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2012 DIGILAW 348 (UTT)

VINOD KUMAR v. UNION OF INDIA

2012-07-04

BARIN GHOSH, U.C.DHYANI

body2012
JUDGMENT Barin Ghosh, C.J. (Oral) By a stroke of pen, engagement of the petitioner has been brought to an end. Challenging the said action, petitioner went before the Tribunal and lost. 2. In the present writ petition, it is being contended, that: (i) according to the appointment letter of the petitioner, his probation period was two years, without any indication that the same may be extended and, accordingly, after expiry of two years, petitioner became an employee of the Union of India and, as such, his engagement/ employment could not be brought to an end without complying with the provisions contained in Article 311 of the Constitution of India; (ii) assuming the period of probation could be extended, but, of the own showing of the respondents, the same could not be extended beyond double the period of probation, i.e. beyond four years, and since the petitioner was appointed on 14th November, 1998, the termination effected on 20th August, 2004 could not be said to have been effected during the probation period; and (iii) the order of termination contained stigma. 3. We have read the order of termination with great difficulty since the same is in Hindi and we have found that the averments contained therein cannot be said to contain even a single stigma. A look at the letter would show that the petitioner remained absent without any intimation for a considerable period of time, which resulted in the petitioner being awarded the minimum scale of pay for three years. It was stated that, despite that, frequent absence without intimation continued. It was stated that the petitioner was asked in writing not to do so. It was stated that, despite that, petitioner remained absent without intimation. It was stated that the last absence of the petitioner, which was still continuing, prevented the departmental committee to consider the case of the petitioner to bring the petitioner in the permanent establishment and, consequentially, his services are being terminated. The facts, as depicted in the order, are not in dispute. The facts, as were stated in the order, did not cast any aspersion against the petitioner. In the circumstances, it cannot be said that the order was stigmatic. 4. The facts, as depicted in the order, are not in dispute. The facts, as were stated in the order, did not cast any aspersion against the petitioner. In the circumstances, it cannot be said that the order was stigmatic. 4. We think that inasmuch as the appointment letter of the petitioner did not indicate that his period of probation can be extended and inasmuch as Rules governing his service conditions also did not expressly or impliedly authorised the same, the same could not be extended. The respondents, though have contended that they could do so and, for that matter, placed reliance on Chapter 20 to the Establishment and Administration Manual; did not make any endeavour to establish that the directions contained therein had any legal force. In any event, assuming the probation could be extended, the same, according to the own showing of the respondents, could not be extended until the date the services of the petitioner were terminated. 5. Therefore, the conclusion would be that the services of the petitioner were terminated when the petitioner was no longer a probationer. 6. There is no dispute that no steps, as are required to be taken under Article 311 of the Constitution of India, were taken before the order of termination was passed. The question is whether, in such circumstances, can the termination be said to be valid? Article 311 of the Constitution of India applies to a member of a civil service of the Union of India or an All India Service or a civil service of a State or to a person holding a civil post under the Union or a State. The moot question, therefore, was whether the petitioner, at the time of termination of his services, was a member of a civil service of the Union or he was a member of an All India Service or he held a civil post under the Union. 7. As would be evidenced from the appointment letter dated 14th November, 1998, petitioner was appointed as a Cook, Special Grade III in Indian Military Academy, Dehradun. He was, therefore, not appointed in an All India Service. 7. As would be evidenced from the appointment letter dated 14th November, 1998, petitioner was appointed as a Cook, Special Grade III in Indian Military Academy, Dehradun. He was, therefore, not appointed in an All India Service. In the appointment letter, it was stated that he is being appointed in a post, which is temporary and, in the event of the said post becoming permanent, the claim of the petitioner for permanent absorption will be considered in accordance with the Rules in force. It was stated that the petitioner will be on probation for first two years and his services, during the said period, will be liable for termination without any reason or notice of discharge. At the same time, it was provided that the temporary appointment of the petitioner may be terminated at any time by one month’s notice given by either side. The appointment letter made it absolutely clear that the petitioner will be subject to conditions of service as applicable to temporary civilian Government servant paid from Defence Service Estimates in accordance with the orders issued by the Government of India from time to time. At the same time, it was indicated, amongst others, that in accordance with The Central Civil Services (Conduct) Rules, 1964, petitioner will not be eligible for appointment under Government of India if he has more than one wife living. Therefore, the appointment letter made it clear that the petitioner will be subject to conditions of service as applicable to temporary civilian Government servant paid from Defence Service Estimates in accordance with the orders issued by the Government of India from time to time till such time the post, in which he has been appointed, will remain temporary post and, no sooner the same will become permanent, the claim of the petitioner for absorption will be considered in accordance with the Rules in force, but, in the event, petitioner is having more than one wife living, he will not be eligible for appointment under the Government of India, i.e. for absorption in the permanent post. 8. 8. Central Civil Services (Temporary Services) Rules, 1965 (hereinafter referred to as the “said Rules”) applies, amongst others, to those who hold a civil post, including all civilians paid from the Defence Services Estimates under the Government of India and who are under the rule-making control of the President, but who do not hold a lien or a suspended lien on any post under the Government of India or any State Government. Certain establishments and categories of people have been kept aside from the said Rules. Neither the people like the petitioner, nor the establishment where the petitioner was appointed, has been kept aside from the said Rules. Inasmuch as the appointment letter made it clear that the petitioner will be subject to conditions of service as applicable to temporary civilian Government servant paid from Defence Services Estimates in accordance with the orders issued by the Government of India from time to time, petitioner came within the four corners of the said Rules. Therefore, petitioner was not one of the persons in respect of whom Article 311 of the Constitution of India had been inserted. Petitioner is not entitled to, therefore, make any complaint for non-compliance of the provisions contained in Article 311 of the Constitution of India. 9. Rule 5 of the said Rules authorised termination of service of a temporary Government servant at any time by notice in writing and the period of such notice shall be one month and further that, in lieu of notice, payment of a sum equivalent to amount of pay plus allowances is also permissible. 10. In the instant case, recourse was taken to the provisions of the said Rule, but with a short notice and without payment of equivalent amount of the notice period. In the circumstances, while the Tribunal, has not, as it could not, interfered with the termination order; directed payment of a sum of Rs 25,000/- for failure to discharge the obligation of making payment of one month notice period simultaneously with the notice. 11. We have, for the reasons indicated above, not been able to persuade ourselves to take a different view. The writ petition fails and the same is dismissed.