Central Administrative Tribunal - Lucknow
Manish Kumar vs Union Of India on 17 August, 2022
CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
ORIGINAL APPLICATION No.189/2014
Order Reserved On 02.03.2022
Order Pronounced on 17.08.2022
CORAM
Hon'ble Mr. Devendra Chaudhry, Member (A)
Hon'ble Mr. Swarup Kumar Mishra, Member (J)
Manish Kumar, aged about 27 years, Son of Sri Ramesh
Chandra Kanaujia, Resident of Hose No. 359, Indira
Nagar,Sector-11, Lucknow (U.P.) Pin 226016, Last Employee as
Deputy Field Officer (GD), Cabinet Secretariat, Govt. Of India,
New Delhi.
.....Applicant
By Advocate : Shri Praveen Kumar
Versus
1. Union of India,
Through Cabinet Secretary,
Bikaner House (Annexi),
Shahjahan Road, New Delhi
Pin -110011.
2. Additional Secretary (Pers.),
Cabinet Secretariat, Govt. Of India,
Bikaner House (Annexi)
Shahjahan Road, New Delhi-110011.
3. Joint Secretary (Pers.),
Cabinet Secretariat, Govt. of India,
Page 1 of 61
CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors
Bikaner House (Annexi),
Shahjahan Road, New Delhi-110011.
.....Respondents
By Advocate: Smt. Prayagmati Gupta
ORDER
Per Hon'ble Mr. Devendra Chaudhry, Member (A) The present OA is preferred against the order dated 09.05.2013 whereby the applicant has been terminated from the services by the respondent No. 3. It also seeks quashing of the Appellate order dated 21.06.2013 passed by Respondent No. 2 whereby the appeal has been rejected.
2. Per applicant, brief facts are that he was appointed vide order dated 07.12.2009 (Annexure-1) to a temporary post of Deputy Field Officer (GD) under the establishment of Cabinet Secretariat in the pay scale of Rs. 9300-34800 with Grade Pay of Rs. 4200/-. That the applicant accordingly joined the service as on 01.01.2010 and after training at various locations he finally joined at FIP, Raxaul under SB Patna. It is submitted that the termination of services of the applicant vide the impugned order is on account of is being allegedly absent from duty even though to the contrary he was actually on authorised leave. The submission with respect to various periods of disputed leave is as below:
Page 2 of 61
CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors i. 16.7.2012 to 16.10.2012: during the period while being posted at Rupaidia, the applicant became sick and due to non- availability of proper medical facilities, he went on leave for treatment to his in-laws place. That on becoming fit, he joined back. That in this regard he replied to the memos dated 17/07/2012 and 24/07/2012 issued by Deputy Commissioner through his explanations dated 18/07/2012 and 03/08/2012 respectively (Annexures- 9 and 10) ii. 31.10.2012 to 17.11.2012 :during the period, the applicant took Earned Leave for four days on account of his wife's illness with due permission of the competent authority. However, he had to stay back for more time due to continued illness of his wife more so as there was no one besides him to look after her;
iii. 18.03.2013 to 03.04.2013:as regards the period (para 4.4-c), the petitioner had taken Earned Leave with prior sanction of the competent authority to be with his wife was suffering from fever, cold and typhoid.
It is therefore asserted by the Applicant that he has always submitted satisfactory explanation for the periods of leave taken by him. That therefore, the Charge Memorandum dated 01/08/2012 is baseless and so, the impugned punishment order dated 09/05/2013is liable to be quashed. That the appellate order dated 21/06/2013 is also liable to be Page 3 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors consequentially quashed apart from the reason that it is a cryptic non-speaking order. Thus, both the termination order and the appellate order are quashable on grounds of fact itself. 2.1 That the impugned termination order is also not justifiable on legal grounds because:
i. it is violative of the Civil Services Temporary (Rules) 1965, (referred to as 'Rules' in short hereinafter) as the order has been issued with immediate effect without giving notice of one month for termination of the service as per the Rules;
ii. it is violative of Article 311 of the Constitution also as no opportunity of hearing was given before issue of the termination order per se.
The Applicant has relied on certain judgement and orders of the Hon Apex Court in the matter of Moti Ram Deka Vs. General Manager, N.E. Railway, which relied upon in another Apex Court judgement in, Shamsher Singh Vs. State of Punjab and Others. Further several other citations are stated in the O.A. to fortify the stand. It is accordingly submitted that the impugned termination order is arbitrary, against the rules and therefore liable to be set aside. That the appellate order is also liable to be set aside because it is a cryptic non-speaking order.
3. Per contra, the respondents have denied any illegality of the order because the Applicant has taken his training Page 4 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors extremely casually. Thus, with respect to various periods of absence, it is asserted that:
i. 30 and 31.08.2010: the Applicant absented himself during the physical conditioning Course at the Subsidiary Training centre, BSF, Tekanpur, Gwalior as per letter dated 07/10/2010 and 27.11.2010 of DIG Tekanpur (Annexure No. CR-1);
ii. 11.6.2012 to 12.06.2012: the Applicant was absent unauthorisedly;
iii. 18.06.2012:that the Applicant was again absent citing mother's illness and domestic work although he knew that it was an important training period component because on that day he was due for training for Air Force attachment which is very important for new recruits and that was the first day of the attachment (Annexure No. CR-8 - letter of Applicant regarding leave);
iv. 25.6.2012 to 27.6.2012: That he was absent again in the period 25.6.2012 to 27.6.2012 by citing self illness in his application (Annexure CR-9) without any substantiation of the same by way of any medical certificate in support thereof. He was again absent on 02.7.2012 without permission and submitted his leave application after a very late after a gap of 07 days i.e. 09.7.2012, (Annexure No. CR-10).Page 5 of 61
CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors v. He also did not report for the Physical Training held at SFF, Sarsawa w.e.f. 10.9.2012 to 06.10.2012.
vi. 13.7.2012 to 16.10.2012: he has absented himself in
an unauthorised manner while he was posted at
Rupaidia for On-The-Job-Training where he joined on 11.7.2012.That, he left his place of duty in the afternoon of 13.7.2012, soon after, that is just two days after joining without either obtaining prior permission of his supervisory officer or intimating him about his intention to leaving his place of posting i.e. Rupaidiha, (Annexure No. CR-12). That rather, the applicant contacted a senior authority at SB Lucknow directly over telephone on 13.7.2012 bypassing his supervisory officer.
Notwithstanding, the permission was denied and the decision was immediately conveyed to the applicant on the same day over telephone through his immediate supervisory officer. However, though, the applicant was denied permission to leave his place of posting, he left the station by merely handing over an application (Annexure No. CR-13) to one of his subordinates. Therefore, this act of the Applicant amounts to utter lack of discipline and devotion towards official duty. That this indiscipline is further exacerbated by the subsequent act of the Applicant wherein, when a letter was sent to applicant from SB, Lucknow on 17.7.2012, (Annexure Page 6 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors No. CR-14), directing him to report for duty at Rupaidiha and submit his explanation at the earliest, as he had left the station without prior sanction of the competent authority, he, instead of reporting for duty, submitted a representation dated 18.7.2012 (Annexure No.CR-15), in which he apologized for leaving his place of duty without permission on account of some urgent domestic problem and self-illness. He also submitted an OPD prescription dated 16.7.2012 (attached with the letter 18/7/2012) of Dr. RML District Hospital, Farrukhabad in support of his said illness. It is submitted that though the applicant left the station on 13.7.2012, he took the advice of doctor in OPD only on 16.7.2012 and stated that as the cause for his illness and hence the leave. Further, the treating doctor in OPD had not advised him to take rest. Thus, it is quite evident that the applicant was not ill at the time of leaving his place of duty. Rather, he left the station intentionally by merely handing over his application to one of his subordinate just before boarding a bus. Had he been actually ill, he would have consulted local doctor first as per rules, rather than travel out of station. Thereafter, he committed further indiscipline wherein when, another communication was sent to the applicant from SB, Lucknow on 24.07.2012 (Annexure No. CR-16), directing Page 7 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors him to explain the reasons for not taking treatment at his place of duty or any other nearest hospital rather than going to Farrukhabad without permission, he submitted a representation dated 03.8.2012 (Annexure No. CR-17), in which he mentioned that he left the station due to inadequate medical facilities at Rupaidiha and untimely death of a person in his relation on 10.7.2012. It is submitted that the claim of the applicant regarding medical facilities at Rupaidiha is not correct as there exists a Primary Health Centre apart from RMPs at Rupaidiha. Further, his statement regarding untimely death of his relative is contradictory to one which he had made in his initial application dated 13.07.2012 wherein, there was no mention of death of his relative. Also, he failed to submit any documentary evidence in support of his ongoing treatment at that time and in fact did not submit any document during the period of his illness in time but did so only after a long gap of 03 months, and that too by submitting a medical certificate from Government Hospital, Farrukhabad wherein he was declared fit to resume duty w.e.f 10.10.2012, but the applicant failed to report for duty and extended leave for further 04 days on the grounds of a medical certificate from a private doctor (Annexure CR-19/20).
Page 8 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors vii. 31/10/2012 to 20/11/2012 (para-10 of CA) :As regards his unauthorised absence in the period it is submitted that the applicant has claimed that he had sought EL for 04 days from 31.10.2012 due to illness of his wife and extended the leave to look after his wife. However, as per records, the applicant applied (Annexure CR-21) for 04 days EL form 31.10.2012 to 3.11.2012 on the occasion of Karva Chauth. When he did not report for his duty on 5.11.2012, FIP In-charge, Raxaul contacted him on phone (Annexure page 58 of CA) and he informed him that he had caught cold and had also to go for negotiation for his sister's marriage whereas vide his application dated 29/10/2012 [Annexure CR-21/22], the Applicant had simply stated that he wanted EL to attend 'Karva Chauth' festival in his hometown. Further, that, he did not intimate about the exact date on which he was to report for duty. On return to duty on 20.11.2012, the applicant, vide his application dated 24.11.2012, (Annexure No. CR-23)intimated that he had to overstay on leave because of illness and some family responsibility. He also submitted a revised leave application for grant of 18 days EL from 31.10.2012 to 17.11.2012. Nowhere in his application or during telephonic conversation with FIP In charge, Raxaul, he mentioned anything about his wife's illness whereas Page 9 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors in the OA he has claimed it to be the reason for overstaying on leave. The competent authority did not accept his explanation offered by him for overstaying on leave and so the period of his absence from 31.10.2012 to 17.11.2012 was treated as Extra Ordinary Leave (without pay) vide Office order dated 27.11.2012, (Annexure No. CR-21). The applicant was personally counselled by Deputy Commissioner, SB, Patna and was made to understand the importance of return of duty on expiry of leave.
viii. Absence in March 2013: As regards the unauthorised period of leave in March 2013,it is submitted that the applicant had applied for 06 days EL from 18.03.2013 to 23.03.2013 along with 02 days compensatory off, 01 day RH and GH falling on 27.03.2013 and 29.03.2013 as suffixed which was sanctioned to him vide office order dated 28.02.2013 (Annexure No. CR-25). He was supposed to return on duty on 30.03.2013 but he returned to duty on 04.4.2013 and submitted a revised application for 15 days EL from 18.0.2013 to 1.4.2013 along with one day C/Off on 30.04.2013, (Annexure No. CR-26). He has mentioned in the OA that his wife's illness as the reason for extending leave whereas in his revised application, the reason for grant of leave has been mentioned as domestic. Therefore, the period of Page 10 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors unauthorized absence from duty i.e. w.e.f 30.03.2013 to 3.04.2013 had to be once again treated as Extra Ordinary Leave (without pay) vide Office order dated 30.04.2013, (Annexure No. CR-27).Further he was also issued another recordable warning for unauthorised absence from duty for the second time within 06 months of posting under SB, Patna vide memo dated 30.04.2013 (Annexure No. CR-28).
3.1 That due to his frequent absence during training, his probation period had been extended upto 31.12.2012 vide order dated 14.11.2012 (Annexure CR-5) on the basis of his overall performance during on the job field training cum posting under CZ, Lucknow including due to his acts of unauthorized absence and missing classes on multiple occasions during institutional training, absconding from Physical Training etc. (Annexure Nos. CR-2, CR-3, CR-3, CR-4 and CR-5).
3.2 It is submitted that the claim of the applicant that he was not provided any opportunity of hearing is baseless as the applicant had been repeatedly counselled verbally as well as explanation sought in writing, warnings issued but he did not mend his ways. It is also submitted that in spite of repeated advice and admonitions there had been no change either in the attitude of the applicant towards official duties or in his habit of staying away from duty without prior permission. He Page 11 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors has continued the habit of staying back and absenting himself from duty despite counselling and several memos seeking explanation for unauthorised absence. More-over, his overall performance during the institutional training was not found satisfactory, as reflected in Director (Training) note dated 15.03.2012 and Under Secretary (Admn. Trag.) Memo dated 7.9.2012. The applicant applied for CL on the grounds of his family problems. His controlling officer has recorded that he is habitual at taking leave, a copy of which is being annexed herewith and marked as Annexure No. CR-7 - copy of leave application.
