Calcutta High Court (Appellete Side)
Union Of India & Ors vs Sankar Chowdhury on 31 August, 2009
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Kishore Kumar Prasad
M.A.T. 159 of 2009
Union of India & Ors.
Versus
Sankar Chowdhury
For the Appellants : Mr. L. K. Chatterjee
Mr. Anup Kumar Biswas
For the Respondent : Mr. Amal Baran Chatterjee
Mr. Hare Krishna Halder
Heard On: 29.07.2009 & 19.08.2009
Judgment On: 31.08.2009.
PRANAB KUMAR CHATTOPADHYAY, J.
The questions raised in this appeal relate to the validity and/or legality of the office order dated 2nd October, 2008 issued by the Inspector General of Police, Central Police Reserve Force, Eastern Sector, Kolkata rejecting the prayer of the respondent/writ petitioner made in the representation dated 2nd September, 2008 and also the validity of the subsequent order of termination of service issued to the said respondent/writ petitioner by the order dated 15th October, 2008 passed by the Additional D.I.G., Group Centre, C.R.P.F., Durgapur, West Bengal.
The respondent/writ petitioner, who was appointed as Constable in the establishment of C.R.P.F., raised the aforesaid questions in his writ petition and the same were finally decided in his favour by a learned Judge of this court by the judgment and order under appeal.
Coming to the factual matrix of the writ petition we find that the respondent/writ petitioner was selected for the post of Constable in Central Reserve Police Force and joined the service in the year 2003. Unfortunately, while undergoing training the said writ petitioner became ill and ultimately, had to undergo kidney transplantation. After recovery, said writ petitioner appeared before the Departmental Rehabilitation Board. The said Rehabilitation Board was, however, pleased to retain the job of the writ petitioner. In the aforesaid circumstances, the superior authority of the writ petitioner thought it proper to remuster the said writ petitioner in the C.R.P.F. as Peon/Daftary and, therefore, desired to obtain necessary willingness from the writ petitioner herein.
The Additional D.I.G.P., made a strong recommendation in this regard in favour of the writ petitioner and specifically observed that if necessary, the matter should be taken up to the higher authorities in order to accommodate the writ petitioner against the available vacancies. The inter office note dated 17th January, 2007 regarding remustering of the writ petitioner is set out hereunder:
" INTER OFFICE NOTE
(ESTT 5)
No. T.V.1/2007-Estt-5
Dated, the 17 Jan, 2007
Subject : REGARDING REMUSTERING
F/No. 035100677 RT/GD Sankar Chowdhury has undergone few months training at RTC-I and thereafter returned to this GC on 15.3.2004. Huge amount of money has been spent on his treatment of Kidney. His case was put up before Rehabilitation Board but he has been retained in the job. However, he may not be able to undergo RT/GD training at any time in future. Since he has been retained by Rehabilitation Board, it is advisable to obtain his willingness and remuster him in the CRPF as Peon/CT(Daftary) if necessary taking up to the highest authorities against the available vacancies.
Sd/-
For Additional D.I.S.P. GC. CRPF, Durgapur"
Undisputedly, the writ petitioner expressed his willingness in writing regarding remustering from RT(GD) to Peon/Daftary. The Assistant Commandant thereafter by his memo dated 27th February, 2007 recommended that the application of the writ petitioner expressing his willingness for any post of Group 'D' should be considered. The aforesaid written recommendation of the Assistant Commandant dated 27th February, 2007 is set out hereunder:
"To The Additional DIGP Group Centre, CRPF Durgapur-14 (WB) R:H-1/2006-07-Adm Dated: 27/02/2007 Subject : REGARDING REMUSTERING FM RT(GD) TO CT(DAFTARY) No. 035100677 RT(GD) Shankar Chowdhury who was suffering from renal failure during training for 29 weeks held at RTC-I Neemuch. Due to which he was returned back. The individual is not fit for basic training and intend to convert in Constable (Daftary).
2. Therefore, it is requested that said RT(GD) may kindly be given permission for altering grade RT(GD) to CT(Daftary). The application submitted by individual is enclosed herewith for further taking necessary action.
Sd/- 27/02/2007 Asstt. Comdt.
GC CRPF Durgapur-14(WB)"
Inspite of the aforesaid recommendation since no further action was taken by the superior authority, a writ petition being W.P. No. 21711 (W) of 2008 was filed before this court which was finally disposed of by a learned Judge of this court on 25th August, 2008 with following directions:
"The writ petitioner must submit a fresh representation annexing thereto a copy of the present writ application as well as its annexures before the respondent No. 3 within a period of 10 days from this date. The said respondent No. 3 upon receipt of the said representation must consider the same in its proper perspective and must take appropriate action in accordance with the rules - if necessary, after giving the writ petitioner an opportunity of hearing.
