Union Of India And Another vs Shri Nand Kishor Aggarwal And ...
2008 Latest Caselaw 1936 Del

*         HIGH COURT OF DELHI : NEW DELHI

+         Writ Petition (Civil) No. 2646 of 1999

                      Judgment reserved on: September 23, 2008

%                     Judgment delivered on: November 03, 2008

1.   Union of India
     through Commissioner of Police
     Police Headquarters
     I.P. Estate, New Delhi

2.   Principal/Additional Commissioner of Police (Training)
     Police Training School
     Jharoda Kalan, New Delhi                         ...Petitioners

                      Through Ms. Avnish Ahlawat, Advocate

                      Versus

1.   Shri Nand Kishor Aggarwal
     S/o Shri Duli Chand Aggarwal
     R/o H.No.283, Sector 15A
     Faridabad, Haryana

2.   The Central Administrative Tribunal
     Principal Bench
     Copernicus Marg, New Delhi                      ...Respondents

                      Through Mr. Lalit Bhardwaj, Advocate

Coram:

HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE SURESH KAIT

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                               Yes



WP (C) No.2646/1999                                          Page 1 of 13
 2. To be referred to Reporter or not?                                 Yes

3. Whether the judgment should be reported
   in the Digest?                                                     Yes


MADAN B. LOKUR, J.

The Petitioner is aggrieved by an order dated 13 th January,

1999 passed by the Central Administrative Tribunal, Principal Bench,

New Delhi in OA No.2440 of 1997.

2. The Respondent was selected for the post of Provisional Sub

Inspector (PSI) in the Delhi Police. He was sent to the Police Training

School on 15th May, 1995 to undergo the mandatory training.

3. During the training period, it was noted that the Respondent

was taking some treatment for mental depression. Apart from this, it

was noted that he was not able to eat properly or perform any outdoor

activities; he could not sit the full duration of the class or concentrate on

his studies. From 17th May, 1995 till 27th June, 1995, the Respondent

was absent from training on as many as seven occasions. On one

occasion, he was absent from training for as long as eleven days.

During the training period, the Respondent even requested for

exemption from training but this was rejected by the concerned

authorities on 14th June, 1995. From 27th June, 1995, the Respondent

was on continuous medical rest.

4. On 15th July, 1995, the Respondent was called by the

Additional Commissioner of Police (Training) apparently to discuss the

training programme with him. In that meeting, the Respondent

informed his officer that he could not cope with the training. Under

these circumstances, the training of the Respondent was cut short and

his services were dispensed with under Rule 5 of the Central Civil

Services (Temporary Service) Rules, 1965 by an order dated 15th July,

1995.

5. The Respondent challenged his termination as casting a

stigma on him and the Tribunal allowed his original application. That is

how the Petitioner is now before us. We find that the Tribunal has

come to the conclusion that the termination of the services of the

Respondent was punitive in nature and, therefore, an enquiry should

have been held.

6. Learned counsel for the Respondent vehemently supported

the view expressed by the Tribunal and cited a series of judgments but

mainly relied on three of those decisions which were rendered by the

Supreme Court during the course of this year itself. We may state at the

outset that none of these judgments, relied upon by learned counsel for

the Respondent, are applicable to the facts of the present case.

7. In Nehru Yuva Kendra Sangthan v. Mehbub Alam Laskar,

JT 2008 (2) SC 163, the services of a probationer were terminated on

the ground of certain prima facie allegations of financial irregularities.

In this context, the Supreme Court concluded that since the overt act

alleged against the employee amounted to an allegation of misconduct,

an opportunity of hearing was imperative before terminating the services

of the employee. There is no clear allegation of any patent or latent

misconduct by the Respondent in the present case.