3.3 So, keeping in view the past record of the applicant, is repeated misconduct and casual approach towards official duties, the competent authority vide memo dated 01.08.2012 recommended the extension of his probation period, (Annexure No. CR-18). Thus there is no factual doubt that the Applicant was in habit of taking frequent leave without obtaining prior sanction (Annexure No. CR-11) and he remained absent on multiple occasions and missed key attachment and other training programmes of OJFT, therefore, his claim of successful completion of OJFT.
3.4 As regards the legal plea with respect to the termination order, it is submitted that as the services of the applicant were terminated as he did not fulfil job requirement during probation period and in pursuance of the provisions contained in Central Page 12 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors Civil Services (Temporary Rules), 1965 read with R&AW (RC&S) Rules, 1975 vide order dated 9.5.2013 (Annexure No. CR-21). It is submitted that the termination order was issued in pursuance of the provisions contained in CCS (Temporary Service) Rules, 1965 read with R&AW (RC&S) Rules, 1975 and on the basis of recommendations of Departmental Confirmation committee which in turn relied on the detailed assessment reports received from various quarters in respect of the official while on On-The-Job-Field Training cum posting under CZ, Lucknow during his extended period of probation. Special Assessment Reports for these periods reflect his overall performance as 'Very Poor' and "Not upto the mark". More-over, his controlling officer have remarked him as "Totally unfit for the Job" (Annexure No. CR-30). The final recommendation of the Departmental Confirmation Committee was that the Applicant was not fit to continue in service in view of his characteristic/performance as brought out in the Special Reports Training Academy Course Report etc. vis-a-vis requirements of the job as DFO (GD). Further that though claimed by the applicant, the statement of imputation of misconduct regarding his unauthorized absence from 30.03.2013 to 3.4.2013 is not the basis of issuance of termination order in respect of him. It is submitted that these are mere assumption on the part of the applicant that his termination order was issued on the basis of his unauthorised Page 13 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors absence without giving opportunity to defend himself. On the contrary, his termination order was issued in accordance with the procedure under CCS (Temporary Service) Rules, 1965 and Rule 142(1) of R&AW (RC&S) Rules, 1975 on the basis of recommendations of the Departmental confirmation Committee which in turn relied on the detailed assessment reports received from various quarters in respect of the official while on On-The Job-Field-Training-cum posting under CZ, Lucknow during his extended period of probation as well as his performance during training. In this context, Annexure CR-1, CR-5-30 may be referred to. Therefore, Article 311 of the Constitution of India is not attracted in this regard. Therefore, Article 311 of the Constitution of India is not attracted in this regard, as no inquiry has been conducted against the official. It is further submitted that the relevant Government rules in this regard do not provide for any reason to be assigned for termination of service of a temporary government service, (Annexure No. CR-31). He was granted one month of pay and allowances in lieu of the notice period. Therefore, his contentions are baseless. More-over since his service was under review during his extended period of probation, as per the relevant Government rules, his service is liable to be terminated at any time, if found unsuitable. The order dated 9.5.2013 (termination order) was issued as per the Performa laid down in CCS (TS)Rules and it does not provide for Page 14 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors assignment of any reason of termination in order to avoid stigma to the official.
On the basis of the above, there is no illegality in the order and accordingly, the OA is liable to be dismissed.
4. Heard the learned counsels for the parties at length and perused all the pleadings on record.
5. The key issue is the factual and legal validity of the termination order and the appellate order with regards to the applicant.
6. As regards the factual challenge, it is clear that the termination is on the factum of unauthorised absence of the applicant during various periods of his training and service. It is also clear that the applicant has been terminated under the Temporary Services Rules. Therefore, in order to examine the legality of the termination order from the factual point of view, he rival assertions have to be examined. We do so in a chronological manner so as to establish the chain of irresponsible behaviour of the Applicant qua his absence from duty. On doing so, following status emerges:
6.1 As per the Respondents letter dated 27/11/2010 (Annexure CR-1) the Applicant was absent without adequate reasons and missed a crucial training component regarding Physical conditioning course. The letter reads as under:
"Subsidiary Training Centre Page 15 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors Border Security Force Tekanpur, Gwaliur (MP) No. STC/BRT-SI (LDCE & DFO/RTU/10/17451 Smt. Uma Suryanarayan Mishra Director (Trg). Cabinet Secretariat GOI, Training Academy.
Gurenon(Haryana)-122015 REASONS RECORDING RTU OF DFO TRAINING FROM BASIC TRG. Please refer tele-conversation between undersigned an yourself on 25th Nov'2010
2. As desire, the detailed showing reasons regarding RTU of following trainees of DFO Course Sr-52 from basic training to your Department are mentioned against each name:
S/No Name of DFO Reasons for RTU
trainee
01
02
03 i)
04
05
06
07
08 Sh Manish He was proceeded on 02 days leave from 30 to 31-08-10 with
Kumar Chest permission to avail 29.08.10 being holiday. He was to report for basic
No. 34 DFO rg on 31.08.10(AN)., but instead of repeated letters served to him
Course SR-52 home town he did not report on due time and still overstaying from
leave since 01.09.10 (FN). I this regard, your Dept. have already been informed by this STC vide L/No. 1408-11 dated 07.10.10 for taking n/a at your end please.
This is for your information please.
Prior to this there is another related letter dated 07/10/2010 which reads as under:
Abstract of letter dated 07/10/2010- part of Annexure CR-
1:
"Subsidiary Training Centre
Border Security Force
Tekanpur, Gwalior(MP)
No.STC/Dfo. 52/MK/Trg/101408-11 7.Oct. 2010
Smt. Uma Suryanarayan Mishra Director (Training) Cabinet Secretariat GOI, Training Academy.
Gurgaon (Haryana)-122015 REGARDING OSL CASE IN RESPECT OF SHRI MANISH KUMAR, DFO TRAINING Page 16 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors Please refer to this office letter No. STC/OSL- Leave/119/2010/12727-30 07.09.2010 and No. STC/DFO.52/Trg/10 dated 28.09.2010.
2. In this regard , I have been directed to inform your office that Sh. M. Kumar, (hest No. 34) DFO trainee of course Srl. 52 who was sanctioned two days e-leave by this STC wef 30.08.2010 to 31.08.2010 with permission to avail 29.08. being prefixed (Sunday) is still overstaying from leave wef 01.09.2010 (FN).
3. He has been directed by this STC vide regd letter No. 12727- 30 dated 07.09 to report for basic training, but no response has so far been received from individual concerned.
4. It is therefore, requested that necessary steps as per rules and regulations kindly be taken at your end. Action taken in this regard may kindly be communication to this STC for our information/record please.
(S Pandey) DC(TRG) For DIG STC BSF Tekanpur"
Evidently the Applicant has without justifiable reason played truant and avoided the training component. There is no satisfactory defence of the Applicant on this count in the pleadings. Hence this has to be viewed against the Applicant. 6.2. The next incident pertains to the Applicant being absent again without leave from 11/06/2012 to 12/06/2012. Here also nowhere in the pleadings is the point countered justifiably and so this absence period is held against the Applicant. 6.3. Similarly, the absence of the Applicant on 18/06/2012 when an important training component regarding Air Force attachment was to commence, is unexplained adequately. The Applicant has cited mother's illness and domestic work in his explanation letter (Annexure CR-8). Same reads as under:
Annexure CR-8:
"The Assistant Commissioner SB, Lucknow Page 17 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors One day CL Respected Sir, With due respect it is submitted your information that due to my mother illness and some urgent domestic work I did not attend office on 18.06.2012. I may please be granted one day CL on date.
Yours Sincerely Manish Kumar DFO (GD) ID-06863-L"
It is the Respondents assertion that no proof has been given with regards to the cause for leave: viz: grievous illness of his mother which necessitated the Applicant's emergent presence. Therefore, we are inclined to agree with the Respondents contention that this was a mere alibi. As regards emergent domestic work also being a related cause, here also, the Applicant has not explained as to what it was which so very much prevented the Applicant from attending the crucial training component. Hence here also we agree with the Respondents assertion that the reasons forwarded by the Applicant are nothing but dubious.
6.4. Then again after the 18/6/2012 incident, the Applicant was yet again absent in the period 25/6/2012 to 27/6/2012 on grounds of self -illness - viz dehydration, fever, etc [letter of Applicant - Annexure CR-9] which is not supported by any medical document. The leave application has been regretted by the controlling officer as is evident from the letter of the Applicant and the remarks on it. The key question which keeps cropping up is that we see the Applicant leaving time after Page 18 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors time on the pretext of some illness - his mother, his own, domestic work and so on with little supportive proof and so, how can it be accepted that the Applicant is giving bona fide justifiable reasons for proceedings on unannounced leave on his own without permission while he is under training. Training components cannot be repeated for just one candidate and once the time passes then that component is left uncovered. This aspect is being stressed by the Respondents to make their plea that the Applicant has been away from crucial periods of training and so has exhibited exceptional irresponsibility in discharging his duties qua the training period of his probation under the Temporary Service rules which in any case we shall examine in detail in later part of this judgement. In result we have no choice but to agree to the contention of the Respondents that the Applicant has been consistently exhibiting irresponsible undisciplined attitude to his job.There is further evidence of this consistent irresponsible behaviour when we find that the Applicant was again absent on 02.7.2012 without permission and submitted his leave application after a very late after a gap of 07 days i.e. 09.7.2012, (Annexure No. CR-10) which reads as under:
Annexure CR-10:
"The Assistant Commissioner SB, Lucknow Govt. Of India Page 19 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors Leave application Respected Sir, It is requested that in absence on 02 July 2012 from training at AC office , SB Banbasa, I may please be allowed to avail one day CL for the date.
Yours Sincerely Manis Kumar DFO (GD), ID-06863-I Dated 9.7.2012."
Evidently now there is no reason also being cited, perhaps because the Applicant has run out of his alibi list. Therefore while holding this explanation vide Annexure CR-10 as worthy of being thrown out, the conclusion that the Applicant is indeed an irresponsible undisciplined employee gains firm ground and is so, held against him.
6.5. As regards the explanation of the Applicant concerning his absence from Rupaidiha when posted for On-The-Job-Training (OJFT), it is also difficult to accept the same. This is because he first of all left the station without prior information to the immediate superior/reporting officer. Secondly, he committed intransigence not expected of a Trainee by telephoning a higher level superior officer who denied the permission to leave. But still the Applicant left as if in full defiance of the denial of leave permission. This point is evident from the letter dated 18/7/2012 and 24/08/2012 [Annexure CR-15 and CR-13] which read as under:
Annexure CR-13:
"Memorandum Kindly refer Memo No. LSB/DF-129/Estt-7298 dated 18.8.2012 regarding Shri Manish Kumar, Dfd(GD). As per your order, undersigned is submitting facts which are as under-Page 20 of 61
CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors
i) Shri Manish Kumar was neither sought permission to leave the station nor told about his illness/relative death to undersigned. Although, he contacted AsC, Lucknow on phone requesting for station leave which was turned down by AsC n same day. This decision of Asc was communicated to Shri Manish by undersigned on phone o n 13.07.12 evening as per Asc's instruction (given on phone).
ii) Shri Manish Kumar gave an application(photocopy enclosed) to Shri I.D Mishra, FA(GD) just before boarding bus near SH Rupaidiha on 13.07.12(1830hrs.). I. D. Mishra gave it to undersigned on 16.7.12 (Monday) in office as per Shri. Manish Kumar's instructions. Since, Asc was rejected Shri Manish Kumar state leave request, his application was filled as FOP/ Submitted for your kind perusal please.
(ASHUTOSH MISHRA) Field Officer To The Additional Commissioner Special Bureau, Lucknow."
Further to this, we are inclined to agree with the view of the Respondents that when the Applicant was directed vide letter dated 17/07/2012 to report for duty he defiantly submitted a response letter dated 18/07/2012 in which while pleading apology he cited self-illness as the reasons for leaving suddenly. We are in consonance with the Respondents for not accepting his explanation because(a) while he left the station on 13/07/2012 he sought medical consultation as per his own statement and filed document is of 16/07/2012 viz, the Doctor's examination paper dated 16/7/2012 - Annexure CR-
15. How can it be accepted that the Applicant proceeded on leave on 13th July on grounds of medical illenesseven when he got a medical examination done three days later. Why should it not be held that this examination was to create an alibit to prove that he was sick and even then how can this document support that he was sick three days earlier when he actually Page 21 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors went on leave without informing his superiors on the pretext of illness three days earlier?. This sort of explanation is irresponsibility of the highest order and is therefore held against the Applicant. Moreso in the medical consultation he was not advised bed rest nor was it grievous enough for him to leave station. This is evident from a reading of the Doctor's report [Annexure CR-15] which reads as under:
Annexure CR-15 and the medical examination enclosures:
"To, The Assistant Commissioner Special Bureau, Lucknow Govt of India.
