Ashok Kumar vs Union Of India & Ors.
2012 Latest Caselaw 3244 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Date of Decision: 15.05.2012

+                         W.P.(C) No.2876/2012

Ashok Kumar                                         ...    Petitioner

                                  versus

Union of India & Ors.                               ...    Respondents


Advocates who appeared in this case:

For the Petitioner :      Mr.Mohar Singh, Advocate.
For Respondents :         Mr.Himanshu Bajaj, Advocate.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


ANIL KUMAR, J.

*

1. The petitioner has sought a writ against the respondents directing

them to reinstate the petitioner as Constable/GD and he has also

sought the quashing of order dated 21st March, 2011 passed by

respondent No.2 dismissing the appeal and order dated 10th August,

2010 passed by respondent No.3 dismissing the petitioner from service.

2. Brief facts as alleged by the petitioner are that he was appointed

in Central Industrial Security Force on 3rd October, 2009 as a

Constable/GD on probation for a period of two years from the date of

his appointment. The petitioner contended that he underwent training

successfully in the 34th batch of Constable/GD at CISF RTC,

Arakkonam.

3. The petitioner revealed that during the course of his training at

RTC, Arakkonam on 11th November, 2009, while running in PT class he

fell down and sustained an injury in his right hand little finger. The

petitioner was medically examined at the CISF Hospital and thereafter,

he was referred to CGHS Hospital. After the regular medical treatment

he was declared medically fit to complete his training course at MIOT

Hospital on 19th December, 2009.

4. According to the petitioner, though he was declared medically fit

to complete his training on 19th December, 2009, however, on 11th

August, 2010 he was handed over a termination order dated 10th

August, 2010 on behalf of Senior Commandant, respondent No.3 giving

one month‟s salary in lieu of one month‟s notice and informing the

petitioner that in view of the powers conferred by virtue of Rule 26(4) of

the CISF Rules, 2001 the service of the petitioner have been terminated.

5. The petitioner further disclosed that he received a copy of Part-I,

Service Order No.82/2010 on 13th September, 2010 under the heading

strength decrease (termination from service).

6. Against the termination of his service, by order dated 10th August,

2010 passed by respondent No.3, Sr. Commandant, RTC, Arakkonam,

the petitioner had preferred an appeal under Rule 26 of CISF Rules,

2001 before the Inspector General (IG/TS), respondent no.2. The appeal

of the petitioner was also dismissed by respondent No.2 by order dated

21st March, 2011.

7. Aggrieved by his termination and rejection of his appeal, the

petitioner has filed the present writ petition, inter-alia, on the grounds

that the order of termination and the order rejecting his appeal are

against the principles of natural justice. According to the petitioner, he

was declared medically fit by a competent doctor and, therefore, there

was no justification for terminating the services of the petitioner from

CISF. According to the petitioner, the order of termination is on account

of bias and as a result of pick and choose policy adopted by the

respondents. The petitioner contended that he has been discriminated

against as two of his crippled co-trainees namely DMRC (D) Pandav

Natver Bhai Daliji (with hip joint fracture) and DMRC (D) Barhunkha

Boka (with ankle joint fracture) have been retained in the service of

CISF despite having physical disability and they were not given the

same treatment as has been given to the petitioner. According to the

petitioner, these persons are unable to move without wheel chairs.

Referring to the order dated 13th September, 2010, the petitioner

contended that it is contrary to the reasons given in the termination

order as there was no decrease in the strength at the material time

necessitating the termination of petitioner‟s service.

8. The petitioner has also challenged his termination on the ground

that he is the only earning member of his family and that the

termination of his service has thrown his entire family on the verge of

starvation and has caused grave miscarriage of justice. The petitioner,

in the circumstances, has contended that his termination is against the

mandate of Article 311 of the Constitution of India and is also against

the mandate of law as laid down in CISF Act, 1968, CISF Rules, 2001

(as amended) and the law laid down by the Supreme Court of India and

the various High Courts.

