Jammu & Kashmir High Court - Srinagar Bench
Altaf Ahmad Mir vs Union Of India & Ors. on 25 October, 2016
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP no.1121/2012 Date of decision: 25.10.2016
Altaf Ahmad Mir. v. Union of India & ors.
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
Appearing counsel:
For the petitioner: Mr. M. A. Wani, Advocate.
For the respondent(s): Mr. S. A. Makroo, ASGI.
Whether approved for:
i) Reporting in law journals: Yes
ii) Local Media: Yes
This petition calls in question the notice of termination of services, bearing no.DV-1/2012-DA.I dated 25.02.2012, issued to the petitioner under sub-rule (1) of Rule 5 of the Central Civil Service (Temporary Service) Rules, 1965 by the DIGP, ATC, CRPF, Bhopal, and order no. DV-1/2012-DA.I dated 28.03.2012 striking off the petitioner from the strength of GC SNR/ATC GC CRPF, Bhopal, with effect from 28.03.2012 (AN).
2. The petitioner is a resident of village Kanthpora, Lolab, Tehsil and District Kupwara, Kashmir, J&K. His case, as set up in the writ petition, is that he was selected and temporarily appointed as a Constable in the Central Reserve Police Force (hereinafter, CRPF) in terms of order no. R-II-22/2011/Estt-5 issued somewhere in June, 2011 by the DIGP, GC, CRPF, Rambagh, Srinagar, Kashmir, on the terms and conditions detailed out in the said order of appointment. The petitioner joined against the post on 25.06.2011. He was deputed for undergoing training course at Bangrasla, Bhopal. While the petitioner was undergoing the training, he fell ill and was referred to a local hospital at Bhopal on 13.02.2012. According to the petitioner, during his stay in the hospital at Bhopal, he did not have money to purchase medicines. He also was not provided with any attendant to look after him at the Hospital. He suffered severe pain and, therefore, states to have narrated his difficulties to the immediate officers who asked him to return back to his home. The petitioner went back to his home for providential medical care. Thereafter, in order to resume his training/duties, he states to have returned to and reported back at the training camp on 22.02.2012, but he was not allowed to resume his training. Resultantly, he returned to his home where his health worsened and he was admitted in a local hospital. He again left for Bhopal on 03.03.2012 alongwith his father and brother but, on reaching the training camp, he was again denied permission to resume his duties and training course. According to the petitioner, he returned from there on 07.03.2012. Thereafter, he received an envelope from respondent no.6, DIGP, GC, CRPF, Rambagh, Srinagar, containing the impugned notice no.DV-1/2012-DA.I dated 25.02.2012. The petitioner states to have filed an appeal for reinstatement in service. Thereafter, the petitioner states to have received the impugned order no. DV-1/2012-DA.I dated 28.03.2012 striking off his name from the strength of GC SNR/ATC GC CRPF, Bhopal, with effect from 28.03.2012. It is averred in the petition that the absence of the petitioner was neither deliberate, nor intentional or wilful, but the same was occasioned due to his health problems as he was operated upon on 21.03.2012 at Sub-District Hospital, Kupwara, where he remained under treatment, to which effect the Surgeon of the Hospital is stated to have issued a certificate in his favour.
3. As mentioned above, the petitioner in this writ petition has sought quashing of the aforesaid notice of termination of service no.DV-1/2012- DA.I dated 25.02.2012 and order no. DV-1/2012-DA.I dated 28.03.2012 striking off his name from the strength of GC SNR/ATC GC CRPF, Bhopal, with effect from 28.03.2012 (AN) and has prayed for issuance of consequential mandamus to direct the respondents to allow him to continue in service and to treat his period of absence as on duty.
4. The respondents in their reply affidavit took three preliminary objections seeking dismissal of the writ petition, the first one being that the petitioner has alternative, efficacious remedy available to him which he has not invoked; the second being that he had repeatedly deserted the service without any notice to the respondents, thus, his services were terminated on account of being a wilful and intentional deserter; and the third being that the petitioner has raised complicated questions of fact which cannot be adjudicated in the writ petition. The second preliminary objection highlighted above, as would be shown later, assumes crucial importance and demolishes the defences taken by the respondents to contest the writ petition. Further, it is also note worthy that no other preliminary objection was taken in the reply-affidavit.
