Jharkhand High Court
Director vs Mayuresh Dash on 18 January, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1 W.P.(S) No.612/2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.612 of 2023
------
Director, CSIR-CIMFR [Central Institute of Mining and Fuel
Research], a unit of Council of Scientific Industrial Research
(C.S.I.R.), having its Registered Office at-Barwa Road, Dhanbad,
P.O. & P.S. Dhanbad, District Dhanbad, Jharkhand represented
through its Controller of Administration (COA) namely Alok Sharma,
Age about 48 years, S/o. Late Pooran Chand Sharma R/o. CSIR-
CIMFR Colony, Dhanbad, P.O. & P.S. Dhanbad District Dhanbad,
Jharkhand .... .... Petitioner
Versus
1. Mayuresh Dash, S/o. Sri Rabindra Kumar Dash
2. Union of India through Secretary, Science & Technology,
Technoloy Bhawan, New Mehrauli Road, New Delhi-110016, P.O.
& P.S-Mehrauli, Dist.-New Delhi.
3. The Administrative Officer, CSIR-Central Institute of Mining & Fuel
Research having its office at Barwa Road, P.O. & P.S. Dhanbad
District Dhanbad, Jharkhand.
4. The Head of Research Group, Combustion, Carbonisation and
Non Conventional Gas Research Group at CSIR-Central Institute
of Mining & Fuel Research having its office at Barwa Road, P.O. &
P.S. Dhanbad District Dhanbad, Jharkhand.
.... .... Respondents
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
------
For the Appellant : Mr. Abhay Prakash, Advocate
For the Resp. No.1 : Mr. Mayuresh Dash, In Person
------
12/Dated: 18.01.2024
Per Sujit Narayan Prasad, J.
1. This writ petition is under Article 226 of the Constitution of India,
whereby and whereunder, the order dated 15.12.2022 passed by the
Circuit Bench of Central Administrative Tribunal, Patna Bench at Ranchi
(hereinafter referred to as CAT, Ranchi) in Original Application being
O.A. No.051/00269/2021, whereby, the order dated 26.02.2021 as
contained in letter no.8/3489/19-Estt-I/987, by which, the service of the
petitioner, respondent no.1 herein, has been terminated as also the
direction sought for confirmation of the applicant, who is the respondent
no.1 in the list. The Tribunal has quashed the aforesaid impugned order
and the service of the applicant, respondent no.1 herein was restored
to the status as existing on 25.03.2021 prior to termination.
2. The brief facts as per the pleading made in the original
application, as has been interpreted in the instant petition, read as
under:-
3. It is the case of the applicant/respondent no.1 that the applicant
was appointed to the post of Technical Assistant/GR III in CSIR-Central
Institute of Mining and Fuel Research (CIMFR) vide order dated
25.07.2019. The appointment offer stipulated that applicant will be on
probation for one year from the date of his joining which may be
extended or curtailed at the discretion of the competent authority.
4. The appointment offer also mentioned that applicant's services
may be terminated during the period of probation on one month notice
in accordance with the provisions of the Central Civil Services
(Temporary Service) Rules, 1965 without assigning any reason.
5. The applicant had joined the post on 09.08.2019. On completion
of one year, applicant's services was not confirmed and his probation
was extended till 07.11.2020 vide OM dated 28.08.2020. The OM
extending the probation mentioned lack of sense of responsibility,
unsatisfactory disposal of allotted work, inability to perform jobs in given
time and lack of patience as the grounds for extension of probation.
Applicant's probation was further extended by 3 months till 07.02.2021
vide OM dated 02.12.2020 on the grounds of deficiencies noted in
timely completion of allotted work, inability to perform the job in
satisfactory manner and lack of inquisitiveness.
6. It is the further case that after expiry of the second extension of
probation, applicant was served a show cause notice vide OM dated
08.02.2021 as to why his services should not be terminated in terms
the appointment offer and DOPT OM dated 11.03.2019. Applicant
submitted his representation but the respondents after considering the
representation decided to terminate his services w.e.f. 25th March,
2021. Respondent, the petitioner herein, vide OM dated 26.02.2021,
gave one month notice to applicant terminating his services from 25th
March 2021 (AN).
7. It is evident from the pleading of the respondent no.1, who was
applicant before the learned Tribunal was appointed Technical
Assistant/GR III in CSIR-Central Institute of Mining and Fuel Research
(CIMFR) vide order dated 25.07.2019. The aforesaid offer of
appointment contains a condition that the period of probation for a
period of one year from the date of his joining which may be extended
or curtailed at the discretion of the competent authority.
8. The further condition contained in the said offer of appointment
that the applicant's services may be terminated during the period of
probation on one month notice in accordance with the provisions of the
Central Civil Services (Temporary Service) Rules, 1965 without
assigning any reason. Accordingly, the applicant has joined the post on
09.08.2019. On completion of one year, his service was not confirmed,
rather, his probation was extended till 07.11.2020 vide OM dated
28.08.2020.
9. The applicant's probation was further extended by three months
till 07.02.2021 vide OM dated 02.12.2020 on the ground of deficiencies
noted in timely completion of allotted work, inability to perform the job in
satisfactory manner and lack of inquisitiveness.
10. The respondents before the Tribunal and the petitioner herein,
thereafter, had issued show cause notice vide OM dated 08.02.2021 as
to why his services should not be terminated in terms of the
appointment offer and DoPT OM dated 11.03.2019.
11. The applicant replied by putting his defence but according to the
applicant, without taking into consideration the aforesaid fact and the
defence put-forth for its consideration, the order of termination has
been passed.
12. The applicant, being aggrieved with the said decision of the
authority of termination, has challenged the same before the learned
Tribunal by filing original application.
13. The ground has been taken that the order of termination from
service being stigmatic since the very allegation leveled against him
that the applicant is not found to be on probation and in course of
discharge of his duty, he is having lack of responsibility and sensitivity.
