Kerala High Court
Prajith Raj.C vs The Secretary on 22 May, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
OP (CAT) NO. 107 OF 2023
ORDER DATED 08.05.2023 IN OA NO.472 OF 2019 OF CENTRAL ADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH
PETITIONER/APPLICANT:
PRAJITH RAJ.C., AGED 30 YEARS, S/O. RAJAN.C., KHALASI,
NATIONAL INSTITUTE OF FISHERIES POST HARVEST TECHNOLOGY
AND TRAINING, FORESHORE ROAD, KOCHI-16, RESIDING AT
CHITTAMANAPPARAMBIL, MANTHANATH HOUSE, NETTOOR.P.O, PIN -
682304
BY ADV.ELVIN PETER P.J.
BY ADV.K.R.GANESH
BY ADV.GOURI BALAGOPAL
BY ADV.ABHIJITH.K.ANIRUDHAN
BY ADV.SREELEKSHMI A.S.
RESPONDENTS/RESPONDENTS:
1 THE SECRETARY, GOVERNMENT OF INDIA, DEPARTMENT OF ANIMAL
HUSBANDRY, DAIRYING AND FISHERIES, MINISTRY OF
AGRICULTURE AND FARMERS WELFARE, KRISHI BHAVAN, NEW
DELHI, PIN - 110001
2 DIRECTOR, NATIONAL INSTITUTE OF FISHERIES (FORMERLY IFP),
POST HARVEST TECHNOLOGY & TRAINING, FORESHORE ROAD,
COCHIN, PIN - 682016
3 OFFICER IN CHARGE, NATIONAL INSTITUTE OF FISHERIES
(FORMERLY IFP), POST HARVEST TECHNOLOGY & TRAINING, VIZAG
UNIT, BEACH ROAD, VISAKHAPATTANAM, PIN - 531001
BY ADV.PADMANABHAN NAIR M.K.
BY ADV.C.DINESH
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 22.05.2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CAT) No.107/2023
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JUDGMENT
SHOBA ANNAMMA EAPEN, J.
The original applicant before the Central Administrative
Tribunal is before us with the original petition challenging the
order of the tribunal dated 08.05.2023 in OA No.472/2019.
The respondents in the original application are the
respondents herein.
2. The above original application was filed with the
following prayers;
"(1) To call for the records leading to Annex.A12 & A15 and
to set aside the same.
(2) To direct the respondents 2 and 3 to reinstate the
applicant with effect from the date of his termination.
(3) To pay, salary and other allowances with interest."
3. The original petitioner was selected and appointed
as Khalasi (GCS - Group 'D' - Non Gazetted - Non Ministerial)
as per Annex.A1 order dated 20.06.2014. The appointment
was purely on a temporary basis without conferring any title
to permanent employment, which can be terminated at any
time without notice and without assigning any reason. It was
further stipulated in Annex.A1 that the appointment carries
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with it the liability to serve in any part of India or outside.
According to the petitioner, the post was originally notified for
appointment as Khalasi in the Kochi office and soon after the
selection and appointment, the post along with the applicant
was transferred to Visakhapatnam unit and accordingly, he
joined duty at Visakhapatnam on 09.10.2014. The selection
process to the post of Khalasi was challenged by one
P.V.Sajith by filing OA No.659 of 2014 before the tribunal,
which ended in a dismissal, against which OP(CAT) No.184 of
2017 is pending before this Court. The petitioner, after joining
duty at Visakhapatnam, took leave on a few occasions, which,
according to the petitioner, were regularized. Thereafter, in
2018, as per Annex.A12 dated 06.10.2018, he was informed
that his service shall stand terminated with effect from the
date of expiry of a period of one month from the date on which
the notice was served on or as the case may be tendered to
him. On receipt of Annex.A12, the petitioner filed Annex.A14
detailed representation, which was rejected by Annex.A15,
informing that the representation cannot be considered.
