Central Administrative Tribunal - Patna
Chandan Prakash Pandey vs Central Excise & Customs on 8 April, 2024
-1- OA/050/00362/2020 with OA/050/00105/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
OA/050/00362/2020
A/050/00362/2020
With
OA/050/00105/2021
A/050/00105/2021
Reserved on : 21.02.2024
Pronounced on : 08.04.2024
CORAM
HON'BLE
N'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
HON'BLE
N'BLE MR. AJAY PRATAP SINGH, JUDICIAL MEMBER
I. OA/050/00362/2020
Chandan Prakash Pandey sson off Shri J.P. Pandey, Assistant
Commissi
mmissioner, Central Goods, ds, Service Tax&
T & Central Excise, Ranchi
Zone,
ne, 1st fl
floor,
r, Central Revenue Building (Annexe),
(Annexe , Birchand Patel
Path, Patna, Pin ccode - 800001 (Bihar).
ihar).
.........Applicant.
By Adv
Advocate:- Shri M.P. Dixit
-VERSUS
VERSUS-
1. The Union of India through the he Secretary (Revenue), Government
G vernment
off India, Ministry off Finance, Department of Revenue, New Delhi -
110021.
2. The Under Secretary to Government
vernment of India, Department off
Revenue, Ministry off Finance, Central The Board
B of Indirect Taxes
axes &
Customs
ms office off The Chief Vigilance Officer, 6th Floor, Hudco o
Vishala Building, Bhikaji Cama Place, New Delhi - 110066.
3. The Chairman, Central BBoard off Excise & Customs,
Cust Ministry off
Finance, G
Government of India, North
rth Block,
Bl New Delhi-110021.
4. The Chief CCommissioner,
ner, Central Goods,
G ds, Service Tax & Central
Excise (Ranchi ZZone),
ne), Central Revenue Building,
Buil Birchand Patel Path,,
Ρatna 800001 (Bihar).
.........Respondents.
By Adv
Advocate(s): Shri H.P. Singh, Sr. SC
Smt. P.R. Laxmi, ASC
-2- OA/050/00362/2020 with OA/050/00105/2021
II. OA/050/00362/2020
Chandan Prakash Pandey, sson off Shri J.P. Pandey, Assistant
Commissi
mmissioner, Central Goods, ds, Service Tax
T & Central Excise, Ranchi
Zone,
ne, 1st fl
floor,
r, Central Revenue Building (Annexe), Birchand Patel
Path, Patna, Pin ccode - 800001 (Bihar).
ihar). ........Applicant.
By Adv
Advocate:- Shri M.P. Dixit
VERSUS
1. The Uni
Union of India through the
he Secretary (Revenue), Government
G vernment
off India, Ministry off Finance, Department of Revenue, New Delhi--
110021.
2. The Under Secretary to the Government
vernment of India, Department off
Revenue, Ministry off Finance, Central BoardB off Indirect Taxes &
Customs
ms office of the Chief Vigilance Officer,
O 6th Floor, Hudco Vishala
Building, Bhikaji Cama Place, New Delhi - 110066.
3. The Chairman, Central BBoard off Excise & Customs, Ministry off
Finance, G
Government of India, North
rth Block,
Bl New Delhi 110021.
4. The Chief CCommissioner,
ner, Central Goods,
G ds, Service Tax & Central
Excise (Ranchi ZZone),
ne), Central Revenue Building, Birchand Patel Path,
Patna 800001 (Bihar). .....Respondents.
By Advocate(s): Shri H.P. Singh, Sr. SC
Smt. P.R. Laxmi, ASC
ORDER
Per S.K. Sinha, A.M A.M.:- With OA Noo.. 105/2021 as the lead case, both th the ab above OAs were heard together gether, since applicant is same and there is a nexus in the cause off action acti in the two OAs.
As. Besides, same ccounsel unsel represented applicant and Senior Seni Standing Counsel unsel Mr. H.. P. Singh led the argument on n behalf of respondents in both th the cases.
