Central Administrative Tribunal - Patna
Mayuresh Dash vs Central Institute Of Mining Fuel ... on 15 December, 2022
-1- OA/051/00269/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH
CIRCUIT BENCH, RANCHI
OA/051/00269/2021
Reserved on: 17.11.2022
Pronounced on: 15.12.2022
CORAM
HON'BLE MR. M.C. VERMA, JUDICIAL MEMBER
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
Mayuresh Dash, S/o Sri Rabindra Kumar Dash, R/O At & P.O. Khanditar,
P.S.- Kuakhia, District- Jajpur (Odisha). At present Technical Assistant, GR
III (1) CSIR-Central Insitute of Mining and Fuel Research, Barwa Road,
Dhanbad.
.... Applicant.
By Advocate: - Mr. Rishi Pallava
-Versus-
1. Union of India through Secretary, Science & Technology,
Technology Bhawan, New Mehrauli Road, New Delhi-110016.
2. The Director CSIR-Central Institute of Mining and Fuel Research
having office at Barwa Road, Dhanbad, PIN-826001.
3. The Administrative Officer, CSIR- Central Institute of Mining and
Fuel Research having office at Barwa Road, Dhanbad.
4. The Head of Research Group, Combustion, Carbonisation and
Non-Conventional Gas Research Group at CSIR-Central Institute
of Mining and Fuel Research, Digwadih Campus, Dhanbad, PIN-
826001.
.... Respondents.
By Advocate:-Mr. Rajendra Krishna, Sr. SC for R-1
Mr. Abhay Prakash for R- 2 to 4
ORDER
Per S.K. Sinha, A.M:- Aggrieved with the termination of his service during the extended period of probation applicant has preferred this OA praying for following reliefs:-
-2- OA/051/00269/2021 "(8.1) For quashing of office memorandum as contained in Letter No.:
8/3489/19-Estt-I/987 dated 26.02.2021 (Annexure-7) whereby hereunder the Respondent No. 2 has served notice for termination of appointment of the applicant under Para 3(i) offer of appointment dated 24-25th July 2019 as such it is illegal, perverse and arbitrary.
(8.2) For commanding upon the respondent to issue necessary direction for the confirmation of appointment of the applicant on the post of Technical Assistant/Gr. III (1) in the office of Respondent No. 1.
(8.3) Any other relief or reliefs to which the applicant is entitled to be granted by this Hon'ble Court.
(8.4) For quashing of Office Memorandum F. No. 8/3489/15-Estt.I/994, dated 25.03.2021, whereby and whereunder the applicant has been informed that his appointment as Technical Assistant in CSIR-CIMFR stands terminated w.e.f. 25th march 2021 (AN) (Annexure-9).
(8.5) For direction upon the respondents to reinstate the applicant on the post of Technical Assistant/Gr. III(1) with confirmation and all consequential benefits. "
2. Short facts giving rise to this OA are that 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 (Annexure 1). The appointment offer (Annexure 1) 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. 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. Applicant joined the post on
-3- OA/051/00269/2021 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 (Page 26 of OA). 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. 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. Respondents, vide OM dated 26.02.2021, gave one month notice to applicant terminating his services from 25th March 2021 (AN).
3. Applicant has assailed the termination order for being in contravention of the rules/guidelines laid down under the DoPT OM dated 11th March, 2019 (Annexure-8) as the respondents did not organize any induction training for him after appointment and they also did not inform him of shortcomings in performance
-4- OA/051/00269/2021 before the expiry of one year probation. Applicant further maintained that a departmental enquiry was necessary to remove him from service as the termination order was stigmatic. Applicant has alleged that termination of his services was ordered in retaliation of his conduct as a whistleblower highlighting the discrepancies in distribution of project fees/ honorarium in CIMFR. Applicant put reliance on the judgement of Hon'ble Supreme Court in Progressive Education Society and Ors. Vs. Rajendra and Ors. [(2008) 3 SCC 310] in support of his averment.
4. Contesting the OA, respondents filed written statement raising preliminary objection that alternate remedy in the form of appeal before the Director General, CSIR was available to the applicant. As applicant had not exhausted the remedy available under the service laws, the OA was not tenable. Respondents have further pleaded that applicant's performance was evaluated by a committee chaired by Chief Scientist, CSIR-CMIFR and on recommendation of the Committee probation of the applicant was extended twice. Accepting further recommendation of the committee, Director CSIR- CIMFR, in the capacity of appointing authority, gave one month notice to the applicant before termination of his services w.e.f. 25.03.2021 vide OM dated 26.02.2021 and applicant's services was terminated w.e.f 25.03.2021.
