M.L. Gupta And Ors. vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 959 Del

JUDGMENT

Mukundakam Sharma, J.

1. Civil Writ Petition No. 4527/1994 was listed on 21st September, 2004 when the Counsel appearing for the petitioners and the respondents stated that these matters should be taken up along with five connected matters, namely, WP (C) Nos. 3739/1995, 3751/1995, 4780/1995, 4793/1995 and 4794/1995. The hearing of the CW No. 4527/1994 was adjourned for today with the directions that those writ petitions be also listed today as they involved similar facts and the issues arising for consideration are similar. Accordingly, today with the consent of the Counsel appearing for the parties, we have taken up the three writ petitions, namely, WP (C) Nos. 4527/1994, 4780/1995 and 4793/1995 which parties were represented for hearing and which are being disposed of by a common judgment.

2. The petitioners herein were recruited on daily wage basis as Constable in Central Reserve Police Force (C.R.P.F.). It is the case of the petitioners that all the petitioners have served the respondents for more than 240 days and, therefore, they should have been regularised in service. However, it is stated that instead of regularising their services, the respondents terminated the services of the petitioners. Hence the present writ petitions seeking for a direction to the respondents to recall the order of termination passed against the petitioners and to regularise the services of the petitioners. Counsel appearing for the petitioners has drawn our attention to Rule 16 of the Central Reserve Police Force Rules, 1955. Referring to the said Rules, particularly to Clause (a), it is submitted by the Counsel appearing for the petitioners that the petitioners are entitled to the status of quasi-permanent after completion of one year of service. The said clause reads as follows :

Period of Service--(a) All members of the Force shall be enrolled for a period of three years. During this period of engagement, they shall be liable to discharge at any time on one month's notice by the Appointing Authority. At the end of this those not given substantive status shall be considered for quasi- permanency under the provision of the (Central Civil Service (Temporary Service) Rules, 1965). Those not declared quasi-permanent under the said rules shall be continued as temporary Government employees unless they claim discharge as per Schedule to the Act. Those who are temporary shall be liable to discharge on one month's notice and those who are quasi-permanent shall be liable to discharge on three months' notice in accordance with the said rules, as amended from time to time.)

3. Relying upon the same provisions, it is also submitted by Counsel appearing for the petitioners that the petitioners were entitled to at least one month's notice before their services could be terminated by the respondents even for the reason their service were otherwise terminated by the respondents. The next submission of the Counsel appearing for the petitioners is that the order of termination is punitive as the respondents themselves have used the word "misconduct" in one of their communications and, therefore, the nature of order of termination being punitive, the respondents could not have terminated the service without conducting an appropriate inquiry as envisaged under the provisions of the Rules.

We have heard the learned Counsel appearing for the respondents on the aforesaid pleas. During the course of his arguments Counsel for the respondents has drawn our attention to the provisions of Rule 16 Clause (b) which reads as follows :

16. Period of Service--(a) xxx xxx xxx

(b) Should the Central Government decide at any time to disband the Force or any part of it (either before termination of the period for which a member of the Force is enrolled or at anytime thereafter) he shall be liable to be discharged, without compensation, from the date of disbandment.

4. Relying on this provision, it was submitted that since the present case is a case of disbanding of the force or a part thereof, therefore, the respondents were entitled to discharge the services of the petitioners without any compensation the date of the disbandment. Having regard to the submissions of the Counsel appearing for the parties, we have looked into records placed before us and also the ratio of the decisions of the Supreme Court cited at the Bar. Counsel appearing for the respondents has placed before us the decision rendered by a Single Judge of this Court in Shiv Bhadur v. UOI and Ors. in CWP No. 2257/1996 disposed of on 17th January, 2000. The facts of the writ petition is almost similar to the writ petitions which we are disposing of today by this judgment and common order. We will refer to the said judgment as and when we deal with the other judgments which were relied upon by the Counsel appearing for the parties.