14. The applicant, respondent herein has taken the ground of
termination that the aforesaid ground is nothing but the order is said to
be passed on stigma and as such, the recourse as has been taken by
taking aid of the provision of the Central Civil Services (Temporary
Service) Rules, 1965 (hereinafter referred to as the Act 1965), cannot
be said to be permissible since the said Rule, 1965 is to be resorted in
a case where the termination is simplicitor in nature.
15. While on the other hand, the respondent, the writ petitioner herein
on being called upon by the learned Tribunal has taken the ground by
filing the written statement that there is no infirmity in the order of
termination since the Temporary Service Rule, 1965, is said to be
applicable.
16. The respondent by taking aid of the provision of Rule, 1965 and
taking into consideration the condition stipulated in the offer of
appointment has given due notice and thereafter, on consideration of
the objection so made by the applicant, the decision has been taken for
his termination.
17. The learned Tribunal after appreciating the argument advanced
on behalf of the parties and taking into consideration the fact that the
allegation of lack of responsibility and sensitivity are the reasons for
termination. Hence, the same has been considered to be stigmatic in
nature and as such, came to the conclusion that the order of
termination cannot be said to be simplicitor, rather, it becomes
stigmatic, hence, the provision of Rule, 1965 will not be applicable.
18. The learned Tribunal, based upon the aforesaid reason, has
quashed and set aside the order of termination restoring the status of
the applicant, as existing on 25.03.2021 prior to the issuance of order
of termination by allowing the original application.
19. The respondent, petitioner, being aggrieved with the said order is
before this Court by filing writ petition under Article 226 of the
Constitution of India by raising the following grounds:-
(i) The first ground has been taken that even accepting what has
been considered by the learned Tribunal to be correct, the reason for
interfering with the order of termination is that the plea of the petitioner
of having lack of sensitivity and responsibility has been considered to
be stigmatic even accepting the aforesaid fact that the right recourse
available to the Tribunal was to remit the matter before the authority for
conducting regular departmental proceeding.
The aforesaid requirement is based upon the order that if the
public servant is allowed to discharge his duty if there is lack of
responsibility and sensitivity then such public servant cannot be
considered to be retained in service, instead of doing so, the learned
Tribunal has quashed the impugned order on the ground of technicality
and restored the status of the applicant, as such, the order of tribunal
based upon the aforesaid reason, is not sustainable in the eye of law.
(ii) The ground has been taken that the Conduct Rule, 1965 in
the facts and circumstances of the case is not applicable, as per the
conclusion arrived at by the learned Tribunal but even the master rule
which is meant for regular employee, who is under the regular
establishment, was allowed to be dealt with but the same has not been
done, rather, without giving opportunity to the employer, the petitioner,
the order of reinstatement has been passed restoring the status of the
applicant/respondent.
Hence, the said order passed by the learned Tribunal is not
sustainable and as such, the same is fit to be quashed and set aside.
20. Per contra, Mr. Mayuresh Dash, respondent, in-person, has
appeared and seriously contested the case by refuting the following
argument/ground, as has been agitated on behalf of the petitioner.
(i) It has been submitted that there is no such allegation as
available on record that he is having lack of sensitivity and the
responsibility.
If such allegation was there, then, cogent document ought to
have been provided at the time, when the show cause notice was
issued but the same is lacking.
(ii) The learned Tribunal has not committed any error in quashing
the order of termination by taking into consideration the very object and
spirit of the Rule, 1965 which provides for terminating the service of the
probationers.
(iii) The respondent, petitioner herein, in the written statement
has come out with the specific pleading of casting allegation of not
rendering the service properly due to lack of sensitivity and
responsibility as also the extension of the period of probation which
itself suggests and clarifies that the same is by way of imputation and
once the imputation has been casted upon the public servant, the
requirement under the service jurisprudence is that thorough inquiry is
to be conducted for the aforesaid purpose and taking the aforesaid
ground, an application has been filed before the learned Tribunal.
The learned Tribunal has appreciated the aforesaid fact and
come to the conclusion based upon the plea taken by the respondent,
the petitioner herein, in the written statement that the order of
termination is punitive and as such, is correct in coming to the
conclusion that the Rule, 1965 is not applicable in the facts and
circumstances of the case.
21. To buttress his argument, the party-in-person has relied upon the
judgment laid down by the Hon'ble Apex Court in the case of Pradeep
S/o Rajkumar Jain Vrs. Manganese Ore (India) Limited & Ors.,
passed in Civil Appeal No.7607 of 2021 [arising out of S.L.P.(C)
No.21346 of 2017].
22. The party-in-person, in view of the aforesaid ground has
submitted that the learned Tribunal while interfering with the order of
termination, therefore, cannot be said to have committed an error,
hence, the instant writ petition is fit to be dismissed.
23. We have heard the learned counsel for the parties and perused
the finding recorded by the learned Tribunal in the impugned order as
also the pleading made by them in the affidavit including the
pleading/written statement as available on record.
24. This Court, on the basis of the material available on record and
after hearing the learned counsel for the parties, is of the view that
three issues are required to be considered, i.e.,
(i) Whether in the case of the respondent no.1, the provision of the
Conduct Rule, 1965 will be applicable taking into consideration the
nature of appointment of the concerned respondent.
(ii) Whether the order passed by the learned Tribunal is based upon the
cogent/justifiable reason by applying the provision of Temporary
Service Rules, 1965.
(iii) Whether the service of the respondent no.1 is to be protected in
view of the fact that the service of the respondent has been terminated
by relying upon the incorrect rule, i.e., CCS (Temporary Service) Rules,
1965 instead of CCS (CCA) Rules, 1965.
25. All the issues are interlinked and as such, the same are being
decided together.
26. This Court, before delving upon the issue based upon the rival
submissions advanced on behalf of the parties, deems it fit and proper
to refer the provision of Central Civil Services (Temporary Services)
Rules, 1965, which reads as under:-
"1. Short title, commencement and application.-(1)
These rules may be called The Central Civil Services
(Temporary) Services) Rules, 1965.
