Jharkhand High Court
Ram Lakhan Gupta vs Union Of India Through Its Secretary on 10 February, 2022
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 186 of 2010
Ram Lakhan Gupta, son of late K.P. Gupta, resident of C/o Mano Balram
Bhawan, 2nd Floor, Flat No. 205, Upper Hatia, P.O. Hatia, P.S.
Jagannathpur, District-Ranchi ... ... ... Petitioner
Versus
1. Union of India through its Secretary, Ministry of Home Affairs,
Government of India, North Block, New Delhi
2. Director General, Central Industrial Security Force, 13, C.G.O.
Complex, Lodhi Road, New Delhi-3
3. Inspector General, Central Industrial Security Force Premises No. 553,
C.I.S.F. Complex East Kolkata Township Kasba, Kolkata-700107
4. Deputy Inspector General, Central Industrial Security Force Premises
No. 553, C.I.S.F. Complex East Kolkata Township Kasba, Kolkata-
700107
5. Deputy Inspector General (Personnel), 13 C.G.O. Complex, Lodhi
Road, New Delhi
6. Assistant Inspector General (Personnel) Central Industrial Security
Force, 13 C.G.O. Complex, Lodhi Road, New Delhi-3
... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Saurabh Shekhar, Advocate For the Respondents : Mr. Binod Singh, Advocate Through Video Conferencing 21/10.02.2022
1. Heard Mr. Saurabh Shekhar, learned counsel appearing on behalf of the petitioner.
2. Heard Mr. Binod Singh, learned counsel appearing on behalf of the respondents.
3. This writ petition has been filed challenging the order dated 17 th July, 2009 bearing No. 1459, issued by respondent No. 4 whereby the petitioner has been reverted to the rank of Inspector (Exe) with immediate effect in terms of the provisions contained in govt. of India DP & AR. O.M. No. AB-14017/5/83-Esttt. (RR) dated 07.05.1984. A further prayer has been made seeking a direction upon the respondents to forthwith permit the petitioner to discharge his duty as Asst. Commandant (Exe) the post on which the petitioner was promoted w.e.f. 6.5.2005.
4. It further appears that vide I.A. No. 4361 of 2010 the order of the 2 appellate authority dated 26.04.2010 passed by respondent No. 6 has also been challenged in the present writ petition.
5. Learned counsel for the parties have finally advanced their argument both on I.A. as well as main writ petition. From the records of this case it appears that I.A. was filed way back in the year 2010 but no order as such has been passed on the interlocutory application. However, this court vide order dated 15.12.2021 has formulated the points to be considered in the present case which includes the order which has been sought to be challenged by I.A. No. 4361 of 2010. It further appears that the present writ petition was filed on 16.01.2010 and the appellate order was passed on 26.04.2010 during the pendency of the writ petition and accordingly I.A. No. 4361 of 2010 was filed challenging the appellate order.
6. Considering the aforesaid, I.A. No. 4361 of 2010 seeking amendment in the writ petition is allowed and the I.A. itself is directed to be formed a part of the writ records.
Argument of the petitioner
7. Learned counsel for the petitioner while challenging the impugned order dated 17.07.2009 has submitted that the petitioner was appointed as sub inspector on 18.12.1976 and was promoted to Assistant Commandant on 06.05.2005 and was under probation for a period of two years. Thereafter he was under extended period of probation from time to time on account of unsatisfactory performance. He further submits that the petitioner had made query from the department regarding the specific improvement which is required, but there was no specific response and ultimately the petitioner was reverted by the impugned order dated 17.07.2009 by citing unsatisfactory service. The petitioner preferred appeal on 25.08.2009 before the Hon'ble President of India which was decided by respondent No. 6 vide another impugned order dated 26.04.2010 which is a part of Annexed to I.A. No. 4361 of 2010.
8. Learned counsel submits that in the meantime, a memo of charge dated 13.03.2007 was issued to the petitioner and he was punished vide order dated 11.06.2010. The learned counsel has referred to Rule 12 of CISF Rules, 2001 to submit that opportunity to improve 3 his performance is required to be given. He has also referred to the guidelines of the Central Government dealing with the General Principles which is contained in MHA OM No. 44/1/59/Estt. (A) dated 15th April, 1959 para 1(ix) to submit that a probationer who is not making satisfactory progress or who shows himself to be inappropriate for service in any way should be informed of his shortcomings well before expiry of the probationary period so that he can make special efforts for self-improvement. Learned counsel submits that in spite of specific query made by the petitioner vide letter dated 20.09.2007, no specific field for improvement has been indicated to the petitioner. Accordingly, it is submitted that the petitioner having not been informed of his shortcomings, could not have been reverted back. The learned counsel submits that the action of the respondents has not been fair with regard to the petitioner.
