Union Of India & Ors. vs Ex. Constable Bal Kishan
2009 Latest Caselaw 3406 Del

               HIGH COURT OF DELHI: NEW DELHI

+      Writ Petition (Civil) No. 2439/1997

                             Judgment reserved on: August 18, 2009
%                            Judgment delivered on: August 27, 2009

       UNION OF INDIA & ORS.                     ..... Petitioners
                    Through: Mr. V.K. Tandon, Advocate.
                         Versus

       Ex. Constable Bal Kishan                           ..... Respondent
                      Through: Mr. Sunil Malhotra with Mr. Dheeraj Gupta,
                               Advocates
       Coram:

       HON'BLE MR. JUSTICE MADAN B. LOKUR
       HON'BLE MR. JUSTICE A.K. PATHAK

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

       2. To be referred to Reporter or not?              Not necessary

       3. Whether the judgment should be                  Not necessary
          reported in the Digest?



A.K. PATHAK, J.

1. Respondent was appointed as a Constable by the

Petitioners on 15th September, 1982. Later on, Petitioners

terminated the Respondent from service vide order dated 3 rd

March, 1988, which reads as under:

"In pursuance of Sub rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, I, Mansoor Ali Seyed, Additional Deputy Commissioner of Police, South Distt., New Delhi hereby terminate forthwith the services of constable Bal Krishan No. 1352/SD and direct that he will be paid a sum equivalent to the amount of pay & allowances for a period of one month (in lieu of notice) calculated at the same rate at which he was drawing then immediately before the date on which this order is issued. He should deposit all Govt. belongings including appointment card, CGHS Card, Identity card and Uniform article as well as other Govt. Store etc. In his possession, before leaving the department and also clear all accounts.

sd./-

(MANSOOR ALI SEYED) ADD. DY. COMMISSIONER OF POLICE, SOUTH DISTT. NEW DELHI."

2. Respondent made a representation on 8th May, 1988 against

the termination order, which was dismissed by the Petitioners

vide order dated 2nd June, 1988. Thereafter, Respondent filed a

Memorial before the President of India against the order of

rejection of his representation, which was rejected during the

pendency of O.A.

3. Respondent challenged the termination order by filing O.A.

No. 1328/1992 before the Central Administrative Tribunal,

Principal Bench, New Delhi (for short hereinafter referred to as

"Tribunal"). It was prayed that the services of the Respondent be

regularized from the date of his appointment along with all the

consequential benefits.

4. Respondent contended before the Tribunal that under Rule

5(e) of the Delhi Police (Appointment & Recruitment) Rules, 1980

the period of probation was fixed as two years with a further

stipulation that it can be further extended for not more than one

year. Maximum period of probation provided under the rules was

only for a period of three years. Respondent was appointed on

15th September, 1982, thus, was deemed confirmed after expiry

of period of three years. As such, Respondent became permanent

employee and his services could not have been terminated

without holding an enquiry and an order of termination could not

have been issued. Thus, the termination order dated 3rd March,

1988 was illegal and violative of Article 311 of the Constitution of

India. Though, on the face of it, termination order was

innocuous, as it did not contain any imputation and/or

allegation of misconduct, but in fact termination order was by

way of punishment as its foundation was wilful absence of the

Respondent on some occasions.

5. Tribunal allowed the O.A. vide order dated 19th March, 1997

and directed the Petitioners to take back the Respondent in

service. However, liberty was granted to the Petitioners to hold an

enquiry if it so desired, in accordance with law. It was further

held that the Respondent will be entitled to subsistence

allowance in accordance with rules from the date of his

termination order till the issuance of a charge-sheet and

thereafter, the payment of arrears will be governed in accordance

with the appropriate orders passed by the Petitioners in due

course.

6. Tribunal held that the Respondent did not assume status of

a confirmed employee after expiry of three years in view of the

judgment of Supreme Court titled as Jai Kishan vs.

