Madras High Court

M.Samundeeswari vs The Union Of India on 30 November, 2023

Author: V.Bhavani Subbaroyan

Bench: V. Bhavani Subbaroyan

                                                                             WP.No.10318 of 2017


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 30.11.2023

                                                     CORAM

                       THE HONOURABLE MRS.JUSTICE V. BHAVANI SUBBAROYAN

                                                WP.No.10318 of 2017


                     M.Samundeeswari                                  ... Petitioner
                                                     Vs.


                     1. The Union of India,
                        Represented by its Secretary,
                        Ministry of Home Affairs,
                        New Delhi.
                        [ R1 deleted from the array of respondents
                          vide order dated 07.08.2023 made in
                          WMP.No.1619 of 2022 in
                          WP.No.10318 of 2017]


                     2. The Director General of Police,
                        Central Reserve Police Force,
                        Block No.1, C.G.O.Complex,
                        Lodhi Road, New Delhi-110 003.

                     3. The Deputy Inspector General of Police,
                        Central Reserve Police Force,
                        Group Centre, Avadi,
                        Chennai-600 065.




                     1/22

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                                                                                      WP.No.10318 of 2017

                     4. The Commandant,
                        232, B.N.Central Reserve Police Force,
                        Salboni, West Midnipur,
                        West Bengal-721 174.                                  ... Respondents


                     PRAYER: Writ Petition filed under Article 226 of the Constitution of India
                     praying to issue a Writ of Certiorarified Mandamus, calling for records
                     relating to the order of the 4th respondent in his office order No.T.V-
                     1/2017-232 (M)-EC-3, dated 31.01.2017 terminating the service of the
                     petitioner and quash the same and further direct the second respondent to
                     conduct enquiry.
                                              For Petitioner    : Mr.L.Chandrakumar

                                             For Respondents : Mr.K.H.Ravi Kumar
                                                               Government Advocate

                                                               ORDER

This petition has been filed by the petitioner seeking to quash the

order of the 4th respondent vide order dated 31.01.2017 in Office Order

No.T.V-1/2017-232(M)-EC-3 and further direct the second respondent to

conduct enquiry.

2. The case of the petitioner is that she was appointed as a

Constable/GD in Central Reserve Police Force, (C.R.P.F) at Avadi,

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Chennai. She had joined duty at the Office of the Deputy Inspector General

of Police Group Center, C.R.P.F Avadi, Chennai and thereafter, she was

directed to attend training at 232 Bn C.R.P.F at Ajmeer. Few more persons

appointed along with her were also directed to attend training in the same

place. Thereby, she along with others have attended the training at Ajmer,

based on the Office Order passed by the third respondent herein dated

03.12.2014 which is reproduced hereunder:

OFFICE ORDER

“ Consequent on their selection for the post of Constable/GD through Recruitment of Constable /GD in CAPF's for the year 2013-2014 conducted by the Staff Selection Commission, Southern Region, Chennai to fill up the backlog and anticipated normal wastage vacancies in CRPF vide Rectt DTE Signal No.A.VI-13-RECTT-SSSB dated 20.05.2014 and 01.08.2014, ADG, S/Z Hqr Sig.No.r11-8-2014-SZ-EC-3(2013-14) dated 21.08.2014, 04.09.2014, 08.09.2014 and IGP Southern Sector, Hydrabad Signal No.R.H-13/2014/Adm-III-SS dated 10.09.2014 and 14.09..2014, the following candidates who reported their arrival in this GC are hereby appointed as Constable/GD(Group-C) in the Pay Scale (PB-1) of Rs.5200-

20200 with initial basis pay of Rs.6460/- plus Grade Pay Rs.2,000/- and usual allowances as admissible to the Central Government Employees from time to time. Their appointment in

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CRPF is purely temporary and liable to be termination at any time without assigning any reasons giving one month's notice. The candidate so appointed in the Force, if seek discharge or tender resignation from service within 10 years of joining shall be required to pay an amount equal to three months pay and allowance or training charges whichever is higher as per existing instructions. The CRPF Act 1949 and CRPF Rules 1955 and other Central Government Rules and Regulations will govern them as applicable from time to time. They would be covered by the Defined Contribution Pension Scheme as introduced by the Government of India , Ministry of Finance (Dept of Expenditure)vide O.M.F No.1(7)(2)2003/TA/1 dated 07.01.2004”.

