Gauhati High Court
Ex.Ct/Gd Pinku Kumar Paul vs The Union Of India & Ors on 1 June, 2012
Author: Anima Hazarika
Bench: Anima Hazarika
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA:
MANIPUR: TRIPURA: MIZORAM AND ARUNACHAL PRADESH)
WP(C) No.1539/2009
EX. CT/GD PINKU KUMAR PAUL
S/O Sri Soumiron Paul
Vill: Kalacherra, Po: Jaffirbond
Dist Hailaklandi (Assam) Pin 788160
...PETITIONER
-Versus-
1. THE 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,
Jalandar, Punjab
4. THE DEPUTY INSPECTOR GENERAL OF POLICE,
Group Centre, Central Reserve Police Force, Silchar, Assam
5. THE DEPUTY INSPECTOR GENERAL OF POLICE,
Group Centre, Central Reserve Police Force, Khatkhati, Assam
6. THE COMMANDANT - 183 BATTALION,
Central Reserve Police Force, (At location).
...RESPONDENTS
PRESENT THE HON'BLE MRS. JUSTICE ANIMA HAZARIKA Advocates for the petitioner : Mr. R Mazumdar Mr. P Rai Mr. H Bezbaruah Advocates for the Respondents: Mr. B Pathak, Central Govt. Counsel.
Date of Hearing : 11.04.2012
Date of Judgment : 01.06.2012
WP(C) No.1539/2009 Page 1 of 14
JUDGMENT & ORDER
The Office order dated 07.04.2006 (Annexure G) has been put under challenge by the petitioner by invoking writ jurisdiction of this Court under Article 226 of the Constitution of India. By the said impugned order, the services of the petitioner in accordance with Sub-Rule (1) of the Central Civil Service (Temporary Services) Rules, 1965 (1965 Rules, for short) has been terminated with effect from the date of issuance of the order on the ground of desertion and unauthorized absence.
2. The facts giving rise to the cause of action of the instant case is narrated hereinbelow in a nutshell:
On being selected through regular selection process, the petitioner was offered appointment to the post of Constable General Duty (GD) Central Reserve Police Force (CRPF for short) by order dated 29.12.2005 (Annexure A) subject to terms and conditions enumerated therein. By the said offer of appointment, he was directed to report the Additional Deputy Inspector General of Police, Group Centre, CRPF at Dayapun, Silchar, Assam on or before 16.01.2006. Accordingly he reported for joining and on being appointed, the petitioner was allotted Force Number - 065093777. He was attached to 183 Battalion, CRPF. Thereafter, the petitioner was posted at Jalandhar, Punjab to undergo training. The petitioner fell ill during the course of training. As he was not able to secure proper medical treatment, he felt depressed and, therefore, WP(C) No.1539/2009 Page 2 of 14 left the training premises on 16.02.2006 and reached his home on 20.02.2006. The father of the petitioner took him to Silchar Medical College and Hospital (for short SMCH) on 20.02.2006 itself, wherein it was found that the petitioner was suffering from Hepatitis. Petitioner‟s father sent an application on the same date i.e., 20.02.2006 itself to the Additional Deputy Inspector General, Group Centre, CRPF intimating the facts (Annexure B). On the other hand,the commandant (respondent No.6) vide communication dated 21.02.2006 (Annexure C) directed the petitioner to report for duty forthwith failing which the services of the petitioner would be terminated as per the provision of 1965 Rules. Immediately after receipt of the aforesaid communication the father of the petitioner on 27.02.2006 informed the respondent No.6 in writing about the petitioner‟s ailment and treatment at SMCH (Annexure-D). A similar letter dated 10.03.2006 (Annexure-E) was also sent to the respondent No.6 referring about the letter dated 27.02.2006 whereby Medical Certificates issued by SMCH were forwarded to the authority. By letter dated 24.03.2006 (Annexure-F), the Office of the respondent No.4 forwarded the application and medical certificates etc., to the Additional DIGP, Group Centre, Khatkhati, Assam for necessary action with instruction to the petitioner‟s father to address all further communications to the respondent No.5 directly.
Subsequently, by order dated 07.04.2006 issued under the signature of respondent No.6, the services of the petitioner WP(C) No.1539/2009 Page 3 of 14 was terminated w.e.f. 07.04.2006 (AN) on the ground of desertion and unauthorized absence. The respondent No.6 sent a letter dated 24.05.2006 (Annexure-H) to the father of the petitioner intimating the reasons behind the termination of services of the petitioner. Thereafter,the Office of the respondent No.6 forwarded the requisite forms to the petitioner for filling up for payment of injury relief, etc.
