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2013 DIGILAW 65 (MP)

Deepak Kumar Balmik v. Union of India

2013-01-09

K.K.TRIVEDI, S.A.BODBE

body2013
JUDGMENT K.K. Trivedi, J. - This writ petition under Article 227 of the Constitution of India has been filed seeking to challenge the order dated 25.11.2008 passed in O.A. No. 191/2007 by the Central Administrative Tribunal, Bench at Jabalpur. By the aforesaid order, the original application of the petitioner against the order of his removal from services has been dismissed holding that the petitioner was only probationer, who could be terminated by an order of the competent authority during the period of probation, if his services were not found satisfactory. 2. It is contended by learned Counsel for the petitioner that in fact the petitioner was granted compassionate appointment on account of death of his father in the services of the respondents. Such an appointment was made on 07.01.2005 and the petitioner was appointed as Labourer-B category. As per the terms and conditions of the order of appointment, the services of the petitioner were to be treated on probation for a period of two years. After the appointment, petitioner was discharging his duties efficiently. However, as the wife of the petitioner died untimely, a criminal case was registered against him and all other family members on the complaint made by the in laws of the petitioner for offences under Sections 498-A, 304-B and 306 I.P.C. The petitioner and all the family members were arrested and were lodged in jail. The intimation was given by the petitioner to the jail authorities that he was serving in the employment of the respondents and, therefore, the jail authorities intimated the employer about such arrest of the petitioner. Thereafter, a sessions trial was commenced against the petitioner, his brother and mother and by judgment dated 26.07.2008 in S.T. No. 316/2006, the petitioner was acquitted of all the charges by the XVI Additional Sessions Judge (Fast Track), Jabalpur. However, the services of the petitioner were terminated by unreasoned order saying that his services were no longer required, by order dated 01.08.2006. Against such an order, he preferred an appeal under Rule 23 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965. However, the said appeal was returned to the petitioner saying that since the termination of services of the petitioner was on account of unsatisfactory services during period of probation, the same will not be treated as a penalty and, therefore, no appeal would lie under Rule 23 of the Rules aforesaid. However, the said appeal was returned to the petitioner saying that since the termination of services of the petitioner was on account of unsatisfactory services during period of probation, the same will not be treated as a penalty and, therefore, no appeal would lie under Rule 23 of the Rules aforesaid. The petitioner was, therefore, left with no option but to file original application before the Central Administrative Tribunal. It is contended that preliminary submission was filed by the respondents but they have not disclosed any reason for termination of services of petitioner except that the petitioner was taken in custody on account of his involvement in the aforesaid criminal case by the police and this intimation was not given by him to the competent authority of the respondents. According to the respondents, since services of the petitioner were not found satisfactory because of the aforesaid reason, his services were terminated. It is contended that such a reason was not justified as the commission of such an offence was not in relation to the performance of duties nor could it be said that because the petitioner was involved in such a crime, ultimately in which he was acquitted, he could not be retained in service. However, these aspects have not been taken note of by the Central Administrative Tribunal and wrongly the original application of the petitioner has been dismissed. Therefore, this writ petition is required to be filed. 3. Learned Counsel appearing for the respondents contended that the petitioner was only a probationer and could have been terminated from service on account of his long and continuous absence. It is contended that there was no need to conduct a departmental enquiry or to grant an opportunity of hearing to the petitioner as he was only a probationer and since his services were not found satisfactory, his services could have been terminated. It is, thus, contended that Tribunal has committed no wrong in dismissing the original application of the petitioner. It is, thus, contended that the writ petition is misconceived and deserves to be dismissed. 4. We have heard learned Counsel for the parties and perused the record minutely. 5. Undisputedly, the petitioner was appointed on probation. A probationer is required to clear the probation period successfully. His conduct in the service is required to be examined by the authorities. It is, thus, contended that the writ petition is misconceived and deserves to be dismissed. 4. We have heard learned Counsel for the parties and perused the record minutely. 5. Undisputedly, the petitioner was appointed on probation. A probationer is required to clear the probation period successfully. His conduct in the service is required to be examined by the authorities. However, if a criminal act is also committed, the same is also has the bearing in the conduct of the Government servant. Therefore, merely because the petitioner was having the good service record, it cannot be said that the respondents were unjustified in terminating his services on the ground of unsatisfactory service. However, there is nothing indicated in the reply filed by the respondents to show that the services of the petitioner were not found satisfactory on account of his conduct. On the other hand the order of termination simply says that the services of the petitioner were no longer required and, therefore, his services were terminated. The order seems to be innocuous but the reason assigned in the reply filed by the respondents before the Tribunal is that there was continuous absence of the petitioner from service on account of his arrest by the police and, therefore, his services were found unsatisfactory. This being the reason, it was more so important to examine whether on account of such a reason could it be said that the services of the petitioner were not found satisfactory. In the case of Krishnadevaraya Education Trust and another vs. L.A. Balakrishna, AIR 2001 SC 625 , their Lordships have considered the impact of passing of the order with respect to the employees working on probation, the aspect of issuing the order of termination of services of a probationer, if his services are not found suitable. However, the reasons assigned by the respondents in their reply filed before the Tribunal make it clear that but for the arrest of the petitioner by the police in the offences stated herein above, there was no other reason of termination of services of petitioner from service as his services were not found unsuitable for any other reasons. In the case of State of Punjab and others vs. Bhagwan Singh, (2002) 9 SCC 636, the Apex Court has considered the effect of simple discharge on being unsatisfactory services during the period of probation of an employee. In the case of State of Punjab and others vs. Bhagwan Singh, (2002) 9 SCC 636, the Apex Court has considered the effect of simple discharge on being unsatisfactory services during the period of probation of an employee. The Apex Court has held that the same cannot be said to be stigmatic in case services of such a probationer are not found satisfactory by the employer. Again it has to be seen that there was only one reason for issuing the order of termination of services of the petitioner as is spelled out in the reply filed by the respondents before the Tribunal and that is his involvement in the criminal case on account of which he was arrested and was absent from the duty. This being the sole reason assigned in the reply, the order of termination of the services of the petitioner cannot be said to be an innocuous order and was, thus, not to be affirmed by the Tribunal. 6. Consequently, the writ petition is allowed. The order dated 25.11.2008 passed by the Central Administrative Tribunal in O.A. No. 191/2007 is hereby set aside. The order dated 01.08.2006 (Annexure A-2) passed by the respondents is hereby quashed. The petitioner is directed to be reinstated in service with all the consequential benefits. 7. The writ petition is allowed to the extent indicated herein above. However, there shall be no order as to costs.