Aggrieved by Annex.A15, the petitioner approached the
tribunal; and the tribunal, after a detailed consideration of the
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issue, dismissed the original application, holding that the
petitioner is not entitled for reinstatement. Hence, this
original petition.
4. The learned counsel for the petitioner submitted
that Annex.A14 representation filed by the petitioner was
rejected by the second respondent as per Annex.A15 in a one
line order without properly considering the issue. It is further
submitted that the leave availed by him was due to his illness,
for which medical certificate was produced, and accordingly,
the leave was regularized and he was allowed to join duty and
continued in service. According to the learned counsel for the
petitioner, Sri.P.V.Sajith, who is the applicant in OA No.659 of
2014, is an influential person and it is on the basis of his
complaint, his probation was extended further. Similarly, in
the Annual Confidential Report (ACR) dated 31.05.2017, his
assessment as 'below average' was made in order to wreak
vengeance on the petitioner for filing a complaint against his
superior for being drunk and abusing him. The learned
counsel for the petitioner further submitted that his
termination under Rule 5(1) of the Central Civil Service
(Temporary Service) Rules, 1965 is illegal on the grounds of
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violation of principles of natural justice; inaction on his
complaint about harassment and illegal activities of his
immediate superiors in Visakhapatnam; non consideration of
the fact that he was forced to go on a long leave due to
malaria and arthritis; and the termination was on the basis of
the complaint of Sri.P.V.Sajith, who filed OA No.659 of 2014
before the tribunal challenging his appointment. Therefore,
according to the learned counsel for the petitioner, on the
above said grounds, Annex.A12 and A15 orders are illegal,
arbitrary and liable to be set aside.
5. The learned Central Government Counsel
submitted that the petitioner was appointed as Khalasi in the
National Institute of Fisheries Post Harvest Technology and
Training (NIFPHATT) on temporary basis, which is clear from
Annex.A1 order of appointment dated 20.06.2014. By
Annex.R2 order dated 12.02.2014, the NIFPHATT
Headquarters in Kochi had transferred a post of Khalasi to the
NIFPHATT, Visakhapatnam unit and it is thereafter that
Annex.A1 order of appointment was issued to the petitioner
on 20.06.2014. The learned Central Government Counsel
pointed out that the petitioner had accepted the terms and
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conditions by his letter dated 04.07.2014 and accordingly, as
per Annex.R4 dated 27.09.2014, he was directed to report for
duty at NIFPHATT, Visakhapatnam unit not later than
15.10.2014, wherein it has also been indicated that the
appointment is in a temporary capacity and that he would be
on probation for a period of two years from the date of his
joining as Khalasi. Thereafter, he joined duty on 09.10.2014.
The learned Central Government Counsel submitted that from
the date of joining duty till the issuance of Annex.A12 order,
the petitioner availed a total of 484 days of leave out of the
total 1177 days of duty, which comes to a 41% attendance.