5. In the factual background given in the reply-affidavit, the respondents have stated that for undergoing the basic training course, the petitioner reported at the ATC on 09.10.2011. He remained on attend 'C' with effect from 17.12.2011 to 21.12.2011 and was excused from physical exercise with effect from 22.12.2011 to 26.12.2011. Since the petitioner was suffering from jaundice, he was given 28 days' medical rest with effect from 30.12.2011 to 26.01.2012 by CHBPL which the petitioner availed at his home town. He was declared medically fit by CH Bhopal to resume training on 27.01.2012. The petitioner deserted from the camp on 07.02.2012 at 1500 hours without any intimation. An FIR to this effect was lodged at Police Station, Misroad on the same day. However, the petitioner reported back on 11.02.2012 at 1200 hours. Consequent to his reporting back, Police Station, Miroad was requested to cancel the FIR concerning his desertion. Thereafter, it is stated, the petitioner complained of piles and he was referred to Hamidia Hospital on 13.02.2012. The petitioner went to the said hospital on 14.02.2012 and returned at the training centre on the same day. However, he deserted from the training centre on 17.02.2012 at 0600 hours without any intimation. Again an FIR about this desertion was lodged at Police Station, Misroad, and a report about the same was sent to the concerned office and IGP Special Sector, CRPF, Raipur vide signal dated 17.02.2012.
6. It is further stated that the petitioner's repeated and without any valid reason desertion during the basic training course showed that he was an undisciplined recruit, not taking interest in the training and that he had no ability to become a skilful Constable. Therefore, a termination notice was issued to him vide office letter no.DV-1/2012-DA.I dated 25.02.2012. During the notice period of one month, the petitioner neither joined his duty/training, nor made any communication with the office. Therefore, on expiry of one month's notice period, the petitioner's services got terminated and, therefore, he was struck off the strength vide office order no. DV-1/2012-DA.I dated 28.03.2012 with effect from 28.03.2012 (AN).
7. I heard learned counsel for the parties, perused the material on record and considered the matter.
8. At the hearing, Mr. Makroo, learned ASGI's arguments were mostly directed at canvassing that this Court lacked jurisdiction to entertain the writ petition as no cause of action had accrued to the petitioner within the territorial jurisdiction of this Court and that, therefore, the same is not maintainable in this Court. The learned ASGI relied upon and cited a number of judgments to buttress his arguments on the point of territorial jurisdiction of High Courts under Article 226 of the Constitution of India. Curiously, however, the learned ASGI seems to have been totally oblivious of the contents of the reply affidavit filed by him on behalf of the respondents wherein he has made not even a slightest whisper about lack of jurisdiction of the Court to entertain and hear this writ petition. As mentioned earlier, only three preliminary objections, referred to hereinabove, have been taken in the reply-affidavit and the one being pressed in and stressed upon now is not included therein.
9. Apart from the above, the facts as would follow, bear out that the objection as to the territorial jurisdiction of the Court seems to be only an after-thought. This petition, after having been presented before the Registry of the Court, came up for consideration for the first time before the Court on 01.06.2012. On that day Mr. Makroo, learned ASGI, caused appearance in the case and waived notice on behalf of the respondents. He was directed to file reply. The reply affidavit was finally filed on behalf of the respondents on 01.11.2012. The respondents thus availed of enough time to file their reply to the writ petition and think on the defences/stand to be taken by them. Thereafter, the matter came up before the Court for hearing on admission on 30.05.2013. The Court, after hearing the learned counsel for the parties and on consideration of their respective pleadings, by order dated 30.05.2013. admitted the writ petition to regular hearing and issued post-admission notice to the respondents. At that time Mr. Makroo did not demur as to the lack of territorial jurisdiction of this Court to entertain the writ petition and/or about its maintainability or otherwise on that count. The post-admission notice was again accepted by Mr. Makroo on behalf of the respondents in the Court itself. In fact, Mr. Makroo chose not to file any fresh counter and, instead, he made a statement at the Bar to treat the reply affidavit filed by the respondents at the pre-admission stage of the writ petition as counter-affidavit on their behalf, and it was so ordered by the Court at his request. That being the position, the respondents do not, at this stage of the proceedings, deserve to be permitted to take the preliminary objection to the maintainability of the writ petition more than three years and four months of its admission on the ground of territorial jurisdiction of this Court, when they have failed to raise such objection in their reply affidavit or at the admission stage of the petition. It, therefore, clearly is an after-thought on the part of the learned ASGI to take such an objection at the final hearing of the writ petition.
