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2018 DIGILAW 643 (ALL)

ARUN KUMAR YADAV v. GOVERNMENT OF INDIA

2018-03-16

VIVEK KUMAR BIRLA

body2018
JUDGMENT : Hon’ble Vivek Kumar Birla, J.—Heard Sri S.K. Shukla, learned counsel for the petitioner, Sri R.K. Singh, learned counsel appearing for the respondent-Corporation and Sri Arvind Kumar Goswami, learned counsel appearing for the respondent No. 1. 2. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties, present petition is being decided at this stage itself. 3. Present petition has been filed seeking quashing of the impugned orders dated 21.11.2014 passed by the respondent No. 2-General Manager, Food Corporation of India, Gomti Nagar, Lucknow and the order dated 25.11.2014 (wrongly mentioned in the prayer clause as 1.11.2014) passed by the respondent No. 3-Regional Manager, Food Corporation of India, district officer IIIrd Floor, Vikas Manzil, Moradabad. 4. By the impugned order dated 21.11.2014 the services of the petitioner have been terminated under Regulation 15 (4) of Food Corporation of India Staff Regulations, 1971 (hereinafter referred to as the Rules of 1971). 5. Facts of the case in brief are that the petitioner had joined Food Corporation of India (hereinafter referred to as the FCI) on 30.11.2013 and was posted at FSD, Dhamora in district Moradabad. He applied for casual leave on 25.6.2013 for the period 26.6.2013 to 28.6.2013 and thereafter he was absconding from the duty without any information. He was issued a show-cause notice dated 28/30.12.2013 by the Area Manager but no reply was given. On 1.2.2014 an information was received by the Corporation that a Case Crime No. 890 of 2013 under Section 302 IPC at Police Station Subhash Nagar, district Bareilly has been registered against him with the allegation of committing murder of his real brother-in-law Vishal Yadav. He was arrested on 6.7.2013 and was sent to jail. A charge-sheet was submitted against him and thereafter he was put under suspension w.e.f. 6.7.2013 vide order dated 1.2.2014. It is not in dispute that as per the appointment letter the probation period was for one year and the same may be extended for another period of one year as per regulations. By the impugned order his services have been terminated during the probation period. 6. Submission of learned counsel for the petitioner is that the order impugned herein is stigmatic and punitive in nature and therefore, fulfledged inquiry was liable to be conducted and the petitioner was liable to be afforded an opportunity of hearing before passing the impugned order. By the impugned order his services have been terminated during the probation period. 6. Submission of learned counsel for the petitioner is that the order impugned herein is stigmatic and punitive in nature and therefore, fulfledged inquiry was liable to be conducted and the petitioner was liable to be afforded an opportunity of hearing before passing the impugned order. Submission is that this was not done in the present case and as such the impugned order is liable to be set aside. 7. Learned counsel for the petitioner submitted that as per the letter of appointment the one year initial period of probation came to an end on 30.11.2013, which was extended by a period of another one year as provided under the regulations vide belated order dated 17.10.2014 w.e.f. 1.12.2013. 8. Learned counsel for the petitioner has placed reliance on a judgment of Hon’ble Apex Court in the case of Union of India and others v. Mahaveer C. Singhvi, (2010) 8 SCC 220 and a judgment of this Court in the case of Rajesh Kumar v. Union of India and others, 2014(10) ADJ 672 in support of his argument. 9. Per contra, Sri Singh, learned counsel for the respondent submitted that it was clear in the appointment that period of probation can be extended by a period of one year and extension of probation period is very much within the powers of the authority concerned. He further submitted that as per Regulation 15 of the Regulations 1971 it is provided that “during the period of probation an employee directly recruited shall be liable to be discharged from service without assigning any reason by giving him a notice of 30 days or pay and allowances in lieu thereof”. Submission, therefore, is that the impugned order is perfectly within the jurisdiction of the authority concerned. He further submitted that the impugned order is not stigmatic or punitive in nature as opinion has been drawn by the appointing authority that the petitioner has failed to complete his probation period satisfactorily and has failed to maintain decent conduct expected from a responsible employee of the Corporation. He has also failed to discharge his duties assigned to him to the satisfactory level. He has also failed to discharge his duties assigned to him to the satisfactory level. His act has an adverse impact on the reputation of Corporation and also negative impression upon the employees of the Corporation and his continuance in service may be detrimental in the interest of the Corporation. Therefore, the allegation of criminal charge levelled against him for which he is facing trial is a motive and not the foundation of the impugned order and as such no inquiry was required. 10. I have considered the rival submissions and have perused the record. 