-3- OA/050/00362/2020 with OA/050/00105/2021
2. Applicant is an ex officer off Indian Revenue Service (Customs ( ms & Central Excise Excise) [IRS(C&CE) Group up "A"] off 2016 batch. He was appointed inted vide the appointment offer ffer dated 08.12.2016 (Annexure A/2) and joined the service on n 22.12.2016. As A per the appointment intment offer, applicant was placed on probati bation for two years during which he was required to undergo the theoretical retical and practical training and pass the Departmental Examination.
n. Applicant completed mpleted the theoretical retical and practical training in the m month of December, 2017 and was p posted at Patna on n 12.12.2017. He was assigned the independent charge of Assistant Commissi mmissioner, Anti Evasion n (Hqrs) Patna-- II in May 2018 and also given additional charge off Assistant Commissi mmissioner Systems, DMC (Hqrs) etc. etc in the department. He appeared in the Part I and Part II examinati examination on 30.07.2018 to o 09.07.2018. Tw Two years' probation n period peri ended in December 2018 and there was n no order of extension of o probation.
2.1 A CBI case was registered against applicant and Md.
Sohaibuddin, haibuddin, Superintendent (Anti- Evasion), Evasi , CGST and CX , Patna II under SSection 7 off the PC Act and Section Secti 120(B) of the IPC vide RC case N No.. 023/2019 , A 007 dated 27.06.2019. Both, B applicant and Md. Sohaibuddin were arrested on n 27.06.2019 and sent to t judicial custody.
dy. An order off deemed suspension suspensi off applicant w.e.f.
27.06.2019 was issued in the name of o the President on n 01.08.2019 and the suspension order rder was reviewed periodically peri on n 01.08.2019
-4- OA/050/00362/2020 with OA/050/00105/2021 and 18.03.2020 18.03.2020. Meanwhile, applicant was released on bail on n 28.08.2019 28.08.2019. He reported to the office ffice on n 30.08.2019 and submitted representati representation for revocation off deemed suspension suspensi onn 04.09.2019.
The President accorded sanction forr applicant's prosecution in the case o on 14.01.2020. On n 14.09.2020, 14.09.2020 applicant's suspension n was further extended ffor 180 days while suspension suspensi of Md. Shohibuddin hibuddin was rev revoked from m that day. Applicant preferred OA No.. 362/2020, being aggrieved by his ccontinued ntinued suspension.
suspensi 2.2 On n 09.02.2021, applicant was issued order of termination off service under Rule 5 off the Central Civil Service (Temporary (Temp rary Service ) Rules , 1965. Aggrieved by his terminati termination, applicant preferred OA A No.. 105/2021.
3. Applicant has prayed for following wing reliefs in OA No. 362/2020:-
"8.1 That your Lordships rdships may graciously graci be pleased to quash and set aside the Order off deemed suspension suspensi dated 01.08.2019 together gether with extension order of deemed suspensio onn dated 19.09.2019, 18.03.2020 and 14.09.2020 as contained ntained in Annexure A/1, A/2, A/3 and A/4 respectively issued by the Respondents, ndents, hence the deemed suspension suspensi orderrder may henceforth be revoked.
8.2 That your Lordships rdships further be pleased to t direct the Respondents to o treat the Applicant to have on n duty for f entire period up to the date off its revocation for all purposes ses including salary s minus subsistence allowances wances already paid along with statutory ry interest and all other consequential nsequential benefits in favour off the Applicant without with any further delay.
8.3 Any other relief orr reliefs including the cost c of the proceeding ceeding may be allowed in favour of the Applicant."
4. Reliefs prayed forr by applicant in OA No.. 105/2021 read as under::-
"8.1 That your Lordships rdships may graciously graci be pleased to quash and set aside the impugned termination order rder dated 05.02.2021 as contained c ntained in Annexure A/1.
-5- OA/050/00362/2020 with OA/050/00105/2021 8.2 That Your Lordships rdships may further be pleased to t re-instate instate the applicant in service henceforth.
8.3 That Your Lordships rdships may further be pleased to t direct / command mmand the Respondents to grant all consequential nsequential benefits including arrears off pay and interest thereupon.
8.4 Any other relief orr reliefs may deem fit and proper pr by this Hon'ble n'ble Court including the cost of the proceeding ceeding may be allowed all in favour off the Applicant."
5. Contesting the OAs respondents ndents filed separate written statements in the tw two OAs and applicant also als filed rejoinder in OA A No. 105 of 2021.
6. We heard the counsel for bo oth sides and considered nsidered their submissi submissions ns and pleadings and materials on record.
