Karnataka High Court
Sri Sidagouda N Patil vs The Union Of India on 12 July, 2018
Bench: L.Narayana Swamy, B.M.Shyam Prasad
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 12TH DAY OF JULY, 2018
PRESENT
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT APPEAL No.31261/2013(S-DIS)
BETWEEN:
SRI SIDAGOUDA N PATIL
AGED 32 YEARS,
S/O NAGAPPA PATIL
R/O AT P.O SUDHEEL, TALUK
GOKAK DISTRICT: BELGAUM
... APPELLANT
(BY SRI. M R RAJAGOPAL, &
SRI. K.H.BAGI, ADVS.)
AND:
1. THE UNION OF INDIA
BY ITS SECRETARY
DEPT. OF HOME AFFAIRS,
NORTH BLOCK, NEW DELHI
2. INSPECTOR GENERAL FOR CENTRAL
INDUSTRIAL SECURITY FORCE, MINISTRY
OF HOME AFFAIRS, C.I.S.F OFFICE
COMPLEX, BORING ROAD, PATALIPUTHRA
PATNA BIHAR STATE
2
3. DIRECTOR GENERAL FOR CENTRAL
INDUSTRIAL SECURTIY FORCE MINISTRY
OF HOME AFFAIRS, C.G.O COMPLEX, BLOCK
13, LODHA ROAD, NEW DELHI
4. THE SENIOR COMMAN DANT
CENTRAL INDUSTRIAL SECURITY FORCE
UNIT- NELCO-ANGUL- PO NELCO
NAGAR, ANGUL DISTRICT ORISSA.
... RESPONDENTS
(BY SRI. M.B.KANAVI, ADV.)
THIS WRIT APPEAL IS FILED U/S.4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO: A) SET ASIDE
THE ORDER PASSED BY THE LEARNED SINGLE JUDGE
DATED 23.07.2013 PASSED IN W.P.NO.12480/2010 B)
CONSEQUENTLY ALLOW THIS WRIT APPEAL AND GRANT
SUCH RELIEF AS PRYAED FOR IN THE WRIT PETITION IN
W.P.12480/2010.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 11.06.2018, COMING ON FOR
PRONOUNCEMENT THIS DAY, B.M.SHYAM PRASAD J.,
DELIVERED THE FOLLOWING:
JUDGMENT
This intra-court appeal is filed by the petitioner in W.P.No.12480/2010 impugning the Writ Court's order dated 23/7/2013 dismissing such writ petition.
The appellant/petitioner, who was appointed as a constable with Central Industrial Security Force (For short 3 "CIFS"), filed the writ petition in W.P.No.12480/2010 impugning the order dated 15.03.2007 issued by the Senior Commandant of CISF (4th respondent) terminating the petitioner from service with immediate effect under Rule 25 (2) of Central Industrial Security Force Rules 2001 (for short, 'CISF Rules 2001') with one month salary in lieu of notice period and the Director General for CISF/ the Reviewing Authority's (the 2nd respondent') by the Order dated 18/6/2018 affirmed the order dated 15.03.2007. The Writ Court by the impugned order 23/7/2013 rejected the writ petition affirming the 4th respondent's order of discharge dated 15.03.2007 and the 2nd respondent's order dated 18/6/2008.
The Writ Court, while considering the questions whether the discharge order dated 15.03.2007 was contrary to the CIFS Rules 2001, and whether the 4th respondent could have discharged the appellant/petitioner without holding an enquiry, has also examined whether the order dated 15.03.2007, which is confirmed by the Reviewing Authority by 4 its order dated 18/7/2008, was a 'discharge simpliciter' or 'discharge with stigma'. The Writ Court, has analysed the provisions of Rule 25 and Rule 26 of the CIFS Rules, 2001 referred to the different decisions of the Hon'ble Supreme Court inter alia as regards the scope of review under Article 226 of the Constitution of India, what constitutes a 'discharge simpliciter' as against a 'discharge with stigma', the difference between, and the significance of, foundation and motive in issuing orders of discharge styled as a discharge simpliciter and the consequence of appraisal of an employee's performance for ascertaining the suitability and issuance of the order of discharge simpliciter; and is the content of such analysis and reference, the Writ Court has concluded that the respondents were not obliged in law to hold any enquiry before issuance of the discharge order dated 15.03.2007.
