Aman Tiwary vs Union Of India Through The Cabinet ...
2021 Latest Caselaw 421 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   W.P.(S) No.2712 of 2012
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Aman Tiwary                                               ..... Petitioner
                               Versus

1. Union of India through the Cabinet Secretary, Government of India, New Delhi

2. The Home Secretary, Government of India, New Delhi

3. The Director General, C.R.P.F., Government of India, New Delhi

4. The Inspector General, C.R.P.F., Digha Complex, Ashiana Nagar, P.O. & P.S. & District- Patna, Bihar

5. The Inspector General, OPS, Jharkhand Sector, C.R.P.F, P.O & P.S-Dhurwa, District- Ranchi

6. The Deputy Inspector General (Group Centre), C.R.P.F P.O & P.S.-Sindri, District- Dhanbad, Jharkhand

7. The Deputy Inspector General, C.R.P.F, P.O & P.S. & Gaya, Bihar

8. The Commandant cum Presiding Officer, Recruitment Board, C.R.P.F, 22 Battalion, P.O. & P.S. & District-Hazaribagh, Jharkhand

9. The Commandant, 133 Battalion, C.R.P.F., P.O & P.S. - Dhurwa, District- Ranchi ..... Respondents

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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. Anil Kr. Sinha, Sr. Advocate For the Respondents : Ms. Leena Mukherjee, CGC

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05/ 29/01/2021 Heard through V.C.

2. The instant writ application has been preferred by the petitioner

praying therein for quashing the order dated 30.12.2011 (Annexure-12),

issued by the Inspector General, OPS, Jharkhand Sector, CRPF, Ranchi,

whereby the appeal preferred by the petitioner against the office order dated

03.09.2011 (Annexure-8) and order dated 4.10.2011 (Annexure-9) issued by

the Commandant, 133 Bn, C.R.P.F, Ranchi terminating the petitioner from his

service, has been rejected on the ground that he is medically unfit for the

reasons that the petitioner has 10 dental points in place of 22 dental points.

3. Mr. Anil Kumar Sinha learned senior counsel for the petitioner

submits that the order of punishment, whereby the petitioner has been

removed under Rule 5 of Central Civil Services (Temporary services), Rule,

1965, has been passed without giving any opportunity to the petitioner.

Further, when the appeal was preferred by the petitioner; the same was

rejected and a detailed reason has been assigned in the said appellate order

which makes the order stigmatic, inasmuch as, the stigma which has been

mentioned in the appellate order will adversely affect the future prospect of

this petitioner.

He further contended that as per the settled law as laid down in

catena of judgments by the Hon'ble Apex Court it has been held that even a

temporary employee or a probationer has to be removed by following the

principles of natural justice if any of the document transpires some sort of

stigma and in the instant case the appellate order clearly transpires that the

petitioner has been removed because he is medically unfit for the reason that

he has only 10 dental points in place of 22 dental points. He further referred

to the judgment of this Court delivered in the case of Pintu Kumar Yadav

[W.P.(S) No. 398 of 2015] and submits that the issue involved in this

application is squarely covered by the said judgment.

4. Ms. Leena Mukherjee, learned Central Government counsel

vehemently opposed the prayer of the petitioner by relying to the Sub-Rule

(1) of Rule 5 of the Central Civil Service (Temporary Service) Rule, 1965 and

submits that no irregularity has been committed by the respondent authority,

inasmuch as, a probationer and/or a temporary employee is not entitled for the

constitutional right as enshrined in Article 311 of the Constitution of India and

as per the Rule, one month's notice was duly served to the petitioner. The

petitioner was further given opportunity to file an appeal before the appellate

authority and the same was duly considered. As such, no infirmity is there in

the impugned order and the instant writ application deserves to be dismissed.