3. A counter affidavit has been filed by the DIGP, GC, CRPF, Guwahati on behalf of all the respondents. It has been averred by the respondents that the petitioner on being appointed as constable (GD) in the Force, reported to 183 BN on 16.01.2006 and his basic training started at Lidhran Camp at Jalandhar w.e.f. 23.01.2006. On 16.02.2006, the petitioner deserted the camp without taking leave or prior permission of the competent authority. To this effect, an FIR was lodged on 17.02.2006 with Kartarpur P.S. (Jalandhar) vide letter No.D.11-1/06-ADJT/183. Further contentions of the respondent is that even after lapse of more than 50 (fifty) days from the date of issuance of letter dated 21.02.2006 (vide Annexure-C to the writ petition), the petitioner did not report for joining his duty and therefore his service was terminated under Sub-Rule (1) of Rule 5 of the 1965 Rules. It has been further contended that the petitioner never reported or complained to anybody about his illness or depression while he was undergoing training. Had the petitioner reported his illness which he was allegedly WP(C) No.1539/2009 Page 4 of 14 suffering from, he would have been provided treatment at CRPF Hospital at GC, CRPF, Jalandhar. It has also been contended by the respondents that the story of petitioner‟s suffering from illness is not believable, more so, when he undertook four days long journey on his own to reach home from Jalandhar. While acknowledging receipt of the telegram and a medical certificate in respect of the petitioner‟s illness issued by the SMCH advising him to take rest for 30(thirty) days, the respondents contended that even after expiry of 30(thirty) days, the petitioner did not report for duty nor did he submit medical certificate to the authority concerned. Further contention of the respondent is that the petitioner served CRPF only for a period of 1(one) month and payment of Risk Fund Contribution deducted through EDP sum comes to Rs.150/- (Rupees one hundred and fifty) only and the Risk Fund Forms has already been sent to the petitioner for filling up the same for drawal of Rs.150/- only. The respondent urged that the writ petition has been filed after lapse of more than 2(two) years from the date of termination of the services of the petitioner and the same is devoid of merit.
4. The petitioner has filed an affidavit-in-reply controverting the contentions of the respondents so made in their affidavit-in-opposition. The petitioner stated in his reply affidavit that it has been one of the terms and conditions of his offer of appointment that his services would be governed by CRPF Act, 1949 and the Rules 1955. However, the WP(C) No.1539/2009 Page 5 of 14 respondents have failed to justify their recourse to Sub-Rule 1 of Rule 5 of the 1965 Rules. Apart from that the petitioner contends that the respondents have jumped on to a conclusion not to believe the fact of petitioner‟s suffering from illness without holding any enquiry. Since the impugned termination of his services is necessarily punitive one, the provisions of 1965 Rules are not applicable in his case.
5. I have heard Mr. R Mazumdar, learned counsel appearing for the petitioner. Also heard Mr. B Pathak, learned Central Govt. counsel, appearing for the respondents.
6. During the course of hearing, Mr. Mazumdar, learned counsel appearing for the petitioner has strenuously urged that the respondents are estopped from taking recourse to the provisions of 1965 Rules, inasmuch as, it has been one of the terms and conditions of the petitioner‟s appointment as stipulated by the respondents themselves that petitioner will be governed under CRPF Act, 1949 and the Rule 1955 framed thereunder. It has been urged by Mr. Mazumdar, that since the impugned order of termination is stigmatic and punitive one, recourse to 1965 Rules by the respondent is illegal. Mr. Mazumdar, further contended that the respondent‟s refusal to believe the facts pertaining to petitioner‟s suffering from illness and treatment is not founded by reasonableness and judicious application of mind.
WP(C) No.1539/2009 Page 6 of 14
7. Per contra, Mr. Pathak, learned Central Govt. counsel has submitted that there is nothing to interfere with the impugned order of termination in view of the fact that the petitioner deserted the Force on his own and remained absent in duty unauthorizedly till termination of his services though he was served with an order dated 21.02.2006 (Annexure-C) to report for duty. Apart from that, the petitioner has approached this Court after lapse of a period of more than 2(two) years from the date of his termination from services. Therefore, learned counsel for the respondents submits that the order of termination may not be interfered with taking into consideration facts and circumstances of the case and to dismiss the writ petition.