10. It may be observed here that the object of a preliminary objection or objections otherwise is to save the time of the Court and of the parties by seeking disposal of a matter summarily on a point of law involved therein, without there being the need of going into the merits of the matter. Given the peculiar facts and circumstances as narrated above, I am of the considered view that the respondents should not ordinarily be allowed to take such an objection orally and at this belated stage of the proceedings. However, since jurisdiction of a Court is fundamental to the discharge of its constitutional functions, I am of the opinion that before going to the merits of the case, it would be in consonance with law to decide the point of territorial jurisdiction raised by the learned ASGI. The finding and decision of the Court on the point would determine the further course to be adopted in the case, i.e., whether merits of the case would need to be examined or not.
11. The reply-affidavit filed on behalf of the respondents lends some degree of clarity to the facts of the case than what the petitioner has himself stated in the writ petition. There is no dispute about the fact that the petitioner is an ordinary resident of Kupwara, Kashmir. He was appointed pursuant to the order issued by DIGP, GC, CRPF, Rambagh, Srinagar, Kashmir. He absented or deserted from the ATC, CRPF, Bangrasla, Bhopal, MP. The petitioner in his petition has averred that the Notice of Termination From Service issued by DIGP, ATC, CRPF, Bhopal, in pursuance of sub-rule (1) of Rule 5 of the Temporary Service Rules, 1965, was received by him in the envelop of the DIGP, GC, CRPF, Srinagar. According to the petitioner, he submitted his representation captioned as 'a plea for mercy/reinstatement of service' from his native place. These facts are not denied by the respondents.
12. The learned counsel for the petitioner submitted that in view of the above facts and the numerous decisions of the Supreme Court, particularly, the one in Nawal Kishore Sharma v. Union of India, (2014) 9 SCC 329, if not the whole, a part of the cause of action arose to the petitioner within the territorial jurisdiction of this Court and, therefore, this writ petition is maintainable before the Court.
13. On the other hand, Mr. Makroo submitted that no part of the cause of action accrued to the petitioner within the territorial limits of this Court as, according to him, the notice of termination of services of the petitioner dated 25.2.2012; the order dated 28.3.2013 (termed by him as the actual termination order); and the order dated 18.6.2012 passed on the 'mercy plea' of the petitioner (termed as an appeal on his behalf) were passed by the respondents within the territorial limits of the High Court of Madhya Pradesh. The learned ASGI submitted that mere service of 'notice' does not give rise to cause of action and, therefore, the service of impugned notice to the petitioner at his native place will not give him the cause of action to attract the territorial jurisdiction of this Court. Mr. Makroo, learned ASGI, in support of his arguments relied on and cited the following decisions of the Supreme Court and this Court with specific reference to the paragraphs mentioned against each:
i) Greater Mohali Area Dev. Authority v. Manju Jain, AIR 2010 SC 3817 (para 25);
ii) Manzoor Ahmad Sheikh v. Union of India, 2015 (4) JKJ 65, (para 8);
iii) Bopinder Singh v. Union of India, LPA no.142/2012, decided by DB on 10.09.2012 in (para 3);
iv) Dheerajmitra Misra v. Union of India, SWP no.1035/2013, decided by Writ Court on 01.06.2015 (paras 7 & 9);
v) Sarfaraz College of Education v. Union of India, JKJ (1) 2015 (paras 9 & 10).
14. The judgment in Greater Mohali Area Dev. Authority v. Manju Jain (supra) has been cited for the legal proposition that pure question of law can be raised at any time of the proceedings. Since the Court has decided to proceed to consider the point of territorial jurisdiction so raised by the learned ASGI, no exception can be, or is, taken to the principle of law enunciated in the judgment.