According to the learned Central Government Counsel,
initially, a lenient view was taken by the respondents and
thereafter, several warning memos were issued to the
petitioner, to which no importance was given by him, and
even after receiving the warning memos, he continued to
remain absent unauthorizedly. The learned Central
Government Counsel pointed out the general habit of the
petitioner of availing short span of leave by way of casual
leave, proceeding to his native place, overstaying there
without information and reporting for duty finally by
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submitting medical and fitness certificates, which practice
continued till the year, 2018. Finally, availing casual leave
from 27.08.2018 to 31.08.2018, he did not resume duty and
remained absent for a total period of 34 days without seeking
any extension or without any prior intimation/permission from
the Head of office. It is further submitted that when two
years' probation period was nearing completion on
08.10.2016, the matter was taken up by the Departmental
Promotion Committee (DPC) on 03.10.2016 for declaration of
his probation. However, finding that the petitioner was not fit
for clearing probation due to his irregularity in attendance
and lack of promptness, his probation was extended from
09.10.2016 for a further period of one year. Thereafter, on
review on 06.10.2017, his probation was again extended for a
further period of six months from 06.10.2017. The last
extension of probation was with effect from 09.04.2018 for a
further period of six months. Each time of extending
probation, the petitioner was apprised of the position and was
advised to improve his punctuality, sense of responsibility and
interest in work. Finally, the DPC, after assessing his service
records, assessment reports and ACRs, observed that the
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petitioner made no effort for improving his conduct and
performance and thus, recommended termination of his
service under the provisions of the Central Civil Service
(Temporary Service) Rules, 1965. It is as per the
recommendations of the DPC that Annex.A12 order was
issued to the petitioner. According to the learned Central
Government Counsel, the respondents have made all efforts
to retain the petitioner in the said post and as a probationer,
several warnings and memos were issued to him from the date
of his joining in service. It is submitted that it is not on the
basis of any complaint received from any corner that his
probation was not confirmed, but only due to his irresponsible
attitude and less interest in work, which is expected from a
government servant, he was terminated from service. The
petitioner was given sufficient notices regarding his
termination by way of warnings and memos and he himself is
responsible for his termination from service.
6. We have considered the rival contentions raised on
both sides. As per Annex.A1 order of appointment dated
20.06.2014, the petitioner was appointed to the temporary
post of Khalasi (GCS - Group 'D' - Non Gazetted - Non
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Ministerial) in the Office of the Director, NIFPHATT, Kochi, in
temporary capacity. The relevant terms and conditions, as per
Annex.A1, are as follows;
"1. The appointment is purely temporary and will not confer
any title to permanent employment.
2. The appointment may be terminated at any time without
notice and without assigning any reasons.
3. The appointment carries with it the liability to serve in any
part of India or outside."
Annex.R2 order dated 12.02.2014 reveals that one post of
Khalasi (GCS - Group 'D' - Non Gazetted - Non Ministerial)
was transferred from the headquarters of the NIFPHATT to its
unit at Visakhapatnam. In Annex.A1 appointment order itself,
it is stated that the appointee will have the liability to serve in
any part of India or outside. It is discernible from the records
and documents that the petitioner joined duty at
Visakhapatnam on 09.10.2014 and was on probation.
However, as could be seen from records, he was in the habit
of taking unauthorized leave every now and then. Out of the
total 1177 days of duty, he had availed 484 days of leave
unauthorizedly, which comes to an attendance of 41%. As is
evident from the materials on record, the respondents issued
several warning letters and memos stating that the overstay
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on leave without prior approval of the competent authority
cannot be considered in future and disciplinary action, as
deemed fit, would be initiated against him without any further
communication. Annex.R7 to Annex.R34 are issued by the
respondents based on the unauthorized leave availed by the
petitioner. It is also clear from the proceedings that even after
completion of his probation period of two years, finding that
the petitioner was not committed to the job and he was
irresponsible and does not have any interest in work, his
probation was being extended by the DPC for further periods
continuously till 2018. Each time of extension of probation, a
warning memo was issued to the petitioner to improve his
work, however, he continued his incalcitrant attitude towards
work and there was no qualitative improvement in his habits
and complaints were received from his superior officers. A
person, who is not diligent in his work, cannot expect his
superiors to be diligent in their attitude towards him.
7. A lot of youths are in search of jobs and
unemployment is still prevailing in our country. Getting a
government job is a blessing. However, as far as the petitioner
is concerned, he did not show any sense of responsibility after
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getting a job, though on probation. According to the
petitioner, he availed leave purely on medical grounds,
however, nothing prevents him from informing the Head of
Office before taking leave. From 2014 to 2018, the same
attitude was followed by the petitioner and it is after the
issuance of several warnings and memos that the respondents
finally decided to terminate the service of the petitioner by
issuing Annex.A12 order dated 06.10.2018. It is not his
misconduct, but his irresponsible attitude, less interest in
work and continuous unauthorized absence, that prompted
the authorities concerned to terminate his service. The
petitioner, being on probation, ought to have been careful
while serving the institution. His ACR grading was "below
average", which was an indicator as regards his performance.