8. Upon hearing the rival contentions of the learned counsel appearing for the parties, two questions arise for adjudication by this Court viz., (i) whether the impugned termination of service is a stigmatic and punitive one (ii) whether the respondent authority has illegally terminated the services of the petitioner by invoking the provisions of 1965 Rules.
9. The services of the petitioner has been terminated by the impugned order dated 07.04.2006 (Annexure G) basically on two grounds - (i) desertion (ii) unauthorized absence. WP(C) No.1539/2009 Page 7 of 14
10. It is an admitted position that the services of the petitioner is governed by the CRPF Act, 1949 and CRPF Rules 1955 as it appears from the conditional offer of appointment order dated 29.12.2005 (Annexure-A).
11. Mr. Mazumdar, learned counsel for the petitioner has referred to various decisions of the Apex Court as well as of this Court. In support of his submission, on the point of termination of probationer on allegations, learned counsel has relied upon the following decisions:-
(i) AIR 1999 SC 983 Dipti Prakash Banerjee Vs. S.N. Bose National Centre for Basic Sciences, Calcutta and Others.
(ii) (2002) 1 SCC 520 Pavendra Narayan Verma Vs. Sanjay Gandhi PGI Medical Sciences and Another.
(iii) (2010) 8 SCC 220 Union of India Vs. Mahaveer C. Singvi.
(iv) Judgment and Order dated 21.05.2007 passed by this Court in WP(C) No. 974/2003, (constable Shesh Nath Vs. Union of India & Ors.) which has been upheld by the Division Bench of this Court vide Judgment and Order dated 06.05.2010 passed in WA No. 307/2008.
12. On meticulous examination of the other decisions referred to and relied upon by the learned counsel for the petitioner, I have found that the ratio laid down in the case of Dipti Prakash Banerjee (supra) has been reiterated by the WP(C) No.1539/2009 Page 8 of 14 Apex Court in its subsequent decisions viz; Pavendra Narayan (supra) and Mahaveer Singvi (supra). This Court also strictly adhered to the ratio laid down by the Apex Court in Dipti Prakash Banerjee‟s (supra) case in Shesh Nath‟s case and hence, I feel that discussion of the subsequent decisions of the Apex Court as well as of this Court in detail is not necessary to determine as to whether the impugned order of the case in hand is a punitive/stigmatic one or simpliciter. The Court may, therefore, usefully notice the decisions of the Apex Court in the case of Dipti Prakash Banerjee (supra).
13. In the case of Dipti Prakash Banerjee (supra) while answering the question as to in what circumstances the termination of a probationer‟s service can be said to be founded on misconduct and in what circumstances could it be said that the allegations were only the motive, the Apex Court held in paragraphs 21 and 22 of Dipti Prakash (supra) as thus :
"21. This Court in that connection referred to the principles laid down by Krishna Iyer, J, in Gujarat Steel Tube v. Gujarat Steel Tubes Mazdoor Sangh, (1980) 2 SCC 593 :
(AIR 1980 SC 1896). As to "foundation", it was said by Krishna Iyer, J. as follows (paras 53 and 54 of AIR):
"........... a termination effected because the master is satisfied of the misconduct and of the desirability of terminating the service of the delinquent servant, it is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case, the grounds are recorded in different proceedings from the formal order, does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the inquiry and proceeds to terminate. Given an alleged WP(C) No.1539/2009 Page 9 of 14 misconduct and a live nexus between it and the termination of service, the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used,"
and as to motive :
"On the contrary, even if there is suspicion of misconduct, the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or pecuniary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge."
As to motive one other example is the case of State of Punjab v. Sukh Raj Bahadur, (1968) 3 SCR 234 : AIR 1968 SC 1089, where a charge memo for a regular inquiry was served, reply given and at that stage itself the proceedings were dropped and a simple termination order was issued. It was held, the order of simple termination was not founded on any findings as to misconduct. In that case, this Court referred to A.G. Benjamin v. Union of India (Civil Appeal No. 1341 of 1966 dt. 13.12.1966) (SC) (reported in 1967 (15) Fac LR 347) where a charge memo was issued, explanation was received, an inquiry officer was also appointed but before the inquiry could be completed, the proceedings were dropped and a simple order of termination was passed, the reason for dropping the proceedings was that "departmental proceedings will take a much longer time and we are not sure whether after going through all the foundation, we will be able to deal with the accused in the way he deserves‟. The termination was upheld.
