Dinesh Kumar Yadav vs Union Of India
2021 Latest Caselaw 1181 Jhar

                                            1                         [W.P.(S) No. 7024 of 2016]




             IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(S) No. 7024 of 2016

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Dinesh Kumar Yadav, son of Sri Khublal Yadav, resident of Godhar Road, Dhansar, PO and PS-Dhansar, District-Dhanbad ..... Petitioner

-- Versus --

1.Union of India, through Director General, Central Reserve Police Force, Raksha Bhawan, Sansad Marg, PO and PS Sansad Marg, New Delhi

2.Inspector General, Central Reserve Police Force, Jharkhand Sector at Ranchi CTC Campus, Tiril Asharam Road, PO and PS Dhurwa, District Ranchi

3.Deputy Inspector General, Central Reserve Police Force, Sembo, PO & PS-Dhurwa, District -Ranchi

4.Commandant, Group Centre, Central Reserve Police Force, Sembo, PO and PS Dhurwa, District Ranchi ...... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Sameer Saurabh, Advocate For Resp.-UOI :- Mr. Jitendra Tripathi, Advocate

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9/09.03.2021 Heard Mr. Sameer Saurabh, the learned counsel for the

petitioner and Mr. Jitendra Tripathi, the learned counsel for the

respondent Union of India.

2. This writ petition has been heard through Video

Conferencing in view of the guidelines of the High Court taking into

account the situation arising due to COVID-19 pandemic. None of the

parties have complained about any technical snag of audio-video and

with their consent this matter has been heard.

3. The petitioner has preferred this writ petition for quashing

the termination order dated 07.07.2014 contained in Annexure-5 and for

quashing the appellate order dated 14.11.2014 contained in Annexure-6.

4. The petitioner before approaching this Court, has

approached the Central Administrative Tribunal (CAT), Patna Bench at

Circuit Court, Ranchi which was dismissed because of lack of jurisdiction.

5. The petitioner was declared successful in the Test/Interview

conducted by the respondents and was selected for appointment as Head

Constable(Ministerial) in Central Reserve Police Force and the

appointment letter to that effect was issued by letter dated 16.11.2013.

The services of the petitioner was liable to be terminated at any time on

one month's notice during the initial period of two years by the

appointing authority, meaning thereby, the petitioner was on probation

and the probation period was of two years from the date of joining. By

letter dated 19.05.2014, eleven persons including the petitioner were

selected for fourteen weeks' training at Group Centre, CRPF, Durgapur

which was scheduled to be started from 02.06.2014. On 05.07.2014, a

letter was issued by the respondent no.3 wherein it was stated that the

petitioner tried to commit suicide by hanging himself from ceiling fan and

in view of such, one Assistant Commandant was directed to conduct the

enquiry for the same and submit the report. The enquiry report was

submitted by the Assistant Commandant on 06.07.2014. The petitioner

was dismissed by the order dated 07.07.2014 under Rule 1 of Rule 5 of

the Central Civil Services (Temporary Services), Rules, 1965. The

petitioner has preferred the appeal which was also dismissed by order

dated 14.11.2014. Aggrieved with this, the petitioner has preferred this

writ petition.

6. Mr. Sameer Saurabh, the learned counsel for the petitioner

submits that without following the proper enquiry, the petitioner has

been terminated which is against the mandate of law. He submits that

without assessing the real object or the purpose of the enquiry, the order

has been passed. He submits that the order in question is punitive in

nature and in that view of the matter the impugned orders are required

to be interfered with by this Court. He relied in the case of "Chandra

Prakash Shahi v. State of U.P.", (2000) 5 SCC 152, paragraph nos.13 and 19

of the said judgment are quoted hereinbelow:

"13. Following the decision of Parshotam Lal Dhingra case this Court in State of Bihar v. Gopi Kishore Prasad held that if the services of a probationer are terminated on the basis of an inquiry into the allegations of misconduct and inefficiency, the order would be punitive. It was pointed out that in the case of a probationer, it is always open to the Government to hold an inquiry merely to assess the merits of the employee to find out whether he was fit to be retained in service and confirmed. In another case relating to a probationer, namely, in State of Orissa v. Ram Narayan Das where the services were governed by Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules which provided that where the services of a probationer were intended to be terminated either during the period of probation or at the end of that period for any fault or on account of his unsuitability, he would be apprised of the grounds of unsuitability and would also be afforded an opportunity to show cause against it before orders are passed against him, it was held that the termination order would not become punitive merely because of an antecedent inquiry but the real object or purpose of the inquiry had to be found out whether it was held merely to assess the general unsuitability of the employee or it was held into charges of misconduct or inefficiency etc. In Ranendra Chandra Banerjee v. Union of India which again was a case relating to a probationer, it was held that on account of Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules if the inquiry was held for the limited purpose of finding out whether the employee was fit to be retained or not, the said inquiry would not make the order

punitive as the inquiry could not be related to any misconduct of the employee. This view was reiterated in Jagdish Mitter v. Union of India. In Madan Gopal v. State of Punjab the order by which the services of the employee were terminated was an order simpliciter in nature, which was innocuously worded, but it was held by this Court that the form of the order was not decisive and the Court could go behind that order to find out whether it was founded upon the misconduct of the employee.

