Manish Kumar vs Union Of India Thru. Cabinet Secy. ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

 Court No. - 1
 
Case :- WRIT - A No. - 8962 of 2022
 
Petitioner :- Manish Kumar
 
Respondent :- Union Of India Thru. Cabinet Secy. , New Delhi And Others
 
Counsel for Petitioner :- Avinash Chandra,Rahul Chaurasia
 
Counsel for Respondent :- A.S.G.I.
 
Hon'ble Ramesh Sinha,J.

Hon'ble Manish Kumar,J.

1) Heard Shri Avinash Chandra, learned counsel for the petitioner and Shri Surya Bhan Pandey, learned Senior Advocate & Additional Solicitor General of India assisted by Shri Varun Pandey, learned counsel for the respondents.

2) Present petition has been preferred seeking direction in the nature of certiorari quashing the impugned order dated 17.08.2022 passed by the Central Administrative Tribunal, Lucknow Bench, Lucknow (for brevity, the Tribunal).

It has also sought a direction to set aside the impugned termination order dated 09.05.2013 as well as the appellate order dated 21.06.2013 passed by Under Secretary (Pers.B), New Delhi.

Lastly, direction has also been sought to direct the respondent no. 2 to confirm the appointment of the petitioner w.e.f. from 09.05.2013 and pay the admissible salary and emoluments against the said post.

3) Learned counsel for the petitioner has submitted that the petitioner was initially appointed vide order dated 07.12.2009 to a temporary post of Deputy Field Officer (GD) under the establishment of Cabinet Secretariat in the pay scale of Rs. 9300-34800 with Grade Pay of Rs. 4200/-, thus, the petitioner had joined the duties of Deputy Field Officer (GD) on 01.01.2010 and after training at various locations, he finally joined at F.I.P, Raxaul under S.B. Patna.

4) The service of the petitioner was terminated vide impugned order dated 09.05.2013 on account of being allegedly absent from duty even though to the contrary he was actually on authorized leave.

5) Against the termination order dated 09.05.2013, petitioner preferred an appeal, which was dismissed vide order dated 21.06.2013, thus, the petitioner had approached the Tribunal by filing Original Application bearing No. 139 of 2014 challenging thereby the termination order dated 09.05.2013 and the appellate order dated 21.06.2013.

6) Learned counsel for the petitioner has further submitted that the Tribunal has failed to appreciate that services of the petitioner were terminated treating him unauthorizedly absent from duty, which was contrary to the fact that the petitioner was on authorised leave.

7) It is next submitted that the orders have been passed without conducting any enquiry against the petitioner and it is also in contravention of Article 311 of the Constitution of India.

8) On the other hand, Shri Surya Bhan Pandey, learned Senior Advocate & Additional Solicitor General of India assisted by Shri Varun Pandey, learned counsel representing the respondents has submitted that initially, the petitioner was appointed on probation and he had not taken his training seriously as he was unauthorizedly absent from duty not only once but as much as 8 times. On some occasions, the petitioner had absented himself without prior permission of the competent authority and after availing the leave, he had moved an application for sanction of leave.

9) It has further been submitted that though there was no occasion to provide opportunity of hearing to the petitioner but even then, the petitioner was repeatedly counselled verbally as well as explanation was sought in writing, warnings were also issued but he did not mend his ways and he was in the habit of staying away from duty without prior permission.

10) It is next submitted that overall performance of the petitioner during the institutional training was not found satisfactory, as reflected in the note dated 15.03.2012 of Director (Training) and Memo dated 07.09.2012 issued by Under Secretary (Admn. Trag.). The Controlling Officer of the petitioner has recorded that he is habitual of taking leave, thus keeping in view of the past record of the petitioner, misconduct and casual approach towards official duties, the competent authority vide memo dated 01.08.2012 recommended the extension of his probation period, i.e. one more chance was given to the petitioner to mend his ways in place of terminating his service but petitioner did not pay any heed. Thus, there is no doubt that the petitioner was in habit of taking frequent leave without obtaining prior sanction and he remained absent on various occasions.

11) It has also submitted that even after the extension of period of probation the petitioner had not mend his ways and absented himself from the official duties for one reason or other. The petitioner had also missed key attachment or other key programs.