15. In Manzoor Ahmad Sheikh v. Union of India (supra), which is a Division Bench decision of this Court, as is axiomatic from the very first sentence of paragraph 8 of the judgment, cited, relied upon and referred to by the learned ASGI, the Court was faced with the question whether mere serving of show cause notice would give cause of action to file a case in the Court within whose territorial jurisdiction the notice was served? Paragraph 8 of the judgment is extracted below:
"8. Mere serving of show cause notice whether will give cause of action to file a case in the Court within whose territorial jurisdiction the notice was served, was already considered by Hon'ble the Supreme Court in the decision reported in 1994 SCC (4) 711 (Oil & Natural Gas Commission v. Utpal Kumar Basu)...."
(Underlining supplied) On consideration of the case, the Division Bench was of the opinion that the question had already been considered and answered by the Supreme Court in Oil and Natural Gas Commission v Utpal Kumar Basu, 1994 SCC (4) 711. The Court also relied on and reproduced in the judgment portions of the decisions of the Supreme Court in Alchemist Ltd. v. State Bank of Sikkim, 2007 SCC (11) 335; Union of India v. Adani Exports Ltd., AIR 2002 SC 126; National Textile Corporation Ltd. v M/s Haribox Swalram, AIR 2004 SCV 1998 (1); and two other Division Bench decisions of this Court in Union of India v. Sudesh Kumar, 2009 (2) JKJ 643 [HC]; and Bopinder Singh v Union of India, 2012 (3) JKJ 33 [HC].
16. Obviously, a show cause notice is not justiciable and, therefore, does not give a cause of action to challenge the same before the Court. The facts of the case before the Division Bench and those involved in the instant case are thus ex-facie distinguishable. The judgments of the Supreme Court cited and relied therein are also distinguishable on facts vis-a-vis the case at hand.
17. In the instant case, it is not a mere show cause notice, but a "notice of termination of service" which essentially took effect on expiry of one month on receipt by, or delivery to, the petitioner at his native place.
18. Rule 5 of the Temporary Service Rules, 1965 itself provides the procedure to be adopted by the appointing authority for service of the notice of termination of services. The said Rule together with the Note appended thereto below proviso to Rule 5(1)(a), which is relevant in this connection, is extracted below:
"5. Termination of temporary service.- (1)(a) the services of a temporary Government Servant shall be liable to termination at any time by a notice in writing given either by the Government Servant to the appointing authority or by the appointing authority to the Government Servant;
(b) the period of such notice shall be one month;
Provided that the services of any such Government Servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or, as the case may be, for the period by which such notice falls short of one month.
Note.- The following procedure shall be adopted by the appointing authority while serving notice on such Government Servant under clause (a)--
(i) The notice shall be delivered or tendered to the Government Servant in person.
(ii) Where personal service is not practicable, the notice shall be served on such Government Servant by registered post acknowledgment due at the address of the Government Servant available with the Appointing Authority.
(iii) If the notice sent by registered post is returned un-served, it shall be published in the official Gazette and, upon such publication, it shall be deemed to have been personally served on such Government Servant on the date it was published in the Official Gazette."