3. The further case of the petitioner is that the training at Ajmeer has

commenced on 20.11.2014. During the training in the month of July 2015,

she was admitted in the hospital at Ajmeer for certain ailment. Due to the

wrong diagnose and wrong medicines given in the hospital, she was again

admitted in the JLN Hospital, Ajmeer from 07.09.2015 to 15.09.2015.

Thereafter, she was shifted to Base Hospital, Ajmeer from 15.09.2015 to

28.10.2015. Once again, she was admitted in the AIMS Hospital, Delhi

from 01.11.2016 to 06.12.2016. All these treatments were given due to the

wrong diagnose and no fault on her part.

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4. It is also the case of the petitioner that the Chief Medical Officer

has issued the discharge certificate and opinion dated 06.12.2016 stating

that the individual is not fit for Combatised Training for Constable GD. It is

pertinent to mention here that the petitioner was paid with Time Scale of

Pay and after two years the services of the petitioner has been regularized.

The impugned order dated 31.01.2017 has been passed by the 4 th

respondent under Rule-6 of the Central Civil Services (Temporary Service)

Rules 1965 stating that the petitioner is declared as physically unfit for

continuance in Service as Individual is not fit for Combatised Training for

Constable GD. The impugned order has been challenged by the petitioner

on the ground that the order, though punitive in nature, was passed without

holding any departmental enquiry and the medical opinion mentioned in the

impugned order if any was held at the back of the petitioners. The impugned

order is also challenged on the ground that the impugned order has been

passed, in exercise of power vested under Rule 6(1) of Temporary

Government Service Rules, whereas the services of the petitioner was

governed by the Central Reserve Police Force Act, 1949 and the Central

Reserve Police Force Rules, 1955.

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5. The relevant portion of Rule 16 of the Central Reserve Police

Force Rules 1955 reads as under:

“ 16. Period of Service (a) All members of the Force shall be enrolled for a period of three years. During this period of engagement, they shall be liable to discharge at any time on one month's notice by the appointing authority. At the end of this period those not given substantive status shall be considered for quasi-permanency under the provision of the Central Civil Services (Temporary Service) Rules, 1965. Those not declared quasi-permanent under the said rules shall be continued as temporary Government Employees unless they claim discharge as per schedule, to the Act. Those who are temporary shall be liable to discharge on one month's notice in accordance with the said rules as amended from time to time.

(b) Should the Central Government decide at any time to disband the Force or any part of it either before termination of the period for which a member of the Force is enrolled or at any time thereafter, he shall be liable to discharge, without compensation from the date of disbandment.

(c) No member of the Force shall withdraw from the duties of his office without express permission of the commandant or an accredited gazetted officer.

(d) The appointing authority may, during the period of initial appointment of a member of the force appointed under [Section 4 and 5] of the Act, permit him for good and sufficient reason, to resign from the Force with effect from such date as may be

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specified in the order accepting his resignation; Provided that on the acceptance of his resignation any such member of the Force shall be required to refund to the Government all the cost of training imparted to him in the Force or a sum equal to three months pay and allowances, received by him prior to the date of his resignation whichever is less:

Explanation

(1) For the purpose of this sub-clause “ during the period of initial appointment” shall mean the period before a member of the Force is declared quasi-permanent.

(2) The appointing authority may refuse to permit a member of the Force to resign if any emergency has been declared in the country either due to internal disturbances or external aggression.

(e) The appointing authority may give substantive status to such members of the Force as are found suitable in all respect”

6. It is the further case of the petitioner that the trainees from

Tamilnadu with great difficulty secure the jobs and they are not in the habit

of violating the norms. They belonged to poor families and they had no

money to spend for any other purpose. It is well settled that enquiry should

be conducted by the Authority before any official rod is inflicted but no sort

of enquiry was conducted. The order of termination is void and nonest as

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he is not the competent authority under rules. Hence the order passed by the

fourth respondent-Commandant-232 Batallion terminating the petitioner

without definite allegations or framing any charges and without conducting

any enquiry or giving opportunity is arbitrary and liable to be set aside.

7. The learned counsel for the petitioner in support of his

contentions, relied on various judgments which are as follows:

K.I.Shephard Vs Union of India reported in 1987 4 SCC, the Hon'ble

Supreme Court has held in D.T.C case reported in 1991 Suppl. 1 SCC and

A.R.Antulay Vs. R.S.Nayak -reported in 1988 2 SCC).

