Madras High Court
Union Of India Rep. By Its vs Sanjay Kumar Jha on 15 July, 2014
Bench: V.Dhanapalan, S.Vimala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.07.2014 CORAM THE HON'BLE Mr. JUSTICE V.DHANAPALAN and THE HON'BLE Mrs. JUSTICE S.VIMALA W.P.No.21757 of 2011 and M.P.No.1 of 2011 1.Union of India rep. By its Secretary to Government of India, Ministry of Defence, DHQ Post, New Delhi 110 011. 2.The Director General of Ordinance Factory, Ordinance Factory Board, 10, A.S.K. Bose Road, Kolkata 700 001. 3.The General Manager, Cordite Factory, Aravankadu, Nilgiris 643 202. .. Petitioners Vs. 1.Sanjay Kumar Jha 2.The Registrar, Central Administrative Tribunal, City Civil Court Building, Chennai 104. .. Respondents Petition filed under Article 226 of The Constitution of India praying to issue a writ of certiorari to call for the records of the second respondent Tribunal in O.A.No.1047 of 2009 dated 23.11.2010 and quash the same. For Petitioners .. Mr.S.Udayakumar, SCGSC For Respondents .. Ms.N.Fidelia for R1 R2 - Tribunal ORDER
(Order of the Court was made by V.DHANAPALAN, J.) What is challenged in this writ petition is the order of the Tribunal dated 23.11.2010 made in O.A.No.1047 of 2009, whereby the Tribunal held that the period for which the first respondent was out of service i.e. from 18.03.2003 to 12.11.2006 shall be counted for the purpose of seniority and pensionay benefits.
2.The matter entirely rests upon the question as to whether the punishment of dies non can be imposed upon a probationer.
3.The brief facts of the case are as follows:
(i)The first respondent was working as CPW Skilled in the third petitioner Cordite Factory and on 15.03.2003, during his probation period, he along with another employee of the Cordite Factory was arrested by the Wellington Police on the complaint of the Security Officer of the said Cordite Factory. The first respondent was implicated as second accused in C.C.No.30 of 2013. Subsequently, as criminal proceedings were initiated against him, he was dismissed from service from 18.03.2003. In the criminal case in S.C.No.41 of 2003 before the District and Sessions Court, Nilgiris, the first respondent and the other accused were convicted and imposed with life sentence, by an order dated 29.04.2004. The first respondent preferred an appeal before this Court in Crl.A.No.664 of 2004 and by a judgment dated 21.09.2006, he was acquitted from the criminal case whereas the first accused was convicted. On the representation made by the first respondent dated 28.10.2006, he was reinstated into service on 12.11.2006, by extending the probation period of the first respondent for a further period of one year from 07.04.2007. But the first respondent was denied of all the other benefits.
(ii)When the first respondent sought for the other benefits, the authority viz., the third petitioner herein vide an order dated 29.01.2008, rejected the claim stating that as the services of the first respondent was terminated during his probationary period by invoking Clause 2.1(b) of the appointment order, the termination cannot be construed as penalty/punishment under Rule 11 of Central Civil Services Classification Control and Appeal Rules (in short CCS (CC&A) Rules) and the interregnum period from 18.03.2003 to 11.11.2006 cannot be treated as period spent on duty. The third petitioner further ordered that the period from 18.03.2003 to 11.11.2006 has to be treated as dies non and that the said period will neither be counted as service nor be construed as break in service. Aggrieved against the same, the first respondent preferred an appeal to treat the said period as duty and the same was rejected vide order dated 30.10.2008. Challenging both the orders dated 29.01.2008 and 30.10.2008, the first respondent has preferred an Original Application before the Tribunal in O.A.No.1047 of 2009.
(iii)Before the Tribunal, the petitioners filed reply statement. In their reply statement, it has been stated that the first respondent was terminated, invoking Clause 2.1(b) of his appointment order dated 30.07.2001. It was further stated that technically, the first respondent was neither dismissed nor removed from service but was terminated from service while on probation. Therefore, initiation of departmental enquiry and awarding penalty does not arise. After his acquittal in the criminal case, the first respondent made a representation, requesting for reinstatement, which was also sympathetically considered by the appointing authority and he was reinstated into service with effect from 12.11.2006. But the first respondent was issued with a show cause notice dated 10.10.2007 as to why the interregnum period from 18.03.2003 to 11.11.2006 should not be treated as dies non. The first respondent's request to treat the above period as spent on duty was rejected.
(iv)On consideration of the case put forth by the petitioners as well as the first respondent, the Tribunal came to the conclusion that the petitioners have rightly extended the probation period of the first respondent for a further period of one year and as the first respondent was out of service from 18.03.2003 to 11.11.2006, he is not entitled for any pay and allowances based on the principle of no work no pay. The Tribunal further held that the first respondent was reinstated into service, not based on the direction of the Court, but on the ground that he was acquitted from the criminal case. Since the first respondent was out of service during the period of probation, the said period from 18.03.2003 to 11.11.2006 was directed to be counted for the purpose of seniority and pensionary benefits. Aggrieved against the said order of the Tribunal, the petitioners are before this Court with this writ petition.
