Central Administrative Tribunal - Delhi
Kailash Chand vs M/O Coal on 1 November, 2023
1
Item No.30/ C-3 OA No. 1107/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 1107/2016
Reserved on : 26.09.2023
Pronounced on : 01.11.2023
Hon'ble Mrs. Pratima K Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Kailash Chand, aged 55 years,
S/o Sh. Mangtu Ram, Peon(Terminated) from the office of
Controller of Accounts, Ministry of Coal. New Delhi.
R/o H.No. 151, Manglapuri, Phase-I, New Delhi-45
...Applicant
(By Advocate : Mr. Yogesh Sharma)
Versus
1. Union of India through The Secretary,
Ministry of Coal, Govt. of India,
Ansal Bhawan, New Delhi.
2. The Controller of Accounts,
Ministry of Coal, Trikoot-II,
3rd Floor, Bhikaji Cama Place,
New Delhi-66
...Respondents
(By Advocate: Mr. Rajesh Katyal)
2
Item No.30/ C-3 OA No. 1107/2016
ORDER
By Hon'ble Dr. Chhabilendra Roul, Member (A):-
The instant OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act 1985, seeking the following relief(s):-
"(1) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the termination order date 11.3.2014 (Annex A/1), declaring to the effect that the same is illegal, arbitrary, and against the rules and consequently, pass an order directing the respondents to reinstatement the applicant in service with all the consequential benefits.
(ii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicants along with the costs of litigation."
2. Learned counsel for applicant takes us to the history and background of the present OA. He submits that the applicant was initially appointed as a casual labourer on 08.08.1983. He continued on ad hoc basis w.e.f. 07.07.2000 and his services were regularized w.e.f. 01.06.2006. Initially he was under probation for two years starting from the date of regularization i.e. 01.06.2006. Thereafter the probation was extended by another period of two years. In the year 2014, his services were terminated by virtue of the impugned order dated 11.03.2014.
3
Item No.30/ C-3 OA No. 1107/2016
3. Learned counsel for the applicant states that with the extension of further period of two years, the total period of probation became four years which ended on 31.05.2010. Thereafter the applicant‟s services have been terminated by virtue of the said order dated 11.03.2014 invoking Rule 5 (1) of Central Civil Service (Temporary) Rules 1965. In terms of the para 15 of the DOPT OM dated 02.07.2018, the applicant‟s probation period could be extended not more than double the normal period. In the present case, normal period was two years, therefore, the maximum period for probation could be four years. On completion of the said period, the applicant was deemed confirmed. Though there was no order of confirmation/extension beyond 31.05.2010 till 2014 when the services of the applicant were terminated, he claimed that immediately w.e.f. 01.06.2010 the applicant stood confirmed. He states that only from the counter reply it has come to applicant‟s knowledge that his services have been terminated in view of his unauthorized absence from duty for various intermittent periods.
4. In support of his arguments, learned counsel for the applicant draws attention to Recommendations/Comments of 4 Item No.30/ C-3 OA No. 1107/2016 the DPC dated 21.10.2009 annexed with counter reply as Annexure R-2, which is reproduced as under:-
"On the basis of the records furnished to the DPC, it has been observed that shri Kailash Chand, Peon has availed different kinds of leave from time to time (he has availed 62 EL, 20 HPL, 302 EOL, & 9 Dies non, w.e.f. 01-06-2006 to 21-08-2009) Thus, Sh. Kailash Chand, Peon has not proved himself adequately fit to be in service. DPC is of the opinion to provide him a final opportunity for self improvement. He should be immediately informed of his shortcomings to make special efforts for self improvement.
As per rules, save for exceptional reasons, probation should not be extended for more than a year and no employee should be kept on probation for more than double the normal period.
As such, his probation period may be extended up to 31-05-2010. During the period his performance should be watched closely."
