Union Of India (Uoi), Through The ... vs Potti Yeshwant Kumar
2004 Latest Caselaw 417 Bom

JUDGMENT

V.M. Kanade, J.

1. By this petition, Petitioners i.e. Union of India and others are challenging the Judgment and Order dated 30.6.2003 passed by the Central Administrative Tribunal, Mumbai Bench (For short "C.A.T.") whereby the application filed by the respondent challenging the order of termination issued by the petitioners was allowed and the impugned termination order was set aside with a direction to take further action within a period of two months from the date of the receipt of the said Order.

2. On 12.9.2003, this Court had passed the following order in para 1 which reads as under :-

1. Issue notice as to admission as well as final hearing, returnable in the third week of November, 2003.

3. On 18.3.2004, the matter was adjourned to 6.4.2004 for the purpose of deciding the matter finally at the admission stage as was indicated in the order dated 12.9.2003.

4. Rule. By consent, rule is made returnable forthwith. Respondents waive service. Matter is taken up for final hearing. We have heard the learned Counsel for the petitioners and respondents at length.

5. Brief facts are as under :-

6. Respondent was appointed as 'Jr. Engineer (Ele,)' by a Memorandum of Appointment dated 14.9.2000 and his appointment was for temporary post and was purely on the terms and conditions stated in the said Memorandum of Appointment. Clause 1 of the said Memorandum dated 14.9.2000 which is relevant in the present case is reproduced hereinabove :

(1) The post is temporary and he will be appointed on an officiating basis only. He will be on probation for a period of Two years from the date of appointment which may be extended at the discretion of the competent authority. He will be considered for confirmation after he has successfully completed the probation. During the period of probation he will be required to undergo such training as Administration may prescribe. Failure to complete the period of probation to the satisfaction of the competent authority will render him/her liable to be discharged from service at any time without any notice and assigning any reason. After the satisfactory completion of the period of probation, the termination of the appointment will be after giving one month's notice on either side. The appointing authority however, reserve the right of terminating his/her services forthwith or before expiration of the stipulated period of notice by making payment to him on a sum equivalent to the pay and allowances for the period of notice or the unexpired portion thereof.

A criminal case was registered against the respondent on the allegation of fabrication of muster register and manipulation of funds. On 1.4.2002, the respondent was suspended as a result of the criminal case which was registered against him in accordance with the provisions of Sub-rule (1) of Rule 10 of the Central Civil Service (Classification, Control & Appeal) Rules, 1965.

7. It is the case of the petitioners that the competent authority found that the services of the respondent are not satisfactory and are not up to the mark and came to the conclusion that the respondent had failed to complete his probationary period successfully and, therefore, by Order dated 17.9.2002 terminated the services of respondent during his probationary period,

8. Being aggrieved by the said Order, the respondent preferred an application to the C.A.T. and his grievance was that though he was a probationer, he was entitled to the protection under Article 311 of the Constitution. He further alleged that the order of termination stated that his services were being terminated on the ground that he was involved in a criminal case. This, according to him, casts a stigma on him and, therefore, the said order was in violation of principles of natural justice and also contrary to the provisions of Article 311 of the Constitution of India. Respondent relied upon the judgment of the Apex Court in the case of Dipti Prakash Banerjee u. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta .

9. Petitioners relied upon the judgment of the Apex Court in the case of Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd. . The C.A.T. held that the ratio in the case of Mathew (supra) was not applicable to the facts of the present case and, therefore, did not rely on the Judgment of the Apex Court. It further held that the services of the respondent were terminated because he was involved in a criminal case and it further held that the written statement which was tiled in the said case has stated that his services were not found satisfactory was merely an improvement because the suspension order and the order of termination did not mention any fact about unsatisfactory service of the respondent. The C.A.T. also relied on Swamy's Mannual on Establishment and Administration and held that it was specifically mentioned in the said Mannual that the probationer who is not making satisfactory progress should be informed about his shortcomings well in advance so that he can make special efforts for self improvement. The C.A.T. recorded that no such show cause notice had been issued to the respondent herein. On these counts, that C.A.T. set aside the impugned order of termination.

10. The learned Counsel appearing on behalf of the petitioners submitted that in the order of termination it was clearly stated that services of the respondent were terminated in pursuance of Condition No. 1 of the offer of appointment i.e. Memorandum dated 14.9.2000, He submitted that the competent authority had a right to terminate-the services of the respondent without assigning any reason and that, accordingly, the services were terminated without assigning any reason and it was a termination simpliciter. The learned Counsel relied upon the judgment of the Apex Court in the case of Mathew P. Tijomas (supra) and submitted that the ratio laid down in the said case was squarely applicable to the facts of the present case. He submitted that the order of termination was as a result of unsatisfactory performance by the respondent and that since his conduct was neither a foundation nor a motive in passing the order of termination, there was no question of casting any stigma on the respondent.

11. The learned Counsel appearing on behalf of the respondent vehemently urged that the order which has been passed by the C.A.T. is a reasoned order and that no perverse findings were recorded by the C.A.T. There was clearly a reference to the criminal case which was registered against him and, therefore, a stigma was cast on the respondent and, therefore, the order was not an order of termination simpliciter and was, therefore, in breach of provisions of Article 311 of the Constitution of India and also was in violation of principles of natural justice. He submitted that an opportunity ought to have been given to the respondent before passing the impugned order of termination and if such opportunity had been given, he would have cleared the doubts, if any, which were in the mind of the petitioners. He relied upon the judgment in the case of Dipti Prakash Banerjee (supra).