8. In Jaswantsingh Pratapsingh Jadeja v. Rajkot Municipal

Corporation, 2008 (1) SLJ 333, the language used in the order

terminating the services of the probationer were found to be ex facie

stigmatic. The order referred to earlier orders containing allegations of

misconduct on the part of the employee and that he had been found

guilty of the alleged misconduct, being absent from duties, guilty of

negligence, carelessness and showing absolute disregard towards his

duties. Under these circumstances, the Supreme Court held that the

discharge of the services of the employee was not a discharge

simplicitor and since the principles of natural justice were not followed,

the order terminating his services was set aside. In so far as the present

case is concerned, there is no dispute that the termination order is

innocuously worded and does not cast any stigma on the Respondent.

9. Finally, learned counsel relied upon State of Uttaranchal v.

Kharak Singh, JT 2008 (9) SC 205. The services of the employee in

this case were terminated after an enquiry and it was found that the

enquiry had not been conducted in accordance with law. This decision

is clearly inapplicable to the facts of the case that we are dealing with.

10. From the various decisions that have been referred to by

learned counsel for the Respondent, it is clear that in the case of a

probationer or a temporary servant, the law laid down by the Supreme

Court is quite unambiguous. What is required to be determined is

whether the motive for the termination of services was by way of

punishment or was it a discharge simplicitor. If the termination was

punitive in nature, obviously an enquiry is required to be held and the

principles of natural justice are required to be followed. But, where the

discharge order and the motive for the discharge is simply unsatisfactory

work, the discharge being a discharge simplicitor, there is no necessity

of holding a departmental enquiry.

11. In the present case, the order of discharge, ex facie, does not

cast any stigma on the Respondent. In fact, the order terminating the

services of the Respondent reads as follows:

"In pursuance of the proviso to Sub-rule (i) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, I Seva Dass, principal, Police Training School, Jharoda Kalan, New Delhi hereby terminate forthwith the services of temporary SI Nand Kishore, No. D/1105 and direct that he shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of one months notice, at the same rates at which he was drawing immediately before the termination of his services.

He is not in possession of any government accommodation."

12. Learned counsel for the Respondent has contended that we

may go behind the order of discharge to find out whether it is a

discharge simplicitor or a discharge by way of punishment. He

submitted that if we do so, it would be clear that the discharge casts a

stigma on the Respondent.

13. In State of West Bengal v. Tapas Roy, (2006) 6 SCC 453,

the Supreme Court observed that "Stigma in the wider sense of the word

is implicit in every order of termination during probation." Keeping this

in mind, the Supreme Court referred to Pavanendra Narayan Verma v.

Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520 and

reiterated the view that in order to constitute a stigmatic order

necessitating a formal enquiry, "it would have to be seen whether prior

to the passing of the order, there was an enquiry into the allegations

involving moral turpitude or misconduct so that the order of discharge

was really a finding of guilt." It was said that if any of these factors are

absent, the order would not be punitive.

14. Similarly, in State of Uttar Pradesh v. Ashok Kumar, (2005)

13 SCC 652, the Supreme Court observed that if there is no enquiry, but

only a termination order, the complaint is the motive of the order of

termination. On the other hand, if the complaint leads to an enquiry

resulting in a termination order, it is the foundation of the order of

termination. Reliance was placed on Dipti Prakash Banerjee v.

Satyendra Nath Bose National Centre for Basic Sciences, (1999) 3

SCC 60 wherein it was pithily stated that if an employer was not

inclined to conduct an enquiry but at the same time did not wish to

continue the employee against whom there was a complaint, it would

only be a case of motive and the order of termination would not be bad.

The following passage from that decision is worth quoting:

"If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as "founded" on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."

15. Finally, reference may be made to State of Uttar Pradesh v.

Ram Krishna, (1999) 7 SCC 350 wherein it was held that if the services

of a probationer were discharged on the ground that his services were

not satisfactory, it cannot be said that the order of termination was bad

in law.

16. In so far as the present case is concerned, there is no doubt

that no enquiry was held into the conduct of the Respondent. There was

also no allegation of any moral turpitude or any misconduct against him.