8. The learned counsel for the petitioner submitted that the petitioner

is governed by the Central Reserve Police Force Act which has inbuilt

safeguard for the petitioner and hence impugned order passed under the

Central Civil Services (Temporary Services) Rule 1965 is not applicable as

per the decision of this Court dated 24.08.2011 and made in

No.W.P.(MD)No.3292 of 2006 and W.P.(MD)No.3312 of 2006. He further

submitted that the petitioner and others were forced to discontinue the

training without any fault of theirs. They have to undergo training for the

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remaining period before joining service. Hence, prayed to allow the writ

petition.

9. The learned counsel for the petitioner states that the authorities

without considering the future of the petitioner and without giving an

opportunity, decided the matter unilaterally and prayed to allow the writ

petition by giving another opportunity by referring the petitioner to Medical

Board.

10. In the counter filed by the respondents, it is stated that on

selection for appointment as Constable/General Duty (Mahila) in CRPF

through Staff Selection Commission (SSC) 2013-14, offer of appointment

was issued to the petitioner vide DIGP, GC, CRPF, Avadi Letter

No.R.II.20/2013-14-EC-V(SSC) dated 28.10.2014 with certain conditions

including the conditions that the petitioner will be required to undergo basic

training at any of the training institution of the CRPF after reporting and if

she failed to complete training unsuccessfully, the petitioner's services will

be terminated.

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11. It is submitted that on acceptance of terms and conditions as

enumerated in offer of appointment, the petitioner reported in GC, CRPF,

Avadi and appointed as Constable/GD/(Mahila) w.e.f 20.11.2014 vide

O/o.No.R.II-2013-14-EC-V dated 03.12.2014 in the Pay Scale of Rs.5200-

20,200/-, Grade Pay Rs.2000/- (minimum pay of Rs.6460/-) plus usual

allowances as admissible for Central Government employees from time to

time. It is further submitted that in order to undergo basic training at

232(M) Bn at GC-II, Ajmer (Rajasthan) along with other Mahila Personnel,

reported her arrival on 08.02.2015 and training started w.e.f 11/05/2015.

While undergoing basic training, the petitioner reported to Unit Hospital on

02.07.2015 with complaint of seizure disorder and immediately she was

referred to Government Jawaharlal Nehru Hospital, Ajmer where she was

admitted from 02.07.2015 to 06.07.2015. Thereafter, the petitioner remained

under treatment/medical rest and on duty and details are us under:

S.No Admit/Medical Rest/Duty Period Total days From To 01 Admitted in Govt. J.L.N. Hospital, 02/07/2015 06/07/2015 05 Ajmer (Rajasthan) 02 Discharged from Hospital. 07/07/2015 03 Reported in Unit Hospital as sick 10/07/2015 24/07/2015 15 report on 10/07/15 and given advice

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S.No Admit/Medical Rest/Duty Period Total days From To for 15 days as Light duty.

04 Reported in Unit Hospital as sick 25/07/2015 05/08/2015 12 report on 25/07/15 and given advice for 12 Days as light duty.

05 Reported in Unit Hospital as sick 06/08/2015 20/08/2015 15 report and given advice for Light Duty.

06 Reported in Unit Hospital as sick 21/08/2015 23/08/2015 03 report and given advice for Light Duty.

07 Reported in Unit Hospital as sick 24/08/2015 02/09/2015 10 report and given advice for Light Duty (Attend-'B') 08 Reported in Unit Hospital as sick 03/09/2015 --- 01 report 09 Reported in Unit Hospital as sick 04/09/2015 06/09/2015 03 report and given Attend- 'B' 10 Admitted in Govt. J.L.N. Hospital, 07/09/2015 15/09/2015 09 Ajmer (Rajasthan) 11 Discharged from J.L.N. Hospital, 15/09/2015 Ajmer (Rajasthan) 12 Reported in Unit Hospital and 16/09/2015 28/10/2015 43 referred to Composite Hospital, Ajmer and further referred to Mittal Hospital for better treatment in Neurology Department on cashless basis.

13 Proceeded 15 days Mid Term Break 02/11/2015 16/11/2015 15 w.e.f. 02/11/2015 to 16/11/2015 with permission to avail on 01/11/2015 being Sunday 14 Reported in Unit Hospital on 27/11/2015 29/11/2015 03 27/11/2015 as sick report and given attend 'B' 15 Reported in Unit Hospital on 30/11/2015 07/12/2015 08 30/11/2015 as sick report and given

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S.No Admit/Medical Rest/Duty Period Total days From To attend-'B' 16 Reported in Unit Hospital on 08/12/2015 ---- 01 08/12/2015 as sick report and given advice for light duty.