19. As is seen from a bare look at the Note appended to Rule 5(1)(a) of the Temporary Service Rules, 1965, it uses the word "shall", expressing command. The language used in the Note, appended to the Rule, therefore, makes it manifest that the procedure prescribed therein is to be mandatorily followed for service of such notice of termination of services on the concerned Government Servant. The procedure, inter alia, mandates that the notice of termination of services shall be delivered or tendered to the Government Servant in person, and where personal service is not practicable, it shall be served on him by registered post at the address available with the appointing authority. And where the notice, sent through registered post by the appointing authority, is returned un- served, it shall be published in Official Gazette and that upon such publication, the notice of termination of services shall be deemed to have been personally served on such Government Servant on the date it is so published in the Official Gazette. The procedure so prescribed thus leaves no alternative or discretion with the appointing authority, except to serve the notice through any of the three mandated modes to be adopted in order of preference as mentioned therein. This goes to demonstratively establish that the law provides that unless the notice of termination of services issued in exercise of the powers under Rule 5(1)(a) of the Temporary Service Rules, 1965 is served on the concerned Government Servant, it would not take effect and, therefore, would be inconsequential. In fact, in the impugned notice of termination of services of the petitioner, dated 25.02.2012, it was unambiguously stated that "his services shall stand terminated with effect from the date of expiry of a period of one month from the date on which this notice is served on, or, as the case may be, tendered to him". If that be so, as it really is, then in that event the mere fact of its having been signed at, or issued from, a particular place would not complete the action contemplated by the notice. The factum of service of such notice and, thereafter, a wait for one month to make it legally operative and effective against the petitioner, therefore, are two very important facts sine quo non to the completion of the action contemplated by it. In the event the service and delivery of notice personally to the Government Servant, as mandated by clause (i) of the Note is not practicable, then in terms of clause (ii) thereof it has got to be served to him by registered post at his address available with the appointing authority and proof thereof by way of acknowledgement due has to be obtained from him. And then the notice will take effect after one month at the place of service and/or delivery. These two factors, as in the instant case, have to occur at the place of residence of such Government Servant. Therefore, the two factors, which occur and take place at the residence of the Government Servant, are intrinsic to the facts giving rise to the cause of action. In other words, without these two facts or factors or things coming into existence or taking place, the action contemplated or purported by the notice would not be accomplished. Resultantly, these two facts or factors constitute two material, integral, eventful and inseparable links in the chain of events lending effect and operation to the impugned notice of termination of services, and giving rise to the cause of action.
20. Therefore, in such circumstances, where for a notice of termination of services to be operative and take effect against a Government Servant it is mandatory that it should be served on him in accordance the prescribed procedure and, thereafter, such notice would have to wait for one month to take effect and be operative, it has to be held that part, portion or fraction of cause of action arose to the concerned at the place of such service.
21. It hardly needs to be mentioned here that after insertion of clause (1-A) in Article 226 of the Constitution of India by the Constitution (Fifteenth) Amendment Act, 1963, subsequently renumbered as clause (2) by Constitution (Forty-second) Amendment Act, 1976, it has been held by the Supreme Court that even if a small fraction of cause of action accrues within the jurisdiction of a Court, the Court will have jurisdiction in the matter (see Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254, relied upon in Nawal Kishore Sharma v. Union of India (supra), cited and relied upon by the learned counsel for the petitioner.
22. In light of the above discussions, the objection orally raised by the learned ASGI is overruled. It is held that since the notice of termination of services of the petitioner was served on him at his native place in Kupwar, Kashmir, and took effect and became operative against him one month thereafter at his place of residence, part, portion or fraction of cause of action arose to him at his place of residence at Kupwara, falling within the territorial jurisdiction of this Court. This Court, therefore, is held to have territorial jurisdiction to entertain this writ petition.
22. On merits, the controversy is shortened by the averments taken by the respondents themselves in their reply affidavit. The case set up by them is that the petitioner was temporarily appointed and that his appointment could be terminated at any time on one month's notice during the probation period without assigning any reasons. Reference in this connection is made to Paragraph 3 of the appointment order containing the terms and conditions of the appointment; Rule 16 of the Central Reserve Police Force Rules, 1955 promulgated vide SRO 499 dated 24.02.1955 (hereinafter, the CRPF Rules); and Rule 5 Temporary Service Rules, 1965 read with Government Instruction, G.I., M.H.A., O.M. No.39/14/56-Ests.(A) dated 22.06.1956. It is submitted that the petitioner was served with one month's notice under sub-rule (1) of Rule 5 of the Temporary Service Rules, 1956 and his services stood terminated with effect from the date of expiry of the period of one month from the date on which the notice was served on, or tendered to, him. The matter is sought to be put forth on behalf of the respondents in the aforesaid simplistic terms. However, the reply filed by them, as would be shown below, belies and contradicts their stand. It may be mentioned here that on hearing the learned counsel, they were asked to submit their respective written arguments which they readily did. The stand taken by the respondents in the reply-affidavit is vehemently reiterated by them in their written arguments.
