Gauhati High Court
Mujeeb Alam vs The Union Of India & Ors on 18 May, 2017
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
WP(C) No. 1129/2011
Mujeeb Alam,
S/O Mehboob Alam,
Vill-Kulhipur, PO-Mauaima,
District-Pratapgarh (Uttar Pradesh),
Pin-212501.
......Petitioner.
-Versus-
1. Union of India,
Represented by the Secretary,
Ministry of Home Affairs, New Delhi.
2. The Director General,
Central Reserve Police Force Central Government
Office Complex, New Delhi.
3. The Deputy Inspector General of Police,
Group Centre, Central Reserve Police Force,
Guwahati, Kamrup, Assam.
4. The Deputy Inspector General of Police/Principal,
RTC, CRPF Peringome, Kerala.
......Respondents.
BEFORE
THE HON'BLE MR. JUSTICE HRISHIKESH ROY
For the Petitioner: Mr. R. Mazumdar,
Mr. A. Kumar. ......Advocates.
For the Respondents: Mr. C.K.S. Baruah,
CGC. ......Advocate.
Date of Hearing & Judgment : 18 th M ay, 2017
WP(C) 1129/2011 Page 1 of 6
JUDGMENT AND ORDER (ORAL)
Heard Mr. R. Mazumdar, the learned counsel appearing for the petitioner. The respondents are represented by Mr. C.K.S. Baruah, the learned Central Govt. counsel.
2. The matter relates to termination of the petitioner, who was recruited as a Constable (GD), CRPF following the selection made on 21.02.2010. The new recruits were required to report to the DIG of Police, Group Centre, CRPF, to accept the offer of appointment and after the selectee duly reported on 07.04.2010, he was appointed in the CRPF and was allotted the Force No.105130116.
3. After the recruitment, the petitioner along with other recruits were deputed for training to the Regional Training Centre (RTC), CRPF, Peringome and the petitioner reported at the training centre on 11.09.2010. While undergoing training, the petitioner fell ill and when the RTC Hospital was unable to cure the Constable, on 01.10.2010, he was referred to the Medical College, Peringome, under the escort of a Head Constable. When he reached the Medical College Hospital, the petitioner's condition deteriorated and then he tell unconscious and at that point, the escorting Head Constable Chamanlal, deserted him.
4. The petitioner contacted the control room of the RTC and was advised to go back home and to return back upon recovery, to the training centre. But this point is somewhat disputed by the respondents.
5. At his home in U.P., the petitioner received treatment and after he recovered from his illness, he reported back to the RTC on 23.10.2010, but he was denied entry to the centre with direction to report to the Group Centre at Guwahati. As advised, the petitioner reported to the Group Centre, Guwahati on 01.11.2010, but here also, he was denied entry.
6. On his written request to re-join his training, the office of the DIGP, Group Centre on 03.12.2010 (Annexure-A) informed that the Constable's service was terminated w.e.f. 08.10.2010 by the Principal of the RTC, CRPF, Peringome, under his order dated 08.10.2010. The actual termination order of 08.10.2010 was never personally served to the petitioner, but it was despatched to his home address.
WP(C) 1129/2011 Page 2 of 67. But what is relevant to note is that the termination order was issued under sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Services) Rules, 1965 (hereinafter referred to as the "Temporary Service Rules") read with Rule 16(a) of the CRPF Rules, 1955, whereunder, the termination was made effective forthwith with the declaration that the Constable is entitled to claim one month's salary. What is equally pertinent about the termination order is that it was not issued by the Principal of the RTC, as was informed to the petitioner on 03.12.2010, but it was issued by a Commandant without identifying the battalion of which, he is the Commandant.
8.1 The petitioner questions the legality of the termination order by projecting that during the duration of training, the disciplinary authority is the Principal of the RTC under Rule 5(3)(b) of the CRPF Rules, 1955 and hence the impugned order was not passed by a competent authority.
8.2 While the Commandant of the concerned battalion is the appointment/disciplinary authority for the Constables in the battalion, the signatory of the termination order never specified which battalion he is commanding and therefore the learned counsel submits that unless the concerned Commandant is relatable to the battalion in which the Constable is attached, the termination by any other Commandant, will be wholly incompetent under Rule 5(3)(b) of the CRPF Rules.
8.3 Mr. R. Mazumdar, the learned counsel refers to the proviso to Rule 5(1)(b) of the Temporary Service Rules to project that while termination with one month's notice in writing is permissible under Rule 5(1)(a) & (b) read with Rule 16(a) of the CRPF Rules, 1955, the dispensation of one month's notice to immediately terminate service by tendering one month's salary, is not provided in the provisions quoted in the impugned order of the Commandant and therefore the process of termination, is contended to be vitiated.
8.4 Since the petitioner was informed of the termination order dated 08.10.2010 only on 03.12.2010, without the one month's salary in lieu of notice, the notice for the petitioner can only commence from 03.12.2010. If that be the factual position, the payable salary for termination with one month's notice is the due, for at least a month from the date of the notice i.e. 03.12.2010. But in the present case, no in-lieu salary was paid, against the forthwith termination order.