7. Applicant's case is that he completed mpleted the two years' probation n period d in December 2018 and during uring the th probation period, he cleared the mandatory Part I and Part II departmental examination.
examinati .
Thus, he fulfilled the condition forr successful completion c of the Probati bation period. There was no order rder for f extension of his probation n period d bey beyond two years. Respondent ndent department was required to to confirm nfirm his services but they did n nott issue the confirmation c order.
rder.
Applicant has pleaded that the Master Circular on Probation issued as DoPT PT OM (Annexure A/5 in OA 105/2021) 105/2021 requires that a decision n on n extensi extension of probation period sho ould be taken within six to eight weeks bef before the expiry of the probati bationary period. No such order rder extending the pr probationary period d was issued by the respondents.
resp
-6- OA/050/00362/2020 with OA/050/00105/2021 7.1 Ld. Counsel forr applicant has argued that in the criminal case registered by CBI against applicant and one Md. Shoaibuddin , both th were arrested on n 27.06.2019 and sent to t judicial custody. Both th were placed under deemed suspensi suspension n and their suspension suspensi n was extended on n the rec recommendation off the review committee.
c After being enlarged on bail on n 28.08.2019, applicant made representation forr revocati cation of his suspension order rder which was rejected. Applicant also preferred Appeal and Revisi Revision n but both b were rejected as no o remedy lay against a Presidential order.
rder. On 14.09.2020, suspension n off Md Md. Shoaibuddin was revoked ked but applicant's suspension n was extended for another 180 days and hence, the decision off respondent ndent department was discriminat discriminatory. Ld. Counsel forr applicant als also contended ntended that as no n charge memorandum forr disciplinary enquiry was issued against the applicant, hence continuati ntinuation of suspension beyond nd 90 days was against the law settled by H Hon'ble Supreme Court urt in the case of Ajay Kr. Choudhary udhary Vs. Uni Union of India [(2015) 7 SCC 291].
7.2 L/C for Applicant submitted that respondents were contemplating ntemplating initiati initiation off departmental proceeding pr for majorr penalty against the applicant under the CCS (CCA) Rules, 1965. In this regard, he drew attenti attention to the written statement in OA No..
362/2020 and also in the order rder dated 18.03.2020 extending the applicant's suspensi suspension by another ther 180 days (Annexure A/6). Rather ather
-7- OA/050/00362/2020 with OA/050/00105/2021 than issuing the charge mem memorandum, randum, respondents resp ndents issued the terminati termination order rder under the CCS (TS) Rules, 1965. This was in violatio on of the principle off natural justice. Applicant had successfully completed mpleted the Pr Probationary period,, hence the order of termination n under the CCS (TS) Rules was against the rules/law.
rules/law 7.3 Mr. Dixit also submits that termination terminati off applicant under the CCS (TS) Rules was in contravention n of the Government instruction n issued by MHA on 26th August 1967 (Annexure P/1). He submits that as per the Government instruction,, an employee empl under probation n should uld be dealt under the terms and cconditions of the appointment ent order rder rather than the CCS(TS) rules .
7.4 Counsel for applicant Mr. M. P. Dixit has submitted that as there was n no order rder extending the applicant's probationary pr period, d, he had to o be treated as a regular employee.
empl yee. The department was required tto adopt the procedure laid down d wn under the CCS (CCA) Rules, 1965 fforr inflicting any penalty. In support of his stand L/C forr applicant relied up upon n the judgment of Hon'ble Supreme Court urt in Karnataka State R Road Transport Corp rporation Vs S Manjunath [ 2000 SCC (L&S (L&S) 629] and V. P. Ahuja Vs State of Punjab [2000 (3) SCC 239].
8. Respondents have refuted the claim off applicant that he had completed mpleted the pr probation period d successfully.
successfully They have stated that the mandat mandatory Induction training / co ourses for IRS (C&IT) officers fficers
-8- OA/050/00362/2020 with OA/050/00105/2021 to be underg undergone during the probatio on period includes (a) one ne year Classroo oomm training with field attachments , (b) four f months 'on job b training' as Assistant C Commissioner (O Officer Trainee) , (c) four months nths 'on job b training' as Assistant C Commissi mmissioner ner (Independent charge) , and (d) one month (approximately) ximately) Furbisher Course.