5. Learned counsel for applicant states that by virtue of the aforementioned order dated 21.10.2009 annexed with the counter affidavit, it is the case where the applicant availed extra ordinary leaves. Once his leave was sanctioned by the respondents, by no stretch of imagination, he could be treated as unauthorized absent. He states that the said order itself mentions that „the probation of the applicant may be extended upto 31.05.2010‟. After evaluating the performance of the applicant, the probation was extended and the order clearly mentions that the performance of the applicant would be 5 Item No.30/ C-3 OA No. 1107/2016 watched closely. He states that only after watching the said performance, the applicant continued till the year 2014 when he has been illegally and arbitrarily terminated from the rolls of the respondents. Relying upon the DOPT OM as mentioned herein above, he further states that the worst statement against him would be that he was unauthorizedly absent during the period of probation. The impugned order being stigmatism in nature, should be quashed and set aside and the Tribunal is bound to look into the reasons behind the termination order and the disciplinary proceedings should be invoked against the applicant. Further learned counsel for applicant draws strength from the judgment dated 02.02.1968 of the Hon‟ble Apex Court in the matter of State of Punjab Vs. Dharam Singh, 1968 AIR 1210. 1968 SCR (3) 1. The relevant portion of the same reproduced hereinbelow:-
"The initial period of probation of the respondents ended on October 1, 1958. By allowing the respondents to continue in their posts thereafter without any express order of confirmation, the competent authority must be taken to have extended the period of probation up to October 1, 1960 by implication. But under the proviso to r. 6(3), the probationary period could not extend beyond October 1, 1960. In view of the proviso to r. 6(3), it is not possible to presume that the competent authority extended the probationary period after October 1, 1960, or that thereafter the respondents continued to hold their posts as probationers."6
Item No.30/ C-3 OA No. 1107/2016
7. Learned counsel for applicant placed reliance upon a judgment passed by the Hon‟ble Supreme Court in Karnataka State Road TPT Vs. S. Manjunath. He particularly draws support from para 15 of the said judgment which is reproduced below :-
"15. Whether an employee at the end of the probationary period automatically gets confirmation in the post or whether an order of confirmation or any specific act on the part of the employer confirming the employee is necessary, will depend upon the provisions in the relevant Service Rules relating to probation and confirmation. There are broadly two sets of authorities of this Court dealing with this question. In those cases where the Rules provide for a maximum period of probation beyond which probation cannot be extended, this Court has held that at the end of the maximum probationary period there will be a deemed confirmation of the employee unless Rules provide to the contrary. This is the line of cases starting with State of Punjab vs Dharam Singh, M.K. Agarwal vs Gurgaon Gramin Bank, Om Parkash Maurya vs U.P. Coop. Sugar Factories Federation, State of Gujarat vs Akhilesh C. Bhargav."
8. Learned counsel for the applicant further draws attention to the judgment passed by a Coordinate Bench of this Tribunal in OA No. 2470//2015 titled Capt. Yashraj Tongia Vs. UOI and anr. decided on 08.02.2023. Para 22 of the same reads as follows:-
"22. In the light of the discussion made hereinabove, we are of the considered opinion that the applicant's 7 Item No.30/ C-3 OA No. 1107/2016 termination during probation period is punitive/stigmatic, which is not at all permissible in the absence of a regular departmental inquiry. The impugned order, therefore, cannot stand scrutiny of law. Same is accordingly quashed and set aside. The applicant shall be reinstated in service expeditiously, and, in any case, not later than four weeks from the date of receipt of a copy of this order. So far as the applicant's claim for back wages is concerned, there is nothing on record to show that from the date of his termination till today, he was not gainfully employed. Therefore, applying the principle of no-work-no-pay, the applicant shall not be entitled for the back wages. However, the applicant will be entitled for other consequential benefits flowing from the order of his reinstatement in service."
