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2011 DIGILAW 479 (HP)

Devinder Kumar Garg v. State of Himachal Pradesh

2011-02-21

RAJIV SHARMA

body2011
JUDGMENT : Rajiv Sharma, Judge. Material facts necessary for adjudication of this petition are that the petitioner was appointed as Ayurvedic Chikitsa Adhikari on 8th December, 1999 in respondent-department. He joined his duties at Charda in district Chamba on 27th December, 1999. He applied for casual leave on 6th March, 2000, which was further extended by applying for medical leave till 21st March, 2000. Petitioner joined his duties on 22nd March, 2000. Thereafter he proceeded on casual leave on 29th March, 2000. Petitioner applied for extension of leave. Same was rejected on 28th April, 2000. He was directed to join his duties, failing which disciplinary proceedings were to be taken against him (as per Annexure A-5) vide telegram dated 28th April, 2000. He requested for extension of leave on 8th May, 2000. Petitioner was again directed to join his duties vide communication dated 30th May, 2000. He was informed by the District Ayurvedic Officer that he should join his duties, failing which the matter shall be taken up with the State Government for terminating his services. He replied to the communication dated 30th May, 2000 on 26.6.2000. He was informed on 17th August, 2000 that the absent period has been treated as leave without pay with the further direction to him to join his duties immediately. Petitioner made a request on 17th August, 2000 to extend the leave. According to him, he was under treatment. Petitioner was directed to explain his position vide memorandum dated 22nd August, 2001 (Annexure A-13). He submitted the reply on 29th August, 2001. He joined his duties in Ayurvedic Health Centre at Charda on 6.9.2001. Thereafter petitioner requested the competent authority to sanction leave with effect from 5th November, 2001 to 27th January, 2002. He was informed on 20th December, 2001 that the application was not supported by medical certificate. He was directed to appear before the medical board. The fact of the matter is that the services of the petitioner were terminated under the provisions of Sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 on 19th March, 2002. 2. Ms. Ranjana Parmar, learned counsel for the petitioner has strenuously argued that a regular inquiry was required to be instituted against the petitioner before terminating his services. According to her, the services of the petitioner have been terminated for unauthorized absence, which amounts to mis-conduct. 3. Mr. 2. Ms. Ranjana Parmar, learned counsel for the petitioner has strenuously argued that a regular inquiry was required to be instituted against the petitioner before terminating his services. According to her, the services of the petitioner have been terminated for unauthorized absence, which amounts to mis-conduct. 3. Mr. P.M. Negi, learned Deputy Advocate General has vehemently argued that the work and conduct of the petitioner was not found satisfactory during the period of probation and he has remained absent within a period of two years for 593 days. According to him, the petitioner was served with memorandum on 22nd August, 2001 and the reply was received on 29th August, 2001. He further contended that the petitioner was not confirmed and since he was a temporary employee, his services have rightly been terminated by resorting to the provisions of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965. He lastly contended that no regular inquiry was required to be conducted against the petitioner. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Annexure A-20 whereby the services of the petitioner have been terminated is a discharge simpliciter. It is neither penal nor stigmatic. Petitioner was appointed as Ayurvedic Chikitsa Adhikari on 8th December, 1999. As per his appointment letter, Annexure A-1, dated 8th December, 1999, he was to be on probation for a period of two years. The petitioner was never confirmed. He has remained absent for a period of 593 days in a span of two years. He has hardly worked at Charda. The department has done its level best to persuade the petitioner to resume his duties in the hard area. The petitioner was posted in hard area to serve the people of the area. He has been warned vide Annexure A-5, dated 28th April, 2000 that he should join his duties, failing which disciplinary proceedings were to be initiated against him. The petitioner had been making applications for extension of leave and the department had been impressing upon him to submit the application with medical certificate. He has been served with a memorandum on 22nd August, 2001. He has been directed to explain why his services should not be terminated for willful absence. Petitioner filed reply to the same on 29th August, 2001. He has been served with a memorandum on 22nd August, 2001. He has been directed to explain why his services should not be terminated for willful absence. Petitioner filed reply to the same on 29th August, 2001. It is only after the issuance of Annexure A-13 that he again joined his duties at Charda. 