Commissioner of Police reported in 1995 (Suppl.) 3 SCC 364

wherein with regard to Rule 5(e) of the Delhi Police (Appointment

& Recruitment) Rules, 1980 it was held that the same did not

contain an implied or automatic confirmation. However, it was

held that the unauthorized absence on the part of the

Respondent on few occasions was the basis for passing the

termination order and thus, Court could have lifted the veil in

these circumstances. Respondent was entitled to explain his

conduct, thus, enquiry was required.

7. We have heard learned counsel for the parties. In our view,

termination order, which has been reproduced hereinabove,

clearly shows that the same does not cast any stigma on the

conduct of Respondent. Bare perusal of the order shows that the

same is termination order simplicter having been passed under

sub rule (1) of Rule 5 of the Central Civil Service (Temporary

Service) Rules, 1965 without assigning any reason much less

incorporating any of the misconduct of the Respondent.

8. In order to amount a stigma, the order must be in a

language which imputes something over and above the

unsuitability of the employee for the job. We are of the view that

the termination order is innocuous order and the language

employed therein shows that no reference has been made

regarding unsuitability of the Respondent.

9. Admittedly, Respondent was not confirmed as a Constable

and in our view his services can be terminated under sub rule (1)

of Rule 5 of the Central Civil Service (Temporary Service) Rules,

1965.

10. Judgments on which reliance has been placed by the

learned counsel for the Respondent are in different facts and are

of no help. In Dipti Prakash Banerjee vs. Satvendra Nath Bose

National Centre for Basic Sciences, Calcutta and others, reported

in AIR 1999 Supreme Court 983, there were contradictory reports

of two different superior officers with regard to the work and

conduct of the probationer. There were also complaints against

the probationer with regard to the misbehaviour with women

academic staff members. An informal enquiry was also held by a

high level enquiry committee wherein attitude of the probationer

remained non-cooperative. Consequently, lengthy termination

order was passed wherein reference to the misconduct,

performance, ability and capacity of the Probationer was made.

In these facts, Supreme Court observed that the termination

order was punitive and stigmatic in nature. It was held that the

misconduct of the Probationer was foundation for passing

termination order and that the misconduct was not the motive for

issuance of such an order. Similarly, in Samsher Singh vs. State

of Punjab and Another, reported in AIR 1974 Supreme Court

2192 Rules 7 and 9 of the Punjab Civil Service (Punishment and

Appeal) Rules, 1952 were under scrutiny. In this case the

language applied in the order clearly shows that the same is

termination order simpliciter.

11. Respondent had remained absent on several occasions and

he was awarded punishment of Physical Drill from time to time

and on some occasions was even given warnings. Respondent

did not challenge these orders. This shows that his work was

unsatisfactory and he did not improve despite warnings.

Accordingly, Petitioners decided to dispense-with the services of

the Respondent by taking the aid of Rule 5 of the Central Civil

Services (Temporary Service) Rules, 1965 and passed the

termination order simpliciter. In the facts of this case, at best, it

can be said that his past conduct might be motive for issuance of

the termination order, but by no stretch of imagination it can be

said that it was foundation for issuance of termination order.

12. In Sarita Sarangi vs. Union of India (UOI) and Anr. reported

in MANU/DE/1418/2008 a Division Bench of this Court has

held as under:

"The impugned order is one of termination simpliciter and not stigmatic. There was therefore no question of any violation of the principles of natural justice. The appellant was a probationer. The facts on record show that she was habitually absent on several occasions and very often without obtaining prior sanction of leave. In the circumstances, the decision not to confirm her services at the close of her probation could not be held to be unreasonable or irrational."

13. In this case also Respondent was not a confirmed

permanent employee. He was irregular in attending his duties.

The termination order is innocuous and not stigmatic.

14. In the light of the above discussion, we are of the view that

Tribunal has taken an erroneous view in quashing the

termination order and ordering the reinstatement of Respondent.

15. The writ petition is allowed and impugned order is set aside

and the termination order dated 3rd March, 1988 is upheld.

A.K. PATHAK, J

MADAN B. LOKUR, J

August 27, 2009 rb