9. Per contra, learned counsel for respondents vehemently opposed the present OA while drawing strength from the counter reply. Para 4 of the counter reply reads as under:-
"4. That the applicant who was a temporary Government servant, was in habit to remain absent from duty without prior permission and during his service he availed maximum EOL (Extraordinary Leave) i.e. leave without pay. It is pertinent to mention that during his service he could not complete two (02) year's probation period in spite of instructions/warning issued to him to be regular in duty and to improve in future by the committee constituted. The applicant had not been earning his annual increment due to non- completion of stipulated period i.e. six (06) months in a year since 13.10.2006. The recommendation of the DPC dated 21.10.2009 and the performance report also dated 21.10.2009 alongwith Due and Drawn statement from the period 01.01.2006 to 31.08.2008 are annexed herewith as Annexure R-2 (Colly)."
10. He further draws attention to the para 4 of the parawise reply in the counter reply which reads as under:- 8
Item No.30/ C-3 OA No. 1107/2016 "4. Para No.5 of the O.A. so far it relates to the matter of record, the same need no reply and the rest is wrong, false and hence denied. It is denied for want of knowledge that on 05.02.2014 when the applicant was in village he developed severe pain in chest, as alleged. It is denied that the applicant earlier also submitted application for cancellation of his termination order and the copies of the same are not available with the applicant, as alleged. It is denied that the applicant was permanent and confirmed employee who was regularized w.e.f. 01.06.2006 and therefore, CCS (Temporary Service) Rules are not applicable, as alleged. It is submitted that the order dated 09.06.2006 clearly shows that the competent authority is pleased to regularize the services of the applicant on temporary basis on the conditions of probation for two years. Hence, the applicant was never confirmed as regular employee after the expiry of the probation and therefore, the applicant will be subject to the temporary service rules."
11. Learned counsel for respondents vehemently denies that the applicant was permanent and confirmed employee and regularized w.e.f. 01.06.2006 and therefore CCS (Temporary Services) Rules 1965 were not applicable. He submits that the order dated 09.06.2006 clearly mentions that the respondents were pleased to regularized the services of the applicant on temporary basis only on the condition of completion of probation for two years. The applicant might be a confirmed regular employee but only after completion of probation period. He further draws strength from page 12 of the counter reply wherein Recommendation/Comments of the DPC dated 21.10.2009 are placed on record. He states that the applicant 9 Item No.30/ C-3 OA No. 1107/2016 was unauthorisedly absent from time to time. His period of probation was extended upto 31.05.2010 and his performance was under observation. He adds that the applicant has been exceptionally irregular and advertently he has been absent from time to time and the last period spent on leave is 263 days.
13. Learned counsel for respondents draws strength from the Additional Affidavit filed by the respondents which claims that the period of absence of the applicant from 05.06.2008 to 22.09.2009 is 101 days. Thereafter he draws attention to Annexure-B of the Additional Affidavit and further explains that his absence was from 2009 to 2010 when he was terminated. He states that the order dated 11.03.2014 whereby the services of the applicant have been terminated, could not be said to be a punitive or stigmatic order. According to the respondents, it is well settled law that a person could have been terminated for unsatisfactory work but this by itself does not amount to punishment. Only when an order terminating the services of a probationer which creates an indelible stigma affecting the future prospect of an employee that it is to be regarded as a punitive order. He states that the order dated 11.03.2014, by no stretch of 10 Item No.30/ C-3 OA No. 1107/2016 imagination, could be construed as a stigmatic order. The applicant since was not a permanent employee but a temporary employee within the period of probation, his services have been rightly terminated invoking Rule 5 (1) of Central Civil Service (Temporary) Rules 1965.