Sri. M.R.Rajagopal, the learned counsel for the appellant, arguing in support of the appeal, firstly dilated on facts as encapsulated hereinafter. The appellant/petitioner's 5 appointment was on an initial probation for a period of two years commencing from 19.04.2003 (the date of appointment), but the probation period was extended for three terms of 6 (six) months between 18.04.2005 and 17.10.2005, 18.10.2006 and 17.4.2006 and 18.4.2006 and 17.10.2006. The appellant/petitioner availed frequent leave for absence, and upon the appellant/petitioner's application dated 3.1.2007, the Assistant Commandant, CISF Unit NALCO, Angul (Orissa) vide Communication dated 3.1.2017 permitted the appellant/petitioner to avail two months' 'Medical Home Rest' from 3.1.2007 calling upon the appellant/petitioner to report back to the Unit on 3.3.2007 along with Medical Fitness certificate and other papers for regularization of sick/rest period. However, on the appellant/petitioner's request for further extension of such leave by a telegram, the Deputy Commandant/CIFS Unit, NALCO Angul issued Communication dated 6.3.2007 informing the appellant/petitioner that his request for 6 extension of leave was rejected and called upon the appellant/petitioner to report to duty immediately.
Later, the Deputy Commandant, CIFS Unit, NALCO Angul issued another communication dated 15.03.2007 informing the appellant/petitioner that the appellant/petitioner had remained 'OSL' without any permission from the competent authority and that the appellant/petitioner should report to the Unit immediately along with fitness certificate, or otherwise, stern disciplinary action will be initiated; however, the Senior Commandant of CISF (the 4th respondent) issued the impugned order, which is also dated 15.03.2007, informing the appellant/petitioner that he had not been found fit for further retention in service and his service was terminated with immediate effect under Rule 25 (2) of CIFS Rules 2001 with one month salary in lieu of the notice period.
7
The learned counsel for the appellant emphasizing this chronological sequence of events canvassed the following points:-
a) Second proviso to Rule 25(1) of the CIFS Rules 2001 provides for extension of probation only on two occasions and subject to a maximum period of twice the period of probation prescribed in the recruitment Rules, and upon the expiry of the two extensions of the probationary period, even if the maximum period provided for extension of probation has not expired, there shall be deemed confirmation of service; and therefore, the 4th respondent (the Senior Commandant of CISF) could not have had recourse to Rule 25(2) of CIPS Rules 2001 (which provides for discharge for reasons of non-suitability) on the ground that the appellant/ petitioner was on probation and discharged the appellant/ petitioner without holding an enquiry;8
b) In view of the deemed confirmation of service, even if the respondents could justify termination of the appellant's/petitioner's service, it could be only after an enquiry in accordance with the provisions of Rule 26 of the CIFS Rules.
c) The simultaneous issuance of the communication dated 15.03.2007 by the Deputy Commandant, CIFS Unit, which referred to initiation of stern disciplinary action in the event the appellant/ petitioner did not report to duty immediately and the impugned order 15.03.2007 issued the Senior Commandant of CISF (4th respondent) established that the respondents, proposed to initiate departmental proceedings under Rule 26 of the CIFS Rules, but later, issued the impugned order dated 15/3/32007 Rule 25(2) of the CIFS Rules 2001 as if the appellant/ petitioner was being discharged simpliciter, instead of proceeding under Rule 26 of the CIFS Rules 2001.