5. Having heard learned counsel for the parties and after going

through the documents available on record and the averments made in the

respective affidavits it appears that the petitioner has been removed from

service under Sub-Rule (1) of Rule 5 of Central Civil Service (Temporary

Service) Rule, 1965 by giving one month's notice and it was stipulated that on

expiry of notice of one month from the date of receipt of notice by the said

person his services shall stand terminated. Thereafter, the petitioner preferred

an appeal before the Inspector General, CRPF, Digha, Patna and his appeal

was rejected giving reason that the petitioner was subjected to a medical

examination on 29.08.2011 and 30.08.2011 and resultantly declared medically

"UNFIT". After conducting the medical examination, the concerned Doctor

observed that the candidate has only 10 dental points present out of 22 dental

points. Therefore, the petitioner has been declared "UNFIT" and only due to

this reason he has been terminated.

From record it further appears that previously also this

petitioner was terminated on the ground of using fake driving license.

However, the Patna High Court quashed the order of termination and he was

reinstated and was allowed to join by Annexure-7.

6. From the stand taken by the respondents in their counter

affidavit as well as the documents annexed; it clearly transpires that the

termination order appears to be simpliciter but the reasons given in the

appellate order makes the order of punishment stigmatic and punitive in

nature and as such; following principles of natural justice before issuance of

the order of removal, is must. At this stage it is pertinent to mention here that

the order of punishment cannot hold distinct identity in isolation to the

appellate order. Reference in this regard may be made to the order passed in

the case of Collector of Customs, Calcutta versus East India Commercial

Company Ltd. & Others, reported in AIR 1963 SC 1124 Para-5.

Now coming to the issue involved in this case with respect to

termination of a probationer; in the case of Rajasthan High Court vs. Ved

Priya and Anr. reported in 2020 SCC online Supreme Court 337 the Hon'ble

Apex Court has held at para 19 & 21 as under:

"19. Probationers have no indefeasible right to continue in employment until confirmed, and they can be relieved by the competent authority if found unsuitable. Its only in a very limited category of cases that such probationers can seek protection under the principles of natural justice, say when they are 'removed' in a manner which prejudices their future prospects in alternate fields or casts aspersions on their character or violates their constitutional rights. In such cases of 'stigmatic' removal only that a reasonable opportunity of hearing is sine-qua-non. Way back in Parshotam Lal Dhingra v. Union of India, a Constitution Bench opined that:

"28.... In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with."

21. True it is that the form of an order is not crucial to determine whether it is simplicitor or punitive in nature. An order of termination of service though innocuously worded may, in the facts and circumstances of a peculiar case, also be aimed at punishing the official on probation and in that case it would undoubtedly be an infraction of Article 311 of the Constitution. The Court in the process of judicial

review of such order can always lift the veil to find out as to whether or not the order was meant to visit the probationer with penal consequences. If the Court finds that the real motive behind the order was to 'punish' the official, it may always strike down the same for want of reasonable opportunity of being heard."

7. Relying upon the ratio as laid down in the aforesaid judgment

and looking to the appellate order it clearly transpires that the appellate order

is stigmatic in nature; as such, the appellate order dated 30.12.2011

(Annexure-12) issued by the Inspector General, OPS, Jharkhand Sector,

CRPF, Ranchi, whereby the appeal preferred by the petitioner has been

rejected, deserves to be quashed. Further, by the theory of merger and as held

herein above that the order of punishment cannot hold distinct identity in

isolation to the appellate order; the order dated 03.09.2011 (Annexure-8) and

order dated 4.10.2011 (Annexure-9) issued by the Commandant, 133 Bn,

C.R.P.F, Ranchi terminating the petitioner from his service without giving any

opportunity to the petitioner; also deserves to be quashed.

Consequently, the impugned order as contained in Annexure-12,

and also Annexure-8 & 9 are, hereby, quashed and set aside. The petitioner

shall be reinstated in service. However, the respondent will be at liberty to

proceed against this petitioner in accordance with law after following

principles of natural justice.

8. With the aforesaid observation, the instant writ application stands

allowed and disposed of.

(Deepak Roshan, J.)

Pramanik/

AFR