(2) They shall come into force at once.
[(3) Subject to the provisions of sub-rule (4), these
rules shall apply to all person,-
(i) who hold a civil post including all the civilians paid
from the Defence Services Estimates under the
Government of India and who are under the rule-making
control of the President, but who do not hold a lien or a
suspended lien on any post under the Government of India
or any State Government;
(ii) who are employed temporarily in work-charge
establishments and who have opted for pensionery
benefits.
(4) Nothing in these rules shall apply to,-
(a) Railway servants;
(b) Government Servants not in wholetime
employment;
(c) Government Servant engaged on contract;
(d) Government Servants paid out of contingencies;
(e) Persons employed in extra-temporary
establishments or in work-charged establishments (other
than the persons employed temporarily and who have
opted for pensionary benefits);
(f) non-departmental telegraphists and telegraphmen
employed in the Posts and Telegraphs Department;
(g) such other categories of employees as may be
specified by the Central Government by notification
published in the Official Gazette.
2. Definitions.-In these rules, unless the context
otherwise requires,-
(a) "appointing authority" means, in relation to a
specified post, the authority declared as such under the
Central Civil Services (C.C.&A.) Rules, 1965;
(b) Omitted.
(c) by Noti. No.GSR.145, dated 22nd February, 1989,
G.I. Min. of per P.G. & Pen. (Dept. of Per. & Teg.).
(d) "temporary service" means the service of a
temporary Government Servant in a temporary post of
officiating service in a permanent post, under the
Government of India.
(e) "defence service" means service under the
Government of India in the Ministry of Defence and in the
Defence Accounts Departments under the control of the
Ministry of Finance (Department of Expenditure) (Defence
Division) paid out of the Defence Services Estimates and
not permanently subject to the Air Force Act, 1950 (45 of
1950) or the Army Act, 1950 (45 of 1950) or the Navy Act,
1957 (62 of 1957)."
3. [* * *]
4. [* * *]
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 services of any such Government
Servant may be terminated forthwith by payment to him of
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."
27. It is evident from the aforesaid Rule that the same has been
carved out to deal with the services of the temporary employee. It is
evident that the reference made in the Rule, 1965 is not for the
probationers, rather, for the temporary employee since the said rule
contains the word 'temporary'.
28. The law is well settled and clarified by the Hon'ble Apex Court
that there is difference in between temporary and probationer
employee.
29. The temporary employee is to be defined as an employee who is
not in the regular establishment, while, the employee who has been
asked to join with a period of probation will be said to be in the regular
establishment but their services will be continued followed by
confirmation depending upon his performance during the period of
probation.
30. The writ petitioner, therefore, while accepting the candidature of
the respondent while issuing offer of appointment under the regular
establishment, has kept his service for probation of one year, subject to
the extension depending upon the performance of the respondent
concerned with a condition of its extension.
31. The Hon'ble Apex Court has clarified while dealing with the
provision of Rule, 1965 that even in the case of temporary employee or
probationers, the same will not be applicable of terminating such
employee, if the order of termination is punitive in nature, reference in
this regard may be made to the judgment rendered by the Hon'ble Apex
Court in the case of V.P. Ahuja Vs. State of Punjab, reported in AIR
2000(3) SCC 239, wherein, it has been held that if the order is stigmatic
or punitive the rules of principles of natural justice ought to have been
followed by the respondents authority as because in paragraph 7 of the
said judgment it has been held that "a probationer, like a temporary
servant, is also entitled to certain protection and his services cannot be
terminated arbitrarily, nor can those services be terminated in a punitive
manner without complying with the principles of natural justice"
32. The word 'punitive' has been defined by the Hon'ble Apex,
whereby and whereunder, it has been interpreted that the order of
termination will be said to be punitive if is based upon the allegation or
any type of stigma so that it be carried against the applicant for all time
to come.
33. The said punitive order if allowed to be operated without
providing an opportunity of hearing to the party concerned, then such
party will be condemned without providing any opportunity of hearing
which will be nothing but in violation of cardinal principle of natural
justice.
34. The law in this regard has been settled by the Hon'ble Apex Court
in the case of Msr. Maneka Gandhi Vrs. Union of India and Anr.,
reported in (1978) 1 SCC 248, wherein, the issue involved was
impounding of the passport as required to be impounded under the
provision of Section 10(3) of the Indian Passport Act. The validity of the
aforesaid provision was assailed on the ground that impounding of
passport being major in nature and if taken that will be an adverse
decision against the party concerned in whose favour the passport has
been issued.
35. The ground has been taken that the aforesaid provision does not
contain a condition that before doing so, the party concerned is to be
provided an opportunity of hearing.
