Jammu & Kashmir High Court
Sanjeev Kumar Age 23 Yrs. S/O Sh. Mohan ... vs Union Of India Through Home Secretary on 18 July, 2022
Author: Mohan Lal
Bench: Mohan Lal
Sr.No. 5
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
SWP No. 1757/2002
Reserved on : 18.05.2022
Pronounced on : 18.07.2022
Sanjeev Kumar age 23 yrs. S/O Sh. Mohan Lal R/O ....Petitioner(s)
Village Chowki Tehsil Nowshera District Rajouri.
Through :- Mrs. Surinder Kour, Sr. Advocate with
Mr. Sunil Kumar, Advocate
V/s
1. Union of India through Home Secretary ....Respondent(s)
Ministry of Home Affairs, Government of India
New Delhi;
2. Directyor General of Police C.R.P.F. C.G.O.
Complex Lodhi Road New Delhi;
3. Inspector General of Police, C.R.P.F. Group
Centre Ban Talab Jammu;
4. Deputy Inspector General of Police C.R.P.F.
Group Centre Ban Talab Jammu;
5. Addl. Deputy Inspector General of Police
C.R.P.F. Group Centre Ban Talab Jammu.
Through :- Mr. Sandeep Gupta, CGSC
Coram:- HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
J UDGMENT
18 -- 07 -- 2022
1. Petitioner is aggrieved and challenges order of respondent no.5 bearing No.
D.II.1/2002-GC-EC.II dated 27th April 2002 whereby, services of petitioner
have been terminated w.e.f. 27-04-2002. Before adverting to grounds on
which order impugned has been assailed, it would be apposite to refer to the
brief resume of the factual antecedents leading to passing of order
impugned by respondent No.5.
2. Respondents vide order dated May 2001 selected and appointed petitioner
as constable (GD) in CRPF after the petitioner qualified all the tests
including the physical standard test. Petitioner was also checked by Board
of Doctors and was found physically fit by the respondents and was sent for
undergoing training at Group Centre CRPF Khatkhati Assam. Petitioner
was allotted number 01507064, completed 16 weeks training and the 17 th
week was started, however, during the training period respondents vide
2 SWP No. 1757/2002
order impugned dated 27-04-2002 terminated services of petitioner under
Sub-Rule (I) of Rule IV of CCS (Temporary Service) Rules 1965 without
assigning any reason, reasonable cause, affording an opportunity being
heard and without conducting proper enquiry. Petitioner has averred, that
he has not done anything for which such a major, excessive and
disproportionate punishment has been imposed, however, respondents have
deprived the petitioner and have not given equal treatment to him. In the
backdrop of the above narrated facts, petitioner by invoking the jurisdiction
of this court in terms of Article 226 of the Constitution of India r/w Section
103 of the Constitution of the Jammu & Kashmir has sought issuance of the
appropriate writ, order or direction of the following nature:-
(i) Certiorari to quash Order No. D.II.1/2002-GC-EC.II dated 27th
April 2002 issued by Addl. DIGP, Group Centre, CRPF Ban
Talab, Jammu by which the services of petitioner has been
terminated;
(ii) Mandamus, commanding the respondents to consider the case of
petitioner for reinstatement; to allow the petitioner to perform his
duties on the post of Constable on which he was selected and
appointed; to release the salary of petitioner and to give all
consequential benefits to petitioner for which the petitioner is
entitled to as also to treat the period of petitioner w.e.f
27.04.2002 to the date the petitioner rejoins the Unit as on „duty‟;
(iii) Prohibition, to issue directions to respondents restraining them
to implement Order No. D.II.1/2002-GC-EC.II dated 27th April
2002; restraining them to fill up the post of petitioner and also
restraining the respondents to treat the period w.e.f 27.04.2002
till the date of joining the petitioner on duty as „break in service‟;
(iv) to declare Order No. D.II.1/2002-GC-EC.II dated 27th April 2002
issued by the Addl. DIGP CRPF Ban Talab, Jammu as ultra
vires, unconstitutional and contrary to the provisions of CRPF
Act and Rules as also contrary to the provisions of law and the
provisions of Temporary Services Rules, 1965 by issuance of
Writ of Mandamus.
3. Petitioner in his writ petition has averred, that the respondents invited
applications for the post of Constable and the petitioner applied for the said
post; that the respondents thereafter issued letter No. R.II.2/2000-GC-EC.V
dated 6th December 2000 by which the respondents directed the petitioner to
appear with original documents on 2nd February 2001 for checking of
eligibility and physical standard of the petitioner for the post of Constable
(GD) in CRPF; that the petitioner qualified the physical standard test,
thereafter the respondents issued letter No. R.II.2/2001-GC-EC.V dated
April 2001 by which the respondents invited the petitioner to appear for
written test on 28.04.2001 as the petitioner had qualified the physical test;
3 SWP No. 1757/2002
that the petitioner qualified all the tests, the petitioner was also checked by
the Board of Doctors and he was found medically fit by the respondents,
thereafter the respondents issued Order No. R.II.2/2000-GC-EC.V dated
May 2001 by which the respondents offered appointment to the petitioner
for the post of Constable (GD) in CRPF wherein it is specifically mentioned
that the petitioner has been given offer of appointment as Constable (GD) in
CRPF in the pay scale of Rs. 3050-4590 as admissible to the Central
Government Employees from time to time by allotting No. 015070641; that
the petitioner was sent for undergoing training at Group Centre CRPF
Khatkhati Assam wherein he has completed 16 weeks training and the 17
week was started, however, during the training period the respondents
issued Order No. D.II.1/2002-GC-EC.II dated 27th April 2002 by which the
respondents (Addl. DIGP, CRPF, Group Centre, Ban Talab Jammu) have
terminated the services of petitioner vide order dated 27.04.2002; that in the
order the respondents have mentioned that the services of petitioner are
being terminated under Sub Rule (1) of Rule 5 of CCS (Temporary Service)
Rules, 1965; that the respondents have not assigned any reason in the order
and without any reasonable cause and reasons, terminated the services of
petitioner; that under Rule 5(1) of Temporary Service Rules, 1965 it is
categorically mentioned that the services of temporary government servant
shall be liable to termination at any time by a notice in writing given either
by the government servant to the appointing authority or by the appointing
authority to the government servant and the period of such notice shall be
one month; in the present case the respondents have neither gave any notice
to the petitioner nor afforded an opportunity of being heard to the petitioner
and terminated the services of petitioner without any reasonable cause and
reasons; that the respondents without assigning any reason and without
issuing any notice terminated the services of the petitioner that too without
following the provisions of law, without affording an opportunity of being
heard and without conducting proper inquiry; the petitioner has not done
anything for which such a major, excessive and disproportionate
punishment has to be imposed; that the respondents have not issued any
Discharge Certificate while under the provisions of Rule 17 of CRPF Rules
any member of the force shall, at any time before he has completed three
months service or after completion of full period of service to which he is
engaged, be entitled to claim his discharge from the force by applying to his
appointment authority, and under Rule 18 every member on leaving the
4 SWP No. 1757/2002
force shall be entitled to Discharge Certificate; that it is a settled law, that
the respondents have to assign the reason of termination and a person could
not be thrown out of service without any reasonable cause and reasons; that
the respondents have deprived the petitioner and his family from the source
of livelihood and have not given equal treatment to petitioner, so the order
is not sustainable as it violates the provisions of Articles 14 and 16 of the
Constitution of India.