4.We have heard the learned counsel for the petitioners and the learned counsel for the first respondent and also perused the records.
5.Learned counsel for the petitioners would vehemently contend that the termination period cannot be counted for any purpose as the first respondent was convicted in the criminal case during the proceedings initiated against him and the decision was taken by the competent authority, based on the sentence imposed on the first respondent and the subsequent acquittal would not confer any advantage/benefit to the first respondent. He would further submit that the order of the Tribunal to treat the said period for seniority and pensionary purposes is against law and therefore, it cannot be allowed to stand.
6.On the other hand, learned counsel for the first respondent would contend that after the order of this Court, acquitting him from criminal case, the first respondent made a representation, based on which, the third petitioner took the lenient approach of reinstating him in service and in the absence of any award of monetary benefits, the view taken by the Tribunal in counting the period for the purpose of seniority and pensionary benefits cannot be termed as against the law.
7.It is not in dispute that the first respondent was engaged as CPW skilled worker in the third petitioner factory on 15.03.2003 and the terms and conditions of appointment would be binding on the parties. As per Clause 2.1(b) of the appointment order, the services of an employee may be terminated, at any time during the probationary period without any notice. Clause 2.1 of the terms and conditions of the appointment order reads as under:
2.1.The terms and conditions of your service will be as follows:
(a)You will be on probation for a period of two years from the date of joining; the period of probation may be extended based on your performance as per the rules on the subject.
(b)Your service may be terminated at any time during the probationary period without notice.
(c)After satisfactory completion of the probationary period, you will be considered for confirmation.
(d)After the probationary period, the termination of your service will require three months notice in writing on either side.
(e)You will be entitled to such leave pay as may be prescribed by the rules and orders for the time being in force and grant of leave will be subject to the exigencies of the service.
(f)You shall be entitled to such terminal benefits, if any, as may be prescribed by the orders for the time being in force.
(g)At the discretion of the General Manager, CFA, a Quarters will be provided for you, if available, on licence fee as per rules and on the terms and conditions prescribed in respect thereof from time to time.
(h)You are liable for transfer to any Ordinance Factory in India, from time to time.
(i)In all matters concerning your service under the Govt. of India, you will be governed by such terms and conditions as may be prescribed from time to time and as applicable to you.
8.Admittedly, the first respondent was implicated as second accused in the criminal case in C.C.No.30 of 2003. In the sessions case in S.C.No.41 of 2003 before the District and Sessions Court, Nilgiris, the first respondent along with another accused was convicted and sentenced to life imprisonment on 29.04.2004, against which, both of them preferred an appeal before this Court in Crl. A. No.664 of 2004. By judgment dated 21.09.2006, the first respondent alone was acquitted from the criminal case. Thereafter, he made a representation to the third petitioner on 28.10.2006 requesting for reinstatement, based on which, he was allowed to rejoin duty with effect from 12.11.2006. But the claim of the first respondent that he should be given all the benefits viz., pay and allowances, dearness allowance, annual increments etc., as per the Pay Commission was rejected by the third petitioner in his impugned proceedings dated 29.01.2008 and the appeal preferred by the first respondent was also rejected by order dated 30.10.2008.
9.In the impugned order dated 29.01.2008, the third petitioner has stated that as the termination of the services of the first respondent was made during his probationary period by invoking Clause 2.1(b) of appointment order dated 30.07.2001, the termination period cannot be construed as penalty/punishment under Rule 11 of the CCS (CCA) Rules and the interregnum period from 18.03.2003 to 11.11.2006 cannot be treated as period spent on duty. Therefore, the third petitioner/competent authority passed the order, treating the interregnum period from 18.03.2003 to 11.11.2006 as dies non and the said period will neither be counted as service nor be construed as break in service and the question of computing the intervening period does not arise.
