Madras High Court
M.Samundeeswari vs The Union Of India on 30 November, 2023
Author: V.Bhavani Subbaroyan
Bench: V. Bhavani Subbaroyan
WP.No.10318 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.11.2023
CORAM
THE HONOURABLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
WP.No.10318 of 2017
M.Samundeeswari ... Petitioner
Vs.
1. The Union of India,
Represented by its Secretary,
Ministry of Home Affairs,
New Delhi.
[ R1 deleted from the array of respondents
vide order dated 07.08.2023 made in
WMP.No.1619 of 2022 in
WP.No.10318 of 2017]
2. The Director General of Police,
Central Reserve Police Force,
Block No.1, C.G.O.Complex,
Lodhi Road, New Delhi-110 003.
3. The Deputy Inspector General of Police,
Central Reserve Police Force,
Group Centre, Avadi,
Chennai-600 065.
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WP.No.10318 of 2017
4. The Commandant,
232, B.N.Central Reserve Police Force,
Salboni, West Midnipur,
West Bengal-721 174. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, calling for records
relating to the order of the 4th respondent in his office order No.T.V-
1/2017-232 (M)-EC-3, dated 31.01.2017 terminating the service of the
petitioner and quash the same and further direct the second respondent to
conduct enquiry.
For Petitioner : Mr.L.Chandrakumar
For Respondents : Mr.K.H.Ravi Kumar
Government Advocate
ORDER
This petition has been filed by the petitioner seeking to quash the order of the 4th respondent vide order dated 31.01.2017 in Office Order No.T.V-1/2017-232(M)-EC-3 and further direct the second respondent to conduct enquiry.
2. The case of the petitioner is that she was appointed as a Constable/GD in Central Reserve Police Force, (C.R.P.F) at Avadi, 2/22 https://www.mhc.tn.gov.in/judis WP.No.10318 of 2017 Chennai. She had joined duty at the Office of the Deputy Inspector General of Police Group Center, C.R.P.F Avadi, Chennai and thereafter, she was directed to attend training at 232 Bn C.R.P.F at Ajmeer. Few more persons appointed along with her were also directed to attend training in the same place. Thereby, she along with others have attended the training at Ajmer, based on the Office Order passed by the third respondent herein dated 03.12.2014 which is reproduced hereunder:
OFFICE ORDER “ Consequent on their selection for the post of Constable/GD through Recruitment of Constable /GD in CAPF's for the year 2013-2014 conducted by the Staff Selection Commission, Southern Region, Chennai to fill up the backlog and anticipated normal wastage vacancies in CRPF vide Rectt DTE Signal No.A.VI-13-RECTT-SSSB dated 20.05.2014 and 01.08.2014, ADG, S/Z Hqr Sig.No.r11-8-2014-SZ-EC-3(2013-14) dated 21.08.2014, 04.09.2014, 08.09.2014 and IGP Southern Sector, Hydrabad Signal No.R.H-13/2014/Adm-III-SS dated 10.09.2014 and 14.09..2014, the following candidates who reported their arrival in this GC are hereby appointed as Constable/GD(Group-C) in the Pay Scale (PB-1) of Rs.5200-
20200 with initial basis pay of Rs.6460/- plus Grade Pay Rs.2,000/- and usual allowances as admissible to the Central Government Employees from time to time. Their appointment in 3/22 https://www.mhc.tn.gov.in/judis WP.No.10318 of 2017 CRPF is purely temporary and liable to be termination at any time without assigning any reasons giving one month's notice. The candidate so appointed in the Force, if seek discharge or tender resignation from service within 10 years of joining shall be required to pay an amount equal to three months pay and allowance or training charges whichever is higher as per existing instructions. The CRPF Act 1949 and CRPF Rules 1955 and other Central Government Rules and Regulations will govern them as applicable from time to time. They would be covered by the Defined Contribution Pension Scheme as introduced by the Government of India , Ministry of Finance (Dept of Expenditure)vide O.M.F No.1(7)(2)2003/TA/1 dated 07.01.2004”.