9. While assailing the appellate order dated 26.04.2010, the learned counsel also submits that the person who had passed the order dated 17.7.2009 has also passed the appellate order dated 26.04.2010 which is not permissible in law. He has also stated that the appellate authority has also taken into consideration the charge memo dated 13.03.2007 and also the fact that during the departmental enquiry, the charge was proved and the case was referred to UPSC for the advice on the quantum of punishment. He submits that this aspect of the matter could not have been taken into consideration, in as much as on the date of passing of original order dated 17.07.2009, the enquiry in connection with charge dated 13.03.2007 had not concluded and therefore the appellate authority has taken extraneous materials into consideration while deciding the appeal. Learned counsel has also referred to the order dated 15 th December, 2021 wherein two questions were formulated for consideration.
Argument of the Respondents
10.Learned counsel appearing on behalf of the respondents on the other hand has opposed the prayer and has submitted that pursuant to the order dated 15th December, 2021, supplementary counter affidavit has been filed in the present case explaining the entire 4 facts and circumstances of the case.
11.He submits that contention of the petitioner that the appellate authority had taken a ground of departmental proceeding, although he was punished subsequently in the year 2010 is not correct and the fact about departmental proceeding has only been mentioned in the appellate order to give the status of departmental proceeding pending against the petitioner in para 3(b) of the appellate order dated 26.04.2010. The grounds of his reversion are clearly mentioned in para 3 (c) to 3 (e).
12.So far as point that the same Authority has passed the original order as well as appellate order is concerned, he submits that the decision of reversion from Assistant Commandant to Inspector was approved by the Ministry of Home Affairs which is apparent from the Cadre Controlling Authority vide Note dated 12.07.2009. The learned counsel submits that the then D.I.G./Pers. who has signed the appellate order dated 26.04.2010, has just communicated the decision/ approval of the Ministry of Home Affairs. He has also submitted that appeal of the petitioner against reversion was examined by competent Authority i.e. Ministry of Home Affairs and appropriate decision was taken and as such, it cannot be said that the original order as well as the appellate order has been passed by the same Authority. The learned counsel has referred to Annexure-A to the supplementary counter affidavit which contains the file notings.
13.With regard to the submission of the learned counsel for the petitioner about communication of his short comings so that he could improve, it is submitted that the petitioner was advised to improve his performance time and again during his probation/extension period as mentioned in impugned order dated 26.04.2010, letter(s) dated 12.09.2007, 20.12.2007, 10.09.2008 and 9.2.2009 which have been annexed as Annexure-A series to the counter affidavit. Learned counsel has specifically referred to the representation of the petitioner dated 20.09.2007 to which a response dated 24.12.2007 was given wherein it was clearly mentioned that "He should endeavour to fulfil the responsibilities as specified in Rule 12 of CISF Rules, 2001 in a more professional 5 manner keeping in mind his status as a Gazetted officer of the Force".
14.The learned counsel has also referred to the Model Provisions on Probation for Including in Recruitment Rules for Organized Sector as annexed in counter affidavit filed on 27.04.2010 to submit that every officer on appointment to the service has to undergo a probation period for two years and the Controlling Authority may extend the period of probation in accordance with the instructions issued by Government of India from time to time and further that any decision for extension of probation period shall be taken ordinarily within 8 weeks before expiry of the previous probationary period and communicated in writing to the concerned officer and if during the period of probation or any extension thereof, the government is of the opinion that the officer is not fit for permanent appointment, the government may discharge or revert the officer to the post held by him prior to his appointment in service ,as the case may be. He submits that four extensions were given to the petitioner, but ultimately his services were not found satisfactory and he has been rightly reverted.
15.The learned counsel submits that both the aforesaid questions which has been framed by this court vide order dated 15 th December, 2021 are fit to be answered against the petitioner and in favour of the respondents.