4. Respondents have filed the objections wherein it has been stated, that the
petitioner was offered appointment as Constable (GD) vide order No.
R.II.2/2000-GC-EC.V dated 05.07.2001 passed by the respondent No.5
purely on temporary basis, the extract of the terms and conditions imposed
in the appointment order read as under:-
".....the following personnel have been finally selected and are hereby
appointed against the over-all vacancies of the Force in the pay scale of Rs.
3050-75-3950-80-4550 plus usual allowances as admissible to the Central
Government Employees from time to time w.e.f the dates as indicated
against each. Their appointment in the force is purely temporary basis and
liable to be terminated at any time without assigning any reasons. Their
service carry all India liability and they are required to serve any wherein
India or abroad. They will be governed under the CRPF Act, 1949 and
CRPF Rules, 1955, and other Central Government Employees Rules and
Instructions as applicable to other Central Government Employees/CRPF
personnel. In case of seeking discharge from service after accepting the
appointment before completion of 10 (ten) years service, they shall be
required to refund to the Government a sum equal to 3 months pay and
allowances received by them prior to the registration, or discharge or cost
of training imparted whichever is higher under rule 17(A) of CRPF Rules,
1955. The appointment is provisional subject to the costs/education
certificate being verified through proper channel. If the verification reveals
that the claim of the candidates to belong to OBC/SC/ST/etc, if false, the
services of such candidates will be terminated forthwith without assigning
any further reasons and without prejudice to such further action as may be
taken under the provisions of the Indian penal Code for production of false
certificate...."
It is contended, that the services of the petitioner were purely temporary and
were liable to be terminated at any time without assigning any reason; these
conditions have been voluntarily accepted by the petitioner before joining
the Force; these conditions were also incorporated the letter addressed to
the petitioner under the subject "offer of appointment for the post of
Constable (GD) in CRPF, issued by the respondent No.5; in these
circumstances the respondents are not bound to assign any reasons of his
discharge from service; surplus Force in the CRPF is generally reduced
after passing discharge orders and the petitioner is one of them; so in lieu of
the termination of the service of the petitioner, he was paid one month‟s pay
alongwith the allowances to the tune of Rs. 4,545/- drawn and paid to him
5 SWP No. 1757/2002
vide BD No. 1006-052457 dated 09.08.2002. It is moreso contended, that
the order of termination is according to law and is sustainable and is not
liable to be quashed; no doubt the petitioner has qualified to be enrolled in
the Force as CT (GD), yet he is governed by the rules aforesaid and there is
no violation of Articles 14 and 16 of the Constitution; no opportunity of
being heard to the petitioner before the termination of his services and
reasons assigned to him is the requirement of law, this is because the
petitioner is governed by the terms and conditions of his appointment order.
Lastly, respondents have sought the dismissal of writ petition with costs on
the grounds, that the petition is not legally maintainable.
5. In the rejoinder filed by the petitioner, it has been categorically stated, that
that the petitioner was not surplus and was appointed against a clear vacant
post after due selection, and in the appointment order, it is specifically
mentioned the petitioner is governed by the CRPF Act 1949 and CRPF
Rules 1955, Section 5 & Rule 5 reads as under:-
Section 05, Enrolment:- Before a person is appointed to be a
member of the force, the statement contained in the recruiting roll
set out in the Schedule shall be read out and if necessary, explained
to him in the presence of an officer appointed under sub-section (1)
of section 4 and shall be signed by such person in acknowledgement
of its having been so read out to him; Provided that any person who
has for a period of six months served with the force, shall on
appointment to the force thereafter, be deemed to be a member of
the force notwithstanding that the provisions of this section have not
been complied with in his case.
Under the provisions of the Central Reserve Police Force Rules
1955, Rule 5 reads as under:-
Rule 5 of the Central Reserve Police Force Rules, 1955, there is
composition of the Force i.e. Superior Officer, Rank and file for
Battalion of company i.e. Subedar, Sub-Inspector, Head Constable,
Mechanic, Naik, Lance Naik and Constables and Commandant is
appointment authority of constables.
6. Mrs. Surinder Kour, Ld. senior counsel while supporting the claim of
petitioner, has vehemently articulated arguments, that the respondents
offered appointment to the petitioner for the post of Constable (GD) in
CRPF vide Order No. R.II.2/2000-GC-EC.V dated May 2001 in the pay
scale of Rs. 3050-4590 as admissible to the Central Government Employees
from time to time by allotting No. 015070641, petitioner was sent for
undergoing training at Group Centre CRPF, Khatkhati Assam wherein he
has completed 16 weeks training, however, during the training period the
respondent No.5 issued Order No. D.II.1/2002-GC-EC.II dated 27th April
6 SWP No. 1757/2002
2002 by which the respondents (Addl. DIGP, CRPF, Group Centre, Ban
Talab Jammu) terminated the services of petitioner vide order dated
27.04.2002 under Sub Rule (1) of Rule 5 of CCS (Temporary Service)
Rules, 1965. It is argued, that respondents have not served any notice on the
petitioner and without issuing the notice have directly issued the
termination order thereby depriving the petitioner from right of service,
respondents have not conducted any enquiry and no reason has been
assigned for terminating the services of the petitioner while the petitioner as
duly selected and appointed by the competent authority against the clear
vacant post advertised by the respondents. It is moreso argued, that the
petitioner could not be terminated as opportunity of being heard was not
afforded to him which is not an ideal formality, the words opportunity of
being heard do not have any constructive meaning, but it encompass all
such requirements which are required to be followed by observing the rules
of natural justice, petitioner was not heard as is revealed from the impugned
order, no notice was served upon the petitioner before his termination,
dismissal/termination from service without holding disciplinary proceeding
is illegal, the words mentioned in the termination order that the petitioner
was found surplus amounts to stigma for which enquiry has to be initiated
and without enquiry the order of termination vitiates. It is further argued,
that merely saying that the service of petitioner are not required are not
sufficient unless it is stated as to why his services are not required, no
enquiry has been held against the petitioner in regard to his termination, the
termination order is vitiated. To support her arguments, Ld. Senior Counsel
for the petitioner has relied upon the judgments reported in, (i) (2008) 2
Supreme Court Cases 479 (Nehru Yuva Kendra Sangathan VS Mehbub
Alam Laskar), (ii) AIR 2016 (SC) 467 (Ratnesh Kumar Choudhary VS
Indira Gandhi Institute of Medical Sciences, Patna, Bihar), (iii) 2003 (II)
SLJ 331 (State Of J. &K. VS Firdous Ahmad Sheikh), (iv) 2009 (1) JKJ
38 (HC) [Raj Kumar Versus Union of India & Ors.], (v) 2019 (3) JKJ-1
(HC) [Bina Devi Versus National Hydroelectric Project & Ors].