3. The further case of the petitioner is that the training at Ajmeer has commenced on 20.11.2014. During the training in the month of July 2015, she was admitted in the hospital at Ajmeer for certain ailment. Due to the wrong diagnose and wrong medicines given in the hospital, she was again admitted in the JLN Hospital, Ajmeer from 07.09.2015 to 15.09.2015. Thereafter, she was shifted to Base Hospital, Ajmeer from 15.09.2015 to 28.10.2015. Once again, she was admitted in the AIMS Hospital, Delhi from 01.11.2016 to 06.12.2016. All these treatments were given due to the wrong diagnose and no fault on her part.
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4. It is also the case of the petitioner that the Chief Medical Officer has issued the discharge certificate and opinion dated 06.12.2016 stating that the individual is not fit for Combatised Training for Constable GD. It is pertinent to mention here that the petitioner was paid with Time Scale of Pay and after two years the services of the petitioner has been regularized. The impugned order dated 31.01.2017 has been passed by the 4 th respondent under Rule-6 of the Central Civil Services (Temporary Service) Rules 1965 stating that the petitioner is declared as physically unfit for continuance in Service as Individual is not fit for Combatised Training for Constable GD. The impugned order has been challenged by the petitioner on the ground that the order, though punitive in nature, was passed without holding any departmental enquiry and the medical opinion mentioned in the impugned order if any was held at the back of the petitioners. The impugned order is also challenged on the ground that the impugned order has been passed, in exercise of power vested under Rule 6(1) of Temporary Government Service Rules, whereas the services of the petitioner was governed by the Central Reserve Police Force Act, 1949 and the Central Reserve Police Force Rules, 1955.
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5. The relevant portion of Rule 16 of the Central Reserve Police Force Rules 1955 reads as under:
“ 16. Period of Service (a) All members of the Force shall be enrolled for a period of three years. During this period of engagement, they shall be liable to discharge at any time on one month's notice by the appointing authority. At the end of this period those not given substantive status shall be considered for quasi-permanency under the provision of the Central Civil Services (Temporary Service) Rules, 1965. Those not declared quasi-permanent under the said rules shall be continued as temporary Government Employees unless they claim discharge as per schedule, to the Act. Those who are temporary shall be liable to discharge on one month's notice in accordance with the said rules as amended from time to time.
(b) Should the Central Government decide at any time to disband the Force or any part of it either before termination of the period for which a member of the Force is enrolled or at any time thereafter, he shall be liable to discharge, without compensation from the date of disbandment.
(c) No member of the Force shall withdraw from the duties of his office without express permission of the commandant or an accredited gazetted officer.
(d) The appointing authority may, during the period of initial appointment of a member of the force appointed under [Section 4 and 5] of the Act, permit him for good and sufficient reason, to resign from the Force with effect from such date as may be 6/22 https://www.mhc.tn.gov.in/judis WP.No.10318 of 2017 specified in the order accepting his resignation; Provided that on the acceptance of his resignation any such member of the Force shall be required to refund to the Government all the cost of training imparted to him in the Force or a sum equal to three months pay and allowances, received by him prior to the date of his resignation whichever is less:
Explanation (1) For the purpose of this sub-clause “ during the period of initial appointment” shall mean the period before a member of the Force is declared quasi-permanent.
(2) The appointing authority may refuse to permit a member of the Force to resign if any emergency has been declared in the country either due to internal disturbances or external aggression.
(e) The appointing authority may give substantive status to such members of the Force as are found suitable in all respect”
6. It is the further case of the petitioner that the trainees from Tamilnadu with great difficulty secure the jobs and they are not in the habit of violating the norms. They belonged to poor families and they had no money to spend for any other purpose. It is well settled that enquiry should be conducted by the Authority before any official rod is inflicted but no sort of enquiry was conducted. The order of termination is void and nonest as 7/22 https://www.mhc.tn.gov.in/judis WP.No.10318 of 2017 he is not the competent authority under rules. Hence the order passed by the fourth respondent-Commandant-232 Batallion terminating the petitioner without definite allegations or framing any charges and without conducting any enquiry or giving opportunity is arbitrary and liable to be set aside.