Findings of this court
16.After hearing the learned counsel for the parties this court finds that it is not in dispute that the petitioner was promoted to the post of Assistant Commandant and was placed on probation initially for a period of two years from the date of assumption of charge i.e. 06.05.2005. He was due to complete his initial period of probation of two years on 05.05.2007. In the meantime, he has been issued with a charge sheet dated 13.03.2007 for dereliction of duty during recruitment of constable and during the departmental enquiry one of the charges was proved and the matter was referred to UPSC for their advice on the quantum of punishment. However, on completion of two years' probation period on 05.05.2007 the case of the petitioner was considered on four occasions by the screening 6 committee meeting held on 06.08.2007, 11.12.2007, 22.08.2008 and 26.05.2009 at CISF headquarters and his probation period was extended by six months on each occasion. Letters regarding extension of probation has been annexed along with the counter affidavit indicating that the petitioner was advised to improve his performance during the extended period of probation. It further appears that as per the Instruction of Government of India MHA OM dated 15.04.1959, the probation should not be extended for more than a year and further as per the instruction dated 07.05.1984, if, during the period of probation or any extension is granted and ultimately if the incumbent is found not fit for permanent appointment, the government may discharge or revert to the post held by him prior to his appointment in service, as the case may be. With the approval of the appointing authority, an order dated 17.07.2009 regarding reversion of the petitioner to the rank of inspector was issued. When the petitioner filed an appeal, the appellate authority has dismissed the appeal and has also mentioned in the appellate order about the aforesaid departmental proceeding initiated during his initial period of probation but the petitioner was punished only in the year 2010.
17. As mentioned in order passed in this case dated 15th December, 2021 following two issues are for consideration:
(i) Whether the action of the appellate Authority in taking a ground which was not part and parcel with the authority who passed the reversal order is legal?
(ii) Whether the law permits to a single person to pass reversion order as well as appellate order, in as much as, the order of reversion was passed by the Deputy Inspector General-
Prashant Kumar who had also passed order of reversion?
18. So far as aforesaid issue number (i) is concerned, a specific plea has been taken by the respondents that the fact regarding the departmental proceeding merely finds a mention in the appellate order dated 26.04.2010. Upon perusal of the impugned order dated 26.04.2010 this court finds that amongst the grounds which were raised by the petitioner before the appellate Authority, it was sought to be projected that there was nothing adverse against him during the probation period. In this context, the appellate Authority has 7 simply mentioned about the charge sheet issued to the petitioner on 13.03.2007 and out of two charges, one was found proved in the departmental enquiry and the matter was referred to UPSC for their advice on the quantum of punishment. It is not in dispute that during his period of probation, the petitioner was also charge sheeted. In the aforesaid back ground, there is mere mention about the departmental enquiry, charge sheet issued to the petitioner on 13.03.2007 in the appellate order, and this court finds that the aforesaid departmental enquiry is not the basis of rejecting the appeal. In fact, the appellate authority has clearly recorded that on completion of two years' probation period on 05.05.2007, the case of the petitioner was considered on four occasions in the screening committee meeting held on 6.8.2007, 11.12.2007, 22.08.2008 and 26.05.2009 at CISF Headquarter and his probation period was extended six months on each occasion and while extending the period of probation, the petitioner was advised to improve his performance during the extended period. It has also been recorded that the service of the petitioner was not found satisfactory and he was reverted, as the screening committee had taken a decision not to confirm the petitioner and revert him. In aforesaid view of the matter, this court is of the considered view that the appellate Authority has not taken any ground which was not part and parcel of the order of reversal and mention of the department proceedings in the appellate order was occasioned due to the specific plea taken by the petitioner before the appellate authority that there was nothing adverse against him during the probation period. Accordingly, issue number (i) is answered against the petitioner and in favour of the respondents.
19.So far as issue number (ii) is concerned, the petitioner has raised a ground that the order of reversion as well as appellate order has been passed by the same Authority. It is not in dispute that both the orders have been communicated to the petitioner under the signature of the same person namely Prashant Kumar, but the supplementary counter affidavit which has been filed on behalf of the respondents dated 10.01.2022, clearly records the minutes of meeting in Annexure-A to the counter affidavit which is quoted as 8 under.
"Note of CISF on pre page refers.