14. Learned counsel for respondents also relied upon a recent judgment of Hon‟ble Apex Court in Civil Appeal No. 4016/2019 decided on 21.08.2019, Durgabai Deshmukh Memorial Sr. Sec. School & Anr. Vs. J.A.J Vasu SEna & Anr. He states that while deciding the issue at stake, the Hon‟ble Apex Court has held as under :-
"47. In the present case, the appointment letter of the first respondent dated 18 June 2008 clearly stipulated that the period of probation shall be "one year from the date of joining." Rule 105 provides for the extension of the probationary period by another year. The first respondent joined service on probation for a period of one year on 1 July 2008. The period of probation was to come to an end on 1 July 2009, which could be extended by one year under Rule 105. The period of probation was extended belatedly on 11 February, 2010 for another year on the ground that the services of the first respondent were unsatisfactory. On 30 November, 2011, the period of probation was extended by another year. On 22 May, 2013, the Managing Committee of the Education society discharged the first respondent from service with effect from 30 June 2013."
15. Learned counsel for respondents further states that when the period of probation is completed by an employee, order is 11 Item No.30/ C-3 OA No. 1107/2016 being issued to establish that he/she has been confirmed. In the absence of the same, he/she would be deemed to be under probation itself. And accordingly in the present facts, the applicant since on the date of termination was under
probation, it was rightly invoked in the instant OA. While relying on the said judgment, he places reliance on para 2 and states that the facts in the said SLP are identical to the facts in the instant OA. In addition to this, learned counsel for respondents also relies upon certain judgments which are as follows:
(i) Judgment dated 18.08.2009 passed by Hon‟ble Delhi High court in UOI Vs. Tarseem Lal Verma, W.P.(C) No. 3450/1998, particularly para 19 which is reads as under:-
"19. Even otherwise, law on this point is well settled. The mere stipulation of a specific period of probation by itself cannot lead to the inference that upon its expiry, the employee would be deemed confirmed: The condition or stipulation has to be more categorical about intention to treat the employee as a confirmed employee on expiry of pasied of probation The employee-would-remain on probation even after expiry of probation period until and unless an order of confirmation is passed. Merely-because-probationer. continued to work on the post even after expiry of probation period by itself would not be sufficient to infer that such an employee had been confirmed. A probationer would continue to remain on probation 12 Item No.30/ C-3 OA No. 1107/2016 even after the expiry of probation period unless a maximum probation period is prescribed in the rules."
(ii) Judgment dated 10.03.2011 passed by the Hon‟ble Apex Court in Rajesh Kumar Srivastava Vs. State of Jharkhand, Civil Appeal No. 2419/2011, paras 3 and 5 of the same are read as under:-
"3. After completing his training-period, a notification was issued on 21.05.2002, appointing him as a Probationer Munsif. The said notification was issued by the Government of Jharkhand. He was posted at Dhanbad by a notification issued by the High Court. On 04.06.2002, he assumed the charge as Probationer Munsif at Dhanbad. On 15.07.2002, he was conferred with the power of Judicial Magistrate 1st Class. While he was discharging his duties as such, he passed an order on 06.01.2003, discharging all the accused under Section 239 Code of Criminal Procedure in G.R. No. 4698 of 1995 under Sections 406, 408, 420, 120B IPC.
X
5. After considering the performance and the suitability of the appellant, it was resolved that the matter be referred to the Full Court for consideration, and a decision as to whether or not the continuation of the service of the appellant was required. Consequent thereupon the matter was placed before the Full Court meeting held on 18.07.2003, wherein it was resolved by the Full Court that the continuation of the service of the appellant was no longer required and that he should be discharged. Consequent thereupon the resolution of the Full Court was sent to the Government. The Government of Jharkhand issued an order 13 Item No.30/ C-3 OA No. 1107/2016 dated 31.07.2003, stating that the services of the appellant are no longer required in public interest, and therefore, the appellant stands discharged from service with effect from 31.07.2003."
