Research › Search › Judgment

Jharkhand High Court · body

2012 DIGILAW 334 (JHR)

Debabrata Shit v. Union of India

2012-03-02

P.P.BHATT

body2012
JUDGMENT Hon'ble Mr. Justice P.P. Bhatt 1. Heard the Learned Counsel for the petitioner as well as the Learned Counsel for the respondents and perused the papers. 2. With the consent of the Learned Counsel for the parties, the matter is taken up for final disposal. 3. Petitioner by way of filing the present writ petition under Article 226 of the Constitution of India has prayed for issuance of appropriate writ/order/direction for quashing of the office order No. R-II-1(a)/2006-118-ESTT-III dated 4.4.2006 issued by the respondent-authorities, whereby the service of the petitioner was terminated under Rule 5(1) (a) of the Central Civil Services (Temporary Services) Rules, 1965. It is further prayed that petitioner may be reinstated with consequential benefits. 4. Learned Counsel for the petitioner submitted that the petitioner was appointed as CRPF Constable on 11.3.2003. Thereafter, notice for termination was given to him on 9.3.2006 and the services of the petitioner was ordered to be terminated vide order dated 4.4.2006 (Annexure-3). Learned Counsel for the petitioner submitted that the order, with regard to termination, is passed in clear contravention and violation of sub-rule (1) of Rule 5 of Central Civil Services (Temporary Service) Rules, 1965 as the officer who has passed the order was not the appointing authority. 5. While referring counter-affidavit filed by the respondents, Learned Counsel for the petitioner pointed out that services of four personnel of this unit were ordered to be terminated as they were found medically unfit during the course of fresh medical examination conducted at Composite Hospital, CRPF, Bantalab (Jammu) during August/September, 2005. It is submitted that out of these four personnel, three personnel preferred writ petition before this Court challenging the termination order passed by the respondents by way of filing W.P.(S) No. 3482 of 2006. After considering the facts and circumstances involved in the said matter, this Court was pleased to quash and set aside the order of termination and the petitioners of that petition were ordered to be reinstated in service with 50% salary for the intervening period. 6. Learned Counsel for the petitioner submitted that the case of the present petitioner is similar to that of the petitioners in W.P. (S) No. 3482 of 2006. 6. Learned Counsel for the petitioner submitted that the case of the present petitioner is similar to that of the petitioners in W.P. (S) No. 3482 of 2006. It is submitted that judgment rendered in W.P.(S) No. 3482 of 2006 is applicable to the facts and circumstances of the present case and therefore, the order passed by the respondents terminating the service of the petitioner be quashed and set aside and the petitioner may be reinstated in service with all consequential benefits. 7. Learned Counsel for the respondents, while referring counter-affidavit filed by the respondents, submitted that the service of the petitioners were terminated as they were declared medically unfit by the medical examination board. It is further submitted that the petitioners were referred to Base Hospital-I, CRPF, New Delhi by the Composite Hospital, CRPF, Bantalab (Jammu) vide letter dated 3.9.2005 for special test or examination of poor eye vision and after medical examination, they were declared unfit and that is why the decision was taken vide order dated 16.2.2006 directing to terminate the services of the four personnel of this unit as they were found medically unfit during the course of fresh medical examination. 8. Learned Counsel for the respondents further submitted that the service of the petitioner was not confirmed under the relevant rules and therefore, his services was terminated after giving one month's notice under sub-rule (1) of Rule 5 of Central Civil Services (Temporary Service) Rules, 1965. It is further submitted that as per Rule-7B of the CRPF Rules, 1955, Commandant is the appointing authority to the rank of Constable in the force and therefore, it is submitted that contention raised by the petitioner that the Commandant is not the appointing authority is not correct. 9. Learned Counsel for the respondents further submitted that suspicion, about medical fitness as per eligibility condition laid down for the post, was raised by the S.P., CBI vide his complaint letter dated 28.9.2004 and on suspicion raised by the S.P., CBI, fresh medical examination was conducted from 29.8.2005 to 31.8.2005 at Composite Hospital, CRPF, Bantalab (Jammu) and special eye vision test was conducted on 8.9.2005 and petitioner was found unfit and therefore, it was decided by the respondents to terminate his services by giving one month's notice under sub-rule (1) of Rule 5 of Central Civil Services (Temporary Service) Rules, 1965 as the petitioner being temporary government servant. 10. 10. Considering the aforesaid rival submissions and on perusal of the materials on record, it appears that the present petitioner was appointed as CRPF Constable on 11.3.2003. Subsequently, he was served with the notice of termination vide notice dated 9.3.2006 and thereafter, the services of the petitioner has been terminated vide termination order dated 4.4.2006. Petitioner by way of filing the present petition has challenged the order passed by the respondent-authorities regarding termination of his service mainly on the ground that the respondent-authority, who has passed the termination order is not the appointing authority, therefore, the termination order is without being authority of law. The second ground, which has been agitated by the petitioner, is with regard to discriminatory treatment given by the respondents as one Abhay Kumar Singh, similarly situated employee, whose services was also terminated on the similar ground but subsequently he was reinstated in service by the respondents, whereas the petitioner's case was not considered accordingly. 11. It also appears that over and above Shri Abhay Kumar Singh, other four employees were terminated on the ground of medical fitness. So far as Shri Abhay Kumar is concerned the respondent of their own upon reconsideration, recall the termination and reinstate him in the services. Out of four, three employees preferred writ petition before this Court by way of filing W.P.(S) No. 3482 of 2006 and after considering the facts and circumstances involved in that matter, this Court was pleased to allow the petition and order of termination was quashed and set aside and petitioners of that petition were ordered to be reinstated in service with 50% salary for the intervening period. It appears that petitioner's service was also terminated along with the petitioners in W.P.(S) No. 3482 of 2006 and therefore, present petitioner is also entitled to get the benefit of said judgment as the present petitioner is similarly situated person in all respect. Learned Counsel for the respondents tried to distinguish the case of the present petitioner from the case of the petitioners in W.P.(S) No. 3482 of 2006 as well as from the case of Abhay Kumar Singh, whose case was considered by the respondents for reinstatement. It is submitted that the said Abhay Kumar Singh was a confirmed employee, whereas the present petitioner as well as the petitioners in W.P.(S) No. 3482 of 2006 were temporary employees. It is submitted that the said Abhay Kumar Singh was a confirmed employee, whereas the present petitioner as well as the petitioners in W.P.(S) No. 3482 of 2006 were temporary employees. The said contention of the respondents cannot be accepted in view of the fact that this Court while dealing with the case of Anil Kumar Das in W.P.(S) No. 3482 of 2006 considered all the relevant aspects of the matter. Petitioners therein were also temporary employees and therefore, it cannot be said that the case of the present petitioner is different from the case of the petitioners in W.P.(S) No. 3482 of 2006. It also appears that this Court while dealing with W.P.(S) No. 3482 of 2006 has also considered and relied upon the judgment, reported in (1995) 6 SCC 720 : (1994)4 SCC 460 : 2001 (3) PLJR 167 as well as one circular issued by the Union of India. 12. Having regard to the facts and circumstances of the present case and in the light of the judgment, reported in 2011(4) JLJR 215 , the case of the present petitioner is deserved to be allowed. The order of termination dated 4.4.2006 is ordered to be quashed and set aside. Petitioner is ordered to be reinstated in service with 50% salary for the intervening period as it was ordered in W.P.(S) No. 3482 of 2006, within two months from the date of receipt of a copy of this order. 13. This writ petition is allowed, accordingly. 14. Let copy of this order be provided to the Learned Counsel for the parties.