36. The Hon'ble Apex Court while, considering the issue, although,
has refused to interfere with the validity of the aforesaid provision by
holding it to be valid but come out with the proposition that even if,
there is no reference of opportunity of hearing to the concerned then
also as per the cardinal principle to provide an opportunity before taking
an adverse decision having civil consequence, the opportunity of
hearing by way of issuance of notice, is to be provided so that the
principle of passing an adverse decision or condemning a person may
not be passed without providing an opportunity of hearing, the relevant
paragraph of the said judgment is required to be referred herein which
reads as under:-
"9. We may commence the discussion of this question
with a few general observations to emphasise the
increasing importance of natural justice in the field of
administrative law. Natural justice is a great
humanising principle intended to invest law with
fairness and to secure justice and over the years it has
grown into a widely pervasive rule affecting large
areas of administrative action. Lord Morris of Borth-y-
Gest spoke of this rule in eloquent terms in his
address before the Bentham Club:
"We can, I think, take pride in what has been done
in recent periods and particularly in the field of
administrative law by invoking and by applying these
principles which we broadly classify under the
designation of natural justice. Many testing problems
as to their application yet re-remain to be solved. But I
affirm that the area of administrative action is but one
area in which the principles are to be deployed. Nor
are they to be invoked only when procedural failures
are shown. Does natural justice qualify to be described
as a 'majestic' conception? I believe it does. Is it just a
rhetorical but vague phrase which can be employed,
when needed, to give a gloss of assurance? I believe
that it is very much more. If it can be summarised as
being fair-play in action -- who could wish that it would
ever be out of action? It denotes that the law is not
only to be guided by reason and by logic but that its
purpose will not be fulfilled; it lacks more exalted
inspiration.13
And then again, in his speech in the House of Lords in
Wiseman v. Borneman14, the learned Law Lord said in
words of inspired felicity:
"... that the conception of natural justice should at
all stages guide those who discharge judicial functions
is not merely an acceptable but is an essential part of
the philosophy of the law. We often speak of the rules
of natural justice. But there is nothing rigid or
mechanical about them. What they comprehend has
been analysed and described in many authorities. But
any analysis must bring into relief rather their spirit and
their inspiration than any precision of definition or
precision as to application. We do not search for
prescriptions which will lay down exactly what must, in
various divergent situations, be done. The principles
and procedures are to be applied which, in any
particular situation or set of circumstances, are right
and just and fair. Natural justice, it has been said, is
only 'fair play in action'. Nor do we wait for directions
from Parliament. The common law has abundant
riches : there may we find what Byles, J., called 'the
justice of the common law' ".
Thus, the soul of natural justice is "fair-play in action"
and that is why it has received the widest recognition
throughout the democratic world. In the United States,
the right to an administrative hearing is regarded as
essential requirement of fundamental fairness. And in
England too it has been held that "fair-play in action"
demands that before any prejudicial or adverse action
is taken against a person, he must be given an
opportunity to be heard. The rule was stated by Lord
Denning, MR in these terms in Schmidt v. Secretary of
State or Home Affairs15 -- "where a public officer has
power to deprive a person of his liberty or his property,
the general principle is that it has not to be done
without his being given an opportunity of being heard
and of making representations on his own behalf". The
same rule also prevails in other Commonwealth
countries like Canada, Australia and New Zealand. It
has even gained access to the United Nations
(vide American Journal of International Law, Vol. 67, p.
479). Magarry, J., describes natural justice "as a
distillate of due process of law" (vide Fontaine v.
Chastarton16). It is the quintessence of the process of
justice inspired and guided by "fair-play in action". If
we look at the speeches of the various Law Lords in
Wiseman case14 it will be seen that each one of them
asked the question "whether in the particular
circumstances of the case, the Tribunal acted unfairly
so that it could be said that their procedure did not
match with what justice demanded", or, was the
procedure adopted by the Tribunal "in all the
circumstances unfair?" The test adopted by every Law
Lord was whether the procedure followed was fair in
all the circumstances and "fair-play in action" required
that an opportunity should be given to the taxpayer "to
see and reply to the counter-statement of the
Commissioners" before reaching the conclusion that
"there is a prima facie case against him". The inquiry
must, therefore, always be: does fairness in action
demand that an opportunity to be heard should be
given to the person affected?"
37. This Court is now proceeding to examine the issue in the light of
the aforesaid fact.
38. The admitted position herein is that the respondent no.1 having
been appointed in service on the post of Technical Assistant/GR III
under the regular establishment of the respondent, petitioner herein,
which carries two conditions:-
(i) The appointment will be for a period of one year by way of
probation, subject to its extension depending upon the performance of
work which is to be discharged by the probationer.
(ii) The employer has the prerogative/privilege that in case, the
services have not found to be satisfactory during the probation period,
by giving three months' notice, the services can be terminated.
39. Admittedly herein, the condition is there that in case the
concerned public servant is failed in discharging his duty to the utmost
satisfaction of the employer, then after issuance of three months'
notice, the services can be dispensed with.
40. The writ petitioner by taking aid of the aforesaid condition and
also considering the fact that the applicant, the respondent was on
probation, has taken recourse of Central Civil Service (Classification,
Control and Appeal) Rules, 1965 which contains a Rule 14 of the
Rules, 1965.
41. It requires to refer herein that the Central Government has come
out with two rules, i.e., (i) Central Civil Service (Classification, Control
and Appeal) Rules, 1965 and (ii) Central Civil Services (Temporary
Service) Rules, 1965.
42. So far as the Central Civil Service (Classification, Control and
Appeal) Rules, 1965 is concerned, the same is to be applied for the
employees who are under the regular establishment. However, so far
as the Central Civil Services (Temporary Service) Rules, 1965 is
concerned, the same has been enacted in exercise of power conferred
as a proviso to Article 309 and Clause-5 of the Article 148 of the
Constitution of India for the very purpose to deal with the services of
the temporary government servant.
43. Admittedly, the 'temporary service' has been defined under Rule,
1965 as under Rule 2(d) which means the service of temporary
government servant in a temporary post or officiating service in a
permanent post under the Government of India.
44. It is, thus, evident from the meaning of temporary service as
defined under the Central Civil Services (Temporary Service) Rules,
1965 that such rule is to be exercised before taking any action against
the person concerned who is holding the temporary post, meaning
thereby, such appointment of the person concerned in a service in
temporary post or officiating service in a permanent post.
45. Coming back to the facts of the case particularly the offer of
appointment, whereby and whereunder, it is evident that the applicant,
respondent no.1, herein has not been appointed in a temporary post or
even he has not been asked to officiate his duty in a permanent post,
rather, as per the offer of appointment, which will be said to be admitted
case of the writ petitioner that the respondent no.1 has been appointed
against the permanent post as a probationer on probation.
46. This Court, after making reference of the meaning of temporary
service, is now proceeding to answer the question:
(i) As to whether, the decision to terminate the service of the
respondent by taking the aid of the master rule construing the service
of the respondent to be temporary in nature since the respondent was
under probation as per the terms and conditions of the appointment,
can it be said that the said office memorandum is to be applied in the
case of the respondent no.1.