17 Reported in Unit Hospital at Group 16/02/2016 ---- 01 Centre-II Ajmer on 16/02/2016 and referred to Govt. J.L.N. Hospital, Ajmer.

18 Reported in Unit Hospital at Group 30/03/2016 31/03/2016 02 Centre-II Ajmer and given advice for 2 days light duty.

19 Reported in Unit Hospital at Group 01/04/2016 02/04/2016 02 Centre-II Ajmer.

20 Govt. J.L.N. Hospital, Ajmer 05/04/2016 --- 01 21 Reported in Unit hospital 06/04/2016 ..... 01 22 Reported in Unit Hospital and 07/04/2016 --- 01 referred to Govt. J.L.N. Hospital, Ajmer on 07/04/2016.

23 Reported in Unit Hospital and 09/05/2016 --- 01 referred to Govt. J.L.N. Hospital, Ajmer on 09/05/2016.

24 Reported in Unit Hospital at Group 10/05/2016 11/05/2016 02 Centre-II Ajmer.

25 Reported in Unit Hospital at Group 22/07/2016 ----- 01 Centre-II Ajmer.

26 Reported in Unit Hospital at Group 13/08/2016 ----- 01 Centre-II Ajmer.

27 Reported in Unit Hospital and 16/08/2016 ---- 01 referred to Govt. J.L.N. Hospital, Ajmer 28 Reported in Unit Hospital. 17/08/2016 ...... 01 29 Reported in Unit Hospital. 26/08/2016 ..... 01 30 Reported in Unit Hospital 29/08/2016 ...... 01 31 Reported in Unit Hospital and 26/09/2016 .... 01

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S.No Admit/Medical Rest/Duty Period Total days From To referred to Govt. J.L.N. Hospital, Ajmer on 26/09/2016.

32 Reported in Unit Hospital 27/09/2016 ...... 01 33 Reported in Unit Hospital 05/10/2016 ...... 01 34 Admitted at Composite Hospital, 01/11/2016 06/12/2016 36 CRPF N/Delhi

12. Since the petitioner was absent for more than 71 days during her

basic training, she was relegated from the batch undergoing Basic Training

till the petitioner regains medical fitness to start basic training afresh from

zero week with new recruits, vide 4th respondent Office Order No.D.V-

1/2016-232(M) EC-3 dated 11.05.2016. As the petitioner remained under

treatment/rest for months together during basic training and no progress

achieved, the case was taken up with DIG (Medical), Composite Hospital,

CRPF, Ajmer (Rajasthan) with request to furnish opinion on review of

Medical Board, whether she will be fit for basic training in near future or

otherwise. As the petitioner suffered from neurocystocarcosis with

eosinophillia, she required treatment from a neurologist. Since neurology

facility was not available at Jawaharlal Nehru Hospital and Medical

College, Ajmer (Rajasthan), the petitioner case was taken up with IGP

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(Med) Composite Hospital, New Delhi by DIG (Medical) Composite

Hospital, Ajmer for further treatment. On receipt of confirmation, the

petitioner was transferred to Composite Hospital, New Delhi for further

review. During review, it was opined that the petitioner is not fit for

combatised training for Constable/GD.

13. It is also submitted that as the petitioner had not completed her

basic training or probation period and found not fit for combatised training

for Constable/GD, her services were terminated with effect from

31.01.2017(A.N) with one month salary vide 4th respondent O/o.No.T.V-

1/2017-232(M)-EC3 dated 31.01.2017 which was handed over to her on

same date. It is further submitted that the petitioner has quoted the

contention of DIGP Group Centre, CRPF, Avadi O/Order No.R.II-20/2013-

14-EC-V(SSC) dated 03.12.2014 vide which the petitioner was appointed as

Constable/General Duty (Mahila) w.e.f. 20/11/2014.

