Central Administrative Tribunal - Madras
M Jagadeesan vs M/O Defence on 28 August, 2025
1 OA No. 567/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00567/2020
Dated this, the 28th day of August Two Thousand Twenty Five
CORAM : HON'BLE MS. VEENA KOTHAVALE, Member (J)
HON'BLE MR. SISIR KUMAR RATHO, Member (A)
M.Jagadeesan, S/o. L. Mariyappan,
No. 8, Kamarajar 2nd Cross Street,
Near Sr. C. V. Raman Street, Kaspapuram,
Paduvancherry 600126. .....Applicant
By Advocate M/s. Paul & Paul
Vs.
1.Union of India, rep by its Secretary,
Ministry of Defence,
New Delhi 110011.
2.The Brigadier General Staff,
Head Quarters - Dakshin Bharat Area,
Island Ground, Chennai 9.
3.The Commanding Officer,
65 COY ASC (Sup) Type D,
Fort St. George, Chennai 09.
4.The Administrative Officer,
65 COY ASC (Sup) Type D,
Fort St. George, Chennai 09. ....Respondents
By Advocate Mr. M. Kishore Kumar, SPC
2 OA No. 567/2020
ORDER
(Pronounced by Hon'ble Mr. Sisir Kumar Ratho, Member(A)) This OA has been filed by the applicant seeking the following reliefs:-
"a) To set aside the termination order passed by the 3rd respondents dated
02.12.2016 and the speaking order passed by the 3rd respondent in Ref.No 65420/Disp/ST12 (Civ) dated 01.06.2019 as illegal;
b) Consequently direct the 3rd respondent to permit the applicant to join the duty by treating the absence of the applicant from 07.02.2015 to till the date of his joining as medical leave, based on the medical evidences;
c) for such further or other relief or reliefs as this Hon'ble Tribunal may deems fit and proper in the circumstances of the case and thus render justice."
2. The facts of the case as submitted by the applicant, are as follows, in brief:-
2.1. The applicant was appointed on 19.12.2012 as Mazdoor in the 2nd respondent organisation after thorough verification of records and health conditions and was placed in the pay scale of Rs. 5200-20200 with Grade Pay of Rs. 1800/- at the time of appointment. He was assigned electrical works and also other miscellaneous works. The applicant got married in December 2013 to one Ms. Shivasankari, but his married life was not peaceful and eventually he was deserted by his wife. Since then the applicant had serious health issues and had been suffering from depression, yet he continued to attend the duty.
2.2. During February 2015, the applicant fell sick and he was diagnosed and treated by the doctors for psychotic disorder who advised him to take proper treatment. Thereafter he was hospitalised for the mental imbalance 3 OA No. 567/2020 and depression at Stanley Government General Hospital, Chennai. The doctors had further advised the applicant to be on medication and regular health check up. Hence he was hospitalised on regular intervals for the treatment as per the advice of the doctors. Since the applicant's parents were unaware of the procedure and also due to mental agony, he could not approach the respondents for assistance. Subsequently on the advice of the relatives, the applicant's mother made a representation dt. 16.06.2016 informing the developments of her son's health, wherein she had also expressed her ignorance of the procedures of the respondents in availing the medical leave for her son. The applicant was on continued medical treatment as advised by the doctors from February 2015 to November 2018. After the treatment, the applicant recovered and the doctors found that he was fit for working. Hence the applicant approached the 2nd respondent office in person on 08.01.2019 and met the Administrative Officer, along with the medical certificates who informed him that she would verify the records and communicate the date of rejoining the duty. However, since the applicant did not receive any reply, he made another representation dt. 31.01.2019. But the respondents have not taken any steps to allow the applicant to rejoin the duty.
2.3. Since the 2nd respondent had failed to consider the applicant's request, he had filed an OA No. 426/2019 seeking a direction to the 2nd respondent to consider his case. This Tribunal vide order dt. 28.03.2019 directed the 2nd 4 OA No. 567/2020 respondent to consider the applicant's representation. Thereafter, the 2nd respondent, without conducting a proper enquiry passed an order dt. 01.06.2019 rejecting the request of the applicant and further informed that the applicant was terminated from service w.e.f. 19.11.2016 under Rule 5 of CCS (Temporary Service) Rules, 1965. Thereafter, the applicant preferred an appeal dt. 21.08.2019 to reconsider the decision of the 2nd respondent by reopening the case and by taking into account his treatment history issued by the Stanley Government Hospital, Chennai and to reinstate him in service which is still pending. Meanwhile the 2nd respondent had sent a communication dt. 23.10.2019 to the applicant enclosing a copy of the letter dt. 01.10.2019 which is a reply forwarded to the 1st respondent justifying the termination of the applicant from service. Aggrieved, the applicant has filed this OA seeking the aforesaid relief.