(ii) The second question which requires consideration by
taking note of the argument advanced on behalf of the petitioner that no
such Rule said to be Central Civil Services (Temporary Service) Rules,
1965, has been followed by the writ petitioner but can it be said to be
acceptable in view of the fact that the master rule also provides to deal
with the probationery public servant by way of considering him in the
temporary service, meaning thereby, the aforesaid master rule can be
said to be based upon the principle of Temporary Service Rule, 1965
even if the respondent has not adopted the same.
47. This Court, in order to answer both the issue which is crux of the
issues to be answered to assess the act of the petitioner in terminating
by taking aid of the master rule which is in principle based upon the
Temporary Services Rules, 1965.
48. There will be no dispute if the service of the respondent
concerned will be on temporary service or he was asked to officiate
against the permanent post under the Govt. of India, then the provision
as contained under the Central Civil Services (Temporary Service)
Rules, 1965, can well be taken recourse.
49. But when the admitted case of the writ petitioner is that the
respondent has been appointed against the permanent post by keeping
him on probation for one year subject to its extension, then applying the
master rule which is based upon the Central Civil Services (Temporary
Service) Rules, 1965, according to our considered view, cannot be said
to be proper and justified.
50. Further, when the respondent no.1 having been inducted in the
service against the permanent post, how his service can be treated to
be temporary in nature as per the meaning of 'Temporary Service' as
contained under Rule 2(d) of the Central Civil Services (Temporary
Service) Rules, 1965.
51. As such, according to our considered view, the master rule so far
as it relates to dealing with the probationery service of a public servant
by taking strength of the Central Civil Services (Temporary Service)
Rules, 1965, cannot be said to be justified and proper.
52. The aforesaid ground was taken by the respondent before the
learned Tribunal, but the Tribunal has not accepted the said version
and misconstrued itself in making difference in between the service of
the public servant which is on probation and temporary service.
53. The learned Tribunal ought to have carved out the distinction
before accepting the plea of the petitioner of applying the master rule
which is the principle based upon the Central Civil Services (Temporary
Service) Rules, 1965 by carving out the distinction in between the
probationery service of public servant against the permanent post and
the temporary service by taking note of the definition of 'temporary
service' as per the provision of Rule 2(d) of the Rules, 1965.
54. Further, the specific rule is also made to deal with the permanent
employees who have been appointed on permanent basis, i.e., Central
Civil Service (Classification, Control and Appeal) Rules, 1965. The said
rule was also enacted under the power conferred by proviso to Article
309 and Article 148 of the Constitution of India.
55. The 'Government Servant' has been defined therein as under
Rule 2(h) which means a person who-
(i) is a member of a service or hold as civil post under the Union, and
includes any such person on foreign service or whose services are
temporarily placed at the disposal of a State Government, or a local or
other authority;
(ii) is a member of a service or holds a civil post under a State
Government and whose services are temporarily placed at the disposal
of the Central Government;
(iii) is in the service of a local or other authority and whose services
are temporarily placed at the disposal of the Central Government.
56. Thus, it is evident that the 'government servant' means as per the
definition contained therein as referred hereinabove that a member who
holds a civil post under the Union or the other eventuality as referred
under Rule 2(h)(ii)(iii).
57. The word 'holds' denotes that the moment the person concerned
has been appointed entitling him to hold the post, he will carry lien over
the said post. The 'lien' has been defined by the Hon'ble Apex Court, as
has been held in the judgment rendered in the case of State of
Rajasthan & Anr. vs. S.N. Tiwari & Ors, (2009) 4 SCC 700, has been
pleased to hold by taking into consideration the applicable rule under
Rajasthan Service Rules as would appear from paragraph nos. 14, 15,
17, 18, 21 and 21. For ready reference, the said paragraphs are being
referred as under:
"14. It is not the case of the State that any competent authority
terminated the lien of the respondent in the parent department.
There is no material made available by the State to show that the
respondent had been confirmed in any permanent post and that
he was holding that appointment in a substantive capacity on
permanent basis. On the other hand, even while working as
homoeopathic doctor in ESI Corporation, the respondent
employee obtained directions as against the State and the
Directorate of Economics and Statistics Department to determine
the yearwise vacancies and to make promotions from the post of
Statistical Inspector to Statistical Assistant in accordance with the
Rules. That order attained its finality. The same would
demonstrate that the respondent employee always had a lien in
the Department of Economics and Statistics.
15. It may be necessary to notice Rule 18 of the Rajasthan
Service Rules which is reproduced in its entirety hereunder:
"18. Termination of lien. -- (a)A government servant's 'lien'
on a post may in no circumstances be terminated, even with
his consent if the result will be to leave him without a 'lien' or
a suspended 'lien' upon a permanent post.
(b) A government servant's lien on a post stands terminated
on his acquiring a lien on a permanent post (whether under
the Government or Central/other State Governments) outside
the cadre on which he is borne."
A bare reading of the Rule makes it clear that a government
servant's lien on a post cannot be terminated in any
circumstances even with his consent if it results in leaving the
government servant without a lien or a suspended lien upon
a permanent post. A government servant's lien on a post
stands terminated only on his acquiring a lien on a
permanent post outside the cadre on which he is borne.
17. It is very well settled that when a person with a lien
against the post is appointed substantively to another post,
only then he acquires a lien against the latter post. Then and
then alone the lien against the previous post disappears. Lien
connotes the right of a civil servant to hold the post
substantively to which he is appointed. The lien of a
government employee over the previous post ends if he is
appointed to another permanent post on permanent basis. In
such a case the 'lien' of the employee shifts to the new
permanent post. It may not require a formal termination of
'lien' over the previous permanent post.
18. This Court in Ramlal Khurana v. State of Punjab [(1989) 4 SCC
99 : 1989 SCC (L&S) 644 : (1984) 11 ATC 841] observed that:
(SCC p. 102, para 8)
"8. ... lien is not a word of art. It just connotes the right
of a civil servant to hold the post substantively to which
he is appointed."