Sub:- Regarding leave for medical treatment Respected Sir, It is submitted for your kind information that I am unable to attend training /office due to illness, so I may please be granted leave for medical treatment. I apologise for leaving the station without permission but it was unavoidable for me. I have asked & requested about station leave permission but it was refused on telephonic conversation as on 13-07-2012. Thus being ill and due to some urgent domestic problem there was no other way for me, except to leave but I intimated in written to the field officer I/C Rupaidiha with leaving address before leaving the station. The medical treatment papers are hereby enclosed with application and submitted for your kind consideration and approval.
Dated-18/7/2012.
Encl: 02 Yours faithfully (Manish Kumar) DFO(GP), ID-06863-2 posted at - FIP, Rupaidiha."
------------------------------------------------------
RML Hospital, Farrukhabad
PATHOLOGY REPORT
Name: Manish age 26/M Y/M/D/Sex M/F
Page 22 of 61
CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors
D/Indoor No. 50983 WD/Bed dated 16.07.12.
Hb 10.4 gm/dl SEROLOGY
TLC 7500 Cells/Cmm 1-RA Test Positive/Negative
DLC 2-CRP.......
Polymorph 58 % 3-VDRL.....
Lymphocyte 38% 4-WIDL TEST
Eosinophills 03% type dilutions
Monocyte 01% 1:20 1:40 1:80 1:160 1:320
Basophills....... O .........................................
Immature cells..... H.................................................
ESR....mm/1sthour AH..............................................
(Wintoro/Wgm) BH...........................................
GBP RBC...... BIOCHEMICAL TEST
WBC.... 1-BLOOD Glucose (F/R)
Immatuare Cells..... 2-Blood Glucose(PP)
Platelet count..... 3-S.Urea.....
Haemoparasite..... 4-S.Creat........
RBC... 5-S. Bilirubin 4.2 Mg/dl
HCT...... 6-SGPT 132.6 U/L
MCH....... 7-SGOT..........
RDW.... 8-S Uric Acid........
PLT 2.10 10/L 9-S Cholesterol...........
PCT....% 10.HDL....................
MPV...FL 11-LDL..................
PDW....% 12-Try Glyceride..............
MP...... 13-S. Protein............
14-S. Amylyse...............
15-S. Calcium
16. S Albumin............
17.Alkalin Phosphate......
STOOL EXAM
Albumin..... Physical...............
Sugar........... Chemical...............
Epith Cells/............
..us Cell..........
BCs.................
Page 23 of 61
CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors
...ystals...............
Hosphate deposites............ PATHOLOGIST
............. Dr. RML Hospital
Farrukhabad
---------------------------------------------------------- This act of blatant indiscipline is exacerbated by the subsequent event when the Respondents directed the Applicant to explain the reasons for not taking permission before leaving vide their letter dated 24/7/2012 [Annexure CR-16] and the Applicant did not bother to respond as late as till 03/8/2012 [Annexure CR-17] in which agreeably he gave the lame excuse that adequate medical facilities were not available at Rupaidiha. The question which is important here is that as to what medical ailment was the Applicant suffering from which necessitated his emergent departure from the station without prior leave and for what medical illness were the facilities inadequate at Rupaidiha. Just stating that the medical facilities are inadequate given the fact that even the medical document of 16/7/2012 - Annexure CR-15 does not speak of any major illness is at best a poor lie on part of the Applicant. We cannot accept this affront of an excuse that the Applicant had to leave immediately forthwith as he had perceived himself to be so grievously ill that he had to leave his station without prior leave and informing his immediate superior. The explanation of the Applicant is without any legs and has to be trashed. Quiet tiringly the Applicant has again later exhibited irresponsibility when as per the Page 24 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors Respondents, when, the Applicant got a FIT declaration certificate from Farrukhabad hospital vide date 10/10/2012, he did not report for duty forthwith but was on furlough for another four days for which extended absence he filed a certificate of a private doctor. Obviously, it seems that he could not have obtained a similar certificate from the same government hospital as earlier vide 10.10.2012 above, and so he got it from another source, this time a private one which would not bother itself with the earlier history of the Applicant being declared FIT just four days ago. It is clear that the Applicant is indeed a problem employee and quite early in his job history at that.
6.6. The respondents have pointed out the indiscipline exhibited by the Applicant with respect to his yet another absconding without authorised leave in the period starting 31/10/2012. Annexure CR-21 dated 30.10.2012 with regards to his leave application is important in this respect which reads as under:
Annexure CR-21:
"NO.1/3B/RXL/Leave/2012-360 Special Bureau Government of India Raxaul Dated: 30.1..
Memorandum Enclosed please find herewith an E.L application for 04 days w.e.f. 31.10.12 to 03.11.12 in respect of Shri Manish Kumar, DFO (GD) who has joined here for job filled trg.Page 25 of 61
CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors Submitted for necessary action please.
Enclo: As above, (RAJESH KUMAR SINHA) FO,FIPMRAXAUL To, The Deputy Commissioner, SB, PATNA."
Evidently the Applicant has taken four days earned leave for period 31/10/2012 to 03/11/2012 for a festival viz: Karva Chauth which has been granted. However, he seems to have conveniently forgotten this and has pleaded in para-4.4(b) of OA that he took leave on account of his wife's illness. Relevant portion of the O.A. is as below:
4.4(b):
The leave from 31.10.2012 to 17.11.2012 the petitioner / applicant with the permission of competent authority was on earned leave for four days due to his wife illness ad thereafter he extended leave for this period as nobody was to look after his wife."
The problem of the irresponsibility of the Applicant is not limited to this, but more importantly the Applicant did not turn up after the sanctioned leave period till 05/11/2012 and so the FIP in-charge Raxaul contacted him on phone [Annexure CR-22
- letter dated 09/11/2012 of FIP Raxaul regarding the telephonic conversation with the Applicant] and on doing so, the Applicant informed that he had caught cold and had to also go for some negotiation of his sister's marriage. CR-22 reads as under:Page 26 of 61
CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors Annexure CR-22 "NO.1/SB/RXL/Leave/2011- 375 Special Bureau Government of India Raxaul Dated 09.11.12 Memorandum Kindly refer to our Mamo No.1/5B/RXL/Leave/2012-360 dated 30.10.12 regarding therewith E/L application in respect of Shri Manish Kumar, DFO (GD) w.e.f. 31.10.12 to 03.11.12 who is on job field training at FIP, Raxaul.
2. Shri Manish Kumar, DFO (CD) was suppose to join at FIP, Raxaul on 05.11.12, but he did not joined till 07.11. 12. When Manish Kumar, DFO (GD) was contacted telephonically he said that he catch with cold and also he has to go for negotiations for her sister marriage. When enquired about his expected date of joining at FIP, Raxaul he was unable to give any tentative date of joining.
3. Submitted for information and necessary action please.
(A.K.Singh) Field Officer To The Deputy Commissioner SB, GOI, Patna"
Now it can be argued that the conversation is not recorded so how does one take the Respondents word on it vis-à-vis the Applicant's which could be anything. Short of this, the Applicant has not countered this point in his RA with any degree of able evidence and so we have to accept what the Respondents say qua the telephonic conversation. The point is that the Applicant did not, not only return on the due date of sanction of EL viz: 04/11/2012 but also committed so much intransigence as to report finally on 20/11/2012 with the Page 27 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors specious plea that he had to overstay on account of illness and family responsibilities. Letter dated 24/11/2012 [ Annexure CR-23] reproduced below paints a rather dismal picture of excuses of illness and family responsibilities which no right-
minded employer can accept and no right-minded employee will give again and again and yet again, almost ad infinitum as is evident in the case at hand.
Annexure CR-23 "To, The Field Officer Special Bureau FIP Raxaul.
Govt. of India.
Sub- Regarding extension of Leave.
Sir, Kindly refer to my leave application as per memo No.-
1/SB/RXL/Leave /2012-360 dated 30/11/12. I went on leave due to occasion of Karva chauth and had to join on 05-11-12 but due to illness and urgent domestic work regarding my family responsibility I could not join and had to extend the leave period. I have joined duty on 20-11-12 (FN) and submit a fresh EL application.
Encl: as above Yours Faithfully Date:-24-11-12 Place - FIP Raxaul (Manish Kumar' DFO (GD)-06863 FIP Raxaul."
Given the truancy, and no way to legalise the same, the Applicant filed a Earned Leave Application employer Respondents were still indulgent and regularised the period of Page 28 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors absence with nothing more than a Leave without Pay order dated 27/11/2012 [Annexure CR-24] reproduced below:
Annexure CR-24:
"OFFICE ORDER NO. 166/PSU/ESTT/2012 Shri Manish Numar, DFO(GD), ID.No.06063-L. posted at FIP Raxaul under Bihar Sector is granted leave as per details below:-
"31.10.2012 to 17.11.2012 - 18 days EOL without medical certificate 2 After availing the said leave, he resumed duty at the same post and station from where he proceeded on leave.
3. Certified that he would have continued to officiate at the same post and station but for proceeding on leave.
(KRISHNA CHAITANYA) DEPUTY COMMISSIONER No. PSD/ESTT1/PF(15)/2012 7035-7041 Government of India Special Bureau Patna Dated, the 27/11/2012
1. The Director of Accounts, Cabinet Secretariat (SW), New Delhi.
2. Accounts Branch, SB Patna.
3 Shri Manish Kumar, DFO(GD) Thro' I/C FIP Raxaul.
Copy to:-
1. Under Secretary (Pers. B), Hqrs. New Delhi
2. Dealing Assistant-Service Book
3. Leave Sanction File.
4. Office Order Book.
(SANJIV KUMAR) SECTION OFFICER"
One wonders as to how could any employer accept such presumptive assuming display of duty by an employee who continues to avoid duty and more importantly training components one after the other with a very high degree of Page 29 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors impunity and frivolous trash-able excuses on the other. The Applicant could surely become a millionaire making crutches for the lame excuses he is making. One can only observe that the cup of sin floweth over - calix peccatidefluit. 6.7. We now analyse the Applicant's leave period in March 2013. The Applicant had applied for 06 days EL from 18.03.2013 to 23.03.2013 along with 02 days compensatory off, 01 day RH and GH falling on 27.03.2013 and 29.03.2013 as suffixed which was sanctioned to him vide office order dated 28.02.2013 (Annexure No. CR-25). He was therefore, to return on duty on 30.03.2013 but he returned to duty only on 04.4.2013 and submitted a revised application for 15 days EL from 18.0.2013 to 1.4.2013 alongwith one day C/Off on 30.04.2013, (Annexure No. CR-26). In this connection is first of all seen that the Applicant, in the EL form dated 20/02/2013 [page-65 of CA], gave the reason as 'urgent domestic work'. However, in para 4.4 (c) of the O.A., he has mentioned the reason for leave and absence as his own and wife's illness. The relevant portion of the O.A. is extracted below:
Para 4.4 [c] of OA:
"The leave period from 18.03.2013 to 3.4.2013. The petitioner taken earned leave with the prior sanction of the competent authority. The petitioner's wife was already suffering from fever & cold and there after she face in Typhoid and there was no person to look after her that is why the petitioner extended the leave.
Thus the applicant/petitioner taken leave only due to his and his wife illness which is beyond the control of Page 30 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors petitioner, rather it was act of God. As such the termination of the petitioner's service only on the basis of absent from duty for few days without prior sanction of the authorities concerned, in the garb of statement of imputation of misconduct (vide memorandum dated 30.4.2013 and 1.8.2012 attached with impugned order dated 9.5.2013 contained in Annex. No. A to the Compilation No. I) even without issue show cause notice and providing an opportunity of hearing to the applicant/petitioner, is not only arbitrary, illegal and in gross violation of the provision of Article 311 of the Constitution of India."
Evidently there is no mention of 'urgent domestic work' anywhere in the O.A. It would seem that the Applicant perhaps forgot what he had written in his actual EL form and mentioned an altogether different reason in the O.A. Off course the statement in the O.A. is not supported by any medical proof of any sort for the sickness of self or the wife. Small wonder that notwithstanding, as the EL was extended the period of extended absence from duty i.e. w.e.f 30.03.2013 to 3.04.2013 treated as Extra Ordinary Leave (without pay) vide Office order dated 30.04.2013, (Annexure No. CR-27).It is also noteworthy that the Applicant was also issued another recordable warning for unauthorised absence from duty for the second time within 06 months of posting under SB, Patna vide memo dated 30.04.2013 (Annexure No. CR-28).