7. Mr. Sandeep Gupta, Ld. CGSC has strenuously argued, that the petitioner
was offered appointment as Constable (GD) vide order No. R.II.2/2000-
GC-EC.V dated 05.07.2001 passed by the respondent No.5 purely on
temporary basis in the pay scale of Rs. 3050-75-3950-80-4550, appointment
of the petitioner in the force was purely temporary basis and liable to be
terminated at any time without assigning any reasons, these conditions
7 SWP No. 1757/2002
were voluntarily accepted by the petitioner before joining the force and
these conditions were also incorporated the letter addressed to the petitioner
under the subject "offer of appointment for the post of Constable (GD) in
CRPF issued by the respondent No.5. It is argued, that the order of
termination is according to law and is sustainable and is not liable to be
quashed, no doubt the petitioner has qualified to be enrolled in the force as
CT(GD), yet he is governed by the rules aforesaid and there is no violation
of Articles 14 and 16 of the Constitution, petitioner has just completed 16
weeks of his training, and as per Rule 16 of CRPF Rule it is clearly
mentioned that member of the force shall be enrolled for a period of 3 years
and during this period he shall be discharged at any time on one months
notice by the appointing authority. It is moreso argued, that a temporary
member of the force would be liable to be terminated/ discharged with one
months notice both under rule 16 of CRPF Rules of 1955 as well as Rule 5
of the CCS Temporary Rules of 1965, and in view of Rule 4 & 5 of Central
Civil Service (Temporary Service) Rule 1965, to terminate service of the
temporary employee the order of termination passed by appointing
authority should not mention the reason for such termination. To support
his arguments, Ld. CGSC has relied upon the judgments reported in (i)
2014 (3) JKJ 100 [Ravi Kumar versus Union of India & Ors.] & (ii) 2008
(17) SCC 125 [Union of India & Ors versus Sukhen Chandra Dass].
8. I have heard Ld. Counsel for the parties at length, have gone through the
record meticulously and have also scanned the ratios of the judgments
relied upon by Ld. Counsel for the parties.
9. The substantial questions of law which arises for consideration of this court
in the writ petition is:-
(i) Whether the petitioner who was put on probation could be
terminated from services by the respondents without conducting the
enquiry as envisaged under Article 311 of Constitution of India?
(ii) Whether the court is empowered to go beyond the order and to see
whether the order is made as camouflage for an order of dismissal
for reasons other then what appears on the face of the record?
10. Dealing with the 1st substantial question of law, "whether the petitioner who
was put on probation could be terminated from services by the respondents
without conducting the enquiry as envisaged under Article 311 of
Constitution of India"?
8 SWP No. 1757/2002
It is apt to reiterate here, that undisputedly, petitioner was selected
and appointed as constable (GD) in CRPF vide order dated May 2001 after
he qualified all the tests including physical test and checkup by Board of
Doctors where he was found physically fit, whereafter, petitioner was
provided offer of appointment for the post of Constable (GD) in CRPF vide
letter No. R.II. 2/200-GC.EC.5 dated May 2001 (Annexure-C to the
petition) and was sent for training at Group Centre CRPF Khatkhati Assam
after having been allotted No. as 01507064 and completed 16 weeks of his
training, but on 17th week of his training period, respondents vide their
order dated 27-04-2002 terminated services of the petitioner under Sub-
Rule 1 of Rule 4 of CCS (Temporary Services Rules 1965) without
assigning any reason and conducting any enquiry. In terms of office order
of respondent No.5 bearing No. R.II.2/200.GC.ECV dated June 2001
(Annexure R-A) as many as 158 candidates including the petitioner figuring
at S. No. 62 of the merit list have been selected by Board of Officers and
the appointment of all the candidates in the CRPF Force was purely
temporary basis and liable to be terminated at any time without assigning
any reason. The selection order dated June 2001 (Annexure-RA to the
petition) for the sake of clarity is reproduced hereunder:-
OFFICE OF THE ADDITIONAL DIGP GC CRPF BANTLAB
JAMMU (J&K)
No. R.II.2/2000..GC.EC.V DATED TGE JUNE 2001
OFFCE ORDER
Consequent on their selection by the board of officers consisting of
presiding officer Shri Nagendra Singh, Commandant 132 Bn CRPF,
Member Shri Karma Bhutia D/C -%) BN CRPF, Member-II Dr. Jagdish
Joshi MO Comp. Hospital GC BTB. Member-III SHri S.M. Khan A/C 8
BN. CRPF, Inspector (M) Bhatnagar 132 Bn CRPF Associated member
Doctor Renu Gangal, Psychologist during the recruitment held at GC
CRPF BTB jammu from 17-04-2001 to 07-05-2001 and presiding officer
Shri K.R. Bangra Commandant 79 BN CRPFMember Shri Sarabjeet
Singh 2IC, 74 Bn CRPF Member-II SHri M.K. Muttan A/C 41 Bn
CRPF, Member-III Dr. B.K Basumatary MO 71 Bn CRPF, Member-IV
Insp(M) Y.P. Bahal GC BTB during the recruitment held at 82 Bn CRPF
Srinagar from 26-04-2001 to 30-04-2001 for the post of Constable(GD)
male the following personnel have been finally selected and are hereby
appointed against overall vacancies of the force in the pay Scale of Rs.
3050-75-3950-80-4590 plus usual allowances as admissible to the
Central Govt. employees from time to time w.e.f the dates as indicated
against each. Their appointment in the force is purely temporary basis
and liable to be terminated at any time without assigning any reasons.