19. The term "lien" comes from the Latin term "ligament" meaning
"binding". The meaning of 'lien' in service law is different from
other meanings in the context of contract, common law, equity, etc.
The lien of a government employee in service law is the right of
the government employee to hold a permanent post substantively
to which he has been permanently appointed.
21. Be it noted that no objections were raised when the
respondent employee gave his option on 8-4-1991 duly informing
all the concerned that his lien in the Subordinate Statistical Service
had to be maintained for the purposes of promotions to higher
posts/protection of financial interests, etc. In such view of the
matter the respondent employee always had his 'lien' in his parent
department. The State at this stage cannot be allowed to turn
round and say that the respondent employee did not retain lien
against his post in the parent department."
58. It is evident from the said judgment that lien is entitling a person
to hold the post unless if such person has been appointed in another
service on substantive basis.
59. It has also been interpreted by the Hon'ble Apex Court merely by
appointment of a person who holds a lien in another establishment, the
lien will remain in another establishment if such appointment in different
establishment is on temporary or ad-hoc or on deputation. But the
moment such public servant will be absorbed in the different
departments, a lien which was being carried in the parent department
will extinguish the day, when it will be taken into different establishment.
60. Herein also, as would appear from the offer of appointment that
the respondent was appointed against the permanent post and as
such, it will be said that he was holding the civil post but with the rider
that such period of service will be for probation for one year subject to
extension merely because the service of the respondent has been kept
on probation, his status to hold the civil post on permanent basis
cannot extinguish by its deemed conversion to treat him as a temporary
service by taking into consideration the meaning of temporary service
as defined under Rule 2(d) of the Temporary Service Rules, 1965.
61. The confirmation of service on closure of the probation period,
although, depends upon the performance of the work of the concerned
probationer and the same is with the satisfaction of the employer but in
no case, his status will be changed from the holder of the permanent
civil post to that of the holder of the temporary service, due to absence
of the condition as stipulated under Rule 2(d) of the Temporary Service
Rules, 1965.
62. Proceeding further, based upon the aforesaid reasoning and
taking into consideration the fact that the service of the respondent no.1
was under the permanent establishment but was on probation and as
such, whether such service can be dispensed with by the employer, writ
petitioner herein merely on issuance of show cause.
63. The moment the status of the public servant becomes the holder
of the civil post then he becomes entitled irrespective of the fact that he
was on probation to have the adequate and sufficient opportunity to
defend his case before dispensing with his services.
64. The C.C.S. (Classification, Control & Appeal) Rules, 1965 has
also been formulated for the aforesaid purpose so as to provide
adequate and sufficient opportunity to the concerned public servant
before taking any adverse decision.
65. The Rule 11 of C.C.S. (Classification, Control & Appeal) Rules,
1965 under part-V speaks about the penalties and disciplinary
authorities.
66. The 'disciplinary authority' has been defined under Rule 12. The
authority to institute proceedings has been dealt with under Rule 13
and the most important part, the Rule 14 as under part-VI which laid
down procedure for imposing major penalties and as per which, the
procedure is to be followed for imposing punishment as enshrined
under Rule 11, for ready reference, Rule 11, 12, 13 & 14 reads as
under:-
"11. Penalties. The following penalties may, for good and
sufficient reasons and as hereinafter provided, be imposed on a
Government servant, namely :- Minor Penalties -
(i) censure;
(ii) withholding of his promotion;
(iii) recovery from his pay of the whole or part of any pecuniary
loss caused by him to the Government by negligence or breach
of orders;
(iii-a) reduction to lower stage in the time-scale of pay by one
stage for a period not exceeding three years, without cumulative
effect and not adversely affecting his pension.
(iv) withholding of increments of pay;
Major Penalties -
(v) save as provided for in clause (iii) (a), reduction to a lower
stage in the time-scale of pay for a specified period, with further
directions as to whether or not the Government servant will earn
increments of pay during the period of such reduction and
whether on the expiry of such period, the reduction will or will not
have the effect of postponing the future increments of his pay;
(vi) reduction to lower time-scale of pay, grade, post or Service
for a period to be specified in the order of penalty, which shall be
a bar to the promotion of the Government servant during such
specified period to the time-scale of pay, grade, post or Service
from which he was reduced, with direction as to whether or not,
on promotion on the expiry of the said specified period -
(a) the period of reduction to time-scale of pay, grade, post or
service shall operate to postpone future increments of his pay,
and if so, to what extent; and
(b) the Government servant shall regain his original seniority in
the higher time scale of pay , grade, post or service;
(vii) compulsory retirement;
(viii) removal from service which shall not be a disqualification for
future employment under the Government;
(ix) dismissal from service which shall ordinarily be a
disqualification for future employment under the Government.
Provided that, in every case in which the charge of possession of
assets disproportionate to known-sources of income or the
charge of acceptance from any person of any gratification, other
than legal remuneration, as a motive or reward for doing or
forbearing to do any official act is established, the penalty
mentioned in clause (viii) or clause (ix) shall be imposed :
Provided further that in any exceptional case and for special
reasons recorded in writing, any other penalty may be imposed.