(iii) Judgment dated 20.11.2006 passed by the Hon‟ble Apex Court in State of Punjab Vs. Rajesh Kumar, paras 5, 6 and 10 of the same are reproduced herein:-
"5. It is also the case of the Department that the respondent being an unauthorised absentee, the Superintendent of Police found him unlikely to prove an efficient police officer as per high standard of discipline as being expected from police-personnel. The above submission of the learned counsel for the appellants is supported by a recent decision of this Court in State of Punjab & Ors. vs. Sukhwinder Singh, (2005) 5 SCC 569, which is also a case of a police constable and the discharge of the said police officer before completion of probation period of three years. This Court held that a superior officer in order to satisfy himself whether the employee concerned should be continued in service or not may make an enquiry for this purpose. The superior officers of the Department have to take work from an employee and they are the best people to judge whether an employee should continue in service and made a permanent employee or not having regard to his performance conduct and overall suitability for the job. A probationer is on test and a temporary employee has no right to the post.
6. In the instant case, a simple order of discharge has been passed. It is not in dispute that the respondent was on probation having been appointed on 02.12.1989 and discharged on 18.10.1992. The period of probation gives any time an opportunity to the employer to watch the work, ability, efficiency, sincerity and competence of the servant. In the instant case, the Department 14 Item No.30/ C-3 OA No. 1107/2016 officials found the respondent not suitable for the post and, therefore, they always reserve a right to dispense with his services in any manner during or at the end of the prescribed period which is called period of probation XXX
10. All the Courts below are not right in observing that the order of discharge dated 18.10.1992 passed by the Senior superintendent of Police is based on misconduct of the respondent and, therefore, no opportunity of hearing is necessary as per law."
16. In rejoinder, learned counsel for the applicant drawing strength from the paras 16 and 17 of the aforementioned judgment in S. Manjunath (supra), and states that there are two situations envisaged by the Hon‟ble Supreme Court; (i) where the Rule prescribed for the maximum period of probation beyond which the probation could not be extended wherein the Hon‟ble Apex Court has held that at the end of maximum probation period, there will be a deemed confirmation of the employee unless rule provides to the contrary. (ii) In alternate where there is no maximum period prescribed for probation and either there is a Rule providing for extension of probation or there is a Rule which requires a specific act on the part of the employer (either by issuing an order of confirmation or any similar act), it would result in 15 Item No.30/ C-3 OA No. 1107/2016 confirmation of the employee. For better appreciation paras 16 and 17 of the said judgment reproduced hereinbelow:-
"16. However, even when the Rules prescribe a maximum period of probation, if there is a further provision in the Rules for continuation of such probation, beyond the maximum period, the courts have made an exception and said that there will be no deemed confirmation in such cases and the probation period will be deemed to be extended. In this category of cases we can place Samsher Singh vs State of Punjab which was the decision of a Bench of seven Judges where the principle of probation not going beyond the maximum period fixed was reiterated but on the basis of the Rules which were before the Court, this Court said that the probation was deemed to have been extended. A similar view was taken in the case of Municipal Corpn. vs Ashok Kumar Mishra. In Satya Narayan Athya vs High Court of M. P. although the Rules prescribed that the probationary period should not exceed two years, and an order of confirmation was also necessary, the termination order was issued within the extended period of probation. Hence the termination was upheld.
17. The other line of cases deals with Rules where there is no maximum period prescribed for probation and either there is a Rule providing for extension of probation or there is a Rule which requires a specific act on the part of the employer (either by issuing an order of confirmation or any similar act) which would result in confirmation of the employee. In these cases unless there is such an order of confirmation, the period of probation would continue and there would be no deemed confirmation at the end of the prescribed probationary period. In this line of cases, one can put Sukhbans Singh vs State of Punjab, State of U.P. vs Akbar Ali Khan, Kedar Nath Bahl vs State of Punjab, Dhanjibhai Ramjibhai vs State of Gujarat and Tarsem Lal Verma vs Union of India, Municipal Corpn. vs Ashok Kumar Misra and State of Punjab vs Baldev Singh Khosla. In the recent case of Dayaram Dayal vs State of M.P. (to which one of us was a party) all these 16 Item No.30/ C-3 OA No. 1107/2016 cases have been analysed and it has been held that where the Rules provide that the period of probation cannot be extended beyond the maximum period there will be a deemed confirmation at the end of the maximum probationary period unless there is anything to the contrary in the Rules"
17. Learned counsel for applicant states that the latest judgment of the Hon‟ble Apex Court would not be applicable in the present facts as while deciding the issue, the Hon‟ble Apex Court has dealt with Rule where there is no maximum period of probation prescribed, but in the present case there is maximum period of probation of four year i.e. twice the period of normal probation and same with respect to the judgment in Tarseem Lal Verma (supra). He further submits that in the Additional Affidavit, the respondents have themselves sanctioned the leave of the applicant as Extra Ordinary Leave, therefore, he could not be treated as unauthorizedly absent.