Annexure CR-27:
"OFFICE ORDER NO.39/PSB/ESTT/2013 Shri Manish Kumar, DFO(GD), ID No.06863-L was sanctioned 06 days EL w.e.f. 18.03.2013 to 23.03.2013 with permission to avail 24.03.2013(Sun), Page 31 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors 25.03.2013 and 28.03.2013 (C/offs), 26.03.2013 (RH), 27 & 29.03.2013 (GHS) as suffix vide O.O. No. 11/PSB/ESTT/2013 issued under endorsement No.PSB/ESTT.2/2012(26)-Vol.ll dated 28.02.2013. He was supposed to report for duty on 30.03.2013. however, he reported for duty on 04.04.2013. He remained absent from duty without permission for 05 days from 30.03.2013 to 03.04.2013.
2. The period of unauthorized absence from 30.03.2013 to 03.04.2013 will be debited against his leave account as though it were half pay leave, to the extent as leave is due, the period of absence.. such leave due being treated as EOL in terms of Rule 25 c..CCS(Leave) Rules 1972. Further, -no leave salary would be payable ... him for the period from 30.03.2013 to 03.04.2013.
(KRISHNA CHAITANYA) DEPUTY COMMISSIONER
1. The Director of Accounts, Cabinet Secretariat (SW), New Delhi
2. Shri Manish Kumar, DFO(GD) thro' I/C, FIP, Raxaul.
No.PSB/ESTT.1/PF(15)/2012-2510-2517 Special Bureau Govt. of India.
PATNA Dated, the 30/4 Copy to:
1. Under Secretary (Pers.B), Hqrs, New Delhi.
2. Section Officer, SB, Lucknow
3. Accounts Branch, SB, Patna
4. Service Book Seat, SB, Patna
5. In-charge, FIP, Raxaul
6. Office Order Book, SB, Patna (SANJIV KUMAR) SECTION OFFICER"
Annexure CR-28:
"No.PSB/ESTT.1/PF(15)/2012-2 Special Bureau Govt. of India PATNA Dated, the 30/4/13 MEMORANDUM Page 32 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors Shri Manish Kumar, DFO(GD), ID No.06863-L was sanctioned 06 days EL w.e.f. 18.03.2013 to 23.03.2013 with permission to avail 24.03.2013(Sun), 25.03.2013 and 28.03.2013 (C/offs), 26.03.2013 (RH), 27 & 29.03.2013 (GHS) as suffix vide O.O. No. 11/PSB/ESTT/2013 issued under endorsement No.PSB/ESTT.2/2012(26)-Vol.ll dated 28.02.2013. He was supposed to report for duty on 30.03.2013. however, he reported for duty on 04.04.2013. He remained absent from duty without permission for 05 days from 30.03.2013 to 03.04.2013.
2. Shri Manish Kumar, DFO(GD) is in habit of extending leave without termission of the sanctioning authority. In his tenure of about six months under SB, Patna this is the second instance of him remaining on unauthorized absence despite being warned both verbally and in writing. He is again hereby warned that an adverse view has been taken of his repeated indiscretions and he is hereby warned that any further instance of overstayal on leave without proper permission would lead to initiation of disciplinary proceedings against him under CCS(CCA) Rules, 1965.
3. A copy of this memo may be placed in his APAR folder.
(KRISHNA CHAITANYA) DEPUTY COMMISSIONER Copy to:
1. Additional Commissioner, CZ, Lucknow
2. Under Secretary (Pers.B), Hqrs, New Delhi
3. Section Officer, CCR Cell, Hqrs, New Delhi DEPUTY COMMISSIONER"
Thus, the Applicant's explanation of the leave period intransigence is not acceptable and has to be thrown out.
6.8. Thus, we see in the final analysis of the facts related to the various leave periods starting 2010 is a record painted in red with regards to his chain of periods in which he was absent on so many occasions. No wonder the training period was extended and the Charge Memorandum dated 01/08/2012 issued with the enclosed Statement of Imputation of misconduct. Now, we see that the impugned order is dated 09/05/2013 and the Statement of Imputation takes into cognisance the disputed leave period when the Applicant was on training /duty at Page 33 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors Rupaidia, viz: leave period since 13/7/2012 and his earlier leave occasions. With regards to the Rupaidiha period of leave, analysis as per above holds the incident against the Applicant for reasons stated earlier. Even for earlier occasions as examined chronologically hitherto, the Applicant has not been able to defend his stance with any degree of conviction for the reasons stated in the analysis of each period hereinabove. The reply to the Charge Memorandum is not at all convincing as is evident. Relevant extracts below would substantiate this.
Reply dated 04/08/2012- page 29/30 of O.A.:
"To, The Additional Commissioner Special Breau, Govt. of India Central Zone, Lucknow.
Respected Sir, In reference to letter No. LSB/PF-1291/Estt-6865 dated 01.08.2012 received by me on the eve of 03.08.2012. It is submitted for your kind information that I have not delayed in making representation as demanded vide letter No. LSB/PF-1291/Estt-6639 dated24.7.2012, received by me on 31.07.2012. I would like to bring to your kind notice that I remained absent for a number of days (i.e. 7) during on the job field training because I was facing many serious problems at that time as I am newly married and thrown out of the family during this period. The circumstances were such that there would have some legal mater but I any how managed to avoid this situation. I have already old each and every thing to may seniors and also intimated for my absence, every time.
It is requested that the medical leave may please be granted for my treatment and I will definitely join as soon as I gain fitness. I have liabilities and this service is the only made of earning for me. I humbly request that the case may be taken with sympathetic view by the kind and competent authority for my well being.
Yours faithfully S/d Manish Kumar/4.08.2012 Page 34 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors (Manish Kumar) OFO(GD) ID-068631-FIP Rupaidiha Dated 04.08.2012."
---------------------------------------------- Thus, on the whole even while taking into account the explanation dated 04/08/2012 offered by the Applicant with regards to the Charge Memorandum we are unable to side the Applicant as to the reasons forwarded by him with regards to the same. Hence on grounds of fact we hold the Applicant as having committed unjustified acts during the period of his training.
7. We may now advert to the legal grounds by which the Applicant has challenged the termination order. The same reads as under:
Annexure -1 of O.A. "No. 18/1/2013-Pers. 9 Government of India Cabinet Secretariat Room No. 7, Bikaner Hose (Annexed) Shahjahan Road, New Delhi ORDER In pursuance of the proviso to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service ) Rules, 1965 and Rule 142(1) of R&AW(RC&S) Rules, 19j75, I, Ravi Sinha, Joint Secretary (Pers.) hereby terminate the services of Sh. Manish Kumar, DFO(GD), ID. No. 06863-L with immediate effect and direct that he shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of notice at the same rates at which he was drawing them immediately before the termination of his service, or, as the case may be, for the period by which such notice falls short of one month.
Station: Delhi
Date: (Ravi Sinha)
Joint Secretary (Pers.)"
Page 35 of 61
CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors
Evidently it is passed under Central Civil Services (Temporary Service ) Rules, 1965 and Rule 142(1) of R&AW(RC&S) Rules, 1975(referred to as 'TS rules' in short hereinafter). It is important to examine the impugned order with respect to the Rule 5(1) of Central Civil Service (Temporary Service) Rules, 1965 and Rule 142 (1) of R&AW (RC&S) Rules, 1975 relevant portions of which are extracted below:-
"Rule 5(1) of CCS (TS) Rules, 1965:" The services of a temporary Govt. servant shall be liable to terminate at any time by notice of one month in writing giving either by the Government servant to the appointing authority or by the appointing authority to the Government servant.
Provided that the service of any such Government servant may be terminated forthwith and on such termination, the Government servant shall be entitled to claim 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 service or as the case may be , for the period such notice falls short of one month."
Rule 142 (1) of R&A (RC&S) Rules, 1975: A probationer shall be liable to be terminated from service at any time without notice if he fails to obey and order which he may receive from the appointing authority or such other authority as is empowered to issue such orders to him or if in the opinion of the appointing authority, he was wilfully neglected his probationary studies or duties or is guilty of conduct unbecoming of an offer of the service/cadre to which hews been appointed."
Evidently the Proviso to Rule 5[1] provides for termination forthwith subject to grant of one month pay and related allowances. This provision when read with the impugned order makes it clear that the order is legally correct inasmuch that it is a termination under the Proviso and fulfils conditions of one month pay etc with respect to conditions set out in the Proviso. Page 36 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors As regards Rule-142, it provides for termination of services of a probationer on grounds of unsatisfactory probationary duties. The Charge Memorandum clearly states in the Imputation statement that it is proposed to take action against the Applicant for his absence as from 13/07/2012. Relevant portion is reproduced below:
"STATEMENT OF IMPUTATION OF MISCONDUCT Shri Manish Kumar DFO (GD) is absent from his place of posting that is Rupaidiha since 13.07.2012 without any leave / permission of the competent authority.He was directed on 24.07.2012 to report for duty immediately and submit explanation within three days and also informed disciplinary action will be initiated against under CCS CCA rules . He has neither not reported for duty not submitted his explanation.
2. His past record revealed that he was absent without permission a number of times ------- and was verbally reprimanded by the Deputy Commissioner several times. He has not mended his conduct and again left the station without prior permission/s sanction
3.The above conduct of Shri Manish Kumar DFO(GD) is an act unbecoming of a government servant and that amounts to gross disregard to office discipline Piyush Goyal Additional commissioner "
Therefore, this would fall in the category of unsatisfactory duties. The Respondents have issued a Charge Memorandum even when the same is not ordained by the Rule-142 specifically. So, opportunity of hearing is given and this condition is fulfilled. The previous written warnings as highlighted in the discussions heretofore in this judgement, need no further elaboration with respect to any lack of opportunity of hearing. The extension of the probation is an opportunity enough for the Applicant to get on full alert that he Page 37 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors is in deep waters qua his satisfactory service no matter what he may view and feel with regards to same in light of the various periods of absence recorded against him. So factually all conditions with respect to opportunity of hearing are satisfied. The law itself is clear with respect to provisions for termination of a probationer. That the applicant is still not confirmed in the job is self-evident and needs no proof. The appointment letter dated 07/12/2009 [Annexure -1 of the Compilation-II] in its condition a) that the appointment is purely temporary and in condition b) it is stated that it can be terminated at any time by a month's notice. Hence on this count no further leeway can be given with respect to interpreting the termination order in whatever way possible with respect to the Applicant. Consequently provisions of Article 311 need not be called into question because the TS rules are made under Article 309 and incorporate within them all aspects required to meet the conditions of Article 311. The TS rules themselves have not been challenged by the Applicant and so they hold their field. Willy-nilly we cannot find any fault with the legal aspects of the order and the procedure adopted to implement them.
8. Now we may examine the citations given by the Applicant to help him in his assertions.
[i] In the matter of Moti Ram Deka vs GM NEF Railway cited we note that Moti Ram was a peon employed by the North East Frontier Railway and Sudhir Kumar Das was a confirmed clerk. Page 38 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors General Manager, North East Frontier Railway, terminated their services under R. 148(3) of Indian Railway Establishment Co Vol. 1.They challenged the termination of their services but the writ petitions were rejected by the Assam High Court and they filed a SLP in the Hon Apex Court. Evidently this is a citation concerning a permanent employee and so it cannot cover the case at hand which is with respect to terminating services of a probationer under TS rules.
[ii] In the matter of Purshottam Lal Dhingra v. Union of India cited it concerns a case wherein the appellant was first of all a permanent employee in the Indian Railway Service as a Signaller (Telegraphist) in 1924and was promoted to the post of Chief Controller in 1950. It is very well that the citation dwells on the rights of a person in temporary or permanent service qua the Article 311. However, it is to be noted that the SLP was first of all dismissed finally by the Hon Apex Court as per quote extracted below and more so in the present case, opportunity of hearing has been given per the Charge Memorandum issued under the TS rules and the Applicant even replied to the same which was considered duly and then only the impugned passed. So there was no lack of opportunity of hearing and as already discussed heretofore above, the conditions pertaining to Article 311 stand covered.
The other citations only try to run the point of opportunity of hearing to be provided to any class of employee Page 39 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors and which point is adequately addressed in this judgement as already discussed earlier. We see no point in rubbing the issue again and again and indeed flogging a dead horse.
We also note that the impugned is not a stigmatic order so no defence can be taken on that count. And if it is asserted that even if the order is non-stigmatic on the face but behind the veil there is a motive of punishment then we refer to the rights of a probationer as held by the Hon' High Court Delhi in the matter of Maneesh Kumar vs Commissioner Of Police &Anr. on 16 September, 2014 in which the services of the petitioner were terminated by resort to Rule 5(1) of the CCS (Temporary Service) Rules, 1965 and with regards it was held as under:
"...25. The applicant was only a probationer, and it is trite law that probationer does not have any right to claim that a detailed disciplinary inquiry ought necessarily to be conducted in case of any malfeasance on the part of the probationer, and that the services of a probationer can be terminated, at any time, without notice, whenever such termination is not by way of stigma.