Since he was a temporary government servant, as per the
recommendations of the DPC, Annex.A12 order dated
06.10.2018 was issued under Rule 5(1) of the Central Civil
Services (Temporary Service) Rules, 1965 for termination of
his service with effect from the date of expiry of a period of
one month. The conduct of the petitioner is evident from the
materials on record and it may not be justifiable to direct the
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respondents to allow such a person to continue in service. It is
seen that the petitioner was more interested in taking leave
than performing duties. The DPC, after perusing the entire
service records of the petitioner, observed that the petitioner
did not have any improvement in his conduct and performance
and found the petitioner unfit for retaining in the post of
Khalasi and recommended termination of service under the
provisions of the Central Civil Services (Temporary Service)
Rules, 1965. The tribunal, after elaborate consideration of the
issue, has dismissed the application filed by the petitioner. We
do not find any reason to interfere with the impugned order
passed by the tribunal.
The original petition is, accordingly, dismissed.
SD/-
A. MUHAMED MUSTAQUE
JUDGE
SD/-
SHOBA ANNAMMA EAPEN
JUDGE
bka/-
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APPENDIX OF OP (CAT) 107/2023
PETITIONER ANNEXURES
ANNEXURE A12 TRUE COPY OF THE ORDER ON 6.10.2018.
ANNEXURE A15 TRUE COPY OF THE LETTER DATED 2.11.2018 OF
THE 2ND RESPONDENT.
ANNEXURE A1 TRUE COPY OF APPOINTMENT ORDER DATED
20.06.2014 ISSUED BY THE 2ND RESPONDENT.
ANNEXURE A2 TRUE COPY OF THE ORDER DATED 13.08.2016 IN
O.A. 659/2015.
ANNEXURE A3 TRUE COPY OF THE MEMO DATED 28.09.2015.
ANNEXURE A4 TRUE COPY OF THE REPLY DATED 13.10.2015.
ANNEXURE A5 TRUE COPY OF THE LETTER DATED 1.6.2016
ANNEXURE A5(a) ENGLISH TRANSLATION OF THE LETTER DATED
1.6.2016
ANNEXURE A6 TRUE COPY OF THE COMPLAINT DATED
16.7.2016.
ANNEXURE A7 TRUE COPY OF THE LETTER DATED 8.10.2016.
ANNEXURE A8 TRUE COPY OF THE LETTER DATED 25.6.2018.
ANNEXURE A9 TRUE COPY OF THE CONFIDENTIAL REPORT DATED
31.5.2017.
ANNEXURE A10 TRUE COPY OF THE MEMO DATED 6.10.2017.
ANNEXURE A11 TRUE COPY OF THE OM NO. 28020/3/2018 ESTT.
(C) DATED 2.7.2018.
ANNEXURE A13 THE GOVT. OF INDIA LABOUR DEPARTMENT BY
MEMORANDUM NO. 19/77 DATED 15.10.1977.
ANNEXURE A14 TRUE COPY OF THE REPRESENTATION DATED
17.10.2018.