Their service carry all India liability and they are required to serve
anywhere in India or abroad. They will be governed under the CRPF Act
9 SWP No. 1757/2002
1949 and CRPF Rules 1955 and other central Govt. employees Rules
and instructions as applicable to other Central Govt. Employees ?CRPF
personnel. In case of seeking discharge from se4rvice after accepting the
appointment and before completion of 10 (ten) years service, they shall
be required to refund to the Govt. a sum equal to 3 months pay and
allowance received by them prior to the resignation or discharge or cost
of training imparted which even is higher under Rule-17(A) of CRPF
Rules 1955. This appointment is provisional subject to the
caste/education certificate being verified through proper channels. If the
verification reveals that claim of the candidates to belong to OBC/SC.ST
etc is false the service of such candidates will be terminated forthwith
without assigning any further reasons and without prejudice to such
further action as may be taken under the provisions of the Indian Penal
Code for production of false certificate. The particulars of selected
candidates are as under. They are posted in the strength if GC CRPF BTB
till further order:
S. Name of the Parentage Category Residential Address
No. Candidate
1. Ravinder Kumar Babu Ram Hindu/OBC Villagae Bazar Haryana
2. Gopal Singh Ram Rakha Hindu General Chack Manga Rakwal Samba
3. Swaran Singh Shiv Ram Hindu General Raipur Camp Bhangdour Samba
4. Manjit Singh Tirbat Singh Hindu General Balouri Rehian Samba
5. Bakesh Kumar Lekh Raj Hindu/OBC Rajpura Hiranagar Kathua
6. Satish Kumar Isher Labha Ram Hindu/OBC Sai Bureyal Rajpura Jammu
7. Mushtaq Ahmed Abdul Aziz ST Dharana Mendhar Poonch
8. Pavan Kumar Isher Labh Ram Hindu/OBC Sai Kalan Jammu
9. Mohd Kabir Munir Hussain ST Kiran Road Bantlab Jammu
10. Mohd Farook Munir Hussain ST Kiran Road Bantlab Jammu
11. Vijay Kumar Nand Lal Hindu/OBC Sawla Hatli Kathua
12. Vipin Sharma Manohar Lal Hindu/General Chhapaki Mori Hiranagar
Kathua J&K
13. Sohan Lal Tilak Raj Hindu/General Rajpur Hiranagar Kathua
14. Surinder Kumar Gian Chand Hindu/SC Arozi Samba Jammu
15. Raghbnadan Singh Talab Singh Hindu/General Mandilama Samba
16. Vinod Kumar Jawahar Lal Hindu/General Sanyal Hiranagar Kathua
17. Ravinder Kumar Tara Chand Hindu/General Rajpura Hiranagar Kathua
18. Narinder Kumar Girdhari Lal Hindu/SC Phallapur Jandi Hiranagar
Kathua
19. Sunil Kumar Desh Raj Hindu/General Patti Rahya Samba
20. Ravi Kumar Jallu Ram Hindu/SC Pathwal Dayala Chak Hiranagar
Kathua
21. Surinder Kumar Puran Chand Hindu/General Kishanpur Muhjani Billawar
Kathua
22. Mohinder Kumar Baonan Lal Hindu/SC Refuge Camp Dharni Sambalpur
Bari Brahmana Jammu +
23. Kamal Segar Harurdial Sikh/General Jalari Kangra Himachal Pradesh
Singh
24. Sukhdeep Singh Shyam Singh Hindu/General Sadwan Kangar HP
10 SWP No. 1757/2002
Pathania Pathania
25. Vijay Singh Jambal Jagdev Singh Hindu/General Khara Madana Vijaypur
26. Chander Vicky Babu Ram Hindu/SC Ranjitpura Gole Gujaral
Punichak Jammu
27. Sohan Lal Rattan Lal Hindu/SC Mandi Sangwal Samba
28. Ram Lal Chaina Ram Hindu/SC Magloor Rajbag Kathua
29. Sunil Singh Shankar Singh Hindu/General Patel Nagar Kathua
30. Raj Kumar Mohan Lal Hindu/SC Shama Chak Kanachak Jammu
31. Sukhdev Singh Sewa Singh Hindu/General Magloor Rajbagh Kathua
32. Balbir Choudhary Kherati Lal Hindu/General Nai Basti Satwari Jammu
33. Ashok Kumar Gnajju Ram Hindu/SC Kookinyal Nagriparole Kathua
34. Ranjit Singh Jagdish Raj Hindu/General Sujana Hiranagar kathua
35. Ranjeev Singh Raval Singh Hindu/General Bari Brahmana Jammu
36. Subash Singh Risab Singh Hindu/General Dogra Colony bari Brahmana
Jammu
37. Suresh Kumar Lt. Tara Chand Hindu/OBC Garhi-Harssru Gurgaon Haryana
38. Omparpash yadav Aga Nath Hindu/OBC Narayanpur Harajna
Yudav
39. Rakesh Kumar Kamar Singh Hindu/OBC Khatripur Diblana Haryana
40. Hariom Surat Singh Hindu/OBC Khandora Dayal Haryana
41. Parvan Singh Sardari Lal Hindu/General Tandyare Rajbagh Kathua
42. Shub Kumar Gopal Dutt Hindu/General Dera Baba Reasi
43. Vijay Kumar Gandhi Ram Hindu/General Bagwana Bassi Hamirpur HP
44. Manoj Kumar Yadev Ram Narain Hindu/OBC Manikpur Shosi UP
Yudav
45. Jatinder Kumar Charan Dass Hindu/OBC Dhaani Surah Kalyal Kathua
46. Gandharb Singh Sardar Singh Hindu/General Dergarh Nud Samba
47. Satish Kumar Hans Raj Hindu/SC Pallanwala Jammu
48. Ranjit Kumar Dogra Puran Chand Hindu/SC Dogra Hall Pacca Danga Jammu
Tawi
49. Balwant Singh Raghubir Hindu/General Rattanpur Jourian Akhnoor
Singh Jammu
50. Somdutt Bishan Dass Hindu/OBC Ghang Swankha Ramgarh
Jammu
51. Rajesh Kumar Harbans Lal Hindu/SC Sarora Akalpur Domana Jammu
52. Adalat Hussain Mohd Hussain Musilm/General Saj Thana Mandi Rajouri
53. Bhushan Kumar Gomraj Hindu/General Kanah Kootah Hiranagar Kathua
54. Som Raj Gian Chand Hindu/General Nichla Rattanpur Hiranagar
kathua
55. Rakesh Singh Suram Singh Hindu/General Pattaku Kamrail Gharota Jammu
56. Puran Kumar Darshan Lal Hindu/SC Janarail Kanachak Jammu
57. Romesh Kumar Mani Ram Hindu/SC Nardibals Akhnoor Jammu
58. Ajay Kumar Sharma Shambu Ram Hindu/General Rattanpur Surara Hiranagar
Kathua
59. Ashwani Sharma Bishan Dass Hindu/General Panjore Kanachak Jammu
11 SWP No. 1757/2002
Sharma
60. Sanjeev Kumar Bahadur Singh Hindu/General Naryana Khour Jammu
61. Zaffer Iqbal Mohd Aslal Musilm/General Jugal Mendhar Poonch
62. Sanjeev Kumar Mohan Lal Hindu/General Chowki Nowshere Rajouri
63. Satish Kumar Lal Chand Hindu/General Bhawani Rajouri
64. Romesh Chand Jamna Dass Hindu/OBC Rattanpur Rajbagh Kathua
65. Ravi Kumar Gowa Ram Hindu/SC Aittan Nagrota Jammu
66. Rakesh Kumar Karan Chand Hindu/OBC Daalore Lakhanpur Kathua
67. Sohan Singh Ramditta Hindu/General Danore Lakhanpur Kathua
Singh
68. Kuldeep Singh Kaka Ram Hindu/General Sangam Kathua J&K
69. Mohinder Singh Bhag Singh Hindu/General Kandosu Bhaderwah Doda
70. Vikram Singh Raj Singh Hindu/General Seethal Kaijiriwas Bhiwary
Alwar Rajasthan
