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2018 DIGILAW 2298 (JHR)

Alok Kumar Singh v. Union Of India

2018-10-22

APARESH KUMAR SINGH

body2018
JUDGMENT Aparesh Kumar Singh, J. - Heard learned counsel for the parties. 2. Petitioner a Constable under probation under the Respondent Central Reserve Police Force was undergoing training at Gurgaon Group Centre when he was terminated from service under Rule 5 Sub Rule (1) of the Central Civil Services (Temporary Services) Rules, 1965 read with Rule 16(a) of the CRPF Rule 1955. 3. Learned counsel for the petitioner and the Respondents have argued on merits of the impugned decision. Learned counsel for the petitioner submits that the foundation for passing the order of termination is based on stigmatic grounds. 4. Learned counsel for the Respondents has placed the contents of the counter affidavit and supplementary counter affidavit. She submits that petitioner himself made admission in his application dated 14.05.2008 that he had availed 20 days leave on the ground of death of his mother, though after rejoining he informed that his mother was alive and that he had incurred marriage during that period (Annexure-IV to the supplementary counter affidavit). Respondents did not consider such conduct of the petitioner as in good order and as per discipline of the force. Retention of such a recruit would adversely affect the training and discipline of the recruits. Petitioner was on probation, as such, his services were terminated under Rule 5 of the CCS (Temporary Services Rules), 1965 without any stigma. The Central Civil Services Rules permit termination of C.R.P.F personnel during training with 1 month pay and allowances. Continuance in service therefore cannot be claimed as a matter of right. The order of termination is not going to entail any disqualification from employment in any other service. 5. Considered the submission of learned counsel for the parties in the light of relevant material facts noted above from pleadings on record. There was a motive based on which Respondents had reason to terminate the petitioner from service during probation under Rule 5 of the CCS (Temporary Services Rules), 1965. 6. The order is not stigmatic on its face. The attendant facts brought on record by the respondents justifies the course of action in a disciplined force like C.R.P.F. This Court does not wish to express any comment on merits as the termination order is not punitive and does not amount to any disqualification from future employment. 6. The order is not stigmatic on its face. The attendant facts brought on record by the respondents justifies the course of action in a disciplined force like C.R.P.F. This Court does not wish to express any comment on merits as the termination order is not punitive and does not amount to any disqualification from future employment. In such circumstances this Court does not find any ground to exercise its discretionary jurisdiction to interfere in the matter. Reliance is placed on the judgment rendered by Hon''ble Supreme Court in the case of Ratnesh Kumar Choudhary Vrs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar & others , (2015) 15 SCC 151 . Relevant para 18, 21 and 22 is quoted herein under for better appreciation:- 18. On that basis, the Court proceeded to opine thus: (Radhey Shyam Gupta case, SCC p. 33, para 27) "27. In other words, it will be a case of motive if the master, after gathering some prima facie facts, does not really wish to go into their truth but decides merely not to continue a dubious employee. The master does not want to decide or direct a decision about the truth of the allegations. But if he conducts an enquiry only for the purpose of proving the misconduct and the employee is not heard, it is a case where the enquiry is the foundation and the termination will be bad." ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... 21. In Chandra Prakash Shahi v. State of U.P. after addressing the history pertaining to "motive" and "foundation" and referring to series of decisions, a two-Judge Bench had held that: (SCC p. 167, paras 28-29) "28. The important principles which are deducible on the concept of ''motive'' and ''foundation'', concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of ''motive''. 29. ''Motive'' is the moving power which impels action for a definite result, or to put it differently, ''motive'' is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry." 22. A three-Judge Bench in Union of India v. Mahaveer C. Singhvi, dwelled upon the issue whether the order of discharge of a probationer was simpliciter or punitive, referred to the authority in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences and came to hold thus: (Mahaveer C. Singhvi case, SCC p. 225, para 10) "10. It was held by this Court in Dipti Prakash Banerjee case that whether an order of termination of a probationer can be said to be punitive or not depends on whether the allegations which are the cause of the termination are the motive or foundation. It was held by this Court in Dipti Prakash Banerjee case that whether an order of termination of a probationer can be said to be punitive or not depends on whether the allegations which are the cause of the termination are the motive or foundation. It was observed that if findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, a simple order of termination is to be treated as founded on the allegations and would be bad, but if the enquiry was not held, and no findings were arrived at and the employer was not inclined to conduct an enquiry, but, at the same time, he did not want to continue the employee''s services, it would only be a case of motive and the order of termination of the employee would not be bad." 7. The writ petition is accordingly dismissed.