Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member Services -- Sign up today and get free trial for one month.
Kerala High Court
Prajith Raj.C vs The Secretary on 22 May, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
OP (CAT) NO. 107 OF 2023
ORDER DATED 08.05.2023 IN OA NO.472 OF 2019 OF CENTRAL ADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH
PETITIONER/APPLICANT:
PRAJITH RAJ.C., AGED 30 YEARS, S/O. RAJAN.C., KHALASI,
NATIONAL INSTITUTE OF FISHERIES POST HARVEST TECHNOLOGY
AND TRAINING, FORESHORE ROAD, KOCHI-16, RESIDING AT
CHITTAMANAPPARAMBIL, MANTHANATH HOUSE, NETTOOR.P.O, PIN -
682304
BY ADV.ELVIN PETER P.J.
BY ADV.K.R.GANESH
BY ADV.GOURI BALAGOPAL
BY ADV.ABHIJITH.K.ANIRUDHAN
BY ADV.SREELEKSHMI A.S.
RESPONDENTS/RESPONDENTS:
1 THE SECRETARY, GOVERNMENT OF INDIA, DEPARTMENT OF ANIMAL
HUSBANDRY, DAIRYING AND FISHERIES, MINISTRY OF
AGRICULTURE AND FARMERS WELFARE, KRISHI BHAVAN, NEW
DELHI, PIN - 110001
2 DIRECTOR, NATIONAL INSTITUTE OF FISHERIES (FORMERLY IFP),
POST HARVEST TECHNOLOGY & TRAINING, FORESHORE ROAD,
COCHIN, PIN - 682016
3 OFFICER IN CHARGE, NATIONAL INSTITUTE OF FISHERIES
(FORMERLY IFP), POST HARVEST TECHNOLOGY & TRAINING, VIZAG
UNIT, BEACH ROAD, VISAKHAPATTANAM, PIN - 531001
BY ADV.PADMANABHAN NAIR M.K.
BY ADV.C.DINESH
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 22.05.2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CAT) No.107/2023
..2..
JUDGMENT
SHOBA ANNAMMA EAPEN, J.
The original applicant before the Central Administrative Tribunal is before us with the original petition challenging the order of the tribunal dated 08.05.2023 in OA No.472/2019. The respondents in the original application are the respondents herein.
2. The above original application was filed with the following prayers;
"(1) To call for the records leading to Annex.A12 & A15 and to set aside the same.
(2) To direct the respondents 2 and 3 to reinstate the applicant with effect from the date of his termination.
(3) To pay, salary and other allowances with interest."
3. The original petitioner was selected and appointed as Khalasi (GCS - Group 'D' - Non Gazetted - Non Ministerial) as per Annex.A1 order dated 20.06.2014. The appointment was purely on a temporary basis without conferring any title to permanent employment, which can be terminated at any time without notice and without assigning any reason. It was further stipulated in Annex.A1 that the appointment carries OP(CAT) No.107/2023 ..3..
with it the liability to serve in any part of India or outside. According to the petitioner, the post was originally notified for appointment as Khalasi in the Kochi office and soon after the selection and appointment, the post along with the applicant was transferred to Visakhapatnam unit and accordingly, he joined duty at Visakhapatnam on 09.10.2014. The selection process to the post of Khalasi was challenged by one P.V.Sajith by filing OA No.659 of 2014 before the tribunal, which ended in a dismissal, against which OP(CAT) No.184 of 2017 is pending before this Court. The petitioner, after joining duty at Visakhapatnam, took leave on a few occasions, which, according to the petitioner, were regularized. Thereafter, in 2018, as per Annex.A12 dated 06.10.2018, he was informed that his service shall stand terminated with effect from the date of expiry of a period of one month from the date on which the notice was served on or as the case may be tendered to him. On receipt of Annex.A12, the petitioner filed Annex.A14 detailed representation, which was rejected by Annex.A15, informing that the representation cannot be considered. Aggrieved by Annex.A15, the petitioner approached the tribunal; and the tribunal, after a detailed consideration of the OP(CAT) No.107/2023 ..4..
issue, dismissed the original application, holding that the petitioner is not entitled for reinstatement. Hence, this original petition.