3. The main grounds relied upon by the applicant in support of his claim are as under :-
i. The Rule 5 of the Central Civil Services (Temporary Services) Rules, 1965 mandates the issuance of one month notice in writing by the Government or the appointing authority for the termination of temporary Government servant. In this case, no such notice has been issued to the applicant by the 3rd respondent by personal service or registered post and therefore, the impugned orders are in violation of statutory rule and liable to be set aside.5 OA No. 567/2020
ii. When the absence from service is beyond the control of the applicant which has been properly explained by way of proper medical records, the said absence cannot be treated as unauthorised, and therefore, the order of termination is bad in law.
iii. The 3rd respondent has erred by stating that it has no knowledge about the medical condition of the applicant and did not intimate to the office about the reason behind the prolonged absence. The 3rd respondent chose to omit the fact that the applicant's mother had intimated the 2nd respondent about the condition of the applicant through the letter dt. 19.11.2016. Despite that, the 3rd respondent without giving an opportunity to the applicant had terminated the service on 19.11.2016 which is unjust, arbitrary and illegal.
4.1. The respondents have filed their reply opposing the relief prayed by the applicant. The respondents have contended that the applicant was appointed as a Temporary Civil Mazdoor on 19.12.2012. The applicant was on his probationary period for 2 years from date of appointment and his service was liable to be terminated without notice during the probationary period without assigning any reason and no representation will be entertained for the same as per terms of conditions applicable to Central Government, Defence Civilian Employees as per the appointment letter. 4.2. The respondents have given the details of the absence of the applicant from duty without any intimation to the department which are as under:- 6 OA No. 567/2020
(a) Dec 2013 - 02 days
(b) Feb 2014 - 01 day
(c) Mar 2014 - 10 days
(d) Apr 2014 - 26 days
(e) May 2014 - 29 days
(f) Jun 2014 - 06 days
(g) Sep 2013 - 02 days
(h) Oct 2014 - 07 days
(i) Nov 2014 - 12 days
(j) Dec 2014 - 15 days 4.3. The respondents have contended that the applicant was given show cause notice twice on 21.07.2014 and 15.12.2014 during the period of his absence however, no reply was received from the applicant. The applicant submitted an affidavit dated 02.06.2014 stating that henceforth he would be punctual, will not take any leave or absent himself while working with 65 Coy ASC (Sup) Type 'D', he will not absent himself without prior permission and the appointing authorities are empowered to suspend him from service and he will not seek any legal remedies. After submitting the affidavit, the applicant further absented himself on many occasions and he was again served with show cause notices vide letter dt. 21.07.2014 and dt.
15.12.2014. The respondent sent a representative to his last known home address in order to deliver a warning letter but the applicant was not present 7 OA No. 567/2020 in his house and respondent also approached the Police Station, Selaiyur, East Tambaram to find out the whereabouts of the applicant vide letter dt. 20.05.2014 but no reply was received from the police station. It is contended that respondent had given several opportunities for the applicant to report back to duty to an extent that even his probationary period was extended twice for six months on humanitarian grounds. However, the applicant remained absent during his extension period also without sufficient cause and did not report to duty in 2015 as well as 2016. As the applicant's whereabouts were not known and he did not report back to duty even after one year from the lapse of the probationary period on 18.12.2015, the applicant was then terminated from service on 19.11.2016 under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965. 4.4. It is contended that the applicant had approached respondent unit on 31.01.2019 for restoration of his service after a gap of almost 3 years after his services were terminated on the grounds that he was unwell for a long time. However he did not disclose the fact that he had filed a case before this Tribunal. On 03.05.2019, a letter was received from the applicant's advocate along with a copy of the order dt. 28.03.2019 of this Tribunal, wherein it was ordered that a reasoned speaking order be issued on the matter by the competent authority. Accordingly, a speaking order dt. 01.06.2019 was passed by the 4th respondent stating that the applicant is terminated from service w.e.f. 19.11.2016 under Rule 5 of CCS (Temporary Service) Rules, 8 OA No. 567/2020 1965 and the reasons therefor. The applicant again made appeal to reconsider the decision of Commandant 65 Coy ASC (SuP) Type 'D' on 21.08.2019. The reply dt. 21.08.2019 to the appeal was forwarded to Headquarters, Dhakshin Bharat Area, Headquarters Southern Command and DGST vide letter dt. 01.10.2019 with a copy forwarded to the applicant on 23.10.2019.