The Hon Apex Court in the matter of Union Of India &Ors vs Shri Bihari Lal Sidhana on 25 March, 1997concerning Temporary Service rule 5[1] held as under:
"..As stated earlier, it would be open to the appropriate competent authority to take a decision whether the enquiry into the conduct is required to be done before directive reinstatement of appropriate action should be taken as per law, if otherwise, available. Since the respondent is only a temporary Government servant, The power being available under Rules, it is always open a temporary Government servant, the power being available under rules, it is always open to the competent authority to invoke the said power and terminate the service of the employee instead of conducting there enquiry or to continue in service a Government servant accused of defalcation of public money. Reinstatement would Page 40 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors be a charter for him to indulge with impunity in misappropriating of public money.
Under these circumstances, the Division Bench of the High court was clearly in error in directing payment of the compensation which amounts to premium for misconduct.
The appeal is accordingly allowed. The judgment of the Division Bench stands set aside and that of the learned single Judge stands confirmed. The writ petition stands dismissed..."
Then again the Hon Apex Court in the matter of Shri Hukam Chand Khundia vs Chandigarh Administration on 9 October, 1995, Equivalent citations: 1995 SCC (6) 534, 1995 SCALE (6)125 held as under:
"..The order of termination of the service of the petitioner was challenged by filing an application under Section 19 of the Administrative Tribunal Act, 1985 before the Central Administrative Tribunal, New Delhi. Such application has been dismissed by the impugned order. The applicant was appointed Judge, Chandigarh, vide order dated March 17, 1982. He was continuing in temporary service on probation put it appears that his service was not found satisfactory and as a matter of fact on a number of occasions he was found by the successive judicial officers under whom the applicant was working that his integrity was questionable. Considering his service records, the temporary service of the applicant has been terminated.
Mr. P.P. Rao, the learned senior counsel appearing for the petitioner has submitted that if termination has in fact been effected by way of punishment, the real purpose of the order and not the outer form of it, is required to be looked into by piercing the veil, He has submitted that if on the score of misconduct, the service, is terminated without holding by departmental proceeding and giving the petitioner a chance of showing cause, the order of parte termination of service on the ground of misconduct is illegal and void. Even in the case of temporary service, the provisions of Article 311 of the Constitution of India is applicable. In support of such contention, reference has been made to the decision of this Court in Jarnail Singh and Ors. etc. versus State of Punjab (1986 (2) SCR 1022). It, however, appears to us that no discriminatory treatment has been meted out to the petitioner as was done to the employee concerned in the said decision. It appears that the service of the petitioner was found unsatisfactory for the reasons indicated hereinbefore. Since the petitioner was holding a temporary service and was on probation, an order of termination simplicitor has been passed without attaching any stigma against him. As the service records were found unsatisfactory, the termination order cannot be held arbitrary and dapricious. In the aforesaid facts, we do not thing that in reality an order of punishment has been passed against the petitioner in the clocks or pretence of Page 41 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors termination simplicitor without holding any departmental proceeding thereby violating. Article 311 of the Constitution. We therefore. find no merit in this petition and the same is dismissed..."
Similarly in the matter of Raj Kumar V. Union Of India &Ors [1975] In SC 80; AIR 1975 SC 536; 1975 (3) SCC 458 (19 March 1975) the Hon Apex Court held as under:
"..When action is taken against him under the relevant rules which enable the authorities concerned to terminate his temporary service, without assigning any reason the Court would not go into the reasons which led to the appellant's services being terminated. ............................ The appeal is therefore dismissed but in the circumstances there will be no order as to costs..."
The Hon Apex Court in the matter of State Of Uttar Pradesh And Anr vs Kaushal Kishore Shukla on 11 January, 1991,Equivalent citations: 1991 SCR (1) 29, 1991 SCC (1) 691 held as under:
"...This appeal is directed against the judgment of the Allahabad High Court (Lucknow Bench) setting aside the order dated 23.9.1980 terminating the respondent's services.
The sole question which falls for consideration in this appeal is whether the order dated 23.9.1980 terminating the respondent's services, who was admittedly an ad-hoc and temporary employee is vitiated in law. The High Court has held that since juniors to the respondent were retained in service while the respondent's services were terminated, the order of termination was discriminatory in nature. It further held that since the order of termination was founded on an adverse entry awarded to the respondent his character roll without giving him any opportunity on the ground that he was not suitable, the order "cannot be said to be a decision given in good faith." The High Court further observed: "Even if any punishment was to be awarded, it should have been proportionate to the alleged offence , if any." On these findings the High Court held that the order of termination suffered from apparent error of law, it accordingly allowed the respondent's writ petition and quashed the order of termination.
A temporary Govt. Servant has no right to hold the post, his services are liable to be terminated by giving him one month's notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary Govt. servants. A temporary Govt. servant can, however, be dismissed from service by way of punishment. Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not Page 42 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors satisfactory of that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary Government servant. if it decides to take punitive action may hold a formal inquiry by framing charges and giving opportunity to the Govt. servant in accordance with the provisions of Art. 311 of the Constitution. since, a temporary Govt. servant is also entitled to the protection of Article 311(2) in the same manner as a permanent Govt. servant, very often, the question arises whether an order of termination is in accordance with the contract of service and relevant rules regulating the temporary employment or it is by way of punishment. It is now sell-settled that the form of the order is not conclusive and it is open to the Court to determine the true nature of the order. in Parshotam Lal Dhingra v. Union of India,[1958] SCR 828 a Constitution Bench of this Court held that the mere use of expressions like 'terminate' or 'discharge' is not conclusive and in spite of the use of such expressions, the Court may determine the true nature of the order to ascertain whether the action taken against the Govt. servant is punitive in nature. The Court further held that in determining the true nature of the order the Court should apply two tests namely: (1) whether the temporary Govt. servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the order of termination of a temporary Govt. servant is by way of punishment. It must be borne in mind that a temporary Govt. servant has no right to hold the post and termination of such a Govt. servant does not visit him with any evil consequences. The evil consequences as held in Parshotam Lal Dhingra's case (supra) do not include the termination of services of a temporary Govt. servant in accordance with the terms and conditions of service. The view taken by the Constitution Bench in Dhingra's case has been reiterated and affirmed by the Constitution Bench decisions of this Court in the State or Orrisa and anr. v. Ram Narayan Das, [1961] 1 SCR 606; R.C. Lacy v. The State of Bihar &Ors., C.A. No. 590/62 decided on 23.10.1963; ChampaklalChimanlal Shah v. The Union of India, [1964] 5 SCR 190; Jagdish Mitter v. The Union of India, [1964] AIR SC 449; A.G. Benjamin v. Union of in`ia, C.A. No. 1341/66 decided on 13.12.1966 and Shamsher Singh &Anr. v. State of Punjab,[1975] 1 SCR 814, These decisions have been discussed and followed by a three Judge Bench in State of Punjab &Anr. v. Shri Sukh Raj Bahadur, [1968] 3 SCR 234.
Learned counsel for the respondent urged that the allegations made against the respondent in respect of the audit of Boys Fund of an educational institution were incorrect and he was not given any opportunity of defence during the inquiry which was held ex-parte. had he been given the opportunity, he would have placed correct facts before the inquiry officer. His services were terminated on allegation of misconduct founded on the basis of an ex-parte enquiry report. He further referred to the allegations made against the respondent in the counter-affidavit filed before the High Court and urged that these facts demonstrate that the order of termination was in substance, an order of termination founded on the allegations of misconduct, and the ex parte enquiry report. In order to determine this question, it is necessary to consider the nature of the respondent's right to hold the post and to ascertain the nature and purpose of the inquiry held against him. As already observed, the respondent being a temporary Govt. servant had no right to hold the post, and the competent authority terminated his services by an innocuous order of termination without casting any stigma on him. The termination order does not indict the respondent for any misconduct. The inquiry which was held against the respondent was preliminary in nature to ascertain the respondent's suitablity and continuance in service. There was no element of punitive Page 43 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors proceedings as no charges had been framed, no inquiry officer was appointed, no findings were recorded, instead a preliminary inquiry was held and on the report of the preliminary inquiry the competent authority terminated the respondent's services by an innocuous order in accordance with the terms and conditions of his service. Mere fact that prior to the issue of order of termination, an inquiry against the repondent in regard to the allegations of unauthorised audit of Boys Fund, was held does not change the nature of the order of termination into that of punishment as after the preliminary inquiry the competent authority took no steps to punish the respondent instead it exercised its power to terminate the respondent's services in accordance with the contract of service and the Rules.
In State of Orissa &Anr. v. Ram NarainDass, [1961] 1 SCR 606 a Constitution Bench of this court considered the question and indicated "the fact of the holding of an inquiry is not decisive of the question. What is decisive is whether the order is by way of punishment in the light of the tests laid down in Purshottam Lal Dhingra's case."
In Jagdish Mitter's case (supra) a Constitution Bench of this Court held that every order terminating the services of a temporary public servant does no amount to dismissal or removal from service merely because an inquiry was held before the order of termination was passed. The Court observed that the appropriate authority has power to terminate a temporary public servant either by discharging him under the terms of contract or the relevant rules or by holding departmental disciplinary inquiry and dismissing him from service. Before passing order of termination the competent authority may hold inquiry in fairness to ascertain whether the temporary servant should be continued in service or not. While discussing the nature of preliminary inquiry the Court observed as under:
"There is no element of punitive proceedings in such an enquiry; the idea in holding such an enquiry is not the punish the temporary servant but just to decide whether he deserves to be continued in service or not. If as a result of such an enquiry, the authority comes to the conclusion that the temporary servant is not suitable to be continued, it may pass a simple order of discharge by virtue of the powers conferred on it by the contract or the relevant rule; in such a case, it would not be open to the temporary servant to invoke the protection of Art. 311 for the simple reason that the enquiry which ultimately led to his discharge was held only for the purpose of deciding whether the power under the contract or the relevant rule should be exercised and the temporary servant discharged."
In Champaklal chiman lal Shah's case (supra) the appellant therein was a temporary employee of the Union Government. His services were terminated without assigning any reasons and without affording him opportunity of showing-cause. Before passing the order of termination the competent authority had issued a notice to ChampaklalChimanlal Shah calling upon him to explain certain irregularities and to show-cause why disciplinary action should not be taken against him. In response to the notice, he submitted his explanation thereupon, certain preliminary enquiries were held, but he was not given opportunity to place his case during the preliminary enquiry. However, after the preliminary enquiry to regular departmental enquiry was held instead proceedings for departmental enqiury were dropped and the services of Chimanlal Shah were terminated in accordance with the terms and conditions of service of a temporary Govt. servant. The termination order was assailed on the ground that the order of termination was in substance an order of punishment. the Constitution Bench held that the order of termination was not an order of punishment and the appellant was not entitled to the protection Page 44 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors of Article 311(2) of the Constitution. The Court emphasised that when a preliminary enquiry is held against a temporary Govt. employee, it must not be confused with the regular departmental inquiry which usually follows the preliminary inquiry, after the government decides to frame charges and to get a departmental enquiry made, with a view to inflict one of the three major punishments on the Govt. servant. So far as the preliminary enquiry is concerned, there is no question of it being governed by Article 311(2) of the Constitution, as it is made for the purpose of collection of facts to enable to the competent authority to decide whether punitive action should be taken or action should be taken in terms and under the contract of service or the rules applicable to a temporary government servant. A Govt. servant has no right to insist for affording him opportunity during such enquiry and such an ex-parte enquiry is not initiated in law in view of the purpose and object of preliminary enquiry. On an elaborate discussion, the Court observed as under:
"In short a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under Art. 311 for inflicting one of the three major punishments mentioned therein. Such a preliminary enquiry may even be held ex parte for it is merely for the satisfaction of government, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry. But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the Government, and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of Art. 311 and all the rights that protection implies as already indicated above. There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments. indicated in art. 311 that the government servant is entitled to the protection of that Article. That is why this Court emphasised in Parshotam Lal Dhingra's case (supra) and in Shyamlal v. The State of Uttar pradesh, [1955] 1 SCR 26 that the motive or the inducing factor which influences the government to take action under the terms of the contract of employment or the specific service rule is irrelevant."