Explanation.--The following shall not amounted to a penalty
within the meaning of this rule, namely:--
(i) withholding of increments of pay of a Government servant for
his failure to pass any departmental examination in accordance
with the rules or orders governing the Service to which he
belongs or post which he holds or the terms of his appointment;
(ii) stoppage of a Government servant at the efficiency bar in the
timescale of pay on the ground of his unfitness to cross the bar;
(iii) non-promotion of a Government servant, whether in a
substantive or officiating capacity, after consideration of his case,
to a Service, grade or post for promotion to which he is eligible;
(iv) reversion of a Government servant officiating in a higher
Service, grade, or post to a lower Service, grade or post, on the
ground that he is considered to be unsuitable for such higher
Service, grade or post or on any administrative ground
unconnected with his conduct;
(v) reversion of a Government servant, appointed on probation to
any other Service, grade or post, to his permanent Service,
grade or post during or at the end of the period of probation in
accordance with the terms of his appointment or the rules and
orders governing such probation;
(vi) replacement of the services of a Government servant whose
services had been borrowed from a State Government or an
authority under the control of a State Government, at the
disposal of the State Government or the authority from which the
services of such Government servant had been borrowed;
(vii) compulsory retirement of a Government servant in
accordance with the provisions relating to his superannuation or
retirement;
(viii) termination of the services--
(a) of a Government servant appointed on probation, during or at
the end of the period of his probation, in accordance with the
terms of his appointment or the rules and orders governing such
probation; or
(b) of a temporary Government servant in accordance with the
provisions of sub-rule (1) of rule 5 of the Central Civil Services
(Temporary Service) Rules, 1965; or
(c) of a Government servant, employed under an agreement, in
accordance with the terms of such agreement.
(ix) Any compensation awarded on the recommendation of the
Complaints Committee referred to in the proviso to sub-rule (2) of
rule 14 and established in the Department of the Government of
India for inquiring into any complaint of sexual harassment within
the meaning of rule 3 C of the Central Civil Services (Conduct)
Rules, 1964.
12. Disciplinary Authorities
(1) The President may impose any of the penalties specified in
Rule 11 on any Government servant.
(2) Without prejudice to the provisions of sub-rule (1), but subject
to the provisions of sub-rule (4), any of the penalties specified in
Rule 11 may be imposed on -
(a) a member of a Central Civil Service other than the General
Central Service, by the appointing authority or the authority
specified in the schedule in this behalf or by any other authority
empowered in this behalf by a general or special order of the
President;
(b) a person appointed to a Central Civil Post included in the
General Central Service, by the authority specified in this behalf
by a general or special order of the President or, where no such
order has been made, by the appointing authority or the authority
specified in the Schedule in this behalf.
(3) Subject to the provisions of sub-rule (4), the power to impose
any of the penalties specified in Rule 11 may also be exercised,
in the case of a member of a Central Civil Services, Group 'C'
(other than the Central Secretariat Clerical Service), or a Central
Civil Service, Group 'D' ,-
(a) if he is serving in a Ministry or Department of the Government
of India, by the Secretary to the Government of India in that
Ministry or Department, or
(b) if he is serving in any office, by the head of that office, except
where the head of that office is lower in rank than the authority
competent to impose the penalty under sub-rule (2).
(4) Notwithstanding anything contained in this rule -
(a) except where the penalty specified in clause (v) or clause (vi)
of Rule 11 is imposed by the Comptroller and Auditor-General on
a member of the Indian Audit and Accounts Service, no penalty
specified in clause (v) to (ix) of that rule shall be imposed by any
authority subordinate to the appointing authority;
(b) where a Government servant who is a member of a Service
other than then General Central Service or who has been
substantively appointed to any civil post in the General Central
Service, is temporarily appointed to any other Service or post,
the authority competent to impose on such Government servant
any of the penalties specified in clauses (v) to (ix) of Rule 11
shall not impose any such penalties unless it has consulted such
authority, not being an authority subordinate to it, as would have
been competent under sub-rule (2) to impose on the Government
servant any of the said penalties had he not been appointed to
such other Service or post;
(c) in respect of a probationer undergoing training at the Lal
Bahadur Shastri National Academy of Administration, the
Director of the said Academy shall be the authority competent to
impose on such probationer any of the penalties specified in
clauses (i) and (iii) of rule 11 after observing the procedure laid
down in rule 16.
EXPLANATION I. For the purposes of clause (c), 'probationer'
means a person appointed to a Central Civil Service on
probation. EXPLANATION II. Where a Government servant
belonging to a Service or holding a Central Civil post of any
Group, is promoted, whether on probation or temporarily to the
Service or Central Civil post of the next higher Group, he shall be
deemed for the purposes of this rule to belong to the Service of,
or hold the Central Civil post of, such higher Group.
13. Authority to institute proceedings (1) The President or any
other authority empowered by him by general or special order
may -
(a) institute disciplinary proceedings against any Government
servant;
(b) direct a disciplinary authority to institute disciplinary
proceedings against any Government servant on whom that
disciplinary authority is competent to impose under these rules
any of the penalties specified in rule 11.
(2) A disciplinary authority competent under these rules to
impose any of the penalties specified in clauses (i) to (iv) of rule
11 may institute disciplinary proceedings against any
Government servant for the imposition of any of the penalties
specified in clauses (v) to (ix) of rule 11 notwithstanding that such
disciplinary authority is not competent under these rules to
impose any of the latter penalties.
14. Procedure for imposing major penalties (1) No order
imposing any of the penalties specified in clauses (v) to (ix) of
Rule 11 shall be made except after an inquiry held, as far as may
be, in the manner provided in this rule and rule 15, or in the
manner provided by the Public Servants (Inquiries) Act, 1850 (37
of 1850), where such inquiry is held under that Act. (2) Whenever
the disciplinary authority is of the opinion that there are grounds
for inquiring into the truth of any imputation of misconduct or
misbehaviour against a Government servant, it may itself inquire
into, or appoint under this rule or under the provisions of the
Public Servants (Inquiries) Act, 1850, as the case may be, an
authority to inquire into the truth thereof. Provided that where
there is a complaint of sexual harassment within the meaning of
rule 3 C of the Central Civil Services (Conduct) Rules, 1964, the
Complaints Committee established in each Ministry or
Department or Office for inquiring into such complaints, shall be
deemed to be the inquiring authority appointed by the disciplinary
authority for the purpose of these rules and the Complaints
Committee shall hold, if separate procedure has not been
prescribed for the Complaints Committee for holding the inquiry
into the complaints of sexual harassment, the inquiry as far as
practicable in accordance with the procedure laid down in these
rules... ... ..."