18. We have heard the learned counsel for the parties and perused the judgments relied upon by them and material available on record.
18.1 The impugned order dated 11.03.2014 is a termination order simplicitor. There is nothing mentioned in the said order which will be considered as stigmatic. In view of this, the order dated 08.02.2023 in OA No. 270/2015, Capt. Yashraj 17 Item No.30/ C-3 OA No. 1107/2016 Tongia (supra) as cited by learned counsel for applicant is not applicable in the instant case. On the other hand, the ratio of the judgment in S. Manjunath (Supra) is squarely applicable in the instant case. If the concerned service Rules mention a specific period of probation as well as extended period of promotion, in absence of any specific mention that the Competent Authority will pass a formal order of confirmation, the employee could be considered as deemed to have been confirmed. In the instant case, the employee is a group D employee of Ministry of Coal. In absence of any specific service Rules (which none of the parties have made any mention), the CCS Rules and DOPT instructions shall apply. The DOPT OM dated 02.07.2018 specifies that the appointing authority may extend the period of probation of a government servant by a specific period but the total period of probation should not exceed double the normal period. In the instant case, the appointment order of the present applicant dated 12.06.2000 (Annexure A-3) states that his period of probation will be for two years. Accordingly, the normal period of probation of the applicant should have ended on 11.06.2008. However, the Competent Authority had extended the probation period, because of the unsatisfactory service of the applicant for two more years which ended on 31.05.2010. As 18 Item No.30/ C-3 OA No. 1107/2016 per DOPT OM No. 21011/2/80-Estt.(C) dated 19.05.1983 OM No. AB14017/5/83-Estt.(RR) dated 07.05.1984, OM No. 18011/3/88/Estt.(D) dated 24.09.1992, the Competent Authority after the successful completion of the probation period, shall issue orders in writing regarding confirmation. As in the instant case the authorities have not issued any formal order regarding completion of the probation period of the applicant, applying the ratio of the judgment of S. Manjunath (supra) case, it is considered that the applicant deemed to have completed the probation period and confirmed in service. Rule 5(1) of CCS (Temporary) Rules 1965 does not apply to a confirmed employee. Before terminating the present applicant, the respondents should have followed due procedure for issuing a formal chargesheet and conducting proper Disciplinary Proceedings as per prescribed Rules and should have taken appropriate decision after completion of the said Departmental Proceeding, affording appropriate opportunity to the applicant to defend his case during such departmental proceeding. In the instant case, the respondents have not followed the said procedure. It is a different matter that the applicant‟s performance during the service period might not have been satisfactory or he might have remained unauthorizedly absent for certain period. He 19 Item No.30/ C-3 OA No. 1107/2016 might not have earned Annual Progress Report (APR) for the respective years because he didn‟t complete the relevant period of service during those financial years. But all these factors should not have weighed against the applicant for not getting an opportunity of facing a proper departmental proceedings before terminating his services. 18.2 In view of above, the order dated 11.03.2014 issued by the respondents is quashed. However, the respondents are at liberty to initiate denovo disciplinary proceeding against the applicant if they may consider it appropriate. No order as to costs.
(Dr. Chhabilendra Roul) (Pratima K Gupta)
Member (A) Member (J)
/daya/