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Chhattisgarh High Court · body

2014 DIGILAW 114 (CHH)

Sanjay Bharti v. State of Chhattisgarh

2014-03-10

N.K.AGARWAL

body2014
ORDER 1. By way of this petition, the petitioner seeks to impugn and challenge the legality and propriety of the order of termination dated 30.12.2010 (Annexure P/3). The petitioner is also challenging the appellate order dated 05.07.2011 (Annexure P/4). 2. Brief facts, as culled out from the pleadings of the parties are as under: i. The petitioner was appointed on temporary basis in the post of Constable (G.D.) on 07.10.2008 on probation. Thereafter, the petitioner during his probation period was sent for police training school, Jagdalpur and he reported on 20.11.2010. The petitioner was absent from his duty from 30.09.2009 upto 19.11.2009 without any information or permission unauthorisedly and returned on 19.11.2009 ii. The petitioner was given duty in the residence of the Additional Superintendent of Police, Jagdalpur on 30.10.2010 but the petitioner while on duty was found to be intoxicated with alcohol upon which a medical examination was conducted and a preliminary enquiry was done by the Inspector of Traffic and based upon the said preliminary enquiry report, a punishment of withholding of one annual increment with non-cumulative effective was imposed upon the petitioner. Even again the petitioner in training camp remained absent for 10 days, due to which, a punishment of censure was imposed upon him. In sum and substance, the petitioner absented himself unauthorisedly from his duties for a total period of 82 days during probation period and was also punished with penalty of withholding of one annual increment and also with penalty of censure during probation period. iii. Considering the above aspect of the matter, under Rule 59 of the M.P./C.G. Police Regulations, the order impugned has been passed. iv. Feeling aggrieved therewith, the instant petition has been filed. 3. The only contention raised by Shri N.K.Vyas, learned counsel for the petitioner, is that the petitioner’s termination is a stigmatic termination and not termination simplicitor, inasmuch as, the petitioner’s termination is based on facts constituting misconduct. According to petitioner's counsel, petitioner's termination based on alleged misconduct without affording him any opportunity of hearing is not sustainable in law. For this, reliance has been placed upon the judgment of the Supreme Court in the case of State Bank of India and others v. Palak Modi and another, (2013) 3 SCC 607 . 4. According to petitioner's counsel, petitioner's termination based on alleged misconduct without affording him any opportunity of hearing is not sustainable in law. For this, reliance has been placed upon the judgment of the Supreme Court in the case of State Bank of India and others v. Palak Modi and another, (2013) 3 SCC 607 . 4. On the other hand, Shri Prasun Kumar Bhaduri, learned P.L. for the State, supported the order impugned and submitted: the petitioner’s termination is termination simplicitor and not stigmatic and has been passed strictly in accordance with regulation 59 of the Police Regulations and the terms and conditions of order of appointment, and the petition is devoid of substance. For this, reliance has been placed upon the judgment of Supreme Court in the case of Kendriya Vidyalaya Sangathan v. Arunkumar Madhavarao Sinddhaye & Anr., 2006 AIR SCW 5744. 5. I have heard learned counsel for the parties and perused the paper book. 6. A probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if an allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation on the ground of violation of the rules of natural justice. [Please see State Bank of India and others v. Palak Modi and another (supra)] 7. A bare perusal of the petition would reveal, the petitioner failed to file any appointment order and has also not pleaded the facts in detail. On the contrary, the facts pleaded by the respondents in their return go to show that during the probation period, on two occasions, minor penalties were imposed upon the petitioner. He also absented himself from the duties for a total period of 82 days in all during probation period. On the contrary, the facts pleaded by the respondents in their return go to show that during the probation period, on two occasions, minor penalties were imposed upon the petitioner. He also absented himself from the duties for a total period of 82 days in all during probation period. Considering the enquiry report based on the aforementioned proved facts, the order impugned has been passed, which, on the face, is a termination simplicitor and not stigmatic. 8. The Supreme Court, in the case of Kendriya Vidyalaya Sangathan v. Arunkumar Madhavarao Sinddhaye & Anr. (supra) has held, the limited purpose of the enquiry was to ascertain the relevant facts so that a correct report could be sent to the Kendriya Vidyalaya Sangathan. The enquiry held can under no circumstances be held to be a formal departmental enquiry where the non-observance of the prescribed rules of procedure or violation of principles of natural justice could have the result of vitiating the whole enquiry and observed in para – 9 and 14 as under: “9. The question which arises for consideration is, whether the order of termination of services of the respondent had been passed by way of punishment or it had been passed in accordance with the conditions mentioned in the appointment order by which the respondent had been appointed on a temporary post of Physical Education