9
d) The true motive/ intent of the respondents was to terminate the services of the appellant/petitioner on the allegation of unauthorized absence from duty without an enquiry, and the impugned Order dated 15.03.2007 is founded in such intent, and therefore, the impugned Order dated 15.03.2007 is not a discharge simplicitor.
e) The reviewing authority has issued the other impugned order dated 18/6/2008 mechanically without application of mind; and the writ Court has also erred in failing to appreciate the appellant's contention in proper perspective The learned counsel for the appellant has filed a list of authorities1, however, he placed reliance only on the decisions of the Hon'ble Supreme Court in State Bank of India and Others Vs. Palak Modi and Another - (2013) 3 SCC 607, which is rendered considering the ratio in earlier 1 (1974) 2 SCC 831, (2000) 5 SCC 152, (2013) 3 SCC 607, (1997) 7 SCC 443 and (2015) 15 SCC 151 10 decision in Chandra Prakash Shahi Vs. State of U.P. and Others - (2000) 5 SCC 152 and the later decision in Ratnesh Kumar Choudhary vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and others - (2015) 15 SCC 151, to contend that it has been held that if the orders of discharge is founded in the intent to remove the employee from service because of the allegations of misconduct without a formal enquiry, then an order styled as discharge simpliciter cannot be sustained. It is the further contention of the learned counsel that this proposition in law would apply squarely to the facts and circumstances of the case, and as such, the impugned order of discharge is untenable in law Sri. M.B. Kanavi, the learned counsel for the respondents, on the other hand, contended that the Writ Court, after a detailed analysis of the CIFS Rules and reference to the relevant decisions of the Hon'ble Supreme Court has rightly concluded that if the arguments advanced on behalf of the appellant were to be accepted, the provisions of Rule 25 of the CIFS Rules 2001 would become otiose. He 11 also argued that the 4th respondent issued the impugned Order dated 15.03.2015 discharging the appellant/petitioner, who was on probation, from service simpliciter only on the ground that he was found not suitable for continuation in service.
In view of the rival contentions, the questions that arise for consideration in this intra-court appeal are: whether the appellant is entitled for the benefit of deemed confirmation of service, and consequential consequences stemming therefrom, and whether the appellant/petitioner has made out any ground for interference with the Writ Court's order dated 23.07.2013 in WP No.12480/2010.
There is no dispute that the prescribed period of probation under the relevant Rule is two years; that the appellant/petitioner was granted three extensions of probation period of six months each between 18.04.2005 and 17.10.2006 after the initial probation period ended on 17.4.2005 i.e., after two years from 19.04.2003 (the date of 12 appointment); that there has been no order of confirmation or declaration of satisfactory completion of probation and that the maximum period up to which the appellant/petitioner could ordinarily be under probation [because of the second proviso to Rule 25(1) of CISF Rules 2001] would end only on 17.04.2007. However, the contention that the appellant/ petitioner is entitled for the benefit of deemed confirmation probation, even in the absence of a specific order of confirmation or declaration of satisfactory completion of probation, is predicated on the contention that second proviso to Rule 25(1) of CISF Rules 2001 stipulates that there can be only two extensions for whatsoever terms but subject to maximum period of twice the prescribed period of probation and any continuation beyond such two extensions leads to deeming of confirmation of probation.
Therefore, the question whether the claimant is entitled for the benefit of deemed confirmation of probation will hinge on the answer to the poser that, do the provisions of Rule 25 of CISF Rules 2001 provide for, or contemplate, deemed 13 confirmation of probation. Rule 25 of the CISF reads as follows:
Rule 25 - Probation (1) Every member of the Force except those appointed on deputation/absorption, shall be on probation for the period specified in relevant column of the Recruitment Rules;
Provided that in the absence of a specific order of confirmation or a declaration of satisfactory completion of probation, a member of the Force shall be deemed to be on probation:
Provided further that no member of the Force shall ordinarily be kept on probation for more than twice the period prescribed in respective Recruitment Rules.