We find that the petitioners herein were admittedly appointed on daily wage basis for a period of six months for election duty during 1989 and they were placed in 129 auxiliary battalion. On disbandment of 129 auxiliary battalion after six months, the petitioners were posted to 120 auxiliary battalion. Due to extension of the period of the auxiliary battalion, the services of all the petitioners were extended for a period of three/ six months from time to time pursuant to the orders of Ministry of Home Affairs as well as Directorate General, C.R.P.F. While the petitioners were so posted with the auxiliary battalion, they refused to go on duty and also to take their breakfast as a token of their resentment to show discontentment about auxiliary employment for about four years and further stated that they would not go on duty till they were permanently absorbed in CRPF as permanent employee and auxiliary battalion must be regularised.

It is stated in the counter affidavit filed by the respondents that the petitioners actively participated as one of the ring leaders in the resentment shown on 2nd October, 1993. It is also stated in the counter affidavit that the services of the petitioners were terminated on administrative ground on the orders of the higher authorities.

The petitioners are claiming protection under Rule 16. According to the said provisions, the appointment to the post of Constable who are members of the force are to be rnroll for a period of one year. Since the petitioners were appointed on daily wage basis, ex facie it is apparent that the said appointment of the petitioners cannot be said to be strictly under the provisions of Rule 16 Clause (a). The appointment of the petitioners being strictly not in accordance with Clause (a), it cannot be said that the said provision gets attracted in the facts and circumstances of this case.

Even if it is assumed, as submitted by Counsel appearing for the petitioners, that their appointments were to be made under the provisions of 16(a) of the Rules, still in our considered opinion, the provisions of Rule 16(b) of the C.R.P.F. Rules get attracted to the facts and circumstances of the present case. It is clearly pointed out that the said auxiliary battalion force was disbanded either in entirety or in part and, therefore, on such disabandment, power is vested on the respondents to discharge the members of the force without making payment of any compensation.

The petitioners were appointed on daily wage basis and as submitted by Counsel appearing for the petitioners, their services were to be regularised at that stage, the respondents are required to judge the suitability of the petitioners by considering the conduct of the petitioners as to whether the said petitioners could be regularised. The petitioners by showing their resentment had exhibited indiscipline while the said unit was functioning as an auxiliary battalion and they refused to perform their duties. A report to that effect was sent to the higher authority and in depth investigation was also conducted after which it was proved and established that the petitioners played the role of ring leaders and had actuated and exhorted their colleagues to show their resentment.

The said conduct of the petitioners could be taken notice of and considered by the respondents at the time of considering as to whether or not the services of the petitioners could be regularised.

The petitioners were the members of CRPF, a disciplined force and, therefore, high degree of discipline is called for which is necessary to become a member of such disciplined force and the petitioners have been lacking the same which is proved and established by the conduct of the petitioners in showing their resentment and resorting to exhibiting indiscipline while serving in the force, In this connection, reference may be made to the decision of the Supreme Court in Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and Anr. . In the said decision, the Supreme Court has held that the employer by opting to pass a simple order of termination as permitted by the term of appointment or as permitted by the rules was conferring a benefit cm 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. It was also held in the said decision that a 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 move and not the foundation.

5. Counsel appearing for the petitioner during the course of his submission has relied upon the decision of the Supreme Court in Nar Singh Pal v. Union of India and Ors. . The said decision was rendered by the Supreme Court in the context of an industrial dispute which was raised. The said decision also pertains to personnel who was working against permanent post.

6. The facts of both the cases are, therefore, distinguishable and, in our considered opinion, the ratio of the said decisions is not applicable to the facts and circumstances of the present case. In our considered opinion, therefore, use of the word "misconduct" in one of the communications by the respondents and also in the counter affidavit would not make the impugned order punitive inasmuch as the said word, in our considered opinion, was used by the respondents only by way of indicating the conduct of the petitioner in showing resentment and resorting to high degree of indiscipline while remaining a member of the force. Since the petitioners are working on daily wage basis and are seeking for regularisation of service at this stage, the conduct and the service of the petitioner could be taken notice of by the respondents and in doing so, in our considered opinion, the ratio of the aforesaid decision of the Supreme Court in Shiv Bhadur v. UOI and Ors. (supra) and the decision of the Supreme Court in Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and Anr. (supra), which were rendered in the similar facts and circumstances are not applicable.

We, therefore, find no merit in the writ petitions and the same are dismissed, leaving the parties to bear their own costs.