4. The learned counsel for the petitioner submitted that Annex.A14 representation filed by the petitioner was rejected by the second respondent as per Annex.A15 in a one line order without properly considering the issue. It is further submitted that the leave availed by him was due to his illness, for which medical certificate was produced, and accordingly, the leave was regularized and he was allowed to join duty and continued in service. According to the learned counsel for the petitioner, Sri.P.V.Sajith, who is the applicant in OA No.659 of 2014, is an influential person and it is on the basis of his complaint, his probation was extended further. Similarly, in the Annual Confidential Report (ACR) dated 31.05.2017, his assessment as 'below average' was made in order to wreak vengeance on the petitioner for filing a complaint against his superior for being drunk and abusing him. The learned counsel for the petitioner further submitted that his termination under Rule 5(1) of the Central Civil Service (Temporary Service) Rules, 1965 is illegal on the grounds of OP(CAT) No.107/2023 ..5..
violation of principles of natural justice; inaction on his complaint about harassment and illegal activities of his immediate superiors in Visakhapatnam; non consideration of the fact that he was forced to go on a long leave due to malaria and arthritis; and the termination was on the basis of the complaint of Sri.P.V.Sajith, who filed OA No.659 of 2014 before the tribunal challenging his appointment. Therefore, according to the learned counsel for the petitioner, on the above said grounds, Annex.A12 and A15 orders are illegal, arbitrary and liable to be set aside.
5. The learned Central Government Counsel submitted that the petitioner was appointed as Khalasi in the National Institute of Fisheries Post Harvest Technology and Training (NIFPHATT) on temporary basis, which is clear from Annex.A1 order of appointment dated 20.06.2014. By Annex.R2 order dated 12.02.2014, the NIFPHATT Headquarters in Kochi had transferred a post of Khalasi to the NIFPHATT, Visakhapatnam unit and it is thereafter that Annex.A1 order of appointment was issued to the petitioner on 20.06.2014. The learned Central Government Counsel pointed out that the petitioner had accepted the terms and OP(CAT) No.107/2023 ..6..
conditions by his letter dated 04.07.2014 and accordingly, as per Annex.R4 dated 27.09.2014, he was directed to report for duty at NIFPHATT, Visakhapatnam unit not later than 15.10.2014, wherein it has also been indicated that the appointment is in a temporary capacity and that he would be on probation for a period of two years from the date of his joining as Khalasi. Thereafter, he joined duty on 09.10.2014. The learned Central Government Counsel submitted that from the date of joining duty till the issuance of Annex.A12 order, the petitioner availed a total of 484 days of leave out of the total 1177 days of duty, which comes to a 41% attendance. According to the learned Central Government Counsel, initially, a lenient view was taken by the respondents and thereafter, several warning memos were issued to the petitioner, to which no importance was given by him, and even after receiving the warning memos, he continued to remain absent unauthorizedly. The learned Central Government Counsel pointed out the general habit of the petitioner of availing short span of leave by way of casual leave, proceeding to his native place, overstaying there without information and reporting for duty finally by OP(CAT) No.107/2023 ..7..