71. Ram Lal Chajju Ram Hindu/SC Katmira Pallanwala Khour
Jammu
72. Ganeshu Maharaj Jagdish Raj Hindu/General Bannore kathua J&K
73. Ashok Kumar Jathua Ram Hindu/SC Gial Wand Rajbagh kathua
74. Mohd Aslam Noor Mohd Muslim/ST Ponda Darkeri Kalakote Rajouri
75. Ankush Singh Sarwan Singh Hindu/General Suba Chak Jandi Hiranagar
Kathua
76. Anil Kumar Sant Ram Hindu/General Kakkar Hamirpur HP
77. Bodh Raj Tara Chand Hindu/SC Haripur Rajbagh Kathua
78. Ajay Suman Krishan Dutt Hindu/OBC Malti Billawar Kathua
79. Kuldeep Singh Pritam Singh Hindu/General Tilla Billawar Kathua
80. Kuldeep Raj Mela Ram Hindu/General Dhack Khalsa Akhnoor Jammu
81. Charan Dass Moni Ram Hindu/SC Ghagwal Samba Jammu
82. Rakesh Kumar Sewa Ram Hindu/SC Batnal Khari Bishnah Jammu
83. Karnail Singh Dayakrishan Hindu/General Chournary Gandoh DOda
84. Surinder Kumar Mool Raj Hindu/OBC Gho Rakwala Ramgarh Jammu
85. Inderjeet Singh Dhani Ram Hindu/SC Dhok Khalsa Jourian Jammu
86. Naveen Kumar Babu Ram Hindu/OBC Makal Shashan Ramgarh
Jammu
87. Jagdish Kumar Bishambar Hindu/SC Bharbarwan Ambarram
Nath Akhnoor Jammu
88. Rishi Kumar Buti Ram Hindu/OBC Kalyana Arnia Jammu
89. Inderjeet Sharma Bodh Raj Hindu/General Batinera Kana Chak Jammu
Sharma
90. Rajesh Singh Mohinder Hindu/General Barwal Kathua
Singh
91. Ravi Dutta Amar Singh Hindu/General Nanjleclnudhary Haryana
92. Vijay Yaduv Abti Lal Hindu/General Kadipur Harnool Haryana
Yaduv
93. Amit Kumar Pandita Hardas Singh Hindu/General Patel Nagar Kathua
Pandita
12 SWP No. 1757/2002
94. Ravi Kumar Babu Ram Hindu/General Kalibari Kathua
95. Snam Paul Santok Singh Hindu/General Logate Morh Mini Secretariat
Kathua
96. Surjeet Singh Arjun Singh Hindu/General Kana Chak Jammu
97. Rakesh Kumar Girdhari Lal Hindu/SC Nud Nailkali Samba
98. Kuldeep Singh Babu Ram Hindu/General Mandi Billawar Kathua
99. Surinder Singh Sansar Singh Hindu/General Paramalla Billawar Kathua
100. Shalinder Kumar Ram Laxman Hindu/OBC Deoli Tonk Rajasthan
Podwal
101. Rohit Khajuria Yash Pal Hindu/General Tarf Brahmana Pandorian
Bishnah Jammu
102. Karnail Singh Kedar Nath Hindu/General Dhamlar Basoti Kathua
103. Jyoti Parkash Krishan Lal Hindu/SC Rattanpur Jourian Jammu
104. Sunil Kumar Omkar Chand Hindu/General Ghagwal Hiranagar Kathua
105. Krishan Lal Sewa Ram Hindu/SC R.S. Pura Jammu
106. Jagdev Singh Ranjir Singh Sikh/General Kotli R.S. Pura Jammu
107. Mandeep Singh Beant Singh Sikh/General Pouni Udhampur
108. Harvinder Singh Awtar SINgh Sikh/General Pouni Udhampur
109. Sanjay Kumar Romesh Hindu/General Ghovattal Akhnoor Jammu
Chander
110. Bhagwan Dass Jaipaul Hindu/General Kalaspur Lakhanpur Kathua
111. Jagdev Khushi Ram Hindu/General Hiranagar Kathua
112. Suilnder Kumar Kartar Chand Hindu/General Gara Satura Hiranagar Kathua
113. Sunil Sharma Krishan Hindu/General Satara Hiranagar Kathua
Kumar
114. Sham Kumar Subash Hindu/General Hamirpur Sidhara Khour Jammu
Chander
115. Majeet Singh Rawail Singh Sikh/General Raika Lahana Ramgarh Jammu
116. Hari Singh Maana Guru Ram Hindu/ST Jahajpur Bhilwara Rajasthan
Manna
117. Raghubir Singh Kaka SINgh Hindu/General Mahtaspur Kathua
118. Ashwani Kumar Chaman Lal Hindu/General Magoli Mahstpur Kathua
119. Ashwani Kumar Ram Dass Hindu/SC Dablehar Jammu
120. Naresh Kumar Jia Lal Hindu/General Dayalachak Rajbagh Kathua
121. Chanchal Kumar Toru Ram Hindu/SC Gigriak Khour Jammu
122. Parveen Kumar Ram Dayal Hindu/SC Mula Chak Arnia jammu
123. Sunil Sumbria Kalyan Singh Hindu/General Samilpur Bari Brahmana
124. Mashum Ali Sharief Din Musilm/ST Lahore Dasantpur Kathua
125. Surendra Kr Yaduv Hemkumar Hindu/OBC Pathatghat Bara Bazar Ghazipur
Yaduv UP
126. Mohd Farooq Lal Hussain Musilm/ST Pukharni Pam Rajouri
127. Mohd Amin Mohd Tazeem Musilm/General Bhattian Thana Mandi Rajouri
128. Parveen Kumar Bodh Raj Hindu/OBC Chhapaki Rajbagh Kathua `
129. Jagannath Bodh Raj Hindu/General Mawa Brahmina Akhnoor
13 SWP No. 1757/2002
130. Davubder Singh Sehu Singh Hindu/General Loundi Sherpure Hiranagar
Kathua
131. Rakesh Kumar Darshan Lal Hindu/General Gurha Brahmana Akhnoor
Sharma Jammu
132. Ashwani Kumar Ramdas Hindu/General Sohal Akhnoor Jammu
Sharma Sharma
133. Mahender Bhadur Dhan Bhadur Hindu/General CRPF Housuing Society
Rampur
134. Avtar Lal Kuoldeep Hindu/SC Shama Chak Jammu
Singh
135. Pramod Kumar Dinesh Kr. Hindu/General Nandpur Manjhi Chhapra Bihar
Sharma Sharma
136. Anil Mohan R.C. Hindu/General Jhondajkal Uttaranchal
Khandwal
137. Yash Pal Puran Chandh Hindu/SC Gehar Chappaki Rajbagh Kathua
138. Ami Chand Sunder Singh Hindu/General Gopal Anjalag Joginder Nagar
Mandi HP
139. Sunil Dutt Rattan Lal Hindu/General Bari Akhnoor Jammu
140. Rigraj Singh Chaggar Singh Hindu/General Ghou Manhasan Dumana
Jammu
141. Shiv Dayal Chiru Ram Hindu/SC Sangwal Rajenderpura Vijay
Nagar Jammu
142. Mohd Qayoom Abdul Majid Muslim/ST Kartarmal Ghumbir Drainna
Rajouri
143. Raghubir Singh Rattan Singh Hindu/General Tikka Matti Billawar Kathua
144. Sikandar Paul Chaman Lal Hindu/SC Mirpur Jaganoo Parokle Kathua
145. Mahesh Kumar Subash Chand Hindu/OBC Sihma Nornoul Mahindeergarn
Haryana
146. Bal Kishore Omparkash Hindu/General Malhari Khellani Doda
147. Vinod Singh Kuldeep Singh Hindu/General Peoni MAjatta Udhampur
148. Anil Kumar Dubey Harbans Lal Hindu/General Jakh Ramgarh Jammu
149. Vinod Raj Lt. Rattanlal Hindu/General Arina Jammu
150. Raj Kumar Girdhari Lal Hindu/SC Maralia Miran Sabh Jammu
151. Krishan Chand Mahinder Paul Hindu/SC Talli Marhan Ragbagh Kathua
152. Mahesh Chand Shiv Dutt Hindu/General Barknote Laughat Champawat
Himachal
153. Gugendra Singh Chandan Hindu/SC Kandole Agra/UP
Singh
154. Ravinder Kumar Bansi Lal Hindu/General Miran Sahab Jammu
155. Vikrant Kumar Kartar Singh Hindu/General Geggal Kangra HP
156. Joginder Singh Hoshyar Singh Hindu/General Kothotran Doda
157. Inder Kumar Diwan Chand Hindu/SC Seri Bhaderwah
158. Kartar Singh Fateh Singh Hindu/General Dharamshalla Rajouri
It is not in dispute that the character and antecedents of the petitioner were