The entire process must be completed within a period of four weeks from the date of receipt of the representation.
Action to be so taken or order to be so passed must duly be communicated to the writ petitioner within a period of one week thereafter......................................."
In terms of the aforesaid order, Inspector General of Police, C.R.P.F., Eastern Sector, Kolkata considered the representation submitted by the writ petitioner and disposed of the same on 2nd October, 2008 by rejecting the prayer of the writ petitioner made therein. Thereafter, Additional D.I.G.P., C.R.P.F. by the order dated 15th October, 2008 terminated the service of the writ petitioner in pursuance of the proviso to sub-rule (1) of Rule 5 of Central Civil Services (Temporary Service) Rules, 1965.
Challenging the validity and/or legality of the aforesaid order dated 2nd October, 2008 passed by the Inspector General of Police, C.R.P.F., Eastern Sector, Kolkata rejecting the prayer of the writ petitioner made in the representation dated 2nd September, 2008 and also the subsequent order of termination of service of the said writ petitioner dated 15th October, 2008, another writ petition being W.P. No. 467 (W) of 2009 was filed, which was finally disposed of by the judgment and order under appeal. The learned Single Judge while disposing of the said writ petition by the judgment and order under appeal dated 15th December, 2008 specifically observed that the case of the writ petitioner was required to be considered by the authority with more compassion. The learned Single Judge also found inherent infirmity in the order of termination issued to the writ petitioner and, therefore, quashed the same.
Assailing the aforesaid judgment and order under appeal passed by the learned Single Judge, instant appeal has been preferred.
It has been submitted on behalf of the appellants that the aforesaid judgment and order under appeal cannot be sustained as the learned Single Judge did not disclose any reason as to why the order of termination issued to the writ petitioner cannot be sustained in the eye of law and also did not discuss why the said order of termination suffers from inherent defects.
Mr. L. K. Chatterjee, learned Senior Counsel representing the appellants submitted that the learned Single Judge failed to consider that the respondent/writ petitioner did not complete his basic training which is the mandatory requirement for appointment to the post of Constable (G.D) as per the terms of appointment and also under the relevant rules. It has been further submitted that the respondent/writ petitioner was declared medically unfit and being so unfit cannot perform combatant duties in C.R.P.F. which is an armed force of the Union. The posts of Peon/Daftary, according to the learned Senior Counsel of the appellants, are also combatised posts and considering the nature of duty prescribed for combatant personnel of C.R.P.F., it would not be possible to remuster the respondent/writ petitioner as Peon/CT(Dfty). Mr. Chatterjee also submitted on behalf of the appellants that the respondent/writ petitioner was a temporary employee and as such the provisions of Central Civil Services (Temporary Service) Rules, 1965 are not applicable to him in view of the clear provisions made in Central Reserve Police Force Rules. Mr. Chatterjee submitted that the provisions of Article 311(2) of the Constitution of India have no manner of application in respect of the respondent/writ petitioner in the facts of the present case as the service of the said respondent/writ petitioner being a temporary employee could be terminated under the Central Civil Services (Temporary Service) Rules, 1965 and in the present case, the order of termination casts no stigma on the writ petitioner.
Mr. Amal Baran Chatterjee, learned Counsel representing the respondent/writ petitioner, however submitted that the appellants refused to consider the claim of the writ petitioner on compassionate ground with required sympathy apart from the fact that certain relevant factors were deliberately not taken into consideration by the appellants herein while considering the claim of the respondent/writ petitioner for rehabilitating him to the Group 'D' post of Peon/CT(Dfty) after recovery from serious illness. Mr. Chatterjee further submitted that the respondent/writ petitioner as a Constable had undergone rigorous training for 29 weeks before falling ill and, therefore, the basic training required for the post of Peon/CT(Dfty) was virtually completed by the said writ petitioner. Mr. Chatterjee also submitted that the posts of Peon/CT(Dfty) are always not combatised posts in C.R.P.F. Mr. Chatterjee referred to the provisions of the Central Reserve Police Force Combatised (Group 'C' and Group 'D' posts) Recruitment Rules, 2003 as mentioned in the notification issued on 25th September, 2003 by the Ministry of Home Affairs in support of his contention that Schedule to the aforesaid Rules, 2003 clearly provides that a particular grade has been specifically assigned in respect of the non-combatised personnel designated as Daftary (Group D). The relevant portions from the aforesaid Schedule mentioned in the Central Reserve Police Force Combatised (Group 'C' and Group 'D' posts) Recruitment Rules, 2003 are set out hereunder:
"Non-combatised personnel when appointed to this grade shall be designated as Daftry (Group D) in the pay scale of Rs. 2610-60-2910-65-3300-70-4000
7. 1. Follower (Peon) ........................................................................