4.5. The respondents have further contended that considering the long unauthorized absenteeism of the applicant, all actions were taken as per Rule 5 of CCS (Temporary Service) Rules, 1965 and the service of the applicant has been rightly terminated. Accordingly, the respondents have prayed for dismissal of the OA as devoid of merits.
5. Heard both sides and perused the records, written submissions as well as citations.
6. Learned counsel for the applicant has relied upon the following judgments/citations in support of his arguments :-
i. Judgment dt. 23.01.1986 of Hon'ble Supreme Court in Civil Appeal No. 1213 of 1982 in the case of Union of India and ors Vs. Arun Kumar Roy, (1986) 1 SCC 675;
ii. Kunal Singh Vs. Union of India and anr, (2003) 4 SCC 524; iii. Bhagwan Dass and anr Vs. Punjab State Electricity Board, (2008) 1 SCC 579;9 OA No. 567/2020
iv. C. Narayanan Vs. The Deputy Director cum Principal and anr., 2011 (1) CTC 577 passed by the Hon'ble Madras High Court; v. A. Tamilarasi Vs. District Collector, Tuticorin and ors., 2007 (4) LLN 452 passed by the Madurai Bench of Hon'ble Madras High Court.
7. Learned counsel for the respondents has relied upon the following judgments/citations in support of his arguments :-
i. Judgment dt. 05.09.2023 of the Hon'ble Supreme Court in Civil Appeal No. 11871 & 11634 of 2024 in the case of The State of Punjab and ors Vs. Jaswant Singh, 2023 LiveLaw (SC) 761;
ii. Judgment dt. 26.04.2012 of the CAT-Principal Bench in OA No. 3482/2011 in the case of Shri. Satish Vs. Govt of NCT of Delhi through the Chief Secretary and ors;
iii. Judgment dt. 24.05.2024 of the Hon'ble High Court of Himachal Pradesh in CWP No. 4018 of 2024 in the case of Vinay Kaushik Vs. Union of India & ors;
iv. Judgment dt. 27.11.2019 of the CAT-Bangalore Bench in OA No. 739/2019 in the case of Sri. Prashant Venkatesh Avarsekar Vs. Headquarters, Western Naval Command and ors;
v. Judgment dt. 12.01.2010 of the Hon'ble Supreme Court in Civil Appeal No. 2786 of 2007 in the case of Chaitanya Prakash and ors Vs. H. Omkarappa, MANU/SC/0034/2010;10 OA No. 567/2020
vi. Judgment dt. 18.04.2006 of the Hon'ble Supreme Court in Civil Appeal No. 5551 of 2004 in the case of Abhujit Gupta Vs. S.N.B. National Centre, Basic Sciences and ors, MANU/SC/1985/2006; vii. Judgment dt. 19.02.2003 of the Hon'ble Supreme Court in Civil Appeal No. 672 of 2001 in the case of Mathew P. Thomas Vs. Kerala State Civil Supply Corpn. Ltd and ors., MANU/SC/0130/2003; viii. Judgment dt. 05.11.2001 of the Hon'ble Supreme Court in Appeal (Civil) No. 7523 of 2001 in the case of Pavanendra Narayan Verma Vs. Sanjay Gandhi P.G.I. of Medical Sciences and ors, MANU/SC/0705/2001.
ix. Ashok Kapil Vs. Sana Ullah (Dead and ors), (1996) 6 SCC 392; x. Nadia Distt. Primary School Council & anr Vs. Sristidhar Biswas and ors., (2007) 12 SCC 779;
xi. Indian Drugs & Pharmaceuticals Ltd Vs. Workman, (2007) 1 SCC 408;
xii. Uttar Haryana Bijli Vitran Nigam Ltd and ors Vs. Surji Devi, (2008) 2 SCC 310;
xiii. Teri Oak Estates (P) Ltd. Vs. U.T. Chandigarh, (2004) 2 SCC 130.
8. The main grounds for relief cited by the applicant are as under :-
i. That the Rule 5 of CCS (Temporary Service) Rules has not been followed;11 OA No. 567/2020
ii. The respondent authorities have not considered the medical condition of the applicant due to psychotic behavior and have violated the provisions of Section 47 of the Persons With Disabilities Act, 1995.