11. On perusal of the impugned order dated 21.11.2014 I find that it would be appropriate to extract the relevant paragraphs of the impugned order itself, which are quoted as under : “The final probation report of Shri Arun Kumr Yadav has been received from reporting and reviewing officers with the following adverse remarks: “Failed to maintain a responsible and decent conduct in private life. He has been auauthorisedly absent from duty and arrested in murder case. He has not given reply of SCN regarding his auauthorized absece. Hence not fit for confirmation.” That undersigned is of the opinion that Shri Arun Kumar Yadav appointed to the post of AG-III(Depot) has been failed to complete his probation period satisfactorily and failed to maintain a responsible employee of the Corporation and also failed to discharge his duties assigned to him to the satisfactory level. His act has an adverse impact on the reputation of Corporation and also negative impression upon the employees of the Corporation. His continuance in service may be detrimental in the interest of the Corporation. Therefore, Shri Arun Kumar Yadav under the reg. 15(4) of FCI Staff Regulation 1971 is terminated from the services of Food Corporation of India with immediate effect. One month pay and allowances is payable to him in lieu of 30 days’ notice.” 12. A perusal of the aforesaid order clearly indicates that a final probation report of the petitioner was submitted by the reporting and reviewing officers with remark that he has failed to maintain a responsible and decent conduct. He has been unauthorizedly absent from duty and was arrested in a murder case. He has not given the reply of the notice regarding his unauthorized absence and hence he is not fit in Corporation for confirmation. He has been unauthorizedly absent from duty and was arrested in a murder case. He has not given the reply of the notice regarding his unauthorized absence and hence he is not fit in Corporation for confirmation. On the aforesaid facts the opinion has been drawn by the appointing authority that he has failed to complete his probation period satisfactorily as noted in the paragraphs of the abovequoted order. 13. It is not in dispute that the order is being challenged on the ground that the impugned order is stigmatic and punitive in nature and therefore, fulfledged inquiry was liable to be initiated against the petitioner before passing the order of termination. 14. The law on this issue is well-settled since the judgment of Parshottam Lal Dhingra v. Union of India, AIR 1958 SC 36 . It is also a settled law that in case the order has been passed during probation period, without attaching any stigma, is valid and requires no interference by this Court. 15. A reference may be made to a judgment of Hon’ble Apex Court in the case of State of Punjab and others v. Balbir Singh, (2004) 11 SCC 743 . Relevant paragraphs 4, 5 and 6 of the aforesaid judgment are quoted as under : “4. In Parshotam Lai Dhingra v. Union of India, this Court said : “The position may, therefore, be summed up as follows : Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. The Union of India (supra). Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Art. 311(2), as has also been held by this Court in Shyam Lal v. The State of Uttar Pradesh [ (1955) 1 SCR 26 ]. In either of the two abovementioned cases the termination of the service did not carry with it the penal consequences of loss pay, or allowances under Rule 52 of the Fundamental Rules. In either of the two abovementioned cases the termination of the service did not carry with it the penal consequences of loss pay, or allowances under Rule 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla C.J. has said in Shrinivas Ganesh v. Union of India (supra), wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Art. 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Art. 311 must be complied with. As already stated if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Art. 311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an inedible stigma on the officer affecting his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression “terminate” or “discharge” is not conclusive. In spite of the use of such innocuous expressions, the Court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to. The use of the expression “terminate” or “discharge” is not conclusive. In spite of the use of such innocuous expressions, the Court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to. If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.” 5. Thus, the order of discharge simplicitor, prima facie, is not punitive, it being in terms of Punjab Police Rule 12.21 but the question still is whether the incident which led to the passing of that order was motive or inducing factor or was the foundation of order of discharge. 6. The test to determine whether the misconduct is ‘motive’ or the ‘foundation’ of an order of discharge was laid down after exhaustively dealing with the case law on the topic in the case of Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and another as follows : “It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer, as stated by Shah, J. (as he then was) in Ram Narayan Das case ( (1961) 1 SCR 606 ). It is done only with a view to decide whether he is to be retained or continued in service. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. It has been so decided in Champaklal case ( AIR 1964 SC 1854 : (1964) 1 LLJ 752 ). The purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed - if at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur case [ (1968) 3 SCR 234 ) and in Benjamin case (1967) 1 LLJ 718 (SC)]. In the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case [ (1980) 2 SCC 593 : 1980 SCC (L&S) 197] the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth have not been found, and were merely the motives. The above are all examples where the allegations whose truth have not been found, and were merely the motives. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employee’s conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee - even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases.” 16. A reference may also be made to a judgment of Hon’ble Apex Court in the case of Rajesh Kohli v. High Court of Jammu Kashmir and another, (2010) 12 SCC 783 . Relevant paragraphs 23 to 27 of the aforesaid judgment are also quoted as under : “23. This position is no longer res integra and it is well-settled that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520 , this Court has explained at length the tests that would apply to determine if an order terminating the services of a probationer is stigmatic. On the facts of that case it was held that the opinion expressed in the termination order that the probationer’s “work and conduct has not been found satisfactory” was not ex facie stigmatic and in such circumstances the question of having to comply with the principles of natural justice do not arise. 24. On the facts of that case it was held that the opinion expressed in the termination order that the probationer’s “work and conduct has not been found satisfactory” was not ex facie stigmatic and in such circumstances the question of having to comply with the principles of natural justice do not arise. 24. In Verma case this Court had the occasion to determine as to whether the impugned order therein was a letter of termination of services simpliciter or stigmatic termination. After considering various earlier decisions of this Court in para 21 of the aforesaid decision it was stated by this Court thus: (SCC p. 528) “21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if anyone of the three factors is missing, the termination has been upheld.” In para 29 of the judgment, it further held thus: (SCC, p.529) “29. Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? Generally speaking when a probationer’s appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer’s appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.” 25. In the case of Krishnadevaraya Education Trust v. L.A. Balakrishna, (2001) 9 SCC 319 , the services of respondent-Assistant Professor were terminated on the ground that his on the job proficiency was not upto the mark. In the case of Krishnadevaraya Education Trust v. L.A. Balakrishna, (2001) 9 SCC 319 , the services of respondent-Assistant Professor were terminated on the ground that his on the job proficiency was not upto the mark. This Court held that merely a mention in the order by the employer that the services of the employee are not found to be satisfactory would not tantamount to the order being a stigmatic one. This Court held in para 5 thus : “5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say that such a contention will succeed. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated.” 6. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services.” 26. In the case of Chaitanya Prakash v. H. Omkarappa, (2010) 2 SCC 623 , the services of respondent were terminated by the appellant company. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services.” 26. In the case of Chaitanya Prakash v. H. Omkarappa, (2010) 2 SCC 623 , the services of respondent were terminated by the appellant company. During the period of probation, his services were not found to be satisfactory and he was also given letters for improvement of his services and his period of service was also extended and ultimately company terminated him. Court after referring to a series of cases held that the impugned order of termination of respondent is not stigmatic. 27. In the case of State of Punjab v. Bhagwan Singh, (2002) 9 SCC 636, this Court at paragraphs 4 and 5 held as follows : “4. - ......................... In our view, when a probationer is discharged during the period of probation and if for the purpose of discharge, a particular assessment of his work is to be made, and the authorities referred to such an assessment of his work, while passing the order of discharge, that cannot be held to amount to stigma. 5. The other sentence in the impugned order is, that the performance of the officer on the whole was “not satisfactory”. Even that does not amount to any stigma.” 17. In such matters every case is to be seen individually in the peculiar facts and circumstances of the each case. On facts, I find that the present case is clearly distinguishable from the cases relied on by learned counsel for the petitioner. 18. In the present case, an opinion has been formed by the appointing authority, which is the basis of passing such order of termination, as mentioned in the last paragraph of the impugned order as quoted above, the same is not punitive in nature and only satisfaction has been recorded by the appointing authority that services of the petitioner were found to be unsatisfactory during his probation period. The charges of unsatisfactory services, unauthorized absence and that the petitioner is facing trial in a murder case, are motive and not the foundation of the order impugned. 19. The charges of unsatisfactory services, unauthorized absence and that the petitioner is facing trial in a murder case, are motive and not the foundation of the order impugned. 19. There are large number of other judgments on same issue but since the law is settled, I do not wish to burden my judgment by quoting various paragraphs of those judgment, however, a reference may be made to K.V. Krishnamani v. Lalit Kala Academy, (1996) 5 SCC 89 , State of Bihar v. Gopi Kishore Prasad, AIR 1960 SC 689 , Paras Nath Pandey v. Director, North Central Zone, Cultural Centre Allahabad, 2008(10) ADJ 283 , Samsher Singh v. State of Punjab and another, AIR 1974 SC 2192 , Ganga Nagar Zila Dugdh Utpadak Sahkari Sangh Limited and another v. Priyanka Joshi and another, (1999) 6 SCC 214 and Kazia Mohammed Muzammil v. State of Karnataka and another, (2010) 8 SCC 155 . 20. Under such circumstances, tested on the law as noted above, I do not find any good ground to interfere in the order impugned herein. 21. Present petition is devoid of merits and is accordingly dismissed.