67. This Court since has come to the conclusion while answering the
issue of applicability of Temporary Service Rules, 1965 holding it not to
be applicable in the facts and circumstance of the case based upon the
reason referred hereinabove, is of the view that the provision of
conduct Rule, 1965 ought to have been applied before terminating the
services of the respondent but instead of doing so, the Temporary
Service Rule, 1965 has been taken recourse of.
68. The learned Tribunal, although, has quashed the order of
termination but according to our considered view since we are
exercising the power of judicial review, the reasoning based upon
which, the order of termination has been quashed is unjustified, for the
following reasons:-
(i) The learned Tribunal has committed an error in applying the
provision of Temporary Service Rules, 1965 as per the reference of the
reasoning made hereinabove.
(ii) The learned Tribunal has gone into the fact that the order of
termination being stigmatic in nature and as such, as per the master
rule based upon the principle of Temporary Service Rules, 1965, the
learned Tribunal has considered the nature of imputation of allegation,
to be stigmatic and hence, quashed and set aside the order of
termination.
(iii) The learned Tribunal has not carved out the distinction in between
the temporary service and the service of the permanent employees
who are on probation as per the detailed discussion made hereinabove
and as such, for the risk of repetition, the same is not being repeated
herein.
69. This Court, therefore, is of the view that the part of the finding of
the impugned order as per the detailed discussion made hereinabove is
not sustainable in the eye of law.
70. But the fact herein is:
"as to whether the final decision of restoration of service of the
respondent can be said to be unjustified."
71. Herein, since this Court has come with the conclusive finding for
non-applicability of the Temporary Service Rules, 1965/Master Rule,
basis upon which, the services of the respondent no.1 has been
dispensed with, which has been considered to be improper finding due
to the reason that the conduct rules will be applicable.
72. As such, the moment, we have come to the conclusion that the
proceeding ought to have been initiated under the conduct rules, based
upon reason, as referred hereinabove then the question will be that
"why the respondent no.1 be kept out of service."
73. "Whether keeping the respondent no.1 out of service will not
amount to punishment passed under the wrong provision".
74. This Court, is of the view that if the writ petitioner is required to be
provided liberty to initiate regular proceeding under the conduct rules,
then the propriety demands that the services of the respondent no.1 is
to be protected, due to the following reasons:-
(i) Such decision according to our considered view, is proper in view
of the fact that if the protection to that effect will not be granted to the
respondent then he, at this stage will be made to suffer due to illegal
action of the writ petitioner who had terminated him from service by
taking aid of the rule which is not applicable in the facts and
circumstances, as per the discussion made hereinabove.
(ii) Further, for the reason that if the respondent will be restricted to
remain out of service then he will highly be prejudiced mentally as also
monetarily due to want of finance which he is used to get while he was
in service.
(iii) The instance can be taken in this regard that if an employee is
proceeded departmentally and if the nature of allegation is serious or
the inquiry is to be influenced by the concerned employee, the recourse
available to the employer concerned is to put such employee under
suspension so that there may not be any interference in the
departmental proceeding.
(iv) In the case of putting an employee under suspension, the
provision is there in the service code applicable to one or the other
employee to make payment of subsistence allowance.
The purpose of making subsistence allowance is to provide
money for sustenance of the employee and its family member so as not
to cause any prejudice to the concerned employee in contesting the
case.
(v) Further, for the reason that if the respondent will be asked to
remain out of service then the question will be "why due to the fact of
wrong order passed by the authority, the respondent no.1 will remain to
be kept out of service".
75. This Court, in view of the aforesaid discussion, is of the view that
the decision so far as restoring the services of the respondent no.1 is
not being interfered with.
76. However, the said decision will finally depend upon the final
outcome of the decision which is to be taken by the authority if the
departmental proceeding is being initiated in pursuance to the order
passed hereinabove.
77. As such, all the issues are being answered accordingly.
78. This Court, therefore, is of the view that the order impugned
needs to be interfered with.
79. Accordingly, the order dated 15.12.2022 passed by the Circuit
Bench of Central Administrative Tribunal, Patna Bench at Ranchi
(hereinafter referred to as CAT, Ranchi) in Original Application being
O.A. No.051/00269/2021 is hereby quashed and set aside.
80. In the result, the instant writ petition is allowed.
81. Accordingly, the writ petitioner is at liberty to initiate departmental
proceeding in accordance with law.
82. Before parting with the judgment, the party-in-person has relied
upon the judgment laid down by the Hon'ble Apex Court in the case of
Pradeep S/o Rajkumar Jain Vrs. Manganese Ore (India) Limited &
Ors., passed in Civil Appeal No.7607 of 2021 [arising out of
S.L.P.(C) No.21346 of 2017].
83. In the case of Pradeep S/o Rajkumar Jain Vrs. Manganese Ore
(India) Limited & Ors. (supra), the appellant was a qualified Chartered
Accountant and was appointed as Manager (Finance). Thereafter, he
was posted in 2005 at the Balaghat Mines as the Deputy Chief
(Finance) and due to the death of his father, he had reported late for
work i.e., after three days. He was served with a show cause and it was
replied by him, but he was suspended on 05.10.2007 and was served
with a charge memo on 27.10.2007. Thereafter, he was dismissed from
service on 12.08.2008.
84. Thereafter, the matter was travelled to the High Court, wherein,
the Division Bench while ordering his reinstatement of the petitioner,
has denied him the benefit of back wages.
85. Being aggrieved with the aforesaid order, the petitioner moved to
the Hon'ble Apex Court, wherein, it is called upon to decide whether
there is justification to deny back wages to the petitioner.
86. The Hon'ble Apex Court has held that the High Court was in error
in not making appropriate order relating to back wages.
87. As such, since, the fact of the aforesaid case, i.e., Pradeep S/o
Rajkumar Jain (Supra) is different to that of the facts of the present
case, hence, it is not applicable herein.
88. In consequence thereof, I.A. No.6571 of 2023 stands disposed of.
(Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.)
Rohit/-A.F.R.