C During the course
urse off training , departmental examinations examinati for papers I to IX and viva vvoce are conducted.
nducted. Furbisher Course C urse and passing the departmental examinati examination in alll papers and viva voce v is mandatory ry forr being cconfirmed nfirmed in the service. During the Furbisher Course C urse , it was no oticed by the Course Directorr that eight officers fficers including the applicant (in these OAs) As) had remained absent for f a substantial period d off time. These officers were nott given Furbisher Course completion n Certificate and were asked tto repeat the course c next year along ng with the next batch officers. As applicant had not n completed mpleted his training, therefo ore he was not confirmed nfirmed in the Service along al with his batch--
mates.
8.1 Respondents ndents have further averred that applicant was caught red handed by CBI while accepting a bribe of Rs 2.5 lakh on n 27.06.2019 and CBI ACB Patna registered RC 023 2019 A 007 dated 27.06.2009 against applicant . He was arres arrested and sent to judicial custody dy and was suspended vide order rder dated 01.08.2019. His suspensi suspension n was reviewed and extended for f a further period off 180 days vide orders rders dated 19.09.2019, 18.03.2020 and 14.09.2020. Since
-9- OA/050/00362/2020 with OA/050/00105/2021 applicant remained under suspensi suspension, n, there th was no question of his attending the Furbisher Course with the next batch.
batch As applicant had not co ompleted mpleted his training, he was not n confirmed nfirmed in service and in view o off his being caught red handed taking bribe, the Appointing App inting Authority rity did n not find him fit to remain in service and by invoking inv king Rule 5(1) of the CCS (temporary rary Service), 1965, he was discharged from m the service. Resp Respondents ndents have averred that the applicant's discharge was in acc accordance rdance with the appointment offer ffer dated 8.12.2021 and IRS (C&IT) Group up 'A' Rules, 2016.
8.2 SSC Mr. H. P. Singh has argued that since applicant was nott confirmed nfirmed in the service, he was a temp temporary employee yee regulated under the CCS (Temp (Temporary rary Service) Rules, 1965 and being a tempo orary employee, yee, applicant had no n right to the post st held by him.
There was n no mandatory ry requirement to t give any show cause notice tice in terms of Rule 5(1) off the CCS (TS) Rules 1965 and that there was no vio olation of principle off natural justice. Respondents Resp ndents have relied upon n the judgments of Hon'ble Supreme Supre Court in High Court off Judicature ature at Patna Vs Pandey Mohan han Prasad Sinha &Ors & [ (1997) 10 SCC 409] , Rajasthan High Court urt vs Ved Priya & Anr. [ Civil Appeal No.. 8933 8933-8934 of 2017.
8.3 Mr. H. P. Singh, Ld. SSC maintained that the order off discharge was a simpliciter order off discharge from fr service and it was nott stigmatic. An officer's fficer's service after probation pr is confirmed through ugh
-10- OA/050/00362/2020 with OA/050/00105/2021 specific order and without that order o confirmation cannott be presumed after tw two years of probatio on. Regarding applicability off the CCS (TS ) Rules, ccounsel for respondents ndents Mr. Mr H. P. Singh , Ld. SSC cited the judgment of Hon'ble n'ble Supreme Court C in the case of Union off India vs Arun Kr R Roy [AIR 1986 SC 3736].
8.4 Mr H. P. Singh, SSC submits that the suspension suspensi order rder in respect off applicant was issued by the President , hence there was no no remedy of Appeal or Revision n available to t applicant. Ld. SSC also o submitted that suspensi suspension off applicant was extended in terms off the CCS(CCA) Rules in view off the pendency off criminal case against him. Further applicant, cann cannott compare c his case with Md..
Shoaibuddin aibuddin , Superintendent wh who was a departmental officer.
9. The issues for adjudication n in the two tw OAs, as emerging from m the ab above pleadings and submissions ns are as under:-
u a. Whether the order rder dated 09.02.2021 terminating the services off applicant under the CCS(TS) Rules was in acc accordance rdance with rules/law.
b. Whether the extension off applicant's suspension suspensi n was legally sustainable.
10. The appointment order rder dated 08.12.2016 (Annexure A/2 off OA A 105/2021) laid down the terms and conditions c forr applicant's appointment intment as Pr Probationer ner in the Indian Revenue Service (Customs (Cust ms
-11- OA/050/00362/2020 with OA/050/00105/2021 & Central Excise). As per the appointment intment offer, applicant was to be placed on probation for first two years and during which he was required tto undergo the theoretical retical and practical training and pass Part I and Part II off the Departmental Examination.