-5- OA/051/00269/2021 4.1 Respondents have maintained that in terms of the appointment offer one year probation may be extended or curtailed by the competent authority and that the services may be terminated during the probation period by giving one month notice. The applicant during this period did not comply with the order of superiors and raised questions about the under the misconceived perception that the work in the organization was being carried out for some ulterior motive. His behavior was discourteous towards his seniors and he showed disinterest towards the allotted works. He even created hindrances in the work assigned by his superiors. The applicant was informed about his shortcomings initially verbally and later in writings vide communications dated 18.09.2020 and 28.12.2020 (Annexure/A Series of the WS). The applicant being a captious person showed no respect towards work and tried to hide his irregularity and incompetence by proclaiming himself a whistleblower. Respondents have put reliance on the judgement of Hon'ble Supreme Court in Progressive Education Society and Ors. Vs. Rajendra and Ors. [2008(3) SCC 310] holding that services of a probationer can be terminated only by informing him that it was found to be unsatisfactory. The Hon'ble Court has also held that termination cannot be said to be stigmatic. Respondents have held that the applicant's termination was in accordance with the terms and conditions stipulated in the appointment letter and the provisions of DoPT OM dated 11.03.2019.
-6- OA/051/00269/2021
5. In rejoinder, applicant maintained that the CCS (Temporary Service) Rules, 1965, under which applicant's services has been terminated, does not provide for appeal against the termination of temporary Government servant. The applicant brought on record copy of his APAR for the period from 13.08.2019 to 31.03.2020 obtained under the RTI Act (Annexure R/1). Applicant has claimed that he was given 'Excellent' grading for his performance and there was no adverse entry in the APAR. Applicant claimed that he had raised objections to the distribution of honorarium/project fees ordered by respondent no. 3 vide OM dated 11.08.2020 and sent communications to DG, CSIR regarding the irregularities which had annoyed the respondents. He was not informed of work performance evaluation parameter and was never given any kind of training in the probation period.
6. After admission, we heard the rival counsel and considered the submissions and materials on record.
7. Shri Rishi Pallava, learned counsel for applicant assailed the applicant's termination order on the ground that it was against the provisions of the Master Circular on Probation/Confirmation in Central Services circulated vide DoP&T OM dated 11.03.2019 (Annexure-8). His main contention is that under para 7 of the OM, competent authority was required to inform the applicant of his shortcomings and issue warning against likely denial of his
-7- OA/051/00269/2021 confirmation well before the expiry of original probation periosd so that applicant could make effort for improvement. 7.1 L/c for applicant also urged that the applicant had joined CSIR- CMFIR as Technical Assistant on 13.08.2019 and was placed under one year probation. No shortcoming in his work was communicated during this period. It was only on 02.09.2020 that he was served an Office Memorandum dated 28.08.2020 showing that his probation period was extended by three months, i.e. till 07.11.2020 in view of shortcomings in performance, sense of responsibility, punctuality and tolerance (Annexure 4, page 26). Learned counsel also submitted that APAR of the applicant for the period 13.08.2019 to 31.03.2020 shows that he was given 'Excellent' grading by Reporting as well Reviewing officers. So, it cannot be said that his performance was not good. Had there been any shortcoming in his performance, he would not have been given 'Excellent' grading in the APAR. 7.2 Learned counsel further submitted that applicant had acted as whistleblower and highlighted discrepancy in the distribution of honorarium. He drew attention to page 182 to 187 of OA to fortify this submission and finally urged that the termination of applicant's service was a result of colorable exercise of power by the respondents which is untenable in the eyes of law and deserves to be quashed and set aside. He placed reliance on the judgments of Hon'ble Supreme Court in the case of Progressive Education Society
-8- OA/051/00269/2021 and Ors. Vs. Rajendra and Ors. [(2008) 3 SCC 310], Vijayakumaran C.P. Vs. Central University of Kerala and Ors. [(2020) 12 SCC 426] and Raj Kumar Mehrotra Vs. State of Bihar & Ors. [ (2005) 12 SCC 256] in support of his averments.
8. Learned counsel for respondents Shri Abhay Prakash representing Respondents No. 2 to 4 vehemently argued that the OA was not maintainable because applicant had not exhausted the remedy of appeal against the impugned order and without exhausting that remedy the OA was not maintainable. He placed reliance upon the notification dated 19.09.2006 of CSIR-CIMFR in which Director General CSIR was shown as the appellate authority for any major punishment to the rank of Technical Assistant. 8.1 Learned counsel for Respondents admitted that no warning in writing was given to applicant before expiry of the original period of probation. He drew attention to the written statement and submitted that oral warning was given to the applicant. L/C referred the order of Delhi High Court in Writ Petition(C) No. 7539 of 2006 in which Hon'ble High Court had taken into consideration the stand of respondents that the applicant was verbally cautioned by Secretary as well Chairman on multiple occasions. However, L/C could not specify which authority gave verbal warning to the applicant in the instant case.