got duly verified after he was selected for appointment as at that time
nothing adverse was found or reported against him. Enrolment of the
petitioner in CRPF department was made only after his character and
14 SWP No. 1757/2002
antecedents were found thoroughly verified. It is not the case of the
respondents that there was any lapse on the part of concerned agencies in
verifying the character and antecedents of the petitioner before he was
appointed in the force. It is not the stand of the respondents that it appears
to be not a case where the petitioner could be said to be not fit for enrolment
in the CRPF organization on account of any adverse report even during the
period when the petitioner was undergoing training. The order of
termination issued by respondents (respondent No.5) (Annexure-D to the
petition) for the sake of clarity reads as under:-
OFFICE OF THE ADDL. DIGP GROUP CENTRE CRPF
BANTLAB JAMMU J&K.
No. D.II.1/2002-CC--EC.II dated the 2 April 02
OFFICE ORDER
In pursuance to the proviso to Sub-rule(1) of Rule 5 of CCS
(Temporary Service) Rules, 1965, I, R.S. Virk ADIGP GC
CRPF Bantlab hereby terminate the services of No. 015070641
Rt. Sanjeev Kumar of this GC forthwith 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.
Sd/-
Place: Bantlab Jammu ( R.S. Virk)
Addl. DIGP
To,
No. 015070641 Rt.
Sanjeev Kumar
Trough OC HQR
GC CRPF Bantlab.
No. D.II.1/2002-GC EC.II dated the 27 April 02
Copy forwarded to the DC(Store), AC HQ/Arm Coys. EC.I PBC
GC 9in duplicate), SRC-GC II, FOC GC, EC V, VI, SM & SI
(Ajit) GC BTB for info and N/action.
Sd/-
(R.S. Virk)
Addl. DIGP
The services of petitioner are governed under the CRPF Act 1949 and CRPF
Rules 1955. Rule 5(1) of Temporary Service Rules 1965 which govern the
discharge of service of the petitioner specifically mentions that the services
of temporary government servant shall be liable to be termination at any
point by a notice in writing given either by the Government Servant to the
appointing authority or by the appointing authority to the govt. servant and
the period of such notice shall be one month. The order of termination
passed in case of the petitioner does not indicate that he was terminated
from service because he was not likely to prove efficient officer or any
15 SWP No. 1757/2002
satisfaction to that effect was recorded by the appointing authority. The
order of termination only state that the services of petitioner are terminative
forthwith. Why is not the service of petitioner required in the department of
respondents/CRPF is not disclosed or spoken out in the order of termination.
The case of petitioner is, that he has been terminated from services without
holding any enquiry against him and he was given no opportunity of being
heard. The law relating to discharge/termination of temporary employees
has been well settled by catena of the judgments decided by their Lordships
of Supreme Court of India and various High Courts of the country.
In (2008) 2 SCC 479 (Nehru Yuva Kendra Sangathan VS
Mehbub Alam Laskar), relied by Ld. Counsel for petitioner, Hon‟ble
Supreme Court while observing that the termination of probation by non-
speaking order vitiates the termination, in para 16 of the judgment held as
under:-
16. The respondent was appointed on a temporary basis. He was put
on probation. Indisputably, the period of probation was required to
be completed upon rendition of satisfactory service. Only in the
event of unsatisfactory performance by the employee, the
termination of probation would have been held to be justified. It is,
however, well known that when the foundation for such an order is
not an unsatisfactory performance on the part of the employee but
overt acts amounting to misconduct, an opportunity of hearing to the
employee concerned is imperative. In other words, if the employee is
found to have committed a misconduct, although an order
terminating probation would appear to be innocuous on its face,
the same would be vitiated, if in effect and substance it is found to
be stigmatic in nature.
In AIR 2016 (SC) 467 (Ratnesh Kumar Choudhary V. Indira Gandhi
Institute of Medical Sciences, Patna, Bihar) relied by Ld. Counsel for
Petitioner, Hon‟ble Supreme Court while observing that a dismissal made
without holding disciplinary proceedings is illegal, in paras 27 & 28 of the
judgment held as under:-
27. In the facts of the case, the Court proceeded to
state that there is a marked distinction between the
concepts of satisfactory completion of probation and
successful passing of the training/test held during or
at the end of the period of probation, which are sine
qua non for confirmation of a probationer and the
Bank's right to punish a probationer for any defined
misconduct, misbehavior or misdemeanour. In a
given case, the competent authority may, while
deciding the issue of suitability of the probationer to
be confirmed, ignore the act(s) of misconduct and
terminate his service without casting any aspersion
or stigma which may adversely affect his future
prospects but, if the misconduct/misdemeanor
16 SWP No. 1757/2002
constitutes the basis of 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 simpliciter, the employer has
punished the employee for an act of misconduct.
28. In the case at hand, it is clear as crystal that on
the basis of a complaint made by a member of the
Legislative Assembly, an enquiry was directed to be
held. It has been innocuously stated that the
complaint was relating to illegal selection on the
ground that the appellant did not possess the
requisite qualification and was appointed to the post
of Chest Therapist. The report that was submitted by
the Cabinet (Vigilance) Department eloquently
states about the conduct and character of the
appellant. The stand taken in the counter affidavit
indicates about the behaviour of the appellant. It is
also noticeable that the authorities after issuing the
notice to show cause and obtaining a reply from the
delinquent employee did not supply the documents.