The above principles were reiterated by another Constitution Bench of this Court in R.C. Lacy's case (supra) dealing with the case of reversion of a permanent Govt. servant officiating on a higher post. The Bench observed that the Government might find it necessary to terminate the services of a temporary employee if it is not satisfied with the conduct or work of an employee and the same reasoning applies to a public servant who is reverted from a higher post to his substantive lower post, if the higher post was held in a temporary nature. Before terminating the services of a temporary servant or reverting the person officiating in a higher post to his substantive post, the Govt. may hold a preliminary enquiry to form the requisite satisfaction for the continuance of the officiating govt. servant. Such an inquiry does not change the nature of the order of the termination or reversion. In A.G. Benjamin's case (supra) the appellant was temporarily employed as a Store Officer in the Central Tractor Organisation, his services were terminated under the Central Civil Service (Temporary Service) Rules, 1949 by granting him one month's salary in lieu of notice. A .G. Benjamin contended that the order of termination was in fact an order of punishment, which had been passed without affording him the protection under Article 311(2) of the Page 45 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors Constitution. In that case before the issue of termination order, a notice had been issued to Benjamin for showing- cause as to why disciplinary action should not be taken on the allegations made against him in respect of which the charges had been framed and an enquiry officer had been appointed. After the charges were framed and the explanation of Benjamin was obtained, the Chairman of the Central Tractor Organisation submitted a note to the Government that the departmental proceedings may take much longer time and he was not sure that after going through all the formalities of departmental enquiry Benjamin will be dealt in the way he deserved, therefore, he suggest that action should be taken under Rule 5 of the Central Civil Service (Temporary Service) Rules, 1949 for terminating his services by giving him one month's salary in lieu of notice as he was a temporary Govt. servant. The Minister concerned accepted the recommendations, whereupon, order of termination was issued terminating the services of Benjamin. While assailing the order of termination, it was seriously contended before this Court that in view of the charges being framed and the enquiry officer having been appointed the order of termination in substance was an order of punishment and the recourse to the temporary service rules had been taken only to circumvent Art. 311 of the Constitution. The Constitution Bench repelled the contention and held that the preliminary enquiry held against the Govt. servant must not be taken to mean that the Govt. had taken decision to inflict major punishment on Benjamin. The Court held that no temporary Govt. servant is entitled to opportunity in the preliminary inquiry as "there is no element of punitive proceedings in such an inquiry; the idea in holding such an inquiry is not to punish the temporary government servant but just to decide whether he deserves to be continued in service or not." Further the Constitution Bench held that even if formal departmental inquiry is initiated against the temporary Govt. servant, it is open to the competent authority to drop further proceedings in the departmental enquiry against the temporary govt. servant and to have recourse to Rules applicable to a temporary Govt. servant for terminating his services. The Court observed as under:
"If therefore the authority decides, for some reason, to drop the formal departmental enquiry even though it had been initiated against the temporary govt. servant, it is still open to the authority to make an order of discharge simpliciter in terms of the contract of service or the relevant statutory rule. In such cases the order of termination of services of the temporary govt. servant which in form and in substance is no more than his discharge affected under the terms of contract or the relevant rule cannot, in law, be regarded as his dismissal, because the appointing authority was actuated by the motive that the said servant did not deserve to be continued in service for some alleged inefficiency or misconduct." We have referred to the above decision in detail to dispel any doubt about the correct position of low. It is erroneous to hold that where a preliminary enquiry into allegations against a temporary govt. servant is held or where a disciplinary enquiry is held but dropped or abandoned before the issue of order of termination, such order is necessarily punitive in nature.
Learned counsel for the respondent placed reliance on the decisions of this Court in Nepal Singh v. State of U.P. &Ors., [1985] 1 SCC 56 and Ishwar Chand Jain v. High Court of Punjab & Haryana &Anr., [1988] 3 SCC 370 in support of his contention that the termination order is punitive in nature. In Nepal Singh's case a disciplinary inquiry was instituted against Nepal Singh who was a temporary sub- Inspector of Police, on the charge of having contracted a second marriage during the life time of his first wife without prior permission of the Government in violating of Rule 29 of the U.P. Government Servants' Conduct Rules, 1956. Before any finding could be rendered the Page 46 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors inquiry was dropped for want of territorial jurisdiction of the concerned Superintendent of Police, and thereafter, his services were terminated in accordance with the rules applicable to the temporary Government servants by giving him one month's pay in lieu of notice. nepal Singh unsuccessfully challenged the order of termination before the High Court, but his appeal was allowed by a three Judge Bench of this Court. This Court quashed the order of termination on three grounds. Firstly,it held that the order of termination was arbitrary, violative of Articles 14 and 16 of the Constitution as power of termination had not been exercised honestly, in good faith for valid considerations. Secondly, the grounds mentioned in the report of the superintendent of Police on the basis of which the services of the Sub-Inspector had been terminated were mere allegations and there was no definite material for terminating his services. Thirdly, the Court held that since the inquiry against Nepal Singh on the charges had been dropped for want of jurisdiction and since no attempt was made to institute a proper inquiry, instead his services were terminated on the allegation of misconduct the order of termination was violative of Article 311(2) of the Constitution. The Court further held that the termination order had been passed to circumvent the constitutional provision of Art. 311(2) of the Constitution. The facts and circumstances in Nepal Singh's case were quite different than those in the instant case. However, Nepal Singh's case is no authority for the proposition that the services of an ad-hoc and temporary employee cannot be terminated even if the competent authority on an assessment of the work and the conduct of the employee finds him unsuitable for the service. The Court's observations in Nepal Singh's case that since the enquiry against nepal Singh on certain charges was dropped and his services were terminated under the rules applicable to the temporary govt. servant with a view to circumvent the protection of Art 311(2) of the Constitution and as such the order of termination was illegal, must be confined to the facts of that case. It appears that he decisions in the case of Champaklal (supra) and R.C. Lacy (supra) and the principles laid down therein were not brought to the notice of the Bench. Had those decisions been placed before the Court, the finding that the termination order had been passed to circumvent the provision of Art. 311(2) merely because departmental inquiry was dropped and the termination order had been passed, may not have been made. The decision of Nepal Singh's case in this regard is per incurium. In Ishwar Chand Jain's case the order of termination of Probationary Judicial Officer was set aside by this Court on the ground that no relevant material had been taken into consideration in assessing the satisfactory nature of the work and conduct of the Officer on probation. The Court held that some of the material which had been taken into account in adjudging the Judicial Officer's work and conduct as unsatisfactory was not relevant. The decision has no relevance to the instant case. We are, therefore, of the opinion that neither of the two cases relied upon by the respondent lend any support to his case. On the other hand our view is fully supported by the decision of three Judge Bench of this Court in R.K. Misra v. U.P. State Handloom Corporation, [1988] 1 SCR 501.
In the instant case the repondent was a temporary Government servant and there was adverse report regarding his work which was reflected in the adverse remarks made for the year 1977-78. The competent authority held a preliminary inquiry in the allegations of improper conduct in carrying out unauthorised audit of Boys Fund of an educational institution, On result of the preliminary enquiry no charges were framed against the respondent, no officer was appointed for holding the departmental inquiry instead the competent authority chose to terminate the respondent's services in exercise of its power under the terms of contract as well as under the relevant rules applicable to a temporary Govt. servant. It never intended to dismiss the respondent from Page 47 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors service. Holding of preliminary inquiry does not affect the nature of the termination order. The allegations made against the respondent contained in the counter-affidavit by way of a defence filed on behalf of the appellants also do not change the nature and character of the order of termination. The High Court failed to consider the question in proper perspective and it interfered with the order of termination in a casual manner.
We, accordingly, allow the appeal and set aside the order of the High Court and dismiss the respondent's Writ Petition. There will be no order as to costs..."
9. Separately what the Applicant has not asserted is the doctrine of proportionality. We note that the termination during probationary period is due to periods of absence from duty. While it can be said that the termination is a rather harsh punishment the same cannot be carried forth without infirmity inasmuch that we have seen the entire period of the Applicant during training is splashed red with intransigencies of absence without strong convincing grounds. We shudder to imagine what would happen when such intransigence is overlooked. In this connection the leading case is of Om Kumar AndOrs vs Union Of India on 17 November, 2000 in which this doctrine was dealt at with length. Relevant portions are cited below:
"....We agree that the question of the quantum of punishment in disciplinary matters is primarily for the disciplinary authority and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the well known principles known as Wednesbury principles. (See Associated Provincial Picture Houses v. Wednesbury Corporation (1948) 1 KB 223. This Court had occasion to lay down the narrow scope of the jurisdiction in several cases. The applicability of the.principle of 'proportionality' in Administrative law was considered exhaustively in Union of India v. Ganayutham, [1997] 7 SCC 463 where the primary role of the administrator and the secondary role of the Courts in matters not involving fundamental freedoms, was explained.
We shall, therefore, have to examine the cases of Sri Om Kumar and of Sri Virendra Nath from the stand point of basic principles applicable under Administrative Law, namely, Wednesbury principles and the doctrine of Page 48 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors proportionality. It has, therefore, become necessary to make reference to these principles and trace certain recent developments in the law.
I (a) Wednesbury principle:
Lord Greene said in 1948 in the Wednesbury case that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or other of the following conditions were satisfied-namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken. These principles were consistently followed in UK and in India to judge the validity of administrative action. It is equally well known that in 1983, Lord Diplock in Council for Civil Services Union v. Minister of Civil Services, (1983) 1 AC 768 (called the GCHQ case) summarised the principles of judicial review of administrative action as based upon one or other of the following-viz. Illegality, procedural irregularity and irrationality. He, however, opined that 'proportionality' was a 'future possibility.'
(b) Proportionality:
The principle originated in Prussia in the nineteenth Century and has since been adopted in Germany, France and other European countries. The European Court of Justice at Luxembourg and the European Court of Human Rights at Strasbourg have applied the principle while judging the validity of administrative action. But even long before that, the Indian Supreme Court had applied the principle of 'proportionality' to legislative action since 1950, as stated in detail below.
By 'proportionality', we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the legislature and the administrative authority 'maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve'. The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what is meant by proportionality.
The above principle of proportionality has been applied by the European Court to protect the rights guaranteed under the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 and, in particular, for considering whether restrictions imposed were restrictions which were 'necessary'-Within Articles 8 to 11 of the said convention (corresponding to our Article 19(1) and to find out whether the restrictions imposed on fundamental freedoms were more excessive than required. (Handyside v. UK, (1976) I EHR p.
737. Articles 2 and 5 of the Convention contain provisions similar to Article 21 of our Constitution relating to life and liberty. The European Court has applied the principle of proportionality also to questions of discrimination under Article 14 of the Convention (corresponding to Article 14 of our Constitution). (See European Administrative Law by J. Schwarze, 1992, pp. 677-866.
(II) Proportionality and Legislation in U.K. & India:
On account of a Chapter on Fundamental Rights in Part III of our Constitution right from 1950, Indian Courts did not suffer from the disability similar to the one Page 49 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors experienced by English Courts for declaring as unconstitutional legislation on the principle of proportionality or reading them in a manner consistent with the charter of rights. Ever since 1950, the principle of 'proportionality' has indeed been applied vigorously to legislative (and administrative action) in India. While dealing with the validity of legislation infringing fundamental freedoms enumerated in Article 19(1) of the Constitution of India-such as freedom of speech and expression, freedom to assessable peacably, freedom to form associations and unions, freedom to move freely throughout the territory of India, freedom to reside and settle in any part of India-this court had occasion to consider whether the restrictions imposed by legislation were disproportionate to the situation and were not the least restrictive of the choices. The burden of proof to show that the restriction was reasonable lay on the State. 'Reasonable restrictions' under Article 19(2) to (6) could be imposed on these freedoms only by legislation and Courts had occasion throughout to consider the proportionality of the restrictions. In numerous judgments of this court, the extent to which 'reasonable restrictions' could be imposed was considered. In Chintaman Rao v. State of U.P., [1950] SCR 759, Mahajan J, (as he then was) observed that 'reasonable restrictions' which the State could impose on the fundamental rights 'should not be arbitrary or of an excessive nature, beyond what is required for achieving the objects of the legislation.' 'Reasonable' implied intelligent care and deliberations, that is, the choice of a course which reason dictated. Legislation which arbitrarily or excessively invaded the right could not be said to contain the quality of reasonableness unless it struck a proper balance between the rights guaranteed and the control permissible under Article 19(2) to (6). Otherwise, it must be held to be wanting in that quality. Patanjali Sastri CJ in State of Madras v. V.S. Row, [1952] SCR 597, observed that the Court must keep in mind the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions of the time. This principle of proportionality vis-a-vis legislation was referred to by Jeevan Reddy J in State of A.P. v. MC Dowell & Co., [1996] 3 SCC 709 recently. This level of scrutiny has been a common feature in the High Court and the Supreme Court in the last fifty years. Decided cases run into thousands.
Article 21 guarantees liberty and has also been subjected to principles of 'proportionality'. Provisions of Criminal Procedure Code, 1974 and the Indian Penal Code came up for consideration in Bachan Singh v. State of Punjab, [1980] 2 SCC 684, the majority upholding the legislation. The dissenting judgment of Bhagwati J See [1982] 3 SCC 24 dealt elaborately with 'proportionality' and held that the punishment provided by the statute was disproportionate.