-9- OA/051/00269/2021 8.2 L/C also contended that as per para 10 of DoP&T OM dated 11.03.2019 (Annexure 8) the applicant's original probation period was of two years and the applicant was given written warning on 28.08.2020 and on 07. 12.2020 within this period of two years. Regarding the Committee's report based on which the termination order was passed, Mr Abhay Prakash admitted that the report had not been placed on record by the respondents. To a specific query how without going into the details recorded in the report the justifiability of order passed can be determined, L/C urged to pass appropriate order based on available record.
8.3 Mr Abhay Prakash put reliance upon the judgments of Hon'ble Supreme Court, viz. (a) (2003) 3 SCC 263 (Mathew P. Thomas Vs. Kerela State Civil Supply Corpn. Ltd. and Others; and (b) (2011) 4 SCC 447 ( Rajesh Kumar Srivastava Vs. State of Jharkhand and Others) and the judgement of Hon'ble High Court of Delhi in WP (C) 7359 of 2006 dated 18.01.2022(supra) .
9. Shri Rajendra Krishna, Sr SC submitted that respondent no. 1 was a formal party and he was adopting the arguments of L/C for respondents 2-4.
10. The issue for adjudication in this OA is whether the applicant's termination order during the probation period was in accordance with the rules/law.
-10- OA/051/00269/2021
11. Applicant has argued that under para 7 of the DoPT OM (supra), competent authority was required to inform him of shortcomings and also issue warning that his confirmation may be denied well before the expiry of original probation period so that he could make effort for improvement. Since respondents did not communicate any shortcoming in his work during the probation period, the decision to extend the probation and finally to terminate his services was in violation of the statutory guidelines. L/C has also drawn attention to the applicant's APAR on this issue.
12. Learned counsel for respondents has admitted that while no written warning was given to applicant before expiry of one year probation, he was warned orally on several occasions. L/C for respondents referred to the order of Delhi High Court in Writ Petition(C) No. 7539 of 2006 in which Hon'ble High Court had taken into consideration the stand of respondents that the applicant was verbally cautioned by Secretary as well Chairman on multiple occasions. However, in the instant case, L/C for respondents could not specify any such averment in pleadings of WS as to which authority gave verbal warning to the applicant. L/C, later, argued that applicant's probation was of two years and he was informed of the shortcomings in writing through the orders expending probation during the probation, hence there was violation of rules/guidelines.
13. Perusal of applicant's APAR reveals that he was given 'Excellent' grading by the Reporting and Reviewing Officers in his APAR for the period 13.08.2019 to 31.03.2020 and he was given numerical score of 4/5 or 5/5 under various fields. Also, there is no
-11- OA/051/00269/2021 adverse remark in the APAR. We find the respondents' stand that applicant was given oral warning for poor performance in conflict with the APAR grading. If there had been any shortcoming in applicant's performance, he would not have been given 'Excellent' grading in the APAR. Hence, based on the APAR grading and absence of any document or other material qua oral warning, we are inclined to take the averment of respondents that oral warning during the probation period with a pinch of salt.
14. We note that the appointment offer and subsequent orders extending the probation period clearly mention that the applicant was initially put on probation for one year which was liable to be extended or curtailed. Written Statement filed by respondents also mentions unequivocally that applicant was put on probation for one year. Also, if the probation period was of two years there was no need to extend the period of probation after one year as done in this case. The argument of learned counsel for respondents that the probation was for two years is apparently an afterthought to cover the lacuna of non-communication of shortcomings to the applicant within one year.
15. Respondents have put reliance on the judgment of Hon'ble Supreme Court in Rajesh Kr Srivastava Vs State of Jharkhand and Others [ (2011) 1 SCC (L&S) 696] that an order of termination during probation as a fallout of unsatisfactory service adjudged on the basis of overall performance and conduct was a case of termination of service simpliciter and not a case of stigmatic termination. Hon'ble Apex Court held that there was no infirmity in the impugned
-12- OA/051/00269/2021 judgment and order passed by the High Court and dismissed the appeal.
16. L/C for respondents also relied on the judgment of Hon'ble Apex Court in Mathew P Thomas Vs Kerala State Civil Supply Corporation Ltd and Others [ (2003) 3 SCC 263] dismissing the appeal and holding that termination of the appellant's services during probation period was in terms of the appointment order because his services were found to be unsatisfactory. In both the above cases, referred to by L/C for respondents, Hon'ble Apex Court upheld the order of termination during the probation period on the basis of performance, conduct and overall suitability.