Examinati The probation n period d was extendable if he did n nott pass the departmental examinati nation n within the prescribed period peri or for any reason n in accordance rdance with the instructi instructions ns issued by Government G on n this matter. If his service was cconsidered nsidered unsatisfactory, unsatisfact or if his conduct nduct showed wed that he was unlikely tto beco ome an efficient officer, he was liable tto be discharged from m service at any time during the period peri off probati bation. Applicant's confirmation n in service was subject to o successful completion of the period of o probation and being found und fit in every respect of confirmation.
11. It is undisputed that applicant's two tw years'probationary period d was to o end on 21.12.2018 and that no o order extending the probation n period d was issued either bef before or o after that date. It is also o undisputed that n no order for confirmati nfirmation off applicant's service was issued. Hence, a question arises whether applicant, after the two o years' pr probation period, is to be treated as continuing c on probation n orr as a regular IRS officer. If he is to be treated as under probation n then he can discharged from service under 1 (vi) of the appointment intment offer which reads as under.
"(vi) The Government vernment may discharge you y from m service at any time during the period of probation n , if in the opinion of the Government your ur
-12- OA/050/00362/2020 with OA/050/00105/2021 work or conduct during this period d is considered c unsatisfactory , or shows ws that you are unlikely to become me an efficient officer."
The D DoPT OM dated 11.03.2019 which is a Master Circular on n Probati bation /Confirmation lays down wn at para 19 that the decision decisi onn extensi extension of probation or confirmatio on should be taken soon n after but within six tto eight weeks off the initial probationary pr period.
d. Para 19 off the OM reads as under.
"19. The decision n whether an employee empl should be confirmed orr his probation be extended should uld be taken soon s after the expiry off the initial probationary period d that is within six to t eight weeks , and communicated in writing to the employee empl together with reasons ns , in case of extension. A probationer who is not n making satisfactory progress orr who shows himself to be inadequate for f the service in any way should be e informed of his shortcomings mings well before bef the expiry of the original riginal probationary period so that he can make special efforts eff at self-- improvement."
12. Registration of the CBI case and applicant's arrest in that case took place on n June 27, 2019 whereas two tw years probationary period d ended on n December 21, 2018. As there was no n order rder extending applicant's pr probation, his services could uld not n t have been terminated in terms of the conditions laid down wn under the offer of appointment.
intment.
Ld. counsel unsel fforr applicant has averred that the termination was nott in acco ordance with the MHA OM M dated 26th August 1967 (Annexure P/1, page 244)
244).. We disagree with the Ld. Ld counsel as applicant was no o longer nger on probation and hence, this OM O (supra) was not applicable in applicant's case.
13. There was no order of confirmati nfirmation, hence applicant did nott enjoyy the status of regular Government vernment servant. The procedure pr cedure laid down wn under the CCS (CCA) Rules, 1965 are taken in respect off regular
-13- OA/050/00362/2020 with OA/050/00105/2021 Government vernment servants. Hence, applicant's claim for f r an enquiry under the CCS (CCA) Rules is n not tenable.
14. At this stage, we also need to t examine the conduct off respondents ndents in neither extending the applicant's pr probation norr issuing the order of his confirmatio on after two years probation n period.
d. Respondents ndents were required to t take a decision either to o confirm nfirm the applicant or to extend his probation pr within six to eight weeks of the expiry of the two year probation pr period. There could uld nott have been an order of confirmati nfirmation n after the CBI case was registered against applicant. Para 27 of o the above DoPT OM (supra) further lays down that an officer fficer will be deemed to t have successfully completed mpleted the pr probation period if no o order confirming, nfirming, discharging orr reverting the officer iss issued within eight weeks after expiry off double uble the n normal period off prescribed probation.
pr Para 27 off the DoPT
PT OM dated 11.03.2019 is repro oduced below for the sake off brevity.