So far as Article 14 is concerned, the Courts in India examined whether the classification was based on intelligible differentia and whether the differentia had a reasonable nexus with the object of the legislation. Obviously, when the Court considered the question weather the classification was based on intelligible differentia, the Courts were examining the validity of the differences and the adequacy of the differences. This is again nothing but the principle of proportionality. There are also cases where legislation or rules have been struck down as being arbitrary in the sense of being unreasonable See Air India v. NergeshMeerza and Ors.. [1981] 4 SCC 335 at 372-373. But this latter aspect of striking down legislation only on the basis of 'arbitrariness' has been doubted in State of A.P. v. Mc Dowell and Co., [1996] 3 SCC 709. In Australia and Canada, the principle of proportionality has been applied to test the validity of statutes [See Cunliffe v. Commonwealth, (1994) 68 Aust. L,J 791 (at 827, 839) (799, 810. 821). In R. v. Oakes. (1986) 26 DLR (4th) 200 Dickson, CJ of the Canadian Supreme Court has observed that there are three important Page 50 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors components of the proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Secondly, the means, must not only be rationally connected to the objective in the first sense, but should impair as little as possible the right to freedom in question. Thirdly, there must be 'proportionality' between the effects of the measures and the objective. See also Ross v. Brunswick School Dishut, No. 15 [1996] 1 SCR 825 at 872 referring to proportionality. English Courts had no occasion to apply this principle to legislation. Aggrieved parties had to go to the European Court at Strasbourg for a declaration.
In USA, in City of Boerne v. Flares. [1997] 521 U.S. 507, the principle of proportionality has been applied to legislation by stating that "there must be congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end".
Thus, the principle that legislation relating to restrictions on fundamental freedoms could be tested on the anvil of 'proportionality' has never been doubted in India. This is called 'primary' review by the Courts of the validity of legislation which offended fundamental freedoms.
IIIA Proportionality and Administration Action (In England):
In Administrative Law, the principle of 'proportionality' has been applied in several European Countries. But, in England, it was considered a future possibility in the GCHQ case by Lord Diplock. In India, as stated below, it has always been applied to administrative action affecting fundamental freedoms.
(i) From Wednesbury to strict scrutiny or proportionality:
The development of the principle of 'strict Scrutiny" or 'proportionality' in Administrative Law in England is, however, recent. Administrative action was traditionally being tested on Wednesbury grounds. But in the last few years, administrative action affecting the freedom of expression or liberty has been declared invalid in several cases applying the principle of 'strict scrutiny'. In the case of these freedoms, Wednesbury principles are no longer applied. The Courts in England could not expressly apply proportionality in the absence of the Convention but tried to safeguard the rights zealously by treating the said rights as basic to the Common Law and the Courts then applied the strict scrutiny test. In the Scatcher Case Alt. General v. Guardian Newspapers Ltd., (No.2) (1990) 1 AC 109 (at pp. 283-284), Lord Goff stated that there was no inconsistency between the Convention and the Common Law. In Derbyshire Country Council v. Times Newspapers Ltd., (1993) AC 534, Lord Keith treated freedom of expression as part of Common Law, Recently, in R v. Secretary of State for Home Department, Ex P. Simms, [1999] 3 All ER 400 (H.L.), the right of a prisoner to grant an interview to a journalist was upheld treating the right as part of the Common Law. Lord Hobhouse held the policy of the administrator was disproportionate. The need for a more intense and anxious judicial scrutiny in administrative decisions which engage fundamental human rights was re- emphasised in R v. Lord Saville Ex. pt., [1999] 4 All ER 860 870, 872 CCA. In all these cases, the English Courts applied the 'strict scrutiny' test rather than describe the test as one of 'proportionality'. But, in any event, in respect of these rights 'Wednesbury' rule has ceased to apply.
(ii) Brind and proportionality: Primary and Secondary review:Page 51 of 61
CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors However, the principle of 'Strict Scrutiny' or 'proportionality' and primary review came to be explained in R v. Secretary of State for the Home Department, ex. P. Brind, (1991) 1 A.C. 696. That case related to directions given by the Home Secretary under the Broadcasting Act, 1981 requiring BBC and IBA to refrain from broadcasting certain matters through persons who represented organisations which were prescribed under legislation concerning the prevention of terrorism. The extent of prohibition was linked with the direct statement made by the members of the organisations. It did not however, for example, preclude the broadcasting by such persons through the medium of a film, provided there was a 'voice-over' account, paraphrasing that they said. The applicant's claim was based directly on the European Convention of Human Rights. Lord Bridge noticed that the Convention rights were not still expressly engrafted into English Law but stated that freedom of expression was.basic to the Common Law and that, even in the absence of the Convention, English Courts could go into the question (See p. 748-749).
"........ Whether the Secretary of State, in the exercise of his discretion could reasonably impose the restriction he has imposed on the broadcasting organisations"
and that the Courts were "not perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and nothing less than an important public interest will be sufficient to justify it."
Lord Templeman also said in the above case that the Courts could go into the question whether a reasonable minister could reasonably have concluded that the interference with this freedom was justifiable. He said that 'in terms of the Convention' any such interference must be both necessary and proportionate (ibid pp. 750-751).
In a famous passage, the seeds of the principle of Primary and Secondary review by Courts were planted in the Administrative law by Lord Bridge in the Brind case. Where convention rights were in question the courts could exercise a right of primary review. However, the Courts would exercise a right of secondary review based only on Wednesbury principles in cases not affecting the rights under the Convention. Adverting to cases where fundamental freedoms were not invoked and where administrative action was questioned, it was said that the Courts were then confined only to a secondary review while the primary decision would be with the administrator. Lord Bridge explained the primary and secondary review as follows:
"The primary judgment as to whether the particular competing public interest justifying the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But, we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make the primary judgment".
(iii) Smith explains Proportionality further: Primary and Secondary roles of the Court The principle of proportionality and the primary role of the Courts where fundamental freedoms were involved was further developed by Simon Brown LJ.
in the Divisional Court in R.v. Ministry of Defence. Exp. Smith, (1996) Q.B. 517 at 541 as follows. Adverting to the primary role of the Court in cases of freedoms under the Convention, the learned Judge stated:
"If the Convention for the Protection of Human Rights and Fundamental Freedoms were part of our law and we are accordingly entitled to ask whether the policy answers a pressing social need and whether the restriction on human rights involved can be shown disproportionate to its benefits, then clearly the Page 52 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors primary judgment (subject only to a limited' margin of appreciation') would be for us and not for others; the constitutional balance could shift."
Adverting to the position (in 1996) i.e.-before the Convention was adopted-Simon Brown LJ Stated that the Courts had then only to play a secondary role and apply Wednesbury rules. The learned Judge said:
"In exercising merely secondary Judgment, this Court is bound, even though acting in a human rights context, to act with some reticence."
On appeal, the above principles were affirmed in the same case in R v. Ministry of Defence Exp. Smith, (1996) 1 All ER. 257 CA. In the Court of Appeal, Lord Bingham M.R. said the Court, in the absence of the Convention was not thrown into the position of the decision maker. Henry LJ (p- 272) stated as follows:
"If the Convention were part of our law, then as Simon Brown LJ said in the Divisional Court, the primary judgment on this issue would be for the judges. But Parliament has both given us the primary jurisdiction on this issue. Our present Constitutional role was correctly identified by Simon Brown LJ as exercising a secondary or reviewing judgment, as it is, in relation to the Convention, the only primary judicial role lies with the Europe Court at Strasbourg."
Thus, the principle of Primary review and proportionality on the one hand and the principle of secondary review and Wednesbury reasonableness on the other hand gave a new dimension to Administrative law, the former applying in the case of fundamental freedoms and the latter, in other cases.
(iv) Area of discretion of administrator-varies in different situations:
While the Courts' level of scrutiny will be more in case of restrictions on fundamental freedoms, the Courts give a large amount of discretion to the administrator in matters of high-level economic and social policy and may be reluctant to interfere: R v. Secretary of State for the Environment. Ex p. Nothinghanshore Country Council, (1986) AC 240: R v. Secretary of States for Environment, exp. Hammersmith and Fultan London Borough Council, (1991) 1 AC 521(597). Smith speaks of 'variable margin of appreciation'. The new Rule 1 of the Civil Procedure Rules, 1999 permits the Courts to apply 'proportionality' but taking into account the financial issues, complexities of the matter and the special facts of the case.
(v) Post-Smith and the Human Rights Act, 1998 After Smith, the English Human Rights Act, 1998 has since been passed and is to be effective from 2.10.2000. The possibility of the demise of Wednesbury rules so far as administrative action affecting fundamental freedoms are concerned, is now clearly visualised. (See Prof. R.P. Craig's Administrative Law. 4th Ed. 1999 pp. 585-586) Though the Act itself does not explicitly enjoin the English Courts to apply the test of 'proportionality', it is arguable that it is implicit because Section 2(1) (a) requires the Court to take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights when the Courts thinks it fit relevant to proceedings regarding Convention rights.
Under Article 3( 1) of the Human Rights Act, 1998, the English Court can now declare the legislative action as incompatible with the rights and freedoms referred to in the Schedule. The Minister is then to move Parliament for necessary amendment to remove the incompatibility. While doing so, the English Court, can now apply strict scrutiny or proportionality to legislative and administrative action. The principle is now treated as Central to English Law (See Human Rights Law and Practice by Lord Lester of Herne Hill, Q.C. & David Pannick Page 53 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors Q.C., (1999) Para 3.16). The more the threshold of Wednesbury irrationality is lowered when fundamental human rights are on play, the easier it will become to establish judicial review as an effective remedy with Article 13 of the 1998 Act (See, ibid, Supplement August, 2000) (Para 4.13.12). The Privy Council, in a case arising under the Constitution of the Republic of Trinidad and Tobago had occasion to deal with life and liberty and validity of certain instructions imposed by Government prescribing time limits for convicts of death sentence to submit representations to international bodies (as per Conventions ratified by the State). The privy Council held that the instructions were violative of 'porportionality' and due process. (See Thomas v. Baptists) (2000) 2 AC I at 20 (Per Lord Millet for majority). Recently, Lord Irvine of Lairg, the Lord Chancellor has explained the position of 'proportionality' after the Commencement of the English Human Rights Act, 1998. (See 'The Development of Human Rights in Britain under an Incorporated Convention on Human Rights) (1998 Public Law, 221) (at pp. 233-234). The difference between the approach of Courts in the cases governed by this Act and the traditional Wednesbury rules has been pointed out by the Lord Chancellor as Follows:
"Although there is some encouragement in British decisions for the view that the margin of appreciation under the Convention is simply the Wednesbury test under another guise, statements by the Court of Human Rights seem to draw significant distinction. The Court of Human Rights has said in terms that its review is not limited to checking that the 'national authority exercised its discretion reasonably, carefully and in good faith'. It has to go further. It has to satisfy itself that the decision was based on an "acceptable assessment of the relevant facts"
and that the interference was no more than reasonably necessary to achieve the legislative aim pursued".
Explaining 'Strict Scrutiny' or 'proportionality' as above, In the wake of the Human Rights Act, 1998, the Lord Chancellor referred to the Principles laid down by Simon Brown LJ in Ex.P. Smkith. In cases under the Human Rights Act, 1998, he said "a more rigorous scrutiny than the traditional judicial review will be required." The Lord Chancellor further observed:
"In areas where the Convention applies, the Court will be less concerned whether there has been a failure in this sense (i.e. Wednesbury sense) but will inquire more closely into the merits of the decision to see for example that necessity justified the limitations of a positive right, and that it was no more of a limitation than was needed. This is a discernible shift which may be seen in essence as a shift from form to substance."
*Thus, the principle of primary and secondary review respectively in Convention cases and non-convention cases has become more or less crystalised. These Principles were accepted in Ganayutham.
*See also Sir John Laws 'The Limitations of Human Rights in Britain: 1998 Public Law 254 (at 262,265): DavindPannick, Principles of Interpretation of Convention Rights under the Human Rights Act and the Discretionary area of judgment' 1998 Public Law 545 (at 549). Towards the Nut Cracking Principle. Reconsidering the objections to proportionality by Garreth Wong 2000 Public Law 92) (vi) The recent case in UK in ITF (1999):
While the English Courts were settling down to the principle of 'strict scrutiny' or 'proportionality' for review of administrative action touching fundamental freedoms, leaving Wednesbury principles to apply to other non-convention cases, a new approach has recently been made in a case decided by the House of Lords in R v. Chief Constable of Sussesc. ex.p. International Trader's Ferry Ltd., (1999) Page 54 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors 1 All E.R.129. In that case, the decision of the police not to provide the required help to the ITF for transport of goods across the English Channel by securing adequate police force to remove the activitist protesters from the scene,- was upheld. It was stated that the chief Police Constable had properly balanced the right to protest and the right to free movement of goods, by taking into consideration, the lack of finances and the number of policeman available and the risk of injury to protesters etc. (see a country view of our Supreme Court recently in Navinchandra N. Majithia v. Stale of Meghalaya and Ors.. JT [2000] Suppl. 1 SC 538).