8. 1. Follower (Farash) ........................................................................
9. 1. Follower (Safai Karmchari)............"
Mr. Chatterjee further submitted that even being a combatised member of the force, Group 'D' (GD) staffs are required to impart 4 weeks basic training as has been specifically mentioned by the Directorate General, C.R.P.F., Training Branch in the written communication dated 28th March, 2001. The aforesaid written communication of the Directorate General, C.R.P.F. is set out hereunder:
" DIRECTORATE GENERAL, CRPF, TRAINING BRANCH, EAST BLOCK-10 R.K. PURAM, NEW DELHI No. T.V-27/2001-TRG-XI Dated, the 28th March, 2001 To The Addl. DG, North Western Zone, CRPF The Inspector General of Police, Eastern Sector, Western Sector, Bihar Sector, Central Sector, Jammu Sector, North-Eastern Sector, M&N Sector, Special Sector, Rapid Action Force, CRPF.
Subject : BASIC TRAINING OF GROUP 'D' (GD) STAFF A large number of Group 'D'(GD)/enrolled followers are recruited in the Force every year. Being a combatised member of the force they are expected to wear uniform and move to field/insurgency areas alongwith the Unit/formations. At present no formalised training is being carried out by Group 'D'(GD) staff.
2. It has been decided to impart 4 weeks Basic Training to Group 'D' (GD) staff/enrolled followers at Sector level. Keeping in view of requirement of the Force, a syllabus for 4 weeks basic training duly approved is sent herewith for conduct of this training at any one nominated Group Centres as decided by Sector IGP.
3. It is requested that, a feed back report on the training alongwith following informations be submitted to this Dte. during June and December every year for perusal and needful action.
a) Name of Group Centre
b) Course Sl. No.
c) Period
d) No. of candidates attended (Trade wise)
e) Passed
f) Failed
g) Remarks, if any
4. Please acknowledge receipt Sd/-
(BRIG (RETD) GOVINDJI MISHRA DIG (TRAINING)"
It has also been submitted on behalf of the learned Counsel of the respondent/writ petitioner that only 4 weeks basic training has been prescribed for Group 'D' (GD) staff by the aforesaid Memo dated 28th March, 2001 whereas the respondent/writ petitioner admittedly completed 29 weeks training and, therefore, the said respondent/writ petitioner could not be held ineligible even for remustering him as Peon/CT(Dfty). The learned Counsel of the respondent/writ petitioner also referred to Rule 5 of the Central Reserve Police Force Combatised (Group 'C' and Group 'D' posts) Recruitment Rules, 2003, which clearly empowers the competent authority to relax any of the provisions of the aforesaid Rules with respect to any class or category of persons. The learned Counsel of the respondent/writ petitioner further referred to the Standing Order 7/99 dated 6th May, 1999 relating to the rehabilitation of Force Personnel wherein clear provisions have been laid down for rehabilitation of the sick and injured person. The aforesaid Standing Order of 1999 clearly provides three categories of disabled persons which include those who are disabled due to sickness/accident. It has also been provided in the said Standing Order that after the sick/injured person has received full medical treatment and is not fit for normal active duty as per the instruction of the medical board then the case of the individual will be referred to the departmental board for rehabilitation by the unit concerned.
The learned Counsel of the respondent/writ petitioner submitted that the appellants herein refused to rehabilitate the said respondent/writ petitioner by allowing him to continue in lighter job like Dak/Office runner, Telephone operator, RTO or any other specific duty considered suitable.
Mr. L. K. Chatterjee, learned Senior Counsel of the appellants submitted before us that the respondent/writ petitioner herein cannot be deemed to be confirmed as a probationer remains probationer unless he has been confirmed on the basis of work evaluation. Mr. Chatterjee referred to and relied on a decision of the Supreme Court in the case of Registrar, High Court of Gujarat & Anr. vs. C. G. Sharma reported in 2005 (1) S.C. Services Law Judgments page 140 in support of his aforesaid contention.