Be that as it may, no regular enquiry was held and
he was visited with the punishment of dismissal. It is
well settled in law, if an ex parte enquiry is held
behind the back of the delinquent employee and
there are stigmatic remarks that would constitute
foundation and not the motive. Therefore, when the
enquiry commenced and thereafter without framing
of charges or without holding an enquiry the
delinquent employee was dismissed, definitely, there
is clear violation of principles of natural justice. It
cannot be equated with a situation of dropping of
the disciplinary proceedings and passing an order of
termination simpliciter. In that event it would have
been motive and could not have travelled to the
realm of the foundation. We may hasten to add that
had the appellant would have been visited with
minor punishment, the matter possibly would have
been totally different. That is not the case. It is also
not the case that he was terminated solely on the
ground of earlier punishment. In fact, he continued
in service thereafter. As the report would reflect that
there are many an allegation subsequent to the
imposition of punishment relating to his conduct,
misbehaviour and disobedience. The Vigilance
Department, in fact, had conducted an enquiry
behind the back of the appellant. The stigma has
been cast in view of the report received by the
Central Vigilance Commission which was ex parte
and when that was put to the delinquent employee,
holding of a regular enquiry was imperative. It was
not an enquiry only to find out that he did not
possess the requisite qualification. Had that been so,
the matter would have been altogether different. The
allegations in the report of the Vigilance
17 SWP No. 1757/2002
Department pertain to his misbehaviour, conduct
and his dealing with the officers and the same also
gets accentuated by the stand taken in the counter
affidavit. Thus, by no stretch of imagination it can
be accepted that it is termination simpliciter. The
Division Bench has expressed the view that no
departmental enquiry was required to be held as it
was only an enquiry to find out the necessary
qualification for the post of Chest Therapist. Had
the factual score been so, the said analysis would
have been treated as correct, but unfortunately the
exposition of factual matrix is absolutely different.
Under such circumstances, it is extremely difficult to
concur with the view expressed by the Division
Bench.
In 2003 (II) SLJ 331 (State Of J&K & Ors. Versus Firdous Ahmad
Sheikh & Ors.), relied by Ld. Counsel for petitioner, Hon‟ble Mr. Justice
V.K. Jhanji (His Lordships the then was the Acting Chief Justice of J&K
High Court) while appreciating the proposition of law regarding termination
of a probation and while observing that merely saying that services of
probationer are not required are not sufficient unless it is stated as to why
his services are not required, in para 9 of the judgment observed as under:-
9. The orders of discharge passed in the case of the plaintiff-
respondents do not indicate that they were discharged from service
because they were not likely to prove efficient police officers or
any satisfaction to that effect was recorded by the appointing
authority. The orders of discharge only state that their services are
not required in the police department. Why is not their service
required in the department is not disclosed or spoken out in the
orders of discharge. J&K Police Manual does not recognize or
envisage any such ground as the basis for discharging duly
recruited police personnel.
Facts of the case law (Supra) are, that the respondents were appointed as
constables in IRP 1st Bn. Zewan Srinagar and put on 3 years probation and deputed for training at Armed Police Training at Kathua Jammu. They continued to receive the training till March 1996 when on 15 th March 1996 they were served with order discharging them from services on the ground that their services are not required by the state/appellant. The respondents (plaintiffs) filed a civil suit in the court of Ld. Judge Small Causes Srinagar which was decreed in their favour, whereby, impugned order dated 15 March 1996 passed by Commandant IRP 1st Bn. Zewan Srinagar discharging them from services was declared illegal and bad in law, whereby, the respondents/plaintiffs were directed to be treated in service. The 1st appellate court of 1st Addl. District Judge Srinagar on 16 June 1998 upheld the judgment and decree of the trial court. In Civil 2 nd Appeal before the High Court of J&K both the decrees/judgments passed by the trial court 18 SWP No. 1757/2002 and 1st appellate court were challenged by State of J&K as appellant. The Hon‟ble J&K High Court vide its order dated 06-06-2003 (in the case law Supra) while dismissing the appeal filed by the State and confirming both the decrees passed by the trial court and 1st appellate court observed that no case is made out for interference with the judgments and decrees passed by the courts below and held, that as the respondents were not put to notice & were not heard in the matter and as no opportunity was granted to them before passing order of dismissal against them, the order of dismissal becomes vitiated and cannot be sustained. In 2009 (1) JKJ 38 (HC) [Raj Kumar Versus Union of India & Ors.], relied by Ld. Counsel for petitioner, Hon‟ble Mr. Justice Sunil Hali (His Lordships the then was) while quashing the order of discharge dated 19 September 1988 passed by Union of India (CRPF) against the petitioner who was member of CRPF on account of his absence from duty, held, that the opportunity of being heard which is not an idle formality was not provided to the petitioner before his discharge from the services, the rule of natural justice was violated, respondents were directed to reinstate the petitioner from the date he was discharged and provide all the emoluments to him for which he was entitled under rules. In 2019 (3) JKJ-1 [HC] [Bina Devi Versus National Hydroelectric Project & Ors], also relied by Ld. Counsel for petitioner, a Coordinate Bench of this court headed by His Lordships Hon‟ble Mr. Justice Sanjeev Kumar, Judge J&K High Court, while quashing the impugned order dated 21-06-2001 passed by the respondent whereby the services of petitioner were terminated, reinstated the petitioner an Auxiliary Nurse Mid-Wife in the department of respondent by holding that the impugned order has been found to be in violation of principle of natural justice as no enquiry was held before the termination of the petitioner from services. Ratios of the judgments enunciated in the cases of "Nehru Yuva Kendra Sangathan", "Ratnesh Kumar Choudhary", "Firdous Ahmad Sheikh", "Raj Kumar& "Bina Devi" (Supra) relied by Ld. Counsel for petitioner, make the legal proposition abundantly clear, that the services of a probationer cannot be terminated without holding an enquiry as the same would amount to violation of principle of natural justice.
Respondents in their written objections to the petition have taken specific stand that since the petitioner was "surplus" in the force he was terminated from services under Sub-Rule (1) of Rule 5 of Central Govt. Services (Temporary Services) Rule 1965 without assigning any reason and 19 SWP No. 1757/2002 the surplus force in the CRPF is generally reduced after passing discharge orders as the petitioner is one of them as his services are no longer required, and therefore, there is no violation of Articles 14 &16 of the Constitution. In the rejoinder affidavit filed on behalf of petitioner, it has been specifically declared that in terms of provision of temporary service rules 1965 notice has to be served and the person has to be given opportunity of being heard, whereas, respondents without assigning any reasons terminated the petitioner against provisions of law as there is nothing mentioned in the termination order that force is surplus.