6. Ms. Ranjana Parmar, learned counsel for the petitioner has strenuously argued that after the petitioner’s services were terminated vide Annexure A-20, dated 19th March, 2002, her client was directed to appear before the Chief Medical Officer, Dharamshala vide communication dated 12.11.2003, on 22.11.2003. Petitioner appeared before the medical board and the medical certificate is dated 29th November, 2003. The Court is of the considered view that once the services of the petitioner stood terminated, there was no occasion for the department to direct the petitioner to appear before the medical board. He could be directed to appear before the medical board if he was in service of the State Government. Once he ceased to be the government employee, the exercise undertaken by the State to constitute the medical board was an ill advised. Ms. Ranjana Parmar, learned counsel for the petitioner has also argued that since her client had been appointed by the Public Service Commissioner vide Annexure A-1, regular inquiry was required to be held against the petitioner. According to her, the services of the petitioner have been terminated on the ground that he remained willfully absent. The petitioner was on probation. His suitability was required to be adjudged by the employer. It is only when the employer was satisfied that the petitioner was not interested to resume his duties, order dated 19th March, 2002 was issued whereby the services of the petitioner were terminated. This order, as noticed above is neither penal nor stigmatic. It is simplicitter termination of the petitioner under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965. 7. Their Lordships of Hon’ble Supreme Court in State of Punjab and others versus Sukhwinder Singh, (2005) 5 SCC 569 in a case where a Constable had remained absent without seeking permission for 22 days before the completion of probation period and his services were terminated under Rule 12.21 of the Punjab Police Rules, 1934 without holding formal departmental inquiry or preliminary fact finding inquiry, this action was upheld by their Lordships. Their Lordships of the Hon’ble Supreme Court have held as under (paras 19 and 20):-“It must be borne in mind that no employee whether a probationer or temporary will be discharged or reverted, arbitrarily, without any rhyme or reason. Where a superior officer, in order to satisfy himself whether the employee concerned should be continued in service or not makes inquiries for this purpose, it would be wrong to hold that the inquiry which was held, was really intended for the purpose of imposing punishment. If in every case where some kind of fact finding inquiry is made, wherein the employee is either given an opportunity to explain or the inquiry is held behind his back, it is held that the order of discharge or termination from service is punitive in nature, even a bona fide attempt by the superior officer to decide whether the employee concerned should be retained in service or not would run the risk of being dubbed as an order of punishment. The decision to discharge a probationer during the period of probation or the order to terminate the service of a temporary employee is taken by the appointing authority or administrative heads of various departments, who are not judicially trained people. The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. As mentioned earlier a probationer is on test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry "for the purpose of imposing punishment" and an order of discharge or termination of service as a result thereof "punitive in character", the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong. In the present case neither any formal departmental inquiry nor any preliminary fact finding inquiry had been held and a simple order of discharge had been passed. In the present case neither any formal departmental inquiry nor any preliminary fact finding inquiry had been held and a simple order of discharge had been passed. The High Court has built an edifice on the basis of a statement made in the written statement that the respondent was habitual absentee during his short period of service and has concluded therefrom that it was his absence from duty that weighed in the mind of Senior Superintendent of Police as absence from duty is a misconduct. The High Court has further gone on to hold that there is direct nexus between the order of discharge of the respondent from service and his absence from duty and, therefore, the order discharging him from service will be viewed as punitive in nature calling for a regular inquiry under Rule 16.24 of the Rules. We are of the opinion that the High Court has gone completely wrong in drawing the inference that the order of discharge dated 16.3.1990 was, in fact, based upon the misconduct and was, therefore, punitive in nature, which should have been preceded by a regular departmental inquiry. There cannot be any doubt that the respondent was on probation having been appointed about eight months back. As observed in Ajit Singh and others etc. vs. State of Punjab and another (supra) the period of probation gives time and opportunity to the employer to watch the work ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserves a right to dispense with his service without anything more during or at the end of the prescribed period, which is styled as period of probation. The mere holding of preliminary inquiry where explanation is called from an employee would not make an otherwise innocuous order of discharge or termination of service punitive in nature. Therefore, the High Court was clearly in error in holding that the respondent's absence from duty was the foundation of the order, which necessitated an inquiry as envisaged under Rule 16.24(ix) of the Rules.” 