WP(C) 1129/2011 Page 3 of 69.1 On the other hand, the learned Central Govt. counsel Mr. C.K.S. Baruah submits that termination of the petitioner was ordered by the Commandant and he is the disciplinary authority for Constables in the CRPF. Therefore, it is argued that the impugned order was issued by a competent authority, as is envisaged under the CRPF Rules.
9.2 Referring to the trainee status of the petitioner, the Central Govt. counsel submits that invocation of the power of termination under the Temporary Service Rules is permitted for this category and accordingly it is contended that such non- stigmatic termination should not be a cause for interference, by the writ court.
9.3 Since the recruited Constable without any authority left the Medical College Hospital, Peringome and reported back to the RTC after few days, the irresponsible act of the new recruit is projected to be a just ground, for termination of the petitioner.
10 The impugned termination order is non-stigmatic and therefore it does not specify any reason for removal of the new recruit. But nevertheless even when an order for termination simpliciter is to be issued, it must be by a competent authority and under a due process.
11 At the relevant time, the petitioner was undergoing training at the RTC and therefore it was the Principal of the Training College, who is the disciplinary authority for the trainees, under Rule 5(3)(b) of the CRPF Rules. But here the termination was ordered by the Commandant, who could not be the disciplinary authority, during the duration of the training at the RTC, Peringome. Moreover, a Commandant is a disciplinary authority only for the men under his own command and here the Commandant who issued the termination order, did not specify the CRPF battalion of which he is the Commandant. More interestingly, in the communication given on 03.12.2010 (Annexure-A) by the DIGP, Group Centre, the termination of the trainee was projected to have been ordered by the Principal, RTC, but no such order by the Principal was ever served or is produced before the Court. Therefore, this Court has no hesitation to declare that the termination was ordered by an incompetent authority and the same cannot therefore be sustained.
12 This was a forthwith termination without the benefit of one month's notice. But it was declared that the trainee shall be entitled to claim a sum equivalent to a WP(C) 1129/2011 Page 4 of 6 month's pay in lieu of notice. But neither sub-rule (1) of Rule 5 of the Temporary Service Rules nor Rule 16(a) of the CRPF Rules, 1955, permits forthwith termination and under both provisions, one month's notice period before the termination is mandatory. Only the proviso to Rule 5(1)(b) of the Temporary Service Rules permits immediate termination by payment of one month's salary in lieu of notice, but it is apparent that this was not a termination, under the proviso to Rule 5(1)(b), of the Temporary Service Rules.
13 That apart, if we assume that the termination order was passed under the proviso to Rule 5(1)(b) of the Temporary Service Rules, as the entitled in-lieu salary was not paid to the Constable, the impugned order cannot be construed to be one of immediate termination, as is envisaged under the proviso to Rule 5(1)(b) of the Temporary Service Rules.
14 A specific procedure for serving notice of termination is provided under Rule 5 of the Temporary Service Rules and the appointing authority is required to serve the notice to the employee in person. Only when it is not practicable to serve personal notice, it can be despatched by registered post at the address of the employee. But in the present case, the notice was never served on the petitioner when he reported firstly at the training centre at Peringome or next at the Group Centre at Guwahati. Therefore if we follow the ratio of State of Punjab Vs. Amar Singh Harika reported in AIR 1966 SC 1313, the termination cannot take immediate effect since it was not served to the addressee. Therefore on this count also, the impugned order cannot be enforced against the petitioner without causing service upon him, in accordance with the Temporary Service Rules.
15 What follows from the above discussion is that the impugned order was issued by an incompetent authority and that too, under wrong provisions of the two Rules. If the order is deemed to be one under the proviso to Rule 5(1)(b), in the absence of the salary payment in lieu of one month's notice, it is not in accordance with the specified process. Moreover as the termination order was never served in person, it doesn't become operational under the authority of Amar Singh Harika (supra).
16 It must also be borne in mind that the petitioner was informed about the termination order of 08.10.2010 much later in December 2010. Hence a proper determination of the notice period is necessary, to enable the affected person to WP(C) 1129/2011 Page 5 of 6 take recourse to the amelioration measures, envisaged under sub-rule (2)(a) of Rule 5 of the Temporary Service Rules. But such notice period was not made available to the trainee Constable. Therefore, the only conclusion that can be drawn here is that the termination order stand vitiated and the same cannot be enforced against the trainee Constable.
17 As the impugned order is legally unsustainable, the reinstatement of the petitioner is a must. But here we must bear in mind that the petitioner was terminated while he was undergoing training at the RTC, Peringome and therefore upon reinstatement, he has to complete his training. Upon successful completion of the required training, the petitioner should be allowed to join his assigned battalion, subject to determination of medical fitness, by the authorities. To facilitate the resumption of the petitioner, he is directed to report to the DIGP, Group Centre, CRPF, Guwahati, so that the said officer can take steps for assignment of the training centre for the petitioner and for his consequential attachment. It is ordered accordingly.
18 With the above order, the case stands allowed without any order on cost.
JUDGE Roy WP(C) 1129/2011 Page 6 of 6