7. The learned counsel for the petitioner in support of his contentions, relied on various judgments which are as follows:
K.I.Shephard Vs Union of India reported in 1987 4 SCC, the Hon'ble Supreme Court has held in D.T.C case reported in 1991 Suppl. 1 SCC and A.R.Antulay Vs. R.S.Nayak -reported in 1988 2 SCC).
8. The learned counsel for the petitioner submitted that the petitioner is governed by the Central Reserve Police Force Act which has inbuilt safeguard for the petitioner and hence impugned order passed under the Central Civil Services (Temporary Services) Rule 1965 is not applicable as per the decision of this Court dated 24.08.2011 and made in No.W.P.(MD)No.3292 of 2006 and W.P.(MD)No.3312 of 2006. He further submitted that the petitioner and others were forced to discontinue the training without any fault of theirs. They have to undergo training for the 8/22 https://www.mhc.tn.gov.in/judis WP.No.10318 of 2017 remaining period before joining service. Hence, prayed to allow the writ petition.
9. The learned counsel for the petitioner states that the authorities without considering the future of the petitioner and without giving an opportunity, decided the matter unilaterally and prayed to allow the writ petition by giving another opportunity by referring the petitioner to Medical Board.
10. In the counter filed by the respondents, it is stated that on selection for appointment as Constable/General Duty (Mahila) in CRPF through Staff Selection Commission (SSC) 2013-14, offer of appointment was issued to the petitioner vide DIGP, GC, CRPF, Avadi Letter No.R.II.20/2013-14-EC-V(SSC) dated 28.10.2014 with certain conditions including the conditions that the petitioner will be required to undergo basic training at any of the training institution of the CRPF after reporting and if she failed to complete training unsuccessfully, the petitioner's services will be terminated.
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11. It is submitted that on acceptance of terms and conditions as enumerated in offer of appointment, the petitioner reported in GC, CRPF, Avadi and appointed as Constable/GD/(Mahila) w.e.f 20.11.2014 vide O/o.No.R.II-2013-14-EC-V dated 03.12.2014 in the Pay Scale of Rs.5200- 20,200/-, Grade Pay Rs.2000/- (minimum pay of Rs.6460/-) plus usual allowances as admissible for Central Government employees from time to time. It is further submitted that in order to undergo basic training at 232(M) Bn at GC-II, Ajmer (Rajasthan) along with other Mahila Personnel, reported her arrival on 08.02.2015 and training started w.e.f 11/05/2015. While undergoing basic training, the petitioner reported to Unit Hospital on 02.07.2015 with complaint of seizure disorder and immediately she was referred to Government Jawaharlal Nehru Hospital, Ajmer where she was admitted from 02.07.2015 to 06.07.2015. Thereafter, the petitioner remained under treatment/medical rest and on duty and details are us under:
S.No Admit/Medical Rest/Duty Period Total days From To 01 Admitted in Govt. J.L.N. Hospital, 02/07/2015 06/07/2015 05 Ajmer (Rajasthan) 02 Discharged from Hospital. 07/07/2015 03 Reported in Unit Hospital as sick 10/07/2015 24/07/2015 15 report on 10/07/15 and given advice 10/22 https://www.mhc.tn.gov.in/judis WP.No.10318 of 2017 S.No Admit/Medical Rest/Duty Period Total days From To for 15 days as Light duty.
04 Reported in Unit Hospital as sick 25/07/2015 05/08/2015 12 report on 25/07/15 and given advice for 12 Days as light duty.