2. The proposal relates to approval for reversion to the lower rank in respect of S/Shri R.L. Gupta, AC/Exe & M.D. Murthy, AC/Exe due to their unsatisfactory performance during the period of probation/extended period of probation.
3. Both these officers were holding the post of Inspector and were promoted by the DPC meeting held on 29.03.2005 under the aegis of UPSC. (Page 162-175/c of linked file).
4. Shri R.L. Gupta assumed the charge of the post of AC/Exe on 06.05.2005 and Shri M.D. Murthy assumed the charge on 20.04.2005. Consequently, their period of probation were up to 5.5.2007 & 19.04.2007. Their probation period were extended on 04 occasions by the Screening Committee due to their unsatisfactory performance during the probation/extended period of probation. Both the officers were advised to improve their performance during the extended period of probation. In the Screening Committee Meeting held on 26.05.2009, their performances were found again unsatisfactory and a Screening Committee recommended them "may be reverted" to the rank of Inspector/Exe.
5. As per provisions related to probation if during the period of probation or any extension thereof, as the case may be, Government is of the opinion that an officer if not fit for permanent appointment, Government may discharge or revert the officer to the post held by him prior to his appointment in the service, as the case may be. (Page 16/c).
6.In view of the CISF's recommendation, we may solicit approval of HM for reversion to the rank of Inspector/Exe in respect of Shri R.L. Gupta and Shri M.D. Murthy."
20. From perusal of the aforesaid notes of CISF as contained in Annexure-A to the supplementary counter affidavit it appears that the matter of the petitioner was placed before the Screening Committee meeting on 26.05.2009 where his performance was found unsatisfactory and the Screening Committee recommended "may be reverted" to the rank of inspector/ Exe. In view of the CISF recommendation, approval of Home Ministry was sought for reversion and ultimately decision of reversion of the petitioner was taken. Accordingly, Mr. Prashant Kumar, who has signed the appellate order, has only played the role of communicating the aforesaid decision to the petitioner and is not the authority who has 9 decided the appeal. Thus, the order of the Appellate Authority though issued under the signature of Prashant Kumar, for all purposes is not an order passed by Mr. Prashant Kumar, but Mr. Prashant Kumar has merely signed it only for the purposes of communicating the same to the petitioner. This court is satisfied with the specific stand taken by the respondents in their supplementary counter affidavit dated 10.01.2022. Thus, the issue number (ii) is also decided against the petitioner and in favour of the respondents.
21.Apart from the aforesaid two issues as formulated vide order dated 15.12.2021, the petitioner has also argued on the point of non-communication to the petitioner regarding his shortcomings during his period of probation and the grievance of the petitioner is that the petitioner has been deprived of proper opportunity to improve himself during probation resulting in unfair treatment to the petitioner.
22.The records of the case reveal that the period of probation of the petitioner was extended from time to time and letter(s) of extension dated 12.09.2007, 20.12.2007, 10.09.2008 and 9.2.2009 as contained in Annexure-A series to the counter affidavit were issued to the petitioner at the time of extension of the probation period on each occasion with a clear advice to improve upon his performance within the extended period of probation failing which the petitioner would be reverted back to the rank of Inspector (Exe.) at any time during the probationary period without further notice under the relevant Rules. This court also finds that the vide letter dated 20.09.2007 annexed as Annexure-3 to the writ petition, the petitioner had specifically mentioned that he may be intimated specific field to improve at the earliest so that he could improve upon his performance during the probationary period. This letter was duly responded by the respondents vide letter dated 24.12.2007 clearly mentioning that the petitioner should endeavour to fulfil the responsibilities as specified in Rule 12 of CISF Rules in a more professional manner keeping in mind his status as a Gazetted officer of the Force. Upon the aforesaid response dated 24.12.2007, there was no further query from the side of the petitioner seeking 10 any further clarification and, in such circumstances, this court is of the considered view that the petitioner was duly communicated about the specific field of improvement vide letter dated 24.12.2007 which he duly understood. Accordingly, the argument of the petitioner that the petitioner was not communicated regarding his specific shortcomings during his period of probation and has been deprived of proper opportunity to improve himself is devoid of any merit and accordingly, the same is rejected.
23.As a cumulative effect of the aforesaid findings, the present petition is devoid of any merits, which is hereby dismissed.
24.Pending I.A., if any, is dismissed as not pressed.
(Anubha Rawat Choudhary, J.) Binit/