9. Mr. Himanshu Bajaj Advocate, the learned counsel for the

respondents who appears on advance notice has refuted the pleas and

contentions of the respondents and has drawn the attention of this

Court to the order dated 21st March, 2011 categorically stipulating that

the petitioner has not been dismissed from the service on account of the

injuries sustained by him, as the petitioner was treated and after the

treatment he was declared medically fit. The learned counsel has

pointed out that the petitioner could not complete his basic training so

he was advised medical rest for 43 days from 11th November, 2009 and

he was to rejoin the training on 24th December, 2009. On account of the

medical rest he had missed the major portion of the training and it was

not possible for the petitioner to complete his basic training with the

34th batch and, therefore, the petitioner was relegated to 35th batch as

he had failed in the PT, Drill and Weapons Training (WT) during the

outdoor test. The order dated 27th April, 2010 was issued in this regard.

10. The learned counsel has also pointed out that the petitioner was

again relegated by four weeks by order No.2867 dated 15th June, 2010

as he had again failed in the PT, drill and Weapons Training during the

outdoor test of the 35th batch. As the petitioner could not qualify the PT,

and weapon training and he was relegated on 27th July, 2010. The

petitioner yet again failed for the third time in the outdoor test which

was conducted in RTC, Arakkonam.

11. Since the agreement executed with the petitioner signed on 17th

December, 2009 categorically stipulated that on failure of the petitioner

to pass the final examination and the final training, he could be

terminated by the appointing authority, therefore, the petitioner was

terminated. The learned counsel for the respondents has contended

that the termination of the petitioner has nothing to do with his medical

sickness and in the circumstances, the alleged ground that the

petitioner has been discriminated vis-à-vis Pandav Natver Bhai Daliji

and Barhunkha Boka is not sustainable as the petitioner has failed the

final outdoor test of his basic training even after giving him three

chances and, therefore, the petitioner has no cogent reason to challenge

his termination and alleged any discrimination.

12. This Court has heard the learned counsel for the parties. The plea

of the petitioner that he was terminated on account of his "strength

decrease" as per order dated 13th September, 2010 is a misconstruction

of the said order. The strength decrease as stipulated in the order is not

about the physical strength of the petitioner but the ramification of the

termination of the petitioner. The order dated 10th August, 2010 and

dismissal of his appeal is based on the fact that the petitioner failed to

qualify the outdoor test though he was afforded three opportunities. In

the first instance, he had failed in PT, drill and weapon training with

the 34th batch and, therefore, he had been relegated to 35th batch. Even

during the 35th batch the petitioner had to be relegated on account of

four weeks absence and he had again failed in PT and the weapons

training. The petitioner was entitled for three chances, therefore, he was

again given another chance, however, the petitioner though relegated on

27th July, 2010 for the third time, yet again failed and thus after failing

for three times in not completing the training, the petitioner became

liable for termination in terms of the agreement which had been signed

with him on 17th December, 2009. The learned counsel for the

petitioner has not denied that the petitioner had signed the agreement

dated 17th December, 2009. The order dated 21st March, 2011 which

was produced by the petitioner in the writ petition has not been denied

either, which categorically states the consequence of the three failures

of the petitioner in the outdoor tests and the fact that he had entered

into an agreement on 17th December, 2009 and his services were

terminated in consonance with the same.

13. The appellate authority has also considered the pleas and

contentions of the petitioner and has crystallized them in its order and

has held that since the petitioner failed to complete his outdoor training

and failed despite three opportunities afforded to him, therefore, there

was no merit in his appeal and, therefore, his appeal was rejected.

14. In the circumstances, the petitioner has not been able to make

any ground for his reinstatement or for setting aside the order of his

termination and the dismissal of his appeal. For the foregoing reasons

and in the facts and circumstances the learned counsel for the

petitioner has failed to make out any illegality, irregularity or any such

perversity in the orders of the respondents terminating his training so

as to entitle interference by this Court in exercise of its jurisdiction

under Article 226 of the Constitution of India. The writ petition is

without any merit and it is, therefore, dismissed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

MAY 15, 2012 „k‟