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ANNEXURE R1 TRUE COPY OF THE NOTIFICATION DATED
15.11.2012
ANNEXURE R2 TRUE COPY OF THE OFFICE ORDER DATED
12.02.2014
ANNEXURE R3 TRUE COPY OF THE MEMORANDUM DATED
20.06.2014
ANNEXURE R4 TRUE COPY OF THE OFFICE ORDER NO. 60/2014
DATED 27.09.2014
ANNEXURE R5 TRUE COPY OF NOTICE FROM APPLICANT DATED
09.10.2014
ANNEXURE R6 TRUE COPY OF LEAVE PARTICULARS OF
APPLICANT FROM 09.10.2014 TO 08.11.2018
ANNEXURE R7 TRUE COPY OF MEMO DATED 04.06.2015
ANNEXURE R8 TRUE COPY OF WARNING LETTER TO APPLICANT
DATED 13.07.2015
ANNEXURE R9 TRUE COPY OF MEMO TO APPLICANT DATED
28.09.2015
ANNEXURE R10 TRUE COPY OF MEMO DATED 06.10.2015
ANNEXURE R11 TRUE COPY OF MEMO DATED 08.08.2016
ANNEXURE R12 TRUE COPY OF MEMO DATED 08.10.2016
ANNEXURE R13 TRUE COPY OF MEMO DATED 15.10.2016
ANNEXURE R14 TRUE COPY OF MEMO DATED 15.11.2016
ANNEXURE R15 TRUE COPY OF MEMO DATED 24.11.2016
ANNEXURE R16 TRUE COPY OF MEMO DATED 29.11.2016
ANNEXURE R17 TRUE COPY OF MEMO DATED 15.12.2016
ANNEXURE R18 TRUE COPY OF MEMO DATED 24.01.2017
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ANNEXURE R19 TRUE COPY OF WARNING DATED 17.03.2017
ANNEXURE R20 TRUE COPY OF MEMO DATED 15.07.2017
ANNEXURE R21 TRUE COPY OF MEMO DATED 19.09.2017
ANNEXURE R22 TRUE COPY OF MEMO DATED 06.10.2017
ANNEXURE R23 TRUE COPY OF MEMO DATED 14.12.2017
ANNEXURE R24 TRUE COPY OF MEMO DATED 01.01.2018
ANNEXURE R25 TRUE COPY OF MEMO DATED 06.10.2018
ANNEXURE R26 TRUE COPY OF INTIMATION DATED 11.09.2018
ANNEXURE R27 TRUE COPY OF INTIMATION DATED 20.10.2015
ANNEXURE R28 TRUE COPY OF OFFICE REPORT DATED
04.12.2015
ANNEXURE R29 TRUE COPY OF LETTER DATED 03.02.2016
ANNEXURE R30 TRUE COPY OF REPORT PERTAINING TO
APPLICANT DATED 10.05.2016
ANNEXURE R31 TRUE COPY OF DISCIPLINARY PROCEEDINGS
AGAINST APPLICANT DATED 29.11.2016
ANNEXURE R32 TRUE COPY OF EXPLANATION SUBMITTED BY
APPLICANT DATED 27.07.2017
ANNEXURE R33 TRUE COPY OF NOTICE DATED 27.10.2017
ANNEXURE R34 TRUE COPY OF INTIMATION OF ACTION AGAINST
APPLICANT DATED 14.12.2017
ANNEXURE R35 TRUE COPY OF LETTER DATED 11.01.2018
ANNEXURE R36 TRUE COPY OF REPORT DATED 03.11.2018
ANNEXURE R37 TRUE COPY OF REPRESENTATION SUBMITTED BY
APPLICANT TO MINISTRY DATED 29.01.2019
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ANNEXURE R38 TRUE COPY OF MEMO DATED 07.07.2018
ANNEXURE R39 TRUE COPY OF OFFICE ORDER NO. 15/2018
DATED 18.12.2018
ANNEXURE R40 TRUE COPY OF GAZETTE PUBLICATION MINISTRY
OF AGRICULTURE, NEW DELHI DATED 18.04.1973
EXHIBIT P1 TRUE COPY OF THE O.A. NO. 472/2019 FILED
BY THE PETITIONER DATED 01.07.2019
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY
THE RESPONDENTS 1 TO 3 DATED 11.10.2019
EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED BY THE
APPLICANT TO EXT.P2 REPLY STATEMENT DATED
06.10.2020.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 08.05.2023 IN
O.A. NO. 472/2019 PASSED BY THE HON'BLE
CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM
BENCH.