22. If findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as „founded‟ on the allegations and will be bad. But if the inquiry was not held, no finding were arrived at and the employer was not inclined to conduct an inquiry but, at the WP(C) No.1539/2009 Page 10 of 14 same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegation would be a motive and not the foundation and the simple order to termination would be valid."
Secondly, on the question as to when can an order of termination of a probationer be said to contain an express stigma, the Apex Court in paragraph 28 of the said judgment held as thus :-
"28. As to what amounts to stigma has been considered in Kamal Kishore Lakshman v. Pan American World Airways, (1987) 1 SCC 146 : (AIR 1987 SC 229). This Court explained the meaning of „stigma‟ as follows (P. 150) (of SCC) (at P. 231 of AIR):
"According to Webster‟s New World Dictionary, it (stigma) is something that detracts from the character or reputation of a person, a mark, sign etc., indicating that something is not considered normal or standard. The Legal Thesuras by Burton gives the meaning of the word to be blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame. The Webster‟s Third New International Dictionary gives the meaning as a mark or label indicating a deviation from a norm. According to yet another dictionary „stigma‟ is a matter for moral reproach." Similar observation were made in Allahabad Bank Officer‟s Association Vs. Allahabad Bank, (1996) 4 SCC 504 : 1996 AIR SCW 2432.
14. The offences are classified as (i) more heinous offence and (ii) less heinous offence under the CRPF Act, 1949. "Desertion has been categorized as more heinous offence WP(C) No.1539/2009 Page 11 of 14 under Section 9 of the CRPF Act, 1949 while absence without leave or in other words unauthorized absence has been classified as less heinous offence under Section 10 of the said Act. On the other hand from the counter affidavit of the respondents it transpires that the fact in respect of the petitioner‟s suffering from illness was disbelieved by the respondent authority despite receiving the medical certificate issued by the SMCH from the petitioner‟s end.
15. Now from the perusal of the provisions of Rule 16 of the CRPF Rules 1955, it appears that for all practical purposes, the petitioner was a "probationer" at the relevant period of his service. Rule 16 of the said 1955 Rules speaks inter alia, that all members of the Force shall be enrolled for a period of 3(three) years; during this period of engagement, they shall be liable to discharge at any time on 1(one) month‟s notice by the appointing authority. At the end of this, those not given substantive status shall be considered for quasi-permanency under the provisions of Central Civil Services (Temporary Service) Rule 1965. That being so, it cannot be said that the 1965 Rules are not at all applicable in the matter of petitioner‟s service. However, the fact remains is that whether the provisions of 1965 Rules have been rightly invoked to terminate the petitioner from service or not by the impugned order.
WP(C) No.1539/2009 Page 12 of 14
16. The grounds on which the services of the petitioner were terminated i.e., desertion and unauthorized absence, both are offences under Section 9 and 10 of the 1949 Act. Therefore, it can safely be held that the impugned order of termination is a stigmatic and punitive one. In other words, since the impugned termination of services is founded on the allegations, the same is bad in the facts and circumstances of the case.
17. Now let me examine as to whether the petitioner actually deserted the Force willfully. From the pleadings of the parties it transpires that after reaching home, the father of the petitioner intimated the respondent authority by a telegraphic message about the illness and undergoing treatment of the petitioner and subsequently a medical certificate issued by the SMCH authority was also sent to the respondent authority concerned who has acknowledged receipt of the same as per statement made on oath in their counter affidavit. That being the position, it cannot be said that the petitioner willfully and deliberately deserted the Force. If the petitioner has deliberately committed any offence under the 1949 Act, which is a less heinous offence, can attract only a minor punishment under Section 11 of the 1949 Act.
18. In view of the discussions held in the foregoing paragraphs and for the reasons alluded, this writ petition is allowed. The order dated 07.04.2006 is set aside. However, it WP(C) No.1539/2009 Page 13 of 14 is made clear that the interference made by the present order will not debar the respondents from proceeding in the matter, afresh, in accordance with law, if so advised.
19. No costs.
JUDGE Shivani WP(C) No.1539/2009 Page 14 of 14