submitting medical and fitness certificates, which practice continued till the year, 2018. Finally, availing casual leave from 27.08.2018 to 31.08.2018, he did not resume duty and remained absent for a total period of 34 days without seeking any extension or without any prior intimation/permission from the Head of office. It is further submitted that when two years' probation period was nearing completion on 08.10.2016, the matter was taken up by the Departmental Promotion Committee (DPC) on 03.10.2016 for declaration of his probation. However, finding that the petitioner was not fit for clearing probation due to his irregularity in attendance and lack of promptness, his probation was extended from 09.10.2016 for a further period of one year. Thereafter, on review on 06.10.2017, his probation was again extended for a further period of six months from 06.10.2017. The last extension of probation was with effect from 09.04.2018 for a further period of six months. Each time of extending probation, the petitioner was apprised of the position and was advised to improve his punctuality, sense of responsibility and interest in work. Finally, the DPC, after assessing his service records, assessment reports and ACRs, observed that the OP(CAT) No.107/2023 ..8..
petitioner made no effort for improving his conduct and performance and thus, recommended termination of his service under the provisions of the Central Civil Service (Temporary Service) Rules, 1965. It is as per the recommendations of the DPC that Annex.A12 order was issued to the petitioner. According to the learned Central Government Counsel, the respondents have made all efforts to retain the petitioner in the said post and as a probationer, several warnings and memos were issued to him from the date of his joining in service. It is submitted that it is not on the basis of any complaint received from any corner that his probation was not confirmed, but only due to his irresponsible attitude and less interest in work, which is expected from a government servant, he was terminated from service. The petitioner was given sufficient notices regarding his termination by way of warnings and memos and he himself is responsible for his termination from service.
6. We have considered the rival contentions raised on both sides. As per Annex.A1 order of appointment dated 20.06.2014, the petitioner was appointed to the temporary post of Khalasi (GCS - Group 'D' - Non Gazetted - Non OP(CAT) No.107/2023 ..9..
Ministerial) in the Office of the Director, NIFPHATT, Kochi, in temporary capacity. The relevant terms and conditions, as per Annex.A1, are as follows;
"1. The appointment is purely temporary and will not confer any title to permanent employment.
2. The appointment may be terminated at any time without notice and without assigning any reasons.
3. The appointment carries with it the liability to serve in any part of India or outside."
Annex.R2 order dated 12.02.2014 reveals that one post of Khalasi (GCS - Group 'D' - Non Gazetted - Non Ministerial) was transferred from the headquarters of the NIFPHATT to its unit at Visakhapatnam. In Annex.A1 appointment order itself, it is stated that the appointee will have the liability to serve in any part of India or outside. It is discernible from the records and documents that the petitioner joined duty at Visakhapatnam on 09.10.2014 and was on probation. However, as could be seen from records, he was in the habit of taking unauthorized leave every now and then. Out of the total 1177 days of duty, he had availed 484 days of leave unauthorizedly, which comes to an attendance of 41%. As is evident from the materials on record, the respondents issued several warning letters and memos stating that the overstay OP(CAT) No.107/2023 ..10..
on leave without prior approval of the competent authority cannot be considered in future and disciplinary action, as deemed fit, would be initiated against him without any further communication. Annex.R7 to Annex.R34 are issued by the respondents based on the unauthorized leave availed by the petitioner. It is also clear from the proceedings that even after completion of his probation period of two years, finding that the petitioner was not committed to the job and he was irresponsible and does not have any interest in work, his probation was being extended by the DPC for further periods continuously till 2018. Each time of extension of probation, a warning memo was issued to the petitioner to improve his work, however, he continued his incalcitrant attitude towards work and there was no qualitative improvement in his habits and complaints were received from his superior officers. A person, who is not diligent in his work, cannot expect his superiors to be diligent in their attitude towards him.