27. The date from which confirmatio on should uld be given effect is the date following the date of satisfactory completi mpletion of the prescribed period off probation or the extended period off probation, pr n, as the case may be. The decision to confirm the probationer ner or to extend the period of probation n as the case may be should be communicated mmunicated to t the probationer normally rmally within 6 to 8 weeks. Probation shoulduld not n be extended for more re than a year and, in no circumstance, an employee empl should be kept on probation n for more than double the normalrmal prescribed period peri of probation. n. The officer will be deemed to have successfully completed c the probation n period if no order confirming, nfirming, discharging or reverting the officer fficer is issued within eight weeks after expiry of do ouble the normal period off prescribed probation.
-14- OA/050/00362/2020 with OA/050/00105/2021 Respondents ndents have argued that since applicant had joined j ined the service on n 19.12.2016, he w would have auto omatically been confirmed in service after 12.02.2021 if the respo ondents had failed to issue any order rder cconfirming , discharging orr reverting him before bef that date. But respondents ndents issu issued order rder terminating his service vide order rder dated 05.02.2021 under the CCS(TS) Rules , hence the applicant's service cannott be deemed as cconfirmed.
15. Respondents ndents have submitted that applicant had not n completed mpleted the mandat mandatory Furbisher Course urse and he was not given the Furbisher Course urse ccompletion Certificate.. He was required to repeat the course urse next year al along with the officers of next batch. As Furbisher Course is part o of the mandatory training he was not n confirmed nfirmed in the Service along ng wit with his batch-mates. Applicant has not n contested ntested this fact either in the pleadings or through ugh the submissions submissi of the counsel.
unsel.
Applicant pplicant did n nott meet the requirement for f confirmation n as laid down wn under para 1(vii) of the appo ointment offer ffer which reads as under .
"(vii) You will be considered for co onfirmation in service on n successful completion of the period of probati bation and also if you are found und fit in every respect for confirmation."
Thus, aapplicant was not confirmed nfirmed in service on account of non--
completi mpletion of the Furbisher Course, registration of CBI case against him , his arrest and pendency off the criminal case.
-15- OA/050/00362/2020 with OA/050/00105/2021
16. The respondents ndents have argued that as applicant's service was not co onfirmed he was a temporary rary employee empl yee regulated under the CCS(Temp Temporary rary Service ) Rules , 1965 and that a temporary temp employee yee had no o right to the post st held by him. That his performance in on-job b training was examined in terms off Rule 5(1) of the CCS (TS) TS) Rules , 1965 and he was n not found fit for f permanent employment.
yment.
Theref Therefore, he was removed from the service under Rule 5 (1) off the CCS (Temp (Temporary Service ) Rules, 1965.
17. L/C forr applicant has argued that the impugned order off terminati termination under the CCS (Temporary rary Service ) Rules, 1965 was against the princi principle off natural justice and also als against the decisio ons of Hon'ble Supreme Court urt in the cases off Karnataka State Transp Transport Corporation Vs S. Manjunath (supra) and V P Ahuja Vs State of Punjab &Ors (supra).
18. In S. Manjunath (supra),, the employee empl was appointed inted in December 1982 and was kept on probati bation. On 07.08.1985, period off probati bation was extended up to 14.06.1986 and ultimately on n 13.01.1988 employee's yee's services was terminated for the reason n that his perf performance during the period off probation pr was not satisfactory ry and he failed tto show any improvement.
vement. Karnataka High Court C urt had declared the terminati termination invalid on n the ground gr that in terms off emplo oyees' appointment,, his service was deemed to t have been confirmed nfirmed on completion off maximum period peri of probation. Hon'ble n'ble
-16- OA/050/00362/2020 with OA/050/00105/2021 Apex C Court dismissed the appeal upholding uph the decision of Hon'ble n'ble Karnataka High C Court and observed bserved that the services of respondents ndents could not be put an end to except by means off disciplinary proceeding.
ceeding. The facts off this case are distinct from the instant OA to o the extent that the time limit forr automatic aut confirmation set under para 27 of the DoPT OM M dated 11.03.2019 had still not been crossed ssed when the applicant's service was terminated under the CCS (TS) Rules.
19. In the case of V. P. Ahuja vs State of Punjab &Ors rs (supra) Hon'ble n'ble Supreme C Court observed bserved as under:-
under " 7. A probationer, like a temporary rary servant , is also als entitled to certain protection and his services cannott be terminated arbitrarily , nor n r can those services be terminated in a punitive manner without with complying mplying with the principles off natural justice."