23. The first thing that the learned ASGI has sought to rely on are the terms and conditions of the appointment order of the petitioner. Let the relevant terms and conditions be examined and analysed.
24. The appointment order under paragraph 3 contains as many as 13 terms and conditions of appointment from serial nos. 3(a) to 3(n). Two of these terms and conditions mentioned at 3(a) and 3(j) are relevant for the present purpose. The same are extracted hereunder:
"3. The other terms and conditions of the appointment will be as follows:
a) Your services are liable to be terminated at any time on one month's notice during the probation period, i.e., 2 years by the appointing authority without assigning any reason in accordance with provisions contained in CRPF Rules, 1955.
b) ...
c) ...
d) ...
e) ...
f) ...
g) ...
h) ...
i) ...
j) The appointment is subject to condition that there are no criminal or civil case against you and your name does not exist in unwanted personnel list of police and public. If anything is adversely reported in the verification form by the local authorities, your service will be liable to be terminated by giving one month's notice under CRPF Rules-16 read with Rule 5 of CCS (Temporary Service) Rule, 1965."
25. A bare perusal of the term/condition mentioned at paragraph 3(a) of the appointment order makes it manifest that services of the petitioner could be terminated at any time on one month's notice during the probation period, i.e., 2 years by the appointing authority without assigning any reason and that such power could be exercised in accordance with provisions contained in CRPF Rules, 1955. This particular clause of the appointment order does not speak of resort to the provision of Rule 5 of the Temporary Service Rules, 1965. Therefore, while invoking the power reserved by the respondents in terms of the aforesaid clause of the appointment order, they could not take recourse to the provision of Rule 5 of the Temporary Service Rules, 1965. They could, at best, have the recourse to the powers exercisable under the CRPF Rules, especially Rule 16 thereof. However, clause 3(j) of the appointment order, as would be shown below, specifically stipulates the circumstances and reasons in/for which the power under Rule 16 of the CRPF Rules, 1965 could be exercised. Not only that, in terms of clause 3(j) even exercise of power under Rule 5 of the Temporary Service Rules, 1965 is restricted and confined to the reasons mentioned in the said clause. Let the conditions enumerated in clause 3(j) of the appointment order be analysed.
26. Clause (j) under paragraph 3 of the appointment order speaks of the services of the petitioner being liable to be terminated by giving one month's notice under Rule 16 of the CRPF Rules read with Rule 5 of the Temporary Service Rules only in the event if anything was adversely reported in the verification form by the local authorities such as that there was any criminal or civil case against the petitioner and that his name existed in the unwanted personnel list of police and public. That means that in terms of Clause (j) under paragraph 3 of the appointment order of the petitioner, resort could be had to the power under Rule 16 of the CRPF Rules read with Rule 5 of the Temporary Service Rules, 1956 only subject to the existence of the reason(s)/conditions stipulated in clause 3(j) of the appointment order, and in no other case. However, vis-a-vis the petitioner, the respondents have taken resort only to the provision of sub-rule (1) of Rule 5 of the Temporary Service Rules. This is demonstrated by the contents of the impugned notice dated 25.02.2012 which is extracted below:
"NOTICE OF TERMINATION FROM SERVICE In pursuance of sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, I, Jagjit Singh, DIGP, ATC, CRPF, Bhopal hereby give notice to No.115343026 RT/GD Altaf Ahmad Mir, that his services shall stand terminated with effect from the date of expiry of a period of one month from the date on which this notice is served on or, as the case may be, tendered to him."
It is thus shown that the respondents intended, and have proceeded, to terminate the services of the petitioner by invoking their powers exercisable under Sub-rule (1) of Rule 5 of the Temporary Service Rules, 1965 and not under Rule 16 or any other provision of the CRPF Rules. As mentioned above, in terms of clause 3(j) of the petitioner's appointment order, vehemently relied upon on behalf of the respondents, the powers under this provision of the Temporary Service Rules could be invoked by the respondents only if anything was adversely reported in the verification form by the local authorities that there was any criminal or civil case against the petitioner and that his name existed in any unwanted personnel list of police and public. That, admittedly, is not the case of the respondents. It is not their case that there was any criminal or civil case against the petitioner and/or his name was found or reported to be existing in unwanted personnel list of police and public. Or that anything was adversely reported in the verification form by the local authorities against him which could make his services terminable by invoking the said clause of the appointment order. Therefore, the impugned notice dated 25.03.2012 is clearly in violation of the terms and conditions stipulated in the order of appointment of the petitioner. This is one aspect of the matter.