12) It is further submitted that the termination order dated 09.05.2013 was issued in accordance with the procedure prescribed under Central Civil Services (Temporary Service) Rules, 1965 (hereinafter referred to as, the Rules, 1965) and Rule 142 (1) of R&AW (RC&S) Rules, 1975 (henceforth be referred as, Rules, 1975) on the basis of recommendations of the Departmental Confirmation Committee which in turn relied on the detailed assessment reports received from various quarters in respect of the official duty while on the Job-Field-Training-Cum posting under CZ, Lucknow during his extended period of probation as well as his performance during training.

13) Next submission put forth on behalf of the respondents is that the Article 311 of the Constitution of India (hereinafter referred to as, the Constitution) is not attracted in the case of the petitioner and there was no occasion to conduct any enquiry. Submission is also that relevant Government Rules in this regard do not provide for any reason to be assigned for termination of service of a temporary Government Servant. As per relevant rules, petitioner was granted one month of pay and allowances in lieu of the notice period.

14) Considering the submissions put forth on behalf of the respective parties, examining record and as per the case of the petitioner as mentioned in para no. 59 of the writ petition where a chart has been provided regarding leave, extension thereof and action taken thereon as well as the averments made in the said chart, the position which emerges out in the present case is that it is an admitted case of the petitioner that he repeatedly overstayed the sanctioned leave.

15) The petitioner was on probation and as per Rule 5(1) of the Rules, 1965, which provides that services of a temporary Govt. Servant shall be liable to terminate at any time by notice of one month in writing giving either by the Government Servant to the appointing authority or by the appointing authority to the Government Servant.

16) The proviso thereof further says that the Government Servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his service or as the case may be, for the period such notice falls short of one month.

17) The Rules 5(1) of the Rules, 1965 is quoted hereunder, for convenience:-

"Rule 5(1) of Central Civil Services (Temporary Service) Rules, 1965 :- The services of a temporary Govt. Servant shall be liable to terminate at any time by notice of one month in writing giving either by the Government Servant to the appointing authority or by the appointing authority to the Government Servant.

Provided that the service of any such Government Servant may be terminated forthwith and on such termination, the Government Servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which, he was drawing them immediately before the termination of his services or as the case may be, for the period such notice falls short of one month".

18. Further Rule 142 (1) of R&A (RC&S) Rules, 1975 provides that a probationer shall be liable to be terminated from service at any time without notice if he fails to obey and order which may receive from the appointing authority. The said rule is being reproduced hereunder for ready reference:-

" A probationer shall be liable to be terminated from service at any time without notice if he fails to obey and order which he may receive from the appointing authority or such other authority as is empowered to issue such orders to him or if in the opinion of the appointing authority, he was willfully neglected his probationary studies or duties or is guilty of conduct unbecoming of an offer of the service/cadre to which hews been appointed."

19. The termination order dated 09.05.2013 shows that the said order was passed while exercising the powers conferred under Rule 5(1) of the Rules, 1965 and under Rule 142 (1) of R&A (RC&S) Rules, 1974 on the basis of the report submitted by Departmental Confirmation Committee without attaching therewith any stigma against the petitioner.

20. Since, the petitioner was holding a temporary service and was on probation, an order of termination simplicitor has been passed without attaching any stigma against him. As the service records of the petitioner were found unsatisfactory, the termination order cannot be held arbitrary, thus, in such a case, it would not be open to the temporary servant to invoke the protection of Article 311 of the Constitution.

21. The learned Tribunal has passed a detailed order dealing with each and every alleged leave taken and absence of the petitioner, reply of the employer and the documents filed alongwith counter affidavit which were not disputed by the petitioner. It has also dealt with each and every letter dealing with each and every unauthorised absence of the petitioner, relying upon the judgments rendered by Hon'ble Supreme Court regarding applicability of Article 311 of the Constitution. Relevant rules of 1965 and 1975 have also been considered while passing the impugned order dated 17.08.2022.

22. In view of the aforesaid, this Court does not find any good reason to interfere in the order impugned herein dated 17.08.2022, thus, the petition fails and is accordingly, dismissed.

(Manish Kumar,J.) (Ramesh Sinha,J.)

Order Date :-03.01.2023

Ashish