20. A different view has been expressed by Hon'ble H Supreme Court urt in a ho ost of judgments. In the case off State of Punjab and Others thers Vs. Sukhwinder Singh [(2005) (2005) 5 SCC 569], 569 a three-Judge Bench off Hon'ble n'ble Apex C Court held that if an employee empl is found und unsuitable during the pr probation period d then the employer empl reserves the right to o terminate his service with without ut the need for f a penal inquiry. The relevant observation of Hon'ble Court urt reads as under.
"20. In the present case neither any formal f departmental inquiry norr any preliminary fact-finding finding inquiry had been held and a simple order off discharge had been passed. The High CourtC has built an edifice on n the basis off a statement made in the written statement that the respondent resp ndent was a habitual absentee during his shortsh period off service and has concluded therefrom m that it was his absence from fr m duty that weighed in the mind of the Seniorr Superintendent of Police as absence fromm duty is a misconduct. The High Court urt has further gone g on to holdld that there is
-17- OA/050/00362/2020 with OA/050/00105/2021 direct nexus between the order off discharge of the respondent from m service and his absence fromm duty and, therefore, theref the order rder discharging him from service will be viewed ewed as punitive in nature calling forf r a regular inquiry under Rule 16.24 off the Rules. We are of the opinion n that the High Court has gone completely wro ong ng in drawing the inference that the order of discharge dated 16-3-1990 1990 was, in fact, based upon up misconductnduct and was, therefore, re, punitive in nature, which should sh uld have been preceded by a regular departmental inquiry. There cannot cann be any doubt ubt that the respondent was on probation n having been appointed app about eight monthsnths back. As observed in Ajit Singh v. State Stat off Punjab [(1983) 2 SCC 217 :
1983 SCC (L&S) 303 : AIR 1983 SC 494]the 494] period of probation n gives time and opportunity to the employer to o watch the work,rk, ability, efficiency, sincerity and competence off the servant and if he is found f nott suitable for the post, st, the master reserves a right to t dispense with his service without anything more during orr at the end of the prescribed period, d, which is styled as period of probatio on. The mere holding off preliminary inquiry where explanationn is called from fr an employee would nott make an otherwise innocuous order off discharge or termination off service punitive in nature. Therefore, the High Courturt was clearly in error err in holding lding that the respondent's absence from m duty was the foundation f of the order, rder, which necessitated an inquiry as envisaged under Rule 16.24(ix) off the Rules."
(emphasis intended)
21. The same view was taken by Hon'ble H Apex Court urt in the case of State of Punjab and others Vs. Co onstable Avtar Singh [(2008) (2008) 7 SCC 405 405]. In the case of State off Punjab and Others thers Vs. Balbir Singh [(2004) 11 SCC 743], H Hon'ble n'ble Supreme Court C examined the conditions ns off whether the order of termination n was punitive or simpliciter and observed bserved as under
"7. Thus the principle that in order to o determine whether the misconduct nduct is motive or foundation of order off termination, terminati the test to be applied is to ask the question as to what was the "object " off the enquiry". If an enquiry or an assessment is done ne with the object of finding out ut any misconduct on the part of the emplo oyee and for that reason n his services are terminated, then it would uld be punitive in nature. On the other ther hand, if such an enquiry orr an assessment is aimed at determining the suitability of an employee forr a particular job, j such termination would uld be termination simpliciter and nott punitive in nature."
nature.
22. The impugned order rder dated 05.02.2021 terminating applicant's service reads as under.
-18- OA/050/00362/2020 with OA/050/00105/2021 "ORDER RDER In pursuance of the proviso to sub-rule rule (1) of Rule 5 off the Central Civil Services (Temporaryrary Service ) Rules , 1965, the President hereby terminates forthwith rthwith the services off Shri Chandan Prakash Pandey (Date off Birth :
12.05.1987) frfrom m Indian Revenue Service ( Customs Cust ms & Central Excise) and directs that he shall be entitled tto claim a sum equivalent to t the amount off his pay and allowances wances ffor a period of one month(nth( in lieu of the period of notice tice ) calculated at the same rate at which he was drawing them immediately before bef the date onn which this order is served on or, r, as the case may be , tendered to him.
(By Order and in the name off the President of India )"
23. It is evident from bare are reading of the above order rder that it is a simplicit simpliciter order of termination n and has nothing n to suggest that it is punitive or stigmatic. Hence, we are inclined to t hold that the order rder is nott against any law settled by H Hon'ble n'ble Apex Court.