27. The other very important aspect of the matter is this: even assuming that the respondents could issue such a notice of termination of services of the petitioner, independent of the terms and conditions stipulated in his appointment order, in terms of Rule 5(1) of the Temporary Services Rules, 1965, then the respondents were legally obliged not to assign any reason for issuance of such a notice of termination. Mr. Makroo, learned ASGI, in his written arguments referred to Government Instruction, G.I., M.H.A., O.M. No.39/14/56-Ests.(A) dated 22.06.1956. The Government Instruction inserted under Rule 5 of the Temporary Service Rules, 1965 in terms of the above O.M. dated 22.06.1956 reads as under:
"Reasons should not be mentioned to termination order.- When action is taken under Rule 5 to terminate the service of a temporary employee, the order of termination, which should be passed by the appointing authority should not mention the reasons for such termination."
28. It is true that the impugned order dated 25.02.2012 did not contain any reasons for termination of the petitioner, but the fact remains that the respondents in their reply affidavit have in clear terms stated the reasons why such a notice of termination of services was issued to the petitioner. What the aforesaid Government instruction postulates is not to be taken in its literal sense, but in a legal and wider sense, for, any reason behind the exercise of the power under Rule 5(1)(a) of the Temporary Service Rules, 1965 would need to be first established in a regular enquiry held in accordance with the principles of natural justice. The exercise of power under Rule 5(1)(a) of the aforesaid Rules cannot be used as a camouflage to hide the real reason which had eventualised the notice of termination of service, which if disclosed would warrant and demand compliance with the principles of natural justice. The power thereunder cannot be used to circumvent the course established by law. Obviously that seems to have been the object in the instant case. This is established by the reply-affidavit of the respondents.
29. In this connection, the objection mentioned at paragraph (B) of the Preliminary Objections taken in the reply-affidavit is quoted hereunder. It states thus:
"B. That petition is also liable to be dismissed on the ground that petitioner has repeatedly deserted the service without any notice to the answering respondents. Thus, the services of petitioner have been terminated on account of being a wilful and intentional deserter."
The reasons are reiterated at 3rd and 4th un-numbered paragraphs under the heading "BACKGROUND FACTS" at page 3 of the reply-affidavit. The relevant paragraphs are quoted hereunder:
"During the basic training, repeatedly and without valid reason desertion of petitioner shows that he is an indiscipline recruit and he was not taking interest in training nd he has no ability to become a skilful constable. Hence, a termination notice was issued against him vide office letter No.D.V-1/2012-DA.1 dated 25.02.2012, marked as Annexure R9.
During the notice period of one month, neither he joined duty/training nor made any communication with the office. Accordingly after expiry of one month notice period his service himself got terminated and vide office order No.D.V-1/2012-DA.1 dated 28.03.2012, marked as Annexure-R10, he was struck off the strength. Keeping in view the repeated desertion of the petitioner, action taken against him is quite in order and according to Rule. The petitioner submitted an appeal against his termination to IGP, Special Sector, CRPF, Raipur which was turned down by the IFP due to devoid of merit vide his letter NO.R.XIII-2/2012- EC.V dated 18.06.2012, marked as Annexure R11."
(Underlining hereinabove supplied) It is thus demonstratively established by the respondents themselves, that too, on oath, that the petitioner's services were terminated for the reasons disclosed by them in the reply-affidavit. That being the factual position stated by the respondents themselves, the petitioner's services could not be terminated at the drop of hat and in terms of Rule 5(1)(a) of the Temporary Service Rules, 1965.