7. A lot of youths are in search of jobs and unemployment is still prevailing in our country. Getting a government job is a blessing. However, as far as the petitioner is concerned, he did not show any sense of responsibility after OP(CAT) No.107/2023 ..11..
getting a job, though on probation. According to the petitioner, he availed leave purely on medical grounds, however, nothing prevents him from informing the Head of Office before taking leave. From 2014 to 2018, the same attitude was followed by the petitioner and it is after the issuance of several warnings and memos that the respondents finally decided to terminate the service of the petitioner by issuing Annex.A12 order dated 06.10.2018. It is not his misconduct, but his irresponsible attitude, less interest in work and continuous unauthorized absence, that prompted the authorities concerned to terminate his service. The petitioner, being on probation, ought to have been careful while serving the institution. His ACR grading was "below average", which was an indicator as regards his performance. Since he was a temporary government servant, as per the recommendations of the DPC, Annex.A12 order dated 06.10.2018 was issued under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965 for termination of his service with effect from the date of expiry of a period of one month. The conduct of the petitioner is evident from the materials on record and it may not be justifiable to direct the OP(CAT) No.107/2023 ..12..
respondents to allow such a person to continue in service. It is seen that the petitioner was more interested in taking leave than performing duties. The DPC, after perusing the entire service records of the petitioner, observed that the petitioner did not have any improvement in his conduct and performance and found the petitioner unfit for retaining in the post of Khalasi and recommended termination of service under the provisions of the Central Civil Services (Temporary Service) Rules, 1965. The tribunal, after elaborate consideration of the issue, has dismissed the application filed by the petitioner. We do not find any reason to interfere with the impugned order passed by the tribunal.
The original petition is, accordingly, dismissed.
SD/-
A. MUHAMED MUSTAQUE JUDGE SD/-
SHOBA ANNAMMA EAPEN JUDGE bka/-
OP(CAT) No.107/2023
..13..
APPENDIX OF OP (CAT) 107/2023 PETITIONER ANNEXURES ANNEXURE A12 TRUE COPY OF THE ORDER ON 6.10.2018. ANNEXURE A15 TRUE COPY OF THE LETTER DATED 2.11.2018 OF THE 2ND RESPONDENT.
ANNEXURE A1 TRUE COPY OF APPOINTMENT ORDER DATED 20.06.2014 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A2 TRUE COPY OF THE ORDER DATED 13.08.2016 IN O.A. 659/2015.
ANNEXURE A3 TRUE COPY OF THE MEMO DATED 28.09.2015. ANNEXURE A4 TRUE COPY OF THE REPLY DATED 13.10.2015. ANNEXURE A5 TRUE COPY OF THE LETTER DATED 1.6.2016 ANNEXURE A5(a) ENGLISH TRANSLATION OF THE LETTER DATED 1.6.2016 ANNEXURE A6 TRUE COPY OF THE COMPLAINT DATED 16.7.2016.
ANNEXURE A7 TRUE COPY OF THE LETTER DATED 8.10.2016. ANNEXURE A8 TRUE COPY OF THE LETTER DATED 25.6.2018. ANNEXURE A9 TRUE COPY OF THE CONFIDENTIAL REPORT DATED 31.5.2017.
ANNEXURE A10 TRUE COPY OF THE MEMO DATED 6.10.2017. ANNEXURE A11 TRUE COPY OF THE OM NO. 28020/3/2018 ESTT.
(C) DATED 2.7.2018.
ANNEXURE A13 THE GOVT. OF INDIA LABOUR DEPARTMENT BY MEMORANDUM NO. 19/77 DATED 15.10.1977. ANNEXURE A14 TRUE COPY OF THE REPRESENTATION DATED 17.10.2018.
OP(CAT) No.107/2023
..14..