12. We have perused the copy of the petition, annexures thereto as also the impugned order passed by the C.A.T. When notice before admission was issued, it was made clear that the matter would be heard finally at the admission stage and accordingly matter is being finally heard at the admission stage itself.

13. The few admitted facts are that the petitioner was appointed as a "Jr. Engineer (Ele.)" on 14.9.2000 and his appointment was made on temporary post and he was under probation for a period of two years. Condition No. 1 of the Memorandum dated 14.9.2000 which is reproduced hereinabove clearly stipulates that the appointing authority had reserved its rights of terminating the services of the respondent before the expiration of stipulated period without assigning any reason.

14. On 1.4.2002, the Finance Secretary issued an order of suspension of the respondent by exercising powers which were conferred on him by Sub-rule (1) of Rule 10 of the Central Civil Service (Classification, Control & Appeal) Rules, 1965. On 1.4.2000, the services of the respondent were terminated with immediate effect.

15. It will be profitable to refer to the order of termination which is reproduced herein below :-

  'Nc. 1-3(27)/2001/Ele/EST/672                        Dated: 1.4.2002
 

Read :- (1) Offer of appointment vide Memorandum No. 1 - 9(6)/98-ELE/6384 dt. 14.9.2000.
 

(2) Offence registered vide Khanvel P. St. CR No. 19/2002, dated 3.4.2002.
 

ORDER
 

WHEREAS Shri Potti Yashwantkurnar P.L. Junior Engineer, Electrical (on probation) has been involved in a criminal offence registered vide Khanvel Police Station CR. No. 19/2002, dt. 3.4.2002 referred to the preamble (ii) and placed under suspension vide order l-3(27)/2001/Ele/EST/52 dated 1.4.2002.
 

NOW THEREFORE, in pursuance to the Condition No. 1 of the offer of appointment vide Memorandum dated 14.9.2000 referred to in the preamble above and in public interest the said Shri Potti Yashwantkumar P.L. Jr. Engineer, Electrical is terminated from the Government Services with immediate effect.
 

This issues with the approval of the appointing authority, DD & DNH, Silvassa vide diary No. 2739 dated 17.9.2002.
 

Sd/- 

Deputy Secretary (Personnel)
 

From the perusal of the said order, it is clear that the first para pertains to the recital of the fact that the respondent was suspended vide Order 1-3(27)/ 2001/Ele/EST/52 dated 1.4.2002 as he had been involved in a criminal offence registered vide Khanvel Police Station Cr. No. 19/2002 dated 3.4.2002. The second paragraph, thereafter, proceeds to state that In pursuance of Condition No. 1 of the offer of appointment vide Memorandum dated 14.9.2000 and in the public interest his services were terminated. Thus, a bare perusal of the said order indicates, firstly, that the respondent was under suspension and secondly his services were being terminated in view of Condition No. 1 of the Memorandum of appointment dated 14.9.2000. At this stage, it would be worthwhile again to refer to the said Condition No. 1 which reads as under :-

(1) The post is temporary and he will be appointed on an officiating basis only. He will be on probation for a period of Two years from the date of appointment which may be extended at the discretion of the competent authority. He will be considered for confirmation after be has successfully completed the probation. During the period of probation he will be required to undergo such training as Administration may prescribe. Failure to complete the period of probation to the satisfaction of the competent authority will render him/her liable to be discharged from service at any time without any notice and assigning any reason. After the satisfactory completion of the period of probation, the termination of the appointment will be after giving one month's notice on either side. The appointing authority however, reserve the right of terminating his/her services forthwith or before expiration of the stipulated period of notice by making payment to him on a sum equivalent to the pay and allowances for the period of notice or the unexpired portion thereof.

Thus the services of the petitioner were terminated not on account of the criminal case which was registered against him but on account of Condition No. 1 in the Memorandum of Appointment dated 14.9.2000. In our view, para 1 of the said order of termination is merely a recital recording the fact of reg tration of the criminal complaint and his subsequent order of suspension and that para 2 of the said order gives the reason why his services were being terminated and i.e. on account of non-satisfactoty performance as stipulated in Condition No. 1 which is reproduced hereinabove. Thus in our view, registration of criminal case cannot be said to be either a motive or a foundation for issuance of the order of termination. The order of termination was issued on account of Condition No. 1 in the said Memorandum of Appointment. In our view, the C.A.T. has committed an error on the face of the record by holding that an order of termination was based on the criminal case which was registered against him which is not correct position which is apparent from the perusal of the order of termination. The C.A.T. has disregarded the ratio laid down in Mathew's case (supra) by merely stating that in Mathew's case. Department has issued various warnings for the employee's improvement and by holding that in the present case no such warning memo had been issued. In our view, the ratio laid down in Mathew's case (supra) is squarely applicable to the facts of the present case. In the said case Apex Court has observed at page 271 as follows :

From a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorise or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. If the form and language of the so-called order of termination simpliciter of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. In cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatie on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simpliciter, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct.

In the present case, in para 2 of the order of termination, it is clearly mentioned that the services of the petitioner were terminated on account of Condition No. 1 in the Memorandum of Appointment. Thus, his services were not terminated on account of any misconduct or criminal case which was registered which could not be said to be a motive or foundation for the issuance of termination order. In our view, petitioners clearly had a right to issue an order of termination for want of satisfactory services from the employee. The said order of termination, in our view, does not cast any stigma on the respondent and, under these circumstances, the order passed by the C.A.T. dated 30.6.2003 in O.A. No. 362 of 2003 is quashed and set aside.

16. Writ Petition is allowed in the above terms. Under the circumstances, there shall be no order as to costs.