30. As rightly argued by the learned counsel for the petitioner, the respondents in such circumstances were legally bound and obliged to hold an enquiry as provided under the relevant provisions of the Central Reserve Police Force Act, 1949 and the Rules framed thereunder to afford an opportunity of hearing to the petitioner to establish the compelling reasons for his absence and/or desertion from the training centre. That having not been done the impugned notice of termination of the services of the petitioner bearing no.DV-1/2012-DA.I dated 25.02.2012 issued to him under sub-rule (1) of Rule 5 of the Central Civil Service (Temporary Service) Rules, 1965 by the DIGP, ATC, CRPF, Bhopal, cannot be sustained in law. In consequence thereof, the impugned order no. DV-1/2012-DA.I dated 28.03.2012 striking off the petitioner from the strength of GC SNR/ATC GC CRPF, Bhopal, with effect from 28.03.2012 (AN) as well cannot be sustained.
31. Mr. Makroo has placed on record photocopy of an order bearing no.R13-3/2012 Est.5 dated 18.06.2012 purported to have been passed on the appeal stated to have been filed by the petitioner, to canvass that since this order has not been challenged by the petitioner, he is not entitled to the reliefs prayed for by him. Curiously, a bare look at this order depicts that its copies have not been endorsed or sent to anybody, muchless the petitioner. How could the petitioner challenge this order which had been kept a closely guarded secret by the respondents? That apart, given the reasons delineated above why the impugned orders are not sustainable in law and are liable to be quashed, this order is rendered immaterial and inconsequential for the reason that it is wholly based on the assertion that "the service of the petitioner was temporary and was rightly terminated as per Civil Service Temporary Rules, 1965 5(1) and no reason is required to be given, except one month notice". Further, the authority passing the aforesaid order has recorded a finding in paragraph 3 of the order that no Rules have been violated. All these aspects have already been dealt with while dealing with the orders impugned in this writ petition. In that view, the contention raised by Mr. Makroo, being untenable, is rejected. The judgment of the Supreme Court in Union of India v Sukhen Chandra Das, AIR 2008 SC 792 (paras 7 to 9), and of this Court in Ganesh Pundilk Rao Waghmode v. Union of India, SLJ 2016 (1) 434 (paras 12, 13 & 15), and in Dheerajmitra Misra v. Union of India (supra), cited and relied upon by Mr. Makroo, in light of what has been discussed above, do not render any help to him.
32. For all what has been discussed above, this petition is allowed. The impugned termination notice of the services of the petitioner bearing no.DV-1/2012-DA.I dated 25.02.2012 issued to the petitioner under sub- rule (1) of Rule 5 of the Central Civil Service (Temporary Service) Rules, 1965 by the DIGP, ATC, CRPF, Bhopal, and the impugned order no. DV- 1/2012-DA.I dated 28.03.2012 striking off the petitioner from the strength of GC SNR/ATC GC CRPF, Bhopal, with effect from 28.03.2012 (AN) are quashed. Resultantly, the respondents are directed to reinstate the petitioner in service. However, it is provided that the respondents would be free to hold such proceedings against the petitioner as are permissible under the provisions of the Central Reserve Police Force Act, 1945 and the Rules framed thereunder, giving him an adequate and reasonable opportunity of hearing and to defend himself in any such proceedings.
33. Since the petitioner was appointed pursuant to the order issued by respondent no.5, the DIGP, GC, CRPF, Rambagh, Srinagar, he shall submit his joining report for reinstatement pursuant to this judgment to the said Officer at Srinagar. The DIGP, GC, CRPF, Rambagh, Srinagar, shall reinstate the petitioner and allow him to attend his duties till a decision is taken by the competent authority whether or not any departmental proceedings need to be initiated against him. The petitioner shall be paid his dues from the date he submits his joining report pursuant to this judgment before the DIGP, GC, CRPF, Rambagh, Srinagar. The wages of the petitioner for the intervening period would depend upon the outcome of any such departmental proceedings and the orders passed thereon, if initiated by the respondents. It is further provided that if no such proceedings are initiated or in case the petitioner is exonerated of any charge framed against him, the petitioner would be entitled to all the dues from retrospective date in the same manner as if the impugned notice/orders had not been issued.
34. No order as to costs.
35. The original records produced by Mr. Makroo for perusal of the Court are returned to him in the Court itself.
(Ali Mohammad Magrey) Judge Srinagar, 25.10.2016 Syed Ayaz Hussain, Secretary