05 Reported in Unit Hospital as sick 06/08/2015 20/08/2015 15 report and given advice for Light Duty.
06 Reported in Unit Hospital as sick 21/08/2015 23/08/2015 03 report and given advice for Light Duty.
07 Reported in Unit Hospital as sick 24/08/2015 02/09/2015 10 report and given advice for Light Duty (Attend-'B') 08 Reported in Unit Hospital as sick 03/09/2015 --- 01 report 09 Reported in Unit Hospital as sick 04/09/2015 06/09/2015 03 report and given Attend- 'B' 10 Admitted in Govt. J.L.N. Hospital, 07/09/2015 15/09/2015 09 Ajmer (Rajasthan) 11 Discharged from J.L.N. Hospital, 15/09/2015 Ajmer (Rajasthan) 12 Reported in Unit Hospital and 16/09/2015 28/10/2015 43 referred to Composite Hospital, Ajmer and further referred to Mittal Hospital for better treatment in Neurology Department on cashless basis.
13 Proceeded 15 days Mid Term Break 02/11/2015 16/11/2015 15 w.e.f. 02/11/2015 to 16/11/2015 with permission to avail on 01/11/2015 being Sunday 14 Reported in Unit Hospital on 27/11/2015 29/11/2015 03 27/11/2015 as sick report and given attend 'B' 15 Reported in Unit Hospital on 30/11/2015 07/12/2015 08 30/11/2015 as sick report and given 11/22 https://www.mhc.tn.gov.in/judis WP.No.10318 of 2017 S.No Admit/Medical Rest/Duty Period Total days From To attend-'B' 16 Reported in Unit Hospital on 08/12/2015 ---- 01 08/12/2015 as sick report and given advice for light duty.
17 Reported in Unit Hospital at Group 16/02/2016 ---- 01 Centre-II Ajmer on 16/02/2016 and referred to Govt. J.L.N. Hospital, Ajmer.
18 Reported in Unit Hospital at Group 30/03/2016 31/03/2016 02 Centre-II Ajmer and given advice for 2 days light duty.
19 Reported in Unit Hospital at Group 01/04/2016 02/04/2016 02 Centre-II Ajmer.
20 Govt. J.L.N. Hospital, Ajmer 05/04/2016 --- 01 21 Reported in Unit hospital 06/04/2016 ..... 01 22 Reported in Unit Hospital and 07/04/2016 --- 01 referred to Govt. J.L.N. Hospital, Ajmer on 07/04/2016.
23 Reported in Unit Hospital and 09/05/2016 --- 01 referred to Govt. J.L.N. Hospital, Ajmer on 09/05/2016.
24 Reported in Unit Hospital at Group 10/05/2016 11/05/2016 02 Centre-II Ajmer.
25 Reported in Unit Hospital at Group 22/07/2016 ----- 01 Centre-II Ajmer.
26 Reported in Unit Hospital at Group 13/08/2016 ----- 01 Centre-II Ajmer.
27 Reported in Unit Hospital and 16/08/2016 ---- 01 referred to Govt. J.L.N. Hospital, Ajmer 28 Reported in Unit Hospital. 17/08/2016 ...... 01 29 Reported in Unit Hospital. 26/08/2016 ..... 01 30 Reported in Unit Hospital 29/08/2016 ...... 01 31 Reported in Unit Hospital and 26/09/2016 .... 01 12/22 https://www.mhc.tn.gov.in/judis WP.No.10318 of 2017 S.No Admit/Medical Rest/Duty Period Total days From To referred to Govt. J.L.N. Hospital, Ajmer on 26/09/2016.
32 Reported in Unit Hospital 27/09/2016 ...... 01 33 Reported in Unit Hospital 05/10/2016 ...... 01 34 Admitted at Composite Hospital, 01/11/2016 06/12/2016 36 CRPF N/Delhi
12. Since the petitioner was absent for more than 71 days during her basic training, she was relegated from the batch undergoing Basic Training till the petitioner regains medical fitness to start basic training afresh from zero week with new recruits, vide 4th respondent Office Order No.D.V-
1/2016-232(M) EC-3 dated 11.05.2016. As the petitioner remained under treatment/rest for months together during basic training and no progress achieved, the case was taken up with DIG (Medical), Composite Hospital, CRPF, Ajmer (Rajasthan) with request to furnish opinion on review of Medical Board, whether she will be fit for basic training in near future or otherwise. As the petitioner suffered from neurocystocarcosis with eosinophillia, she required treatment from a neurologist. Since neurology facility was not available at Jawaharlal Nehru Hospital and Medical College, Ajmer (Rajasthan), the petitioner case was taken up with IGP 13/22 https://www.mhc.tn.gov.in/judis WP.No.10318 of 2017 (Med) Composite Hospital, New Delhi by DIG (Medical) Composite Hospital, Ajmer for further treatment. On receipt of confirmation, the petitioner was transferred to Composite Hospital, New Delhi for further review. During review, it was opined that the petitioner is not fit for combatised training for Constable/GD.