(2) If during the period of probation the appointing authority is of the opinion that a member of the Force is not fit for permanent appointment, the appointing authority may discharge him (or terminated the services) from the Force after issue of notice of one month or after giving one month's pay in lieu 14 of such notice, or revert him to the rank from which he was promoted or repatriate to his parent department, as the case may be.
(3) On successful completion of probation by a member of the Force, the appointing authority shall pass an order confirming the member of the Force in the grade in which he joined the Force."
While Rule 25(1) of the CISF Rules, 2001 stipulates that every member of the Force, except those on deputation/ absorption, shall be on probation specified in the relevant column of the Recruitment Rules, the first of the two provisos to Rule 25(1) of the CISF Rules, 2001 specifically stipulates that every member shall be deemed to be on probation in the absence of a specific order of confirmation or declaration of satisfactory completion of probation. The second of the proviso stipulates that no member of the force shall ordinarily be kept on probation for more than twice the period of probation prescribed in the recruitment rules. 15
The stipulation in the first proviso to Rule 25(1) that a member of the force is deemed to be on probation in the absence of a specific order of confirmation or declaration of satisfactory completion of probation should operate as a specific embargo on invoking the deeming of confirmation of service, and therefore an implicit exclusion of the deemed confirmation of probation, and as such, the true import of a combined reading of the first of the provisos to Rule 25(1) of CISF Rules 2001 and the second of the provisos to Rule 25(1) of CISF Rules 2001, which stipulates that no member of the force shall ordinarily be kept on probation for more than twice the period prescribed, is that even if a member of the Force is continued beyond the permissible period of probation (which ordinarily should not be), such member shall be deemed to be on probation unless there is a specific order of confirmation of service or declaration of satisfactory completion of probation. Therefore, the Writ Court has concluded that the expression 'ordinarily' in the second of the provisos to Rule 25(1) of CISF 16 Rules 2001 should be read 'ejusdem generis', otherwise the prescription of probationary period becomes otiose or nugatory; and this Court can only endorse such conclusion.
The Hon'ble Supreme Court in Head Master, Lawrence School vs. Jayanthi Raghu and another2 (referring to a three- Judge Bench decision in High Court of M.P. Through Registrar And Others Vs Satya Narayan Jhavar3) has reiterated that there can be a deemed confirmation of probation only if the relevant rules permit such deemed confirmation and because of the mere absence of any provision in the rule as regards deemed confirmation, ipso-facto it cannot be implied that there would be a deemed confirmation of probation while also reiterating that when the Rules prescribe a maximum period of probation and also requires a specific order by the employer, or a particular process, for the purposes of confirmation, there cannot be deemed confirmation unless there is such specific order, or the particular process is 2 (2012) 4 SCC 793 3 2001 7 SCC 161 17 completed. Relevant portion of the judgment of the Hon'ble Supreme Court in the case of Lawrence School(supra) reads thus:
"15. Before we proceed to appreciate whether the interpretation placed on the Rule is correc or not, it is apposite to refer to the certain authorities in the field. In Sukhbans Singh Vs. State of Punjab the Constitution Bench has opined that a probationer cannot, after the expiry of the probationary period, automatically acquire the status of a permanent member of the service, unless of course, the Rules under which he is appointed expressly provide for such a result", and "27. ....... The last line of cases is where, though under the Rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired."18
Further, to read proviso 2 Rule 25(1) of the CISF Rules 2001 as contemplating only two extensions of probation after the initial period of probation, irrespective of the tenure of such extension but subject to a maximum of twice the period of probation provide is reading outside the language of Rule 25(1) of the CISF Rules 2001, and therefore, a contrived reading of the provisions which would be impermissible. As such, it is held that the provisions of Rule 25 (1) of the CISF Rules 2001and provisos thereto do not provide for deemed confirmation of probation and that the appellant/ petitioner cannot seek the benefit of deemed confirmation of probation.