14. It is submitted that the petitioner had reported in 232(M) Bn to

undergo basic training along with other Mahila Personnel on 08.02.2015

and her training was started on 11.05.2015, but not on 20.11.2014. On

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02.07.2015, the petitioner reported to Unit Hospital with complaint of

seizure disorder and the petitioner was immediately referred to Government

Jawahar Lal Nehru Hospital, Ajmer for further management and treatment

where she was diagnosed with Neurocystocarcosis. Thereafter the

petitioner remained under treatment/rest/duty on various dates as mentioned

in Para 2(c). As diagnosed by Govt.Jawahar Lal Nehru Hospital, Ajmer,

Rajasthan, the petitioner was provided specialized treatment by specialist of

various hospitals and wrong diagnose/treatment was provided to the

petitioner as alleged. It is submitted that CRPF being a Central Armed

Police Force, it is imperative to undergo necessary basis training to keep

herself mentally and physically fit and capable to perform various duties

even in adverse conditions in any part of the country, which she failed and

remained under treatment/ rest for months together for localization related

seizure disorder. Even in clinical tests and Neuroimaging revealed the

presence of calcified granuloma in bifrontal and left parietal lobe. Since the

petitioner had not completed basic training for combat duties, the services

of petitioner were terminated with one month pay instead of giving one

month notice as per Rule 6 of CCS (Temporary Service) Rules, 1965 and

which is also clearly mentioned in the offer of appointment. Since petitioner

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has neither completed her mandatory two years probation period nor she

completed her basic training, there is no necessity to hold a Departmental

Enquiry to terminate her services. Further, the petitioner is found unfit for

combatized duty as per medical review report of Composite Hospital,

CRPF, New Delhi. Being a temporary Government Servant, services of the

petitioner were terminated by the competent authority under Rule 6 of CCS

(Temporary Service) Rules, 1965 without holding a Departmental Enquiry.

Hence the action taken by the competent authority ie., Commandant 232

(Mahila) Bn in the instance case as per rule 6 of CCS (Temporary Service)

Rules is in order.

15. The petitioner has quoted the contents of Rule 16 of CRPF Rules,

1955 and submits that the same is not relevant for the case on hand as her

services were terminated as per rule 6 of CCS (Temporary Service) Rules,

1965. The petitioner was declared unfit due to medical reasons of

localization related seizure disorder. The Neuroimaging revealed calcified

granuloma in bifrontal and left parietal lobe. As the petitioner was found

unfit for combatised training i.e., for constable/General Duty in CRPF

during medical review, the action taken against the petitioner by the

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competent authority is correct and in accordance with relevant rules in

existence. Since the petitioner had not completed basic training and she was

governed under CCS (Temporary Service) Rules, the services of petitioner

were terminated w.e.f 31.01.2017 with one month pay instead of giving one

month notice purely as per Rule 6 of CCS (Temporary Service) rules, 1965

vide 4th respondent office order No.T.V-1/2017-232(M)-EC-3 dated

31.01.2017 which is lawful, appropriate and as per CCS (Temp)Rules 1965.

The relevant portion of the Rule 6 is extracted here under:

6. Termination of Temporary Service on Account of Physical

Unfitness:

“ Notwithstanding anything contained in rule 5,

the services of a temporary Government Servant may

be terminated at any time without notice on his being

declared physically unfit for continuance in service by

an authority who would have been competent to

declare him as permanently incapacitated for service

had his appointment been permanent”.

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Rule-6 of Central Civil Service (Temporary Service) Rules, provides that

the services of a temporary Government Servant may be terminated at any

time without notice on his being declared physically unfit for continuance in

service by an authority who would have been competent to declare him as

permanently incapacitated for service had his appointment been permanent.

The petitioner was found not likely to regain SHAPE-I medical category

and she was declared unfit for combatising training which is necessary for

Constable/General Duty by a Doctor, the services of the petitioner were

terminated with one month pay instead of giving one month and in case, one

month notice was issued to petitioner, she would have not paid one month

pay. Therefore action taken against the petitioner by the competent authority

was well within the rule and in order. Further, there is no necessity to

reopen the case by appellate authority ie., Head of the Department.

16. It is further submitted that the basic training of the petitioner has

started on 11.05.2015 and the petitioner reported to Unit Hospital on

02.07.2015 with complaint of seizure disorder and on the same day, she was

referred to Government Jawahar Lal Nehru Hospital, Ajmer for further

treatment and thereafter she took treatment in various hospitals.

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Continuance of basic training in ill health may endanger the life of the

petitioner as it involves rigorous training weapon with ammunitions and

explosives. Further, the contention of the petitioner is that she was forced to

discontinue the training without any fault is baseless and an afterthought.

Action taken by the competent authority against the petitioner being a

temporary government servant, as per Rule-6 of CCS (Temporary Service)

Rules, 1965 in order and appropriate. Hence the averments made by the

petitioner are not tenable in law. The petitioner was terminated forthwith

with effect from 31.01.2017 with one month's salary without serving the

notice on her being declared physically unfit for continuance in service as

“ Individual is not for combatised training for Constable/General Duty.