Mr. Sandeep Gupta Ld. Counsel for respondents, has vehemently defended the termination order of the petitioner by canvassing arguments, that petitioner had just completed 16 weeks of his training and in terms of Rule 16 of CRPF Rule a member of force shall be enrolled for a period of 3 years and during this period he shall be discharged at any time on one months notice by the appointing authority, a temporary member of the force would be liable to be terminated/discharged with one months notice under Rule 16 of CRPF Rules of 1955 as well as Rule 5 of CCS (Temporary Rules) of 1965, wherein Rule 5 (1) empowers the competent authority to terminate temporary member forthwith without notice, while Rule 4 of Central Civil Services (Temporary Service) Rule 1965 mentions that the appointing authority should not mention the reasons for such termination. In 2014(3) J.K.J. 100 (Ravi Kumar--Petitioner Versus UOI and Others--Respondents) relied by Ld. Counsel for respondents, Hon‟ble J&K High Court held, that the termination of petitioner a constable (GD) in CRPF in terms of Rule 16 (A) of Central Civil Services (Temporary Services) Rules 1965 r/w Rule 5 (1) of the Rules of 1965 on the ground that the medical officer had opined that petitioner was suffering from psychiatric problem and was unable to withstand stress and strain of combatant and not fit to continue as active member of the force cannot be said to have been passed unfairly, arbitrarily or with ulterior motive. In 2008 (17) SCC 125 [Union of India & Ors versus Sukhen Chandra Dass], also relied by Ld. Counsel for respondents, Hon‟ble Supreme Court held, that there was no necessity to hold departmental enquiry against respondent in termination of his services as temporary employee a constable of CRPF who was terminated in terms of Rule 16 of Central Civil Services (Temporary Services) Rules 1965 r/w Rule 5 (1) & 14-B of the Rules of 1965 for the reasons that the employee had willfully suppressed registration of criminal 20 SWP No. 1757/2002 cases against him at the time of verification. The case laws (Supra) relied by Ld. Counsel for respondents make it manifestly clear, that a temporary employee in CRPF Force if found not fit to continue as effective member of the force for the reasons of health problem or criminal cases registered against him, the termination was held legally justified. Arguments of Ld. Counsel for respondents that the petitioner in the case in hand has been terminated on the ground of his being surplus in the force is not in consonance with the principles of law deduced in the case laws (Supra) relied upon by him, the same are repelled, rejected and discarded. The impugned order of termination dated 27-04-2002 depicts that the services of petitioner have been terminated forthwith. Respondents have not assigned any reasons for termination of the petitioner who being a temporary employee is also protected under the provisions of Article 311 of the Constitution of India and could not have been terminated without conducting proper enquiry. Respondents have invoked Rule 5 of Central Services (Temporary Services) Rules 1965 and Rule 16 of CRPF Rules. It is settled position of law, that special rules will always override the general law. The general law can only be invoked once the rules are silent. Admittedly, the petitioner was governed by Rule 16 of CRPF Rules for the purpose of ordering his termination. Rule 16 of CRPF Rules contemplates that all the members of force shall be enrolled for a period of 3 years and during this period of engagement, they shall be liable to be discharge at any time on one months notice by the appointing authority. In the case in hand, petitioner who has completed 16 weeks of his training period, has yet to complete 3 years, and he could have been discharged by invoking Rule 16 of the CRPF Rules provided he was given one months notice. The respondents (Respondent No.5) instead have invoked Rule 5 of Central Services (Temporary Services) Rule 1965 by giving pay and allowance for the period of notice. This in my considered opinion could not be done by the respondents. The petitioner is strictly governed by Rule 16 of CRPF Rules which envisages one month‟s prior notice before ordering his discharge. This has not been followed in the present case. No enquiry was held against the petitioner nor he was given an opportunity of being heard. The impugned order of termination against the petitioner, therefore, is violative of Articles 14, 16 & 311 of the Constitution of India and unsustainable in the eyes of law.
21 SWP No. 1757/200211. Dealing with the 2nd substantial question of law, "whether the court is empowered to go beyond the order and to see whether the order is made as a camouflage for an order of dismissal for reasons other than what appear on the face of order".?
In Gujrat Steel Tubes Ltd. Vs. Gujrat Steel Tubes Mazdoor Sabha (AIR 1980 SC 1876) Hon'ble Mr. Justice V.R. Krishna Iyer as his lordship then was), speaking for the majority, for the first time, expounded the doctrine of lifting of the veil to see the true nature of the order, i.e. whether the discharge orders issued by the management were punitive or non-penal. The doctrine of lifting of veil again was considered by their lordships of the Supreme Court in Annop H Jaiswal Vs. Government of India, (1984 (1) SLR 426) and, after considering the case law on the subject, their lordships were pleased to observe as under:-
"Where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order, though in the form is merely a determination of employment, is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee."
Since, in the instant case the order of termination is not an order of termination simplicitor, therefore, in light of the above settled position of law, this court is within its powers to go beyond the orders. Reading of impugned order of termination in the case in hand would make it clear, that though it does not mention any reasons, nevertheless, in the objections the respondents have taken specific stand that the petitioner has been found "surplus" in the department of respondents. Be it noted, that impugned order has also been assailed on the grounds, that it has been passed for ulterior motives, is punitive in nature, petitioner has not done anything for which such major excessive and disproportionate punishment has been imposed, termination order is silent about the reason of termination, petitioner was found medically fit and was undergoing training, respondents have not issued any discharge certificate in terms of Rule 17 of CRPF Rules. Impugned order of termination does not indicate that petitioner has been terminated as he was not likely to prove efficient in the department and is not fit to continue as effective member of the force. The impugned order of termination only states that the services of petitioner are terminated. Why is not the services of petitioner required in the department 22 SWP No. 1757/2002 is not disclosed or spoken out in the order of termination. In such a factual backdrop, respondents (respondent No.5) are said to have acted unfairly, arbitrarily and with ulterior motive in passing the impugned order of termination, terminating the services of the petitioner in exercise of power vested to him in pursuance to the proviso to Sub-Rule 1 of Rule 5 of CCS (Temporary Services) Rules 1965.
12. In view of the above, the impugned order of the termination of the petitioner from services, therefore, is violative of Rule 16 of CRPF Rules r/w Articles 14, 16 & 311 of the Constitution of India, the same cannot be sustained. I, allow the writ petition and pass the directions/order viz; (i) By Certiorari Order No. D.II.1/2002-GC-EC.II dated 27th April 2002 issued by Addl. DIGP, Group Centre, CRPF Ban Talab, Jammu (Respondent No.5) by which the services of petitioner has been terminated stand quashed & (ii) By Mandamus, it is commanded/directed that the respondents shall reinstate the petitioner forthwith, allow him to perform his duties as provided under rules, however, the petitioner is entitled to notional promotions from the date of his termination from services.
13. Disposed of accordingly (Mohan Lal) Judge Jammu:
18 .07.2022 Vijay Whether the order is speaking : Yes/No Whether the order is reportable: Yes/No