9. It is undisputed that the applicant was appointed as a temporary Civil Mazdoor on 19.12.2012 with a probationary period of two years. The probationary period was extended twice for six months on 19.12.2014 and 19.06.2015 on humanitarian grounds. The respondent authorities havce submitted that atleast on 11 occasions, the applicant remained absent from duty without any intimation to the concerned authority and he was issued a show cause notice three times for this absence from duty. Since there was no improvement from the applicant, the respondent authority issued the termination order on 02.12.2016 in pursuance of provisions of para 2(a) of Rule 5 of CCS (Temporary Service) Rules. The same is extracted below for ready reference :-
"5. Termination of temporary service.
(1) (a) The services of a 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;
(b) the period of such notice shall be one month.
Provided that the services of any such Government servant may be terminated forthwith and on such termination, the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or as the case may be, for the period by which such notice falls short of one month.
Note:- The following procedure shall be adopted by the appointing authority while serving notice on such Government servant under clause (a). 12 OA No. 567/2020
(i) The notice shall be delivered or tendered to the Government servant in person.
(ii) Where personal service is not practicable, the notice shall be served on such Government servant by registered post, acknowledgement due at the address of the Government servant available with the appointing authority.
(iii) If the notice sent by registered post is returned unserved it shall be published in the Official Gazette and upon such publication, it shall be deemed to have been personally served on such Government servant on the date it was published in the Official Gazette."
10. Learned counsel for applicant argues that neither the termination order has been served on the applicant nor it has been published in the official gazette and hence, the said order is not valid.
11. Learned counsel for the respondents argues that the applicant remained unauthorisedly absent from duty in a habitual manner during his probation and even all the official letters and communications sent to his given address have been returned as "Not being received". He also did not report for duty for long period from 2014-2019 until filing of this case. Therefore, he contended that it is a fit case under the maxim "Nullus Commodum Capere protest de injuria sua propria" which means "No one can take advantage of his own wrongs" as referred in the Ashok Kapil Vs. Sanaullah (Dead and ors) (1996) 6 SCC 392. Respondent authorities also submitted that all efforts have been made to contact the applicant during this period and they produced the office record to show that show cause notice dt. 16.09.2016 was received back from postal department stating that no such individual address is found. Even the 2nd show cause notice was also 13 OA No. 567/2020 issued on 22.09.2016 which could not been served. As a result, the order of termination was issued in accordance with the terms and conditions of the appointment order which provided that his service is liable to be terminated without notice during the probationary period without assigning any reason and no representation would be entertained. The respondents have also referred to the affidavit sworn by the applicant on 02.06.2014 stating that he shall not take any leave of absence while working with 65 Company Army Service Corps (Supply) Type D, Fort Saint George, Chennai - 600009 without prior permission / sanction of the Officer Commanding / Commandant of the said unit and if he fails to adhere to the declaration, the appointing authority is empowered to suspend him from service and he will not seek any legal procedure to this effect. With respect to non-publication in the official gazette, the respondent authorities have stated that since a Special part II order was published on 02.12.2016 with reference to termination of his service, the same is equivalent to the publication of the same in the official gazette.
12. In view of the above, we do not find any reasons to interfere with the termination order dt. 02.12.2016 passed by the respondent authorities.
13. Learned counsel for the applicant submits that the applicant was diagnosed with psychotic disorder and had taken treatment continuously from April 2016 to December 2018. During this period, he was also admitted few times in the hospital when he was aggressive and taken 14 OA No. 567/2020 treatment, as a result of which he remained absent from duty due to mental illness and his rights are covered under Section 47 of Persons with Disabilities Act, 1995.
14. We have perused the medical records of the applicant which are primarily from 20.07.2015 upto 13.12.2018 whereas, his period of unauthorized absence were mostly related from 2012 to 2014. Learned counsel for the applicant submits that the applicant was not in a fit state of mind due to desertation of wife within a month of their marriage. We are of the view that inspite of difficulties in his personal life, it was duty bound for him to intimate his whereabouts to the authorities and this cannot be a ground for recurrent unauthorized absence from duty, especially during probation period. In view of this the action taken by the respondent authorities in termination of his service cannot be faulted with.
15. In the end, the OA is devoid of merits and the same is dismissed with no costs.
(Sisir Kumar Ratho) (Veena Kothavale)
Member (A) Member (J)
28.08.2025
SKSI