teacher. If it is found that the termination of services was by way of punishment, another question may arise whether a formal departmental enquiry was held prior to the passing of termination order and whether the respondent was given adequate opportunity to defend himself in the said enquiry. It will be seen that the complaint made by Capt. B.K. Balasubramanyam about forcing his son Master V.K. Srinivasalu to do six rounds (4 km) around the school when he was having chest pain and was unwell and further forcing him to do PT and other exercises in spite of the advice of the doctor and also giving him beating was forwarded by the Principal to the regional office of the Kendriya Vidyalaya Sangathan, Bombay. The Assistant Commissioner of the Kendriya Vidyalaya Sangathan asked the Principal to submit a report along with original statements of the students, who had been subjected to beating by the respondent. The Assistant Commissioner of the Kendriya Vidyalaya Sangathan asked the Principal to submit a report along with original statements of the students, who had been subjected to beating by the respondent. The Principal was not an eyewitness to the incident relating to Master V.K. Srinivasalu and also of the corporal punishment which was awarded by the respondent to the other students. Therefore, in order to ascertain the complete facts it was necessary to make enquiry from the students concerned. If in the course of this enquiry the respondent was allowed to participate and some queries were made from the students, it would not mean that the enquiry so conducted assumed the shape of a formal departmental enquiry. No articles of charges were served upon the respondent nor were the students asked to depose on oath. The High Court has misread the evidence on record in observing that articles of charges were served upon the respondent. The limited purpose of the enquiry was to ascertain the relevant facts so that a correct report could be sent to the Kendriya Vidyalaya Sangathan. The enquiry held can under no circumstances be held to be a formal departmental enquiry where the non-observance of the prescribed rules of procedure or a violation of principle of natural justice could have the result of vitiating the whole enquiry. There cannot be even a slightest doubt that the Assistant Commissioner, Kendriya Vidyalaya Sangathan, Bombay Region, terminated the services of the respondent in accordance with the terms and conditions mentioned in his appointment order which expressly conferred power upon the appointing authority to terminate the respondent’s services by one month’s notice without assigning any reasons. The services of the respondent were, therefore, not terminated by way of punishment. ………………………………………………………………. 14. As shown above, the nature of enquiry conducted against the respondent was merely a preliminary or fact-finding enquiry and no formal full-scale departmental enquiry had been conducted against the respondent. In fact, the enquiry officer had himself recommended that disciplinary action be taken against the respondent. However, the authorities chose not to hold a disciplinary enquiry against the respondent and did not serve him with any article of charges or take any further steps in that regard. Instead they chose to exercise power under the terms and conditions of the appointment order. However, the authorities chose not to hold a disciplinary enquiry against the respondent and did not serve him with any article of charges or take any further steps in that regard. Instead they chose to exercise power under the terms and conditions of the appointment order. The termination order is wholly innocuous and does not cast any stigma upon the respondent nor it visits him with any evil consequences. The High Court seems to have proceeded on a wholly wrong basis and has treated the enquiry which was only a preliminary or fact-finding enquiry into a regular disciplinary enquiry, which was not the case here. In these circumstances, the judgment of the High Court is wholly erroneous in law and has to be set aside.” 9. Regulation 59 of Police Regulations reads as under: “59. Probation.-Every recruit will be on probation for two years which may be in two periods of six months each, if the Superintendent considers it desirable. During this probationary period his services may be dispensed with at any time, if, in the opinion of the Superintendent, he is unlikely to become a satisfactory police officer.” 10. Coming to the facts of the present case, it is clear as crystal that the petitioner’s termination is not on the basis of any ex parte departmental enquiry and is based on proved/undisputed facts, which make the petitioner unlikely to become a satisfactory police officer, within the meaning of regulation 59 and has not been dismissed on any alleged misconduct without affording any opportunity of hearing to the petitioner, and therefore, the instant case is covered by the ratio of law laid down by the Supreme Court in the case of Kendriya Vidyalaya Sangathan v. Arunkumar Madhavarao Sinddhaye & Anr. (supra) 11. Considering the facts of the case, the ratio of law laid down by the Supreme Court in the case of State Bank of India and others v. Palak Modi and another (supra), on which, reliance has been placed by the petitioner's counsel, is of no help to him. 12. In the light of above, I do not find any jurisdictional illegality in the order impugned warranting interference of this Court. Therefore, the petition, being devoid of merit, is liable to be and is hereby dismissed. 13. No order as to costs.