19. While the judicial pronouncements stood at that stage, the entire case-law was reviewed by this Court in State of U.P. v. Ram Chandra Trivedi in which it was contended that the legal and constitutional position with regard to an order of termination was not settled as there were conflicting decisions of this Court on that question. This contention was not accepted and on a review of the entire case-law, including the Seven-Judge Bench decision in Samsher Singh case it was laid down that the Court has consistently held that the "motive", in passing an order of termination or reversion, operating in the minds of the Government was not a relevant factor for determining whether the order was passed by way of punishment. What was determinative of the true nature of the order was not its exterior form but the "foundation" on which it was based. If misconduct or negligence was the foundation of the order of termination, or for that matter, reversion, the order would be punitive in nature. The Court also referred to the decision in Regional Manager v. Pawan Kumar Dubey in which it was observed as under: (SCC p. 338, para 7) "7. We think that the principles involved in applying Article 311(2) having been sufficiently explained in Samsher Singh case it should no longer be possible to urge that Sughar Singh case could give rise to some misapprehension of the law.

Indeed, we do not think that the principles of law

declared and applied so often have really changed. But, the application of the same law to the different circumstances and facts of various cases which have come up to this Court could create the impression sometimes that there is some conflict between different decisions of this Court. Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts."

7. On this ground, he submits that the termination order is

required to be interfered with.

8. Per contra, Mr. Tripathi, the learned counsel for the

respondent Union of India submits that Rule 1 of Rule 5 of the Central

Civil Services (Temporary Services), Rules, 1965 has rightly been applied

in the case of the petitioner as the petitioner was a probationer. He

submits that the brother of the petitioner has also pointed out before the

authority concerned about his depression and that is fortified in view of

Annexure-R/2 of the counter affidavit, which is a letter of the brother of

the petitioner. He further submits that the petitioner was sent to

Composite Hospital, CRPF, Ranchi for further management vide GC, CRPF,

Ranchi letter dated 28.05.2014 and the said centre was requested to

provide him proper treatment. Owing to the abnormal health condition

that was informed to the higher authority i.e. IGP, Jharkhand Sector,

CRPF, Ranchi. He submits that looking to the health condition of the

petitioner, the basic training of the petitioner at Durgapur w.e.f.

30.05.2014 was deferred till the next upcoming training schedule. He

submits that the petitioner tried to end his life and when he was rescued,

he tried to snatch the rifle from one of the constable and after

preliminary enquiry and considering all these aspects, the termination

order has been passed and the appellate order also affirmed the

termination order. He submits that writ petition is fit to be dismissed.

9. Having heard the learned counsels appearing for the

parties, the Court has gone through the materials on record. The C.R.P.F

is a para-military force and the physical fitness is a sine qua non for its

employees. After the appointment, the petitioner was required to go for

the basic training which was not done in view of his ailment. The

petitioner has not completed successfully the training as mentioned in his

offer of appointment. The petitioner was sent for management of his

ailment to Composite Hospital, CRPF, Ranchi. The appointing authority

has got the prerogative to discharge with one month's notice. The

petitioner was found not medically fit and the respondents have issued

termination notice in exercise of powers conferred under Rule 1 of Rule 5

of the Central Civil Services (Temporary Services), Rules, 1965 which

provides that in case of termination of the service of a temporary

employee, the order of termination which should be passed by the

appointing authority should not mention the reason for such termination.

Therefore, the order of termination does not violate the principle of

natural justice. On perusal of the said order, it transpires that the

termination order is not punitive in nature. Rule 16 of the CRPF Rules,

1955 is applicable in the case of the petitioner which provides that the all

the members of the force shall be enrolled for a period of three years

and during this period of engagement, they shall be liable to be

discharged at any point of time with one month's notice by the

appointing authority. So far as the decision relied by the learned counsel

for the petitioner is concerned, it appears that in that case which the

Hon'ble Supreme Court was considering, in that case the petitioner has

already completed the training and has also completed two years of

probation period without any blemish record. Whereas the case of the

petitioner is governed under Rule 16 of the Central Reserve Police Force

Rules, 1955. Therefore, the case relied by the petitioner is distinguishable

from the facts and circumstances of the present case. The petitioner

being CRPF personnel is required to be physically fit. The petitioner has

not completed his basic training due to his such ailment and the

respondent authority in exercise of the powers conferred under Rule 16

of the Central Reserve Police Force Rules, 1955, has passed the

impugned order. The petitioner was also sent for health management to

Composite Hospital, CRPF, Ranchi.

10. In the peculiar facts and circumstances of the present case,

the petitioner is not fit to discharge the duties of the CRPF. The decision

of the authority does not require to be interfered with.

11. The writ petition is, accordingly, dismissed.

( Sanjay Kumar Dwivedi, J) SI/,