The next contention that the order of discharge dated 13.05.2007 is impelled by the motive to remove the appellant/petitioner from service for unauthorized absence, and therefore, the impugned order dated 15.3.2007 is not a simpliciter discharge is carved out because of the simultaneous issuance of the Communication dated 15.03.2007 by the Deputy Commandant, CIFS Unit, NALCO 19 Angul, which reads that the appellant/petitioner had remained 'OSL' without any permission from the competent authority and that he should report to the Unit immediately along with fitness certificate, or otherwise, stern disciplinary action will be initiated, and the impugned order dated 15.3.2007 by the Senior Commandant of CISF (the 4th respondent) informing the appellant/petitioner that he had not been found fit for further retention in service and his service was terminated with immediate effect under Rule 25 (2) of CIFS Rules 2001 with one month salary in lieu of the notice period.
The Writ Court has examined the question whether the impugned order dated 15.03.2016 is an order of simpliciter discharge or stigmatic discharge in the context of the decisions of the Hon'ble Supreme Court in State Bank of India and Others Vs. Palak Modi and Another4 (wherein it is held that merely because the suitability of an employee for 4 Referred to earlier, and reported in (2013) 3 SCC 607 20 continuation in service is assessed after a particular evaluation method it cannot be concluded that a discharge order is punitive) and in Dipti Prakash Barejee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others5 (wherein the significance of difference between 'foundation' and 'motive' in deciding the question whether discharge order is a simpliciter discharge from service or a stigmatic discharge from service is emphasized).
Further, the Writ Court, after going through the records made available by the learned Central Government Counsel, has noted that there were periodical appraisals of the appellant/petitioner's performance, that the appellant/ petitioner was found to be a habitual absentee and that the appellant/petitioner was advised to correct himself and therefore, the authorities found the appellant/petitioner not suitable for confirmation of probation, and the Writ Court has also noted the total number of days during which the 5 Reported in (1993) 3 SCC 60 21 appellant/petitioner was on duty and the number of days the appellant/petitioner was on leave during such period.
It is in these circumstances, the Writ Court has concluded that even if the 'veil' were to be lifted for the purposes of ascertaining whether the impugned discharge order dated 15.3.2007 was founded on allegations of misconduct or impelled only by the motive to affect a discharge simpliciter, it cannot be held that the discharge order dated 15.3.2007 is stigmatic, and the decision of the Hon'ble Supreme Court in State Bank of India versus Palak Modi is distinguished on facts.
The Hon'ble Supreme Court in Ratnesh Kumar Choudhary vs. Indira Gandhi Institute of Medical Sciences6 (referring to the earlier decision) has reiterated that a competent authority may while deciding the issue of suitability of a probationer to be confirmed, ignore the act of misconduct and simply terminate his/her service without casting any aspersion or stigma which may adversely affect 6 Reported in (2015) 15 SCC 151 22 his/her future prospects but, if the misconduct/misdemeanor constitutes the basis (the foundation, as distinct from the motive to merely discharge without deciding on the misconduct/misdemeanour) for the final decision taken by the competent authority to dispense with the service of the probationer albeit by a non-stigmatic order, the Court can lift the veil and declare that in the garb of termination simplicity, the employer has punished the employee for an act of misconduct. If the Writ Court, after lifting the veil to ascertain whether the impugned discharge order dated 15.3.2007 is founded on an allegation of misconduct, and in the facts and circumstances of the case, has opined that the discharge order was not stigmatic and was a discharge simpliciter, the appellant/petitioner has not made out any ground for interference in this intra-court appeal, and merely because a Deputy Commandant and the 4th respondent have issued the subject Communication and the impugned discharge order on the same date viz. 15.3.2007, it cannot be construed that the impugned discharge order dated 15.3.2007 is founded on 23 the allegation of misconduct.
For the foregoing discussions, the questions formulated for consideration viz. whether the appellant is entitled to the benefit of deemed confirmation of probation and whether the appellant has made out a ground for interference with the Writ Court's Order in WP No.12480 of 2010 are answered in the negative, and this intra-court appeal is accordingly dismissed. No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE VMB/MSR