C
24. The only remaining question n at this stage is whether the CCS (Temp (Temporary Service ) Rules can be invoked inv in the case of persons ns appointed inted on probation if in the appointment intment letter a specific conditi ndition regarding termination off service without with any notice tice during orr at the end of the period of probati bation (including extended period)) has been pr provided.. This issue has been clarified by the MHA OM M dated 26.8.67 which reads as under.
" Under Rule 5 off the Central Civil Services (Temporary (Temp rary Service) Rules, 1965, the services of a temporary rary Government G servant, who is nott in quasi-permanent permanent service, can be terminated at any time by a notice n tice in writing given either by the Government vernment servant who wh is not in quasi-- permanent service to the appointing inting authority auth or by the appointing inting authority to the Government vernment servant. A question n has arisen whether this rule should be invoked also in the case of persons appointed on n probation, where in the appointment intment letter a specific condition c n regarding termination of service withoutut any notice n during or at the end off the period of probation n (including extended period, peri d, if any) has been provided. The positionn is that the Central Civil Services Servic (Temporary rary Service) Rules,1965, do nott specifically exclude probationers pr or persons ns on probation as such. However, wever, in view of the specific condition n regarding termination off service without with any notice during orr at the end
-19- OA/050/00362/2020 with OA/050/00105/2021 of the period of probation (including extended period, peri d, if any), it has been decided, in consultation n with the Ministry off Law, that in cases where such a provision n has been specifically made in the letter of appointment, intment, it would be desirable to terminate the services of the probationer/person n on probation in terms of the letter of o appointment and nott under Rule 5 (1) off the Central Civil Services (Temporary (Temp Service) Rules, 1965."
(emphasis intended) As evident fr from the above that the Central Civil Services (Temporary (Temp rary Service) Rules, 1965, do nott specifically exclude probationers pr orr persons ns on probation as such.. In the instant case, applicant's probati bation was not extended beyond nd two tw years and also no order rder was issued on confirmation off his services. Hence, we are inclined to t hold ld that applicant's status was covered vered under the CCS (TS ) Rules and that there was n no illegality in termination terminati off his services under Rule 5(1) off the CCS (TS ) rules.
25. Regarding extension of his suspension, suspensi , applicant has alleged that the resp respondents ndents were discriminatory discriminat as they had revoked ked the suspensi suspension of Md. Shoaibuddin, aibuddin, Superintendent who wh was a co--
accused and also arrested by the CBI in the same case. However, H wever, applicant's case cann cannott be treated at par with Md.
Md Shoaibuddin forr applicant was appointed as an IRS (C& CE) officer and his suspensi suspension order rder was issued in the name off President. Md.
Shoaibuddin aibuddin was a Gr Group 'B' officer and a regular employee off the department. We als also find no violatio on of the rules in extension off applicant's deemed suspension under Rule 10(6) off the CCS (CCA) Rules, 1965 which reads as under.
-20- OA/050/00362/2020 with OA/050/00105/2021 "10. Suspension (6) An order of suspension n made or deemed to have been made under this rule shall be reviewed by the authority auth competent to modify orr revoke the suspension, before re expiry of ninety days from m the effective date of suspension, on the recommendati mmendation of the Review Committee mmittee constituted for the purposese and pass orders either extending or revoking king the suspension.
n. Subsequent reviews shall be made before bef expiry off the extended period of suspension. n. Extension Extensi of suspension shall not be forr a period exceeding onene hundred and eighty days at a time."
The ab above rule provides for extensio on in the period of an order off suspensi suspension or deemed suspension.
26. Considering the entirety off facts and legal aspects discussed above, ve, we are off the view that respondents resp have not violated lated any rule/law in terminating applicant's services under the CCS(TS) rules 1965. Als Also, there was no contraventio on of any rule/law in extending nding the peri period of applicant's deemed suspension.
suspensi Hence, both the OAs As being ing dev devoid off merit, deserve dismissal. Accordingly Acc both, OA No..
362/2020 and OA No.. 105/2021 are dismissed as being devoid dev off merit. No cost.
[AJAY PRATAP SINGH] [SUNIL KUMAR SINHA] Judicial Member Administrative Member Srk.