All that the employer concluded was that the Respondent would not

make an efficient officer since he appeared to be incapable of

completing his training. This was fortified by the manner in which the

Respondent took his training, that is, by not participating in the training

programme on several occasions in a span of less than a month and a

half, the depression that he was going through, his inability to eat

properly or perform any outdoor duties and his inability to sit the full

duration of the class or concentrate on his studies. In fact, as noted

above, the Respondent himself informed the Additional Commissioner

of Police (Training) on 15th July, 1995 that he could not cope with the

training.

17. Under these circumstances, we are of the opinion that the

Petitioner was fully justified in coming to a conclusion that the

Respondent would not be a person fit enough to remain in the police

force. This assessment appears to have been made on the basis not of

his conduct but on the basis of the manner in which he went about with

the training, which he was apparently unable to cope with. That being

the bona fide assessment made by the Petitioner, we do not think that

the Tribunal was right in coming to a conclusion that the services of the

Respondent were dispensed with by way of punishment. In our opinion,

there was no necessity for the Petitioner to hold an enquiry into the

conduct of the Respondent, since that was not even the question before

the Petitioner - the only question being whether the Respondent could

complete his training and whether he would be an efficient officer after

completion of his training.

18. The Tribunal has noted that the salary and allowances were

not tendered to the Respondent along with the order terminating his

services and, therefore, the termination is even otherwise not valid. In

this regard, Rule 5 of the Central Civil Services (Temporary Service)

Rules, 1965 reads as follows:

"5. Termination of Temporary Service

(1) (a) The services of a temporary Government servant shall be liable to termination at any time by a notice in writing

given either by the Government servant to the Appointing Authority or by the Appointing Authority to the Government servant;

(b) the period of such notice shall be one month:

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 by which such notice falls short of one month.

(2) (a) Where a notice is given by the Appointing Authority terminating services of a temporary Government servant, or where the service of any such Government servant is terminated either on the expiry of the period of such notice or forthwith by payment of pay plus allowance, the Central Government or any other authority specified by the Central Government in this behalf or a Head of Department, if the said authority is subordinate to him, may, of its own motion or otherwise, re-open the case, and after making such enquiry as it deems fit, -

(i) confirm the action taken by the Appointing Authority;

(ii) withdraw the notice;

(iii) reinstate the Government servant in service; or

(iv) make such other order in the case as it may consider proper:

Provided that except in special circumstances, which should be recorded in writing, no case shall be reopened under this sub-rule after the expiry of three months -

(i) from the date of notice, in a case where notice is given;

(ii) from the date of termination of service, in a case where no notice is given.

(b) Where a Government servant is reinstated in service under sub-rule (2), the order of reinstatement shall specify -

(i) the amount or proportion of pay and allowances, if any, to be paid to the Government servant for the period of his absence between the date of termination of his services and the date of his reinstatement; and

(ii) whether the said period shall be treated as a period spent on duty for any specified purpose or purposes."

19. A perusal of the aforesaid rule makes it abundantly clear that

a Government servant shall be entitled to claim a sum equivalent to his

pay and allowances for the notice period but there is no requirement that

the pay and allowances must be paid simultaneously or even forthwith

along with the order of termination. Indeed, this is also the view taken

by the Supreme Court in Municipal Corporation of Delhi v. Prem

Chand Gupta, (2000) 10 SCC 115 (paragraph 9 of the Report). Of

course, the Supreme Court has observed that the payment must be made

within a reasonable period of time.

20. No controversy has been raised in the present case about

non-payment of pay and allowances within a reasonable period of time.

That being so, we do not find any substance in the second reason given

by the Tribunal for deciding in favour of the Respondent.

21. In our opinion, the impugned order passed by the Tribunal

has proceeded on an erroneous appreciation of the facts and the law and,

therefore, it cannot be sustained. Accordingly, the writ petition is

allowed and the impugned order passed by the Tribunal is set aside.

22. No costs.

                                            MADAN B. LOKUR, J



November 03, 2008                           SURESH KAIT, J
ncg

Certified that the corrected copy
of the judgment has been
transmitted in the main Server.