13. It is also submitted that as the petitioner had not completed her basic training or probation period and found not fit for combatised training for Constable/GD, her services were terminated with effect from 31.01.2017(A.N) with one month salary vide 4th respondent O/o.No.T.V- 1/2017-232(M)-EC3 dated 31.01.2017 which was handed over to her on same date. It is further submitted that the petitioner has quoted the contention of DIGP Group Centre, CRPF, Avadi O/Order No.R.II-20/2013- 14-EC-V(SSC) dated 03.12.2014 vide which the petitioner was appointed as Constable/General Duty (Mahila) w.e.f. 20/11/2014.
14. It is submitted that the petitioner had reported in 232(M) Bn to undergo basic training along with other Mahila Personnel on 08.02.2015 and her training was started on 11.05.2015, but not on 20.11.2014. On 14/22 https://www.mhc.tn.gov.in/judis WP.No.10318 of 2017 02.07.2015, the petitioner reported to Unit Hospital with complaint of seizure disorder and the petitioner was immediately referred to Government Jawahar Lal Nehru Hospital, Ajmer for further management and treatment where she was diagnosed with Neurocystocarcosis. Thereafter the petitioner remained under treatment/rest/duty on various dates as mentioned in Para 2(c). As diagnosed by Govt.Jawahar Lal Nehru Hospital, Ajmer, Rajasthan, the petitioner was provided specialized treatment by specialist of various hospitals and wrong diagnose/treatment was provided to the petitioner as alleged. It is submitted that CRPF being a Central Armed Police Force, it is imperative to undergo necessary basis training to keep herself mentally and physically fit and capable to perform various duties even in adverse conditions in any part of the country, which she failed and remained under treatment/ rest for months together for localization related seizure disorder. Even in clinical tests and Neuroimaging revealed the presence of calcified granuloma in bifrontal and left parietal lobe. Since the petitioner had not completed basic training for combat duties, the services of petitioner were terminated with one month pay instead of giving one month notice as per Rule 6 of CCS (Temporary Service) Rules, 1965 and which is also clearly mentioned in the offer of appointment. Since petitioner 15/22 https://www.mhc.tn.gov.in/judis WP.No.10318 of 2017 has neither completed her mandatory two years probation period nor she completed her basic training, there is no necessity to hold a Departmental Enquiry to terminate her services. Further, the petitioner is found unfit for combatized duty as per medical review report of Composite Hospital, CRPF, New Delhi. Being a temporary Government Servant, services of the petitioner were terminated by the competent authority under Rule 6 of CCS (Temporary Service) Rules, 1965 without holding a Departmental Enquiry. Hence the action taken by the competent authority ie., Commandant 232 (Mahila) Bn in the instance case as per rule 6 of CCS (Temporary Service) Rules is in order.