17. The CCS(TS) Rules, 1965 empowers the appointing authority to terminate the services of a temporary Government servant at any time by giving a notice in writing. Appointing authority is at liberty to terminate the services of a probationer if it finds his performance to be unsatisfactory during the probation period. Also, appointing authority is not required to give any explanation or reason for terminating his services. The DoPT OM dated 11.03.2019 (Annexure
8) lays down the procedure to be followed during probation period.
Para 7 of the OM provides for communication of shortcomings during the probation period and reads as under.
" 7. A probationer, who is not making satisfactory progress, should be informed of his shortcomings well before the expiry of the original probationary period so that he can make special efforts at self-improvement. This can be done by giving a written
-13- OA/051/00269/2021 warning to the effect that his general performance has not been such as to justify his confirmation and that, unless he shows substantial improvement within a specified period, the question of discharging him would have to be considered. Even though this is not required by the rules, discharge from the service being a severe, final and irrevocable step, the probationer should be given an opportunity before taking the drastic step of discharge."
18. As noted earlier the applicant was not communicated the shortcomings in writing nor he was warned that his services may not be confirmed. Further, the applicant's APAR for the period 13.08.2019 to 31.03.2020 had 'Excellent' grading. The first written communication about shortcomings was made vide the OM dated 28.08.2020 extending the probation in view of 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 which mentioned on the grounds of deficiencies in timely completion of allotted work, inability to perform the job in satisfactory manner and lack of inquisitiveness.
19. We are inclined to hold that the respondents did not observe the guidelines laid down under DoPT OM dated 11.03.2019 relating the procedure to be followed during probation period. Also, contradiction between the APAR remarks and the grounds for extension communicated vide OMs extending the probation periods
-14- OA/051/00269/2021 is too obvious for anyone to miss. Further, there is no consistency in the grounds for extension of the probation period in the two OMs. Moreover, respondents did not bring on record the minutes of committee recommending extension in the probation period or termination of applicant's services. This suggests that the respondents developed sudden interest in terminating the applicant's services and used the façade of shortcoming in performance, misconduct and unsuitability for issuing the order of termination simpliciter. L/C for applicant has alleged that it was because of his communications in August 2020 (page Nos. 183,184,189,190,192 of OA) highlighting the discrepancy in payment of project fees/honorarium to the staff that respondents got annoyed and wanted to get rid of his services.
20. It is worth mentioning herein that respondents have urged to dismiss the OA on the ground of non-exhausting alternative remedy. Respondents referred to a communication/memorandum of CSIR- CIMFR dated 19.09.2206 showing that for punishment of termination under the CCS(CCA) Rules for Technical Assistants in CSIR-CIMFR, Director, CSIR was the appellate authority. Applicant, on the other hand, has contended that his services were terminated under the CCS(TS) Rules in which there is no provision of appeal against an order of termination under those rules. Rule 5(2) of the CCS (TS) Rules provides as under:-
-15- OA/051/00269/2021 " (2) (a) Where a notice is given by the appointing authority terminating the services of a temporary Government servant, or where the service of any such Government servant is terminated on the expiry of the period of such notice or forthwith the Central Government or any other authority specified by the Central Government in this behalf or a head of Department, if the said authority is subordinate to him, may, of its own motion or otherwise, reopen the case and after making such inquiry as it deems fit."
Though there is no provision which provides for appeal against an order of termination but the CCS(TS) Rules, 1965, Rule 5(2) provides scope for reconsideration / reopening of the notice/ order for termination issued under the Rule 5(1). Central Government, or an authority specified by the Central Government in this behalf or a head of Department, if the appointing authority issuing the notice or order of termination is subordinate to him may of own motion or otherwise reopen the case and after making such inquiries as deemed fit pass appropriate orders. The provision under Rule 5(2) is an enabling provision for the superior formation to intervene either of own motion or otherwise. We already have examined the legality of the order impugned so it will not be in expediency of justice to direct the applicant to exhaust the remedy under said Rule 5(2).
21. Considering the entirety of facts and legal aspects discussed above, we are of the view that termination of the applicant's services was without observing the statutory guidelines and without consideration of full facts, especially the applicant's APAR for the period 2019-2020. The appointing authority did not show due diligence and consideration of the statutory provisions in issuing the
-16- OA/051/00269/2021 applicant's termination order. We are of the view that in the interest of justice the order dated 25.03.2020 terminating the applicant's services (Annexure 9) and the notice dated 26.02.2021 for termination of services (Annexure A/7) should be quashed and set aside. We order accordingly. The applicant's service is restored to the status as existing on 25.03.2021 prior to the termination.
22. The OA stands allowed to the extent of aforesaid directions and observations. MAs, pending if any, also stand disposed of. No Cost.
[Sunil Kumar Sinha] [ M.C. Verma ] Administrative Member Judicial Member Srk.