do not show it is punitive. The respondent authorities were thus obliged to comply with the principles of natural justice, by holding regular disciplinary proceedings in accordance with law and giving the petitioner an effective opportunity of hearing. (21). The objection taken by Mr. Chattopadhyay to the territorial jurisdiction of this Court cannot be sustained. The order of termination passed by the Commandant, 169 Battalion at Ambikapur was forwarded to the Additional Director General of Police, Group Centre, C.R.P.F. at Siliguri in West Bengal for drawing up one months pay and allowances. The last pay was released from Durgapur, within the jurisdiction of this Court. The appeal of the petitioner was rejected by the Inspector General of Police, C.R.P.F., Eastern Sector, Kolkata, from within the jurisdiction of this Court. As such a substantial part of the cause of action arose within the jurisdiction of this Court. (22). The respondents have in their affidavit-in-opposition contended that the appeal of the petitioner has been rejected. The petitioner has exhausted the alternative remedy, if any, available to the petitioner and is entitled to seek relief in this Court. (23). The writ application is allowed. The impugned order of termination is set aside and quashed. (24). The respondents may, however, initiate disciplinary proceedings against the petitioner in accordance with law. Such disciplinary proceedings shall, however, be completed within three months from the date of communication of this order.