15. The petitioner has quoted the contents of Rule 16 of CRPF Rules, 1955 and submits that the same is not relevant for the case on hand as her services were terminated as per rule 6 of CCS (Temporary Service) Rules, 1965. The petitioner was declared unfit due to medical reasons of localization related seizure disorder. The Neuroimaging revealed calcified granuloma in bifrontal and left parietal lobe. As the petitioner was found unfit for combatised training i.e., for constable/General Duty in CRPF during medical review, the action taken against the petitioner by the 16/22 https://www.mhc.tn.gov.in/judis WP.No.10318 of 2017 competent authority is correct and in accordance with relevant rules in existence. Since the petitioner had not completed basic training and she was governed under CCS (Temporary Service) Rules, the services of petitioner were terminated w.e.f 31.01.2017 with one month pay instead of giving one month notice purely as per Rule 6 of CCS (Temporary Service) rules, 1965 vide 4th respondent office order No.T.V-1/2017-232(M)-EC-3 dated 31.01.2017 which is lawful, appropriate and as per CCS (Temp)Rules 1965. The relevant portion of the Rule 6 is extracted here under:
6. Termination of Temporary Service on Account of Physical Unfitness:
“ Notwithstanding anything contained in rule 5, the services of a temporary Government Servant may be terminated at any time without notice on his being declared physically unfit for continuance in service by an authority who would have been competent to declare him as permanently incapacitated for service had his appointment been permanent”.
17/22 https://www.mhc.tn.gov.in/judis WP.No.10318 of 2017 Rule-6 of Central Civil Service (Temporary Service) Rules, provides that the services of a temporary Government Servant may be terminated at any time without notice on his being declared physically unfit for continuance in service by an authority who would have been competent to declare him as permanently incapacitated for service had his appointment been permanent. The petitioner was found not likely to regain SHAPE-I medical category and she was declared unfit for combatising training which is necessary for Constable/General Duty by a Doctor, the services of the petitioner were terminated with one month pay instead of giving one month and in case, one month notice was issued to petitioner, she would have not paid one month pay. Therefore action taken against the petitioner by the competent authority was well within the rule and in order. Further, there is no necessity to reopen the case by appellate authority ie., Head of the Department.
16. It is further submitted that the basic training of the petitioner has started on 11.05.2015 and the petitioner reported to Unit Hospital on 02.07.2015 with complaint of seizure disorder and on the same day, she was referred to Government Jawahar Lal Nehru Hospital, Ajmer for further treatment and thereafter she took treatment in various hospitals. 18/22
https://www.mhc.tn.gov.in/judis WP.No.10318 of 2017 Continuance of basic training in ill health may endanger the life of the petitioner as it involves rigorous training weapon with ammunitions and explosives. Further, the contention of the petitioner is that she was forced to discontinue the training without any fault is baseless and an afterthought. Action taken by the competent authority against the petitioner being a temporary government servant, as per Rule-6 of CCS (Temporary Service) Rules, 1965 in order and appropriate. Hence the averments made by the petitioner are not tenable in law. The petitioner was terminated forthwith with effect from 31.01.2017 with one month's salary without serving the notice on her being declared physically unfit for continuance in service as “ Individual is not for combatised training for Constable/General Duty. M.Samundeswari/petitioner herein of this unit will be struck off from the strength of this unit with effect from 31.01.2017 with a month's salary in lieu of notice.
17. In such circumstances, the plea of petitioner's counsel cannot be accepted as if the petitioner is in combat zone or war zone, if any thing happens to co-police personnel which leads to very serious issue and there is no clerical job in this force and hence she being appointed as Constable 19/22 https://www.mhc.tn.gov.in/judis WP.No.10318 of 2017 not fit for the said post. There are no merits in this writ petition and the same is liable to be dismissed.
18. Accordingly, this writ petition is dismissed. No costs.
30.11.2023 Vv To
1. The Director General of Police, Central Reserve Police Force, Block No.1, C.G.O.Complex, Lodhi Road, New Delhi-110 003.
2. The Deputy Inspector General of Police, Central Reserve Police Force, Group Centre, Avadi, Chennai-600 065.
3. The Commandant, 232, B.N.Central Reserve Police Force, Salboni, West Midnipur, West Bengal-721 174.
20/22 https://www.mhc.tn.gov.in/judis WP.No.10318 of 2017 V.BHAVANI SUBBAROYAN., J.
Vv WP.No.10318 of 2017 30.11.2023 21/22 https://www.mhc.tn.gov.in/judis