8. The principle laid down in State of Punjab and others versus Sukhwinder Singh, (2005) 5 SCC 569 have been followed in State of Punjab and others versus Constable Avtar Singh, (2008) 7 SCC 405. 9. The principle laid down in State of Punjab and others versus Sukhwinder Singh, (2005) 5 SCC 569 have been followed in State of Punjab and others versus Constable Avtar Singh, (2008) 7 SCC 405. 9. Similarly, their Lordships of the Hon’ble Supreme Court in Union of India and others versus Sukhen Chandra Das, (2008) 17 SCC 125 have held as under (paras 9, 11, 12 and 14):- “The record shows that at the time of enrolment in CRPF, it is obligatory upon the candidate to fill up the Verification Roll [see Rule 14(B)] of CRPF [Annexure P-2 (Colly)]. Para 3 of the Verification Roll mandates: "If the fact that false information has been furnished of that there has been suppression of by factual information in the Verification Roll comes to notice at any time during the service of a person, his service would be liable to be terminated." In terms of Clause 1.12(a) of the Central Reserve Police Force Recruitment Manual, 1975 as amended from time to time, as soon as a man has been enrolled, his character, antecedents, qualifications and age shall be verified in accordance with the procedure prescribed by the Central Government from time to time through the District Magistrate/Deputy Commissioner of the District concerned or such other authority as may be deputed by the Central Government. Sub-para (d) whereof prescribes that if a person is adversely reported upon in the attestation form by the local authorities, his services will be terminated by giving him one month's notice or one month's pay in lieu thereof under CRPF Rule 16 read with Rule 5 of the Central Civil Services (Temporary Services) Rules, 1965. In the light of the above stated facts and provisions of the Rules, the termination order dated 23-6-1994 was passed by the Commandant in purported exercise of power under Rule 5(1) of the Central Civil Services (Temporary Services) Rules, 1965. The order of the appellate authority dated 12-7-1995 marked Annexure P-3 reveals that the grievance of the respondent was that the termination order was served on him without any show-cause notice of opportunity which would amount to breach of natural justice. He also contended that a false case was registered against him in Tripura. The order of the appellate authority dated 12-7-1995 marked Annexure P-3 reveals that the grievance of the respondent was that the termination order was served on him without any show-cause notice of opportunity which would amount to breach of natural justice. He also contended that a false case was registered against him in Tripura. On an independent scrutiny of the relevant documents on record as discussed above, we are of the considered view that the order of termination of the respondent recorded by the competent authority is innocuous on its face and purports to be an order of discharge in accordance with the terms and conditions of the appointment of a temporary government servant. Such termination is neither punitive nor stigmatic in nature, nor is it in any event, actuated with any motive. The language of the order clearly and plainly shows that it is termination simpliciter, rightly based under Rule 5(1) of the Central Civil Services (Temporary Services) Rules, 1965 during the period when the respondent was a temporary employee of CRPF and it does not cast any stigma on the conduct of the respondent. Thus, the finding of the High Court that the order of termination of services of the respondent will cast stigma and could not have been recorded unless the respondent is proceeded in the regular departmental proceedings for the alleged misconduct, in our considered view, cannot be sustained. The decisions relied upon by the High Court in support of its order are not applicable in the facts and circumstances of the case in hand.” 10. In the instant case also, there is no order whereby the petitioner was confirmed. He is to be treated on probation and during this period, he had remained absent for 593 days. Since the order is neither stigmatic nor punitive in nature, no inquiry was required to be held in these circumstances, as held by their Lordships of Hon’ble Supreme Court in State of Punjab and others versus Sukhwinder Singh, (2005) 5 SCC 569. 11. Accordingly, in view of the observations made hereinabove, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. There shall, however, be no order as to costs.