Mr. Chatterjee also referred to a Division Bench judgment of this court in the case of Manjit Singh Bawa vs. Food Corporation of India and Ors. reported in 2007(3) C.H.N. 909 and submitted that in the present case, question of conferring the status of deemed confirmation to the respondent/writ petitioner cannot and does not arise in view of the specific provisions in the Central Reserve Police Force Rules, 1955.
Mr. Amal Baran Chatterjee, learned Counsel representing the respondent/writ petitioner, however, submitted that in the present case, the order of termination was passed in pursuance of the proviso to sub-rule (1) to Rule 5 of Central Civil Services (Temporary Service) Rules, 1965 even after the long expiry of the prescribed period of probation.
In terms of the Standing Order 7/99 appellants herein took necessary steps for proper medical treatment of the respondent/writ petitioner but unfortunately, after recovery refused to rehabilitate the said writ petitioner in any post carrying less work load. The learned Single Judge has rightly observed that the present case of the respondent/writ petitioner demands more compassion on the part of the authority. The action of the appellants are required to be examined on the touchstone of humanity.
Undoubtedly, the appellants herein spent several lakhs of rupees for the treatment of the respondent/writ petitioner but after recovery did not accommodate him to a suitable Group 'D' post carrying less work load so that the said ill-fated writ petitioner can survive somehow after meeting necessary medical expenses. The Central Reserve Police Force Combatised (Group 'C' and Group 'D' posts) Recruitment Rules, 2003 confers power to the competent authority to relax any of the provisions of the said Rules, 2003 and furthermore, Schedule mentioned under the said Rules also provides particular grade for non-combatised personnel designated as Daftary (Group 'D').
It is unbelievable that a large organisation like Central Reserve Police Force cannot accommodate and find a suitable berth for an ill-fated person like the respondent/writ petitioner who after undergoing training for 29 weeks fell sick and finally had to undergo for kidney transplantation.
Undisputedly, a strong recommendation was made in favour of the respondent/writ petitioner by the Additional D.I.G.P., C.R.P.F. but ultimately, the highest authorities of the organisation refused to consider the plight of the employee concerned namely, the respondent/writ petitioner on humanitarian ground. The Rules, Regulations and Standing Order meant for the disabled employees admittedly, do not stand on the way of remustering the writ petitioner to a suitable post of Peon/CT(Dfty) but the attitude of the competent authority namely, the Inspector General of Police, Central Reserve Police Force threw the respondent/writ petitioner into the whirlpool of real trouble as the said Inspector General refused to accommodate the ill-fated writ petitioner in the organisation. The Inspector General of Police, Central Reserve Police Force, in our opinion, could be little bit sympathetic and on humanitarian ground should have remustered the respondent/writ petitioner in the Central Reserve Police Force as Peon/CT(Dfty) specially when the Rules and/or Standing Order do not prohibit such appointment and on the contrary provides for such appointment.
The decisions cited by the learned Senior Counsel of the appellants are hardly of any assistance for deciding the issues raised in this appeal as we have already held hereinbefore that the sufferings of the respondent/writ petitioner are due to non-consideration of his prayer by the competent authority on humanitarian ground although the Central Reserve Police Force Rules and the Standing Order issued for the disabled personnel do not prohibit appointment of the disabled person like the writ petitioner on compassionate ground.
The appellants herein should not have refused to respond to the call of humanity while considering the prayer of the respondent/writ petitioner for remustering him to the post of Peon/Ct(Dfty) when there is no mandatory provision under the Rules and/or Standing Order prohibiting such appointment and on the contrary, as we have already observed hereinbefore, there is specific provision in the Central Reserve Police Force Combatised (Group 'C' and Group 'D' posts) Recruitment Rules, 2003 conferring power of relaxation apart from the Standing Order which provides retention of the person disabled due to sickness.
For the aforementioned reasons, the findings of the Inspector General of Police, Central Reserve Police Force rejecting the prayer of the respondent/writ petitioner made in the representation dated 2nd September, 2008 and the subsequent order of termination of service dated 15th October, 2008 cannot be approved by us.
In the aforesaid circumstances, we are not inclined to interfere with the decision of the learned Single Judge.
This appeal, therefore, stands dismissed.
In the facts of the present case, there will be no order as to costs. Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
[PRANAB KUMAR CHATTOPADHYAY, J.] KISHORE KUMAR PRASAD, J.
I agree.
[KISHORE KUMAR PRASAD, J.]