In that connection, the House of Lords appeared to deviate and almost equate Wednesbury and proportionality. Lord Slynn for the majority after referring to Brind said that in 'Practice", ' Wednesbury reasonableness and proportionality' may mean the same, and that whichever test is adopted, the result is the same. Lord Cooke went further and said that Lord Greene's test in Wednesbury was 'tautologous and exaggerate' and he advocated a simpler test:
"was the decision one which a reasonable authority could reach?"
It must be said that the House of Lords has deviated both from proportionality and Wednesbury. This deviation, in our view, is likely to lead to considerable vagueness in the administrative law which has just now been crystallising. It is difficult for us to understand how the primary role of the Courts in cases involving fundamental freedoms and the secondary role of Courts in other cases not involving such rights and where Wednesbury rule is to be applied, can be equated.
In our opinion, the principles laid down in Brind and Exp. Smith and also as explained by the Lord Chancellor to which we have made reference earlier are more clear-cut and must be adhered to. A differentiation must, in our view, be respectively maintained between the Court's primary and secondary roles in Convention cases and non-Convention cases (see in this Connection see Prof. Craig, Admn. Law, 1999, 4th Ed. pp. 573, 589, 621 dealing with Lord Cooke's new test).
lll(b). Proportionality and Administrative Action in India:
(i) Fundamental Freedoms under Article 19(1) & Article 21.
In the Indian scene the existence of a charter of fundamental freedoms from 1950 distinguishes our law and has placed our Courts in a more advantageous position than in England so far as judging the validity of legislative as well as administrative action. We have already dealt with proportionality and legislation. Now, we shall deal with administrative decisions and proportionality. Now under Articles 19(2) to (6), restrictions on fundamental freedoms can be imposed only be legislation. In cases where such legislation is made and the restrictions are reasonable yet, if the concerned statute permitted the administrative authorities to exercise power or discretion while imposing restrictions in individual situations, question frequently arises whether a wrong choice is made by the administrator for imposing restriction or whether the administrator has not properly balanced the fundamental right and the need for the restriction or whether he has imposed the least of the restrictions or the reasonable quantum of restriction etc. In such cases, the administrative action in our country, in our view, has to be tested on the principle of 'proportionality', just as it is done in the case of the main legislation. This, in fact, is being done by our Courts.
Page 55 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors Administrative action in India affecting fundamental freedoms has always been tested on the anvil of 'proportionality' in the last fifty years even though it has not been expressly stated that the principle that is applied is the 'proportionality' principle. For example, a condition in a licence issued to a cinema house to exhibit, at every show, a certain minimum length of 'approved films' was questioned. The restriction was held reasonable [see R.M. Seshadri v. Dist. Magistrate Tanjore and Anr., AIR (1954) SC 747. Union of India v. Motion Picture Association, [1999] 6 SCC 150 also related, inter alia, to validity of licensing conditions. In another case, an order refusing permission to exhibit a film relating to the alleged obnoxious or unjust aspects of reservation policy was held violative of freedom of expression under Article 19 (1) (a) S. Rangarajan v. P. Jagjivan Ram and Ors., [1989] 2 SCC 574. Cases of surveillance by police came up for consideration in Malak Singh and Ors. v. State of P&H and Ors., [1981] 1 SCC 420. Cases of orders relating to movement of goods came up in BishambharDayal Chandra Mohan and Ors. v. State of U.P. and Ors., [1982] 1 SCC 39. There are hundreds of such cases dealt with by our Courts. In all these matters, the proportionality of administrative action affecting the freedoms under Article 19 (1) or Article 21 has been tested by the Courts as a primary reviewing authority and not on the basis of Wednvsbury principles. It may be that the Courts did not call this proportionality but it really was. In Ganayutham, the above aspect was left for further discussion. However, we are now pointing out that in administrative action affecting fundamental freedoms, proportionality has always been applied in our country though the word 'proportionality' has not been specifically used. We may point out that in Israel, the Supreme Court of Israel has now recognised 'proportionality' as a separate ground in administrative law- different from unreasonableness. It is stated that it consists of three elements. First, the means adopted by the authority in exercising its power should rationally fit the legislative purpose. Secondly, the authority should adopt such means that do not injure the individual more than necessary. And third, the injury caused to the individual by the exercise of the power should not be disproportional to the benefit which accrues to the general public. Under this test, the court recently invalidated several administrative actions (see De Smith, Woolf, Jowell, first Cumulative Supplement to Judicial Review of Administrative Action, 1998, p.
114).
(ii) Article 14 and Administrative Action:- Discriminative classification and arbitrariness:
We next come to the most important aspect of the case. Discussion here can be divided into two parts.
(a)(I) Classification test under Article 14:
Initially, our Courts, while testing legislation as well as administrative action which was challenged as being discriminatory under Article 14, were examining whether the classification was discriminatory, in the sense whether the criteria for differentiation were intelligible and whether there was a rational relation between the classification and the object sought to be achieved by the classification . It is not necessary to give citation of cases decided by this court where administrative action was struck down as being discriminative. There are numerous. (ii) Arbitrariness test under Article 14:
But, in E.P. Royappa v. State of Tamil Nadu, [1974] 4 SCC 31, Bhagwati, J. laid down another test for purposes of Article 14. It was stated that if the administrative action was 'arbitrary', it could be struck down under Article Page 56 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors
14. This principle is now uniformly followed in all Courts more rigorously than the one based on classification. Arbitrary action by the administrator is described as one that is irrational and not based on sound reason. It is also described as one that is unreasonable.
(b) If, under Article 14, administrative action is to be struck down as discriminative, proportionality applies and it is primary review. If it is held arbitrary, Wednesbury applies and it is secondary review:
We have now reached the crucial aspect directly arising in the case. This aspect was left open for discussion in future in Ganayutham but as the question of 'arbitrariness' (and not of discriminatory classification) arises here, we wish to make the legal position clear.
When does the Court apply, under article 14, the proportionality test as a primary reviewing authority and when does the Court apply the Wednesbury rule as a secondary reviewing authority? From the earlier review of basic principles, the answer becomes simple. In fact, we have further guidance in this behalf.
In the European Court, it appears that administrative action can be challenged under Article 14 of the Convention (corresponding to Article 14 of our Constitution) as being discriminatory and be tested by applying the principle of 'proportionality'. Prof. Craig refers to the judgment of the European Court under Article 14 in Lithgow v. UK, (1996) ECHR 329 as follows;
"The differential treatment must not only pursue a legitimate aim. It had to be proportionate. There had to be relationship of proportionality between the means employed and the aim sought to be realised".
Similarly, in the European law, in relation to discrimination on ground of sex, the principle of proportionality has been applied and it has been held that the State has to justify its action. In EU Law and Human Rights [by Lammy Betten and Nicholas Grief (1998 at P. 98)], it is stated:
"If indirect discrimination were established, the Government would have to show 'very weighty reasons' by way of objective justification. bearing in mind that derogations from fundamental rights must be construed strictly and in accordance with the principle of proportionality". [Johnstone v. Chief Constable of the RVC, (1986) ECR 1651 (para38.51)].
In the context of Article 14 of the English Act, 1998, (which is similar to our Article 14) Prof. Craig refers to the above principle. (See Administrative Law, Craig 4th Ed., 1999 Page 652). Thus, it would appear that under Article 14 of the European Convention, principle of proportionality is invoked and where questions of discrimination are involved and the Court is a primary reviewing authority. According to Prof. Craig, this is likely to be the position under Article 14 of the English Act, 1998.
In the US, in the matter of discrimination, tests of 'intermediate scrutiny' and 'strict scrutiny' have been laid down. In cases of affirmative action, the US Courts have hitherto been applying the intermediate scrutiny test'. See the discussion in Indira Sawhney v. Union of India. [1992] Supp. 3 SCC at 217, at PP.634-685 by Jeevan Reddy, J. But recently, however, in 1995, the US Supreme Court has shifted, in matters of affirmative action, from the 'intermediate scrutiny' test to the 'strict scrutiny' test. See Adarand Constructors Inc. v. Pena, (1995) 75 US 200 referred to by the Constitution Bench recently in Ajit Singh (II) v. State of Punjab, [1999] 7 SCC 209, at P. 232.Page 57 of 61
CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors It is clear from the above discussion that in India where administrative action is challenged under Article 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the Constitutional Courts as primary reviewing Courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. Here the Court deals with the merits of the balancing action of the administrator and is, in essence, applying 'proportionality' and is a primary reviewing authority.
But where, an administrative action is challenged as 'arbitrary' under Article 14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is 'rational' or 'reasonable' and the test then is the Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. In G.B. Mahajan v. Jalgaon Municipal Council, [1991] 3 SCC 91, at
111. Venkatachaliah, J, (as he then was) pointed out that 'reasonableness' of the administrator under Article 14 in the context of administrative law has to be judged from the stand point of Wednesbury rules. In Tata's Cellular v. Union of India, [1994] 6 SCC 651 (at PP. 679-680); Indian Express Newspapers v. Union of India, [1985] 1 SCC 641 at
691), Supreme Court Employees' Welfare Association v. Union of India and Anr., [1989] 4 SCC 187, at. 241 and U.P. Financial Corporation v. GEM CAP (India) Pvt. Ltd., [1993] 2 SCC 299, at 307, while Judging whether the administrative action is 'arbitrary' under Article 14 (i.e. Otherwise then being discriminatory, this Court has confined itself to a Wednesbury review always.
Thus, when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the Courts by applying proportionality. However, where administrative action is questioned as 'arbitrary' under Article 14, the principle of secondary review based on Wednesbury principles applies. Proportionality and Punishments in Service Law:
The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of 'arbitrariness' of the order of punishment is questioned under Article 14.
In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India, [1987] 4 SCC 611, this Court referred to 'proportionality' in the quantum of punishment but the Court observed that the punishment was 'shockingly' disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India, [1995] 6 SCC 749, this Court stated that the court will not interfere unless the punishment awards was one which shocked the conscience of the Court. Even then, the Court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the Court could award an alternative penalty. It was also so stated in Ganayutham. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as 'arbitrary' under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The Court while Page 58 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and such extreme or rare cases can the Court substitute its own view as to the quantum of punishment
10. The most crucial takeaway is that there has to be something of a shocking of the conscience of the court for any intervention in a punishment order. In the case at hand the journey of the Applicant is splashed with incidents of indiscipline even if for reasons of being on leave. We have seen that, often what is given in the O.A. is not in the written records as labouriously asserted by the Respondents. A probationer under training has to be very careful and while unintended waywardness once in a blue moon can be overlooked, it cannot be done so when it becomes a routine which did happen in the case of the Applicant. Therefore, even on grounds of proportionality of action by the Respondents we cannot protect the Applicant. He has to get his due. And that is as per the impugned order.
11. The conclusion therefore, is clear. The impugned order is worthy of being upheld on legal grounds. We have already examined the factual events leading up to the impugned order. They hold the Applicant quite responsible for his acts leading up to the impugned order. The citations cannot help as already discussed. The famous maxim, dura lex sed lex or other known as the Brocard (law) which simply means as "the law is harsh, but it is the law," applies here very well.
Page 59 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors 'Pity for the guilty is treason to the innocent.'' Terry Goodkind.
12. Thus, the analysis reveals that the Applicant has indeed played truant on a number of occasions and acted quite irresponsibly. The extension of the Probation period is with reasonable cause and we do not find any infirmity in the reasoning of the Respondents with respect to unjustified way in which the Applicant absented himself and even stated lies to carry his explanations which were mostly without any substantive basis. Therefore, on factual grounds we find it difficult to help the Applicant in his bundle of his often self contradicting explanations. We realise that the courts have limited jurisdiction in appreciating evidence qua the Charge Memorandum but since the Applicant has based his entire defence on that ground against the impugned order of termination, therefore to the extent required we have gone into assessing the rationale offered by the Applicant with respect to the Charge Memorandum. Within this limited ambit we find that the Applicant is at fault on factual grounds with respect to Respondents assertion that the Applicant has not discharged his duties as expected and so his conduct has been unbecoming of a civil servant and tantamounts to gross disregard of discipline.
13. In sum therefore the impugned order is worthy of being upheld on all grounds both factual and legal and there is Page 60 of 61 CAT, Lucknow OA No. 189/2014 Manish Kumar vs Union of India &Ors nothing of any merit in the O.A. to given any relief to the Applicant.
14. The O.A. is therefore, liable to be dismissed and is dismissed.
15. No costs.
(Swarup Kumar Mishra) (Devendra Chaudhry)
Member (J) Member (A)
vidya
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