Jammu & Kashmir High Court
Som Nath Rana S/O Sh Chajju Ram vs Union Of India (Uoi) Through Defence ... on 12 November, 2002
Equivalent citations: 2003(1)JKJ427
JUDGMENT S.K. Gupta, J.
1. The case of the petitioner as projected in the writ petition is that he came to be appointed as temporary labour (Mazdoor) on 6th May, 1994. The petitioner was to remain on probation for a period of two years. The petitioner further stated that two years period of probation was completed on 6/5/1996. The petitioner proceed on leave and ten days leave was sanctioned from 29th August 1996 to 7th September, 1996. After the expiry of the leave, the petitioner, however, over stayed and did not join. According to the petitioner, he fell ill and remained under medical treatment from 6th November, 1996 to 20th December, 1996. His absence, however, was treated as misconduct and was served with show cause notice under Rule 5 of the Central Civil Services (Temporary Services) Rules of 1965. This communication is stated to have been received by the petitioner after the specified date and was, thus prevented to submit the reply to the show cause notice dated 22nd November, 1996, which came to be followed by termination order passed by commanding officer, Respondent- 5. The petitioner approached the court by filing writ petition, SWP No. 524/97, and challenged the order of termination on account of unauthorised absence. The petitioner also assailed the punishment of termination of his services on account of absence, that too due to his ailment and under medical treatment, too harsh and excessive. The court while disposing of the writ petition on 25-3-1998 directed the respondent authorities to re-examine the matter with regard to the quantum of punishment and provide relief to the petitioner as may be deemed appropriate. It is also stated by the petitioner that the case was examined by the respondent authorities and rejected the same without assigning any cogent reasons that the punishment commensurated with the act of the petitioner.
2. The stand of the respondents in their counter filed to the writ petition is that the petitioner over- stayed after the expiry of the period of leave and did not make any attempt at any point of time to seek extension of his leave or informed the office about his absence. It is also stated that the petitioner remained under treatment from 6th November petitioner remained under treatment from 6th November, 1996 to 20th December, 1996, but period of absence without leave from 8th September, 1996 to 6th November, 1996 remained unexplained. That the absence of the petitioner during this period was without any valid reasons. A show cause notice was issued to the petitioner on the address given by the petitioner in his leave application and a complete opportunity was given to him to explain his unauthorised absence from duty. That the order of termination of the services of the petitioner was passed as per the desire and willingness expressed in his application dated 16.8.1996. That the unit was engaged in OP commitment during that period. The petitioner despite repeated communications and show cause notice did not report on duty. That the order of his termination on account of his unauthorised absence from duty and unfit to serve in any government services was passed under the existing Rules and Regulations and the punishment awarded, therefore, commensurated with his gross misconduct,
3. I have heard the learned council for the parties and also meticulously perused the record.
Mrs. Surinder Kour, learned council appearing for the petitioner, vehemently urged that the petitioner, after the expiry of two years probation period, has automatically become permanent and, therefore, his services could not be terminated without following the principles of natural justice and the procedure laid down under the Rules and Regulations applicable to the petitioner. It is well settled that the probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of letter of appointment, the right to terminate the services, where in the letter of appointment period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if that officer is continue beyond the period or extended period, he cannot be deemed to be confirmed. In such cases, there is no bar against termination at any point of time after extended or deemed ex-
tended period of probation. The order of appointment of the petitioner is silent as to the maximum period beyond which the period of probation cannot be extended. In the absence of this prohibition, even if the petitioner completed probationary period of two year successfully, his period of probation shall be treated to have been extended as a permanent status can be acquired only by making a specific order of confirmation. It does not automatically cultiminate into a permanent status. The contention raised by Mrs. Surinder Kour, petitioner's advocate is without substance and does not merit acceptance. It is next contended by the petitioner's advocate that the absence of the petitioner was on account of his ailment and remaining under treatment for a period effective from 6th September, 1996 to 20th December 1996. The absence of the petitioner, however, prior to the period of treatment and after the expiry of ten days leave remained unexplained and has not been explained by valid reasons, has not been considered by the respondent-authorities. This is one aspect of the matter. Another aspect of the matter is that, there is letter dated 16-8-1996 addressed his desire and giving his willingness for termination of his service, as he is unable to perform his duty under the Army discipline. He also did not reply to the show cause notice asking the petitioner to join duty and render explanation before the passing of the termination order under Rule 5 of CCS (Temporary Service) Rules, 1965.
4. The services of the petitioner have been terminated in terms of the letter of appointment. The case was also re-examined in terms of the court direction. The respondents also stated to have re-examined the case of the petitioner with regard to the quantum of punishment and found that the punishment did commensurate to the gross misconduct of the petitioner and in terms of existing Rules and Regulations. The action of the petitioner was found to be unbecoming of the member of the services. The order of termination of the petitioner passed by the respondents on the foundation of his unauthorised absence from dutch and is stated to be for a period of three months when the unit was operationally committed in counter insurgency and the absence of the petitioner at that critical period affected the Unit's functioning. In the facts and circumstances of the case, the termination of services of the petitioner could not be said to be harsh or excessive in any manner by the impugned order.
In view of the above, I do not find any merit in the petition and is accordingly dismissed.