ANNEXURE R1 TRUE COPY OF THE NOTIFICATION DATED 15.11.2012 ANNEXURE R2 TRUE COPY OF THE OFFICE ORDER DATED 12.02.2014 ANNEXURE R3 TRUE COPY OF THE MEMORANDUM DATED 20.06.2014 ANNEXURE R4 TRUE COPY OF THE OFFICE ORDER NO. 60/2014 DATED 27.09.2014 ANNEXURE R5 TRUE COPY OF NOTICE FROM APPLICANT DATED 09.10.2014 ANNEXURE R6 TRUE COPY OF LEAVE PARTICULARS OF APPLICANT FROM 09.10.2014 TO 08.11.2018 ANNEXURE R7 TRUE COPY OF MEMO DATED 04.06.2015 ANNEXURE R8 TRUE COPY OF WARNING LETTER TO APPLICANT DATED 13.07.2015 ANNEXURE R9 TRUE COPY OF MEMO TO APPLICANT DATED 28.09.2015 ANNEXURE R10 TRUE COPY OF MEMO DATED 06.10.2015 ANNEXURE R11 TRUE COPY OF MEMO DATED 08.08.2016 ANNEXURE R12 TRUE COPY OF MEMO DATED 08.10.2016 ANNEXURE R13 TRUE COPY OF MEMO DATED 15.10.2016 ANNEXURE R14 TRUE COPY OF MEMO DATED 15.11.2016 ANNEXURE R15 TRUE COPY OF MEMO DATED 24.11.2016 ANNEXURE R16 TRUE COPY OF MEMO DATED 29.11.2016 ANNEXURE R17 TRUE COPY OF MEMO DATED 15.12.2016 ANNEXURE R18 TRUE COPY OF MEMO DATED 24.01.2017 OP(CAT) No.107/2023 ..15..
ANNEXURE R19 TRUE COPY OF WARNING DATED 17.03.2017 ANNEXURE R20 TRUE COPY OF MEMO DATED 15.07.2017 ANNEXURE R21 TRUE COPY OF MEMO DATED 19.09.2017 ANNEXURE R22 TRUE COPY OF MEMO DATED 06.10.2017 ANNEXURE R23 TRUE COPY OF MEMO DATED 14.12.2017 ANNEXURE R24 TRUE COPY OF MEMO DATED 01.01.2018 ANNEXURE R25 TRUE COPY OF MEMO DATED 06.10.2018 ANNEXURE R26 TRUE COPY OF INTIMATION DATED 11.09.2018 ANNEXURE R27 TRUE COPY OF INTIMATION DATED 20.10.2015 ANNEXURE R28 TRUE COPY OF OFFICE REPORT DATED 04.12.2015 ANNEXURE R29 TRUE COPY OF LETTER DATED 03.02.2016 ANNEXURE R30 TRUE COPY OF REPORT PERTAINING TO APPLICANT DATED 10.05.2016 ANNEXURE R31 TRUE COPY OF DISCIPLINARY PROCEEDINGS AGAINST APPLICANT DATED 29.11.2016 ANNEXURE R32 TRUE COPY OF EXPLANATION SUBMITTED BY APPLICANT DATED 27.07.2017 ANNEXURE R33 TRUE COPY OF NOTICE DATED 27.10.2017 ANNEXURE R34 TRUE COPY OF INTIMATION OF ACTION AGAINST APPLICANT DATED 14.12.2017 ANNEXURE R35 TRUE COPY OF LETTER DATED 11.01.2018 ANNEXURE R36 TRUE COPY OF REPORT DATED 03.11.2018 ANNEXURE R37 TRUE COPY OF REPRESENTATION SUBMITTED BY APPLICANT TO MINISTRY DATED 29.01.2019 OP(CAT) No.107/2023 ..16..
ANNEXURE R38 TRUE COPY OF MEMO DATED 07.07.2018 ANNEXURE R39 TRUE COPY OF OFFICE ORDER NO. 15/2018 DATED 18.12.2018 ANNEXURE R40 TRUE COPY OF GAZETTE PUBLICATION MINISTRY OF AGRICULTURE, NEW DELHI DATED 18.04.1973 EXHIBIT P1 TRUE COPY OF THE O.A. NO. 472/2019 FILED BY THE PETITIONER DATED 01.07.2019 EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS 1 TO 3 DATED 11.10.2019 EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT TO EXT.P2 REPLY STATEMENT DATED 06.10.2020.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 08.05.2023 IN O.A. NO. 472/2019 PASSED BY THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.