10.Considering the above, we are of the view that it would be relevant to analyse Rule 11 of CCS (CCA) Rules as well as explanation to the said Rule, which prescribes the relevant penalties to be imposed on a Government servant. Rule 11 deals with minor penalties viz., censure, withholding of promotion, recovery of pay and withholding of increment and major penalties viz., reduction to a lower stage in the time scale of pay with or without cumulative effect, compulsory retirement, removal from service and dismissal from service. Explanation to Rule 11 of CCS (CCA) Rules reads as under:
Explanation:- The following shall not amount to a penalty within the meaning of this rule, namely:-
(i)withholding of increment of a Government servant for his failure to pass any departmental examination in accordance with the rules or orders governing the service to which he belongs or post which he holds or the terms of his appointment;
(ii)stoppage of a Government servant at the Efficiency Bar in the time-scale of pay on the ground of his unfitness to cross the Bar;
(iii)non-promotion of a Government servant, whether in a substantive or officiating capacity, after consideration of his case, to a service, grade or post for promotion to which he is eligible;
(iv)reversion of a Government servant officiating in a higher service, grade or post to a lower service, grade or post, on the ground that he is considered to be unsuitable for such higher service, grade or post or on any administrative ground unconnected with his conduct;
(v)reversion of a Government servant appointed on probation to any other service, grade or post, to his permanent service, grade or post during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing such probation;
(vi)replacement of the services of a Government servant, whose services had been borrowed from a State Government or any authority under the control of a State Government, at the disposal of the State Government or the authority from which the services of such Government servant had been borrowed;
(vii)compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement;
(viii)termination of the services-
(a)of a Government servant appointed on probation, during or at the end of the period of his probation, in accordance with the terms of his appointment or the rules and orders governing such probation, or
(b)of a temporary Government servant in accordance with the provisions of sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, or
(c)of a Government servant, employed under an agreement, in accordance with the terms of such agreement.
11.In furtherance of the above Rule, the Government of India has issued instructions under Rule 62 of P & T Manual Volume III, wherein under Clause 6, it has been clarified that when a day could be marked as dies non and its effect. Clause 6 reads as under:
6.When a day can be marked as dies non and its effect- Absence of officials from duty without proper permission or when on duty in office, they have left the office without proper permission or while in the office, they refused to perform the duties assigned to them is subversive of discipline. In cases of such absence from work, the leave sanctioning authority may order that the days on which work is not performed be treated as dies non, i.e. they will neither count as service nor be construed as break in service. This will be without prejudice to any other action that the Competent Authorities might take against the persons resorting to such practices.
12.It is also relevant to extract Rules 54(2) and 54(4) of Fundamental Rules and the same read as under:
F.R. 54(2) Where the authority competent to order reinstatement is of opinion that the Government servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Government servant shall, subject to the provisions of sub-rule (6), be paid the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be:
Provided that where such authority is of opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly, attributable to the Government servant it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall, subject to the provisions of sub-rule (7), be paid for the period of such delay, only such amount (not being the whole) of such pay and allowances as it may determine.
.........................................................................
(4)In cases other than those covered by sub-rule(2) (including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non-compliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution and no further inquiry is proposed to be held) the Government servant shall, subject to the provisions of sub-rules (5) and (7), be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving, notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.
13.From a reading of the above provisions, under what circumstances, dies non could be imposed is crystal clear. In cases of absence of officials from duty with permission or without permission, the leave sanctioning authority may order that the days on which work is not performed can be treated as dies non. It is clear that Clause (viii) of the Explanation to Rule 11 deals with termination of service of Government servant appointed on probation during or at the end of period of his probation in accordance with the terms of his appointment or the rules and orders governing such probation. When the termination would not amount to penalty, Rule 11 of CCS (CCA) Rules will have no application to the case on hand and imposing dies non/break in service does not arise. Similarly, F.R.54 does not apply to the case of the first respondent as he was a probationer. The conclusion of the Tribunal that the termination of the first respondent cannot be construed as penalty/punishment under Rule 11 of CCS (CCA) Rules and the interregnum period to be treated as dies non is without authority of law as dies non and its effect has been clearly explained in the instructions issued by the Government under Rule 62 of P & T Manual Volume III.
14.In a similar case, where a teacher, said to be on probation, was terminated and on the application filed before the Tribunal, he was ordered to be reinstated, challenging the same, the school management preferred Civil Revision Petition before the High Court of Karnataka, wherein the High Court ordered to treat the termination period as suspension and remitted the matter back to the inquiry committee. Against which, Special Leave Petition has been filed before the Honourable Supreme Court and in the said decision in Secretary, Sree Ujjini, J.S.V.V. Sangha v. R.H.M. Channabasava Swamy, ((2003) 6 SCC 276), it has been held as under:
Having regard to the facts and circumstances of the case, we do not think that the learned Single Judge erred in remitting the matter for further inquiry. However, we feel that the appointment of the Committee is not necessary for the purpose. The District Judge (Retired) appointed by the High Court can very well conduct the inquiry as an inquiry officer. The appellant shall pay a sum at the rate of Rs 500 per sitting to the inquiry officer apart from other incidental expenses. The inquiry shall be completed within a period of six months. The respondent shall be deemed to be under suspension pending such enquiry.
15.Noticing that in normal circumstances, a probationer is not entitled for reinstatement, the petitioners have reinstated the first respondent into service with a sympathetic view and also arrived at the conclusion that the period during which the first respondent was out of service i.e. from 18.03.2003 to 11.11.2006 can be treated as spent on duty only for the purpose of seniority and pensionary benefits. We are not approving the decision taken by the authority in treating the interregnum period as dies non. However, we are also not in entire agreement with the Tribunal's conclusion that the period for which the first respondent was out of service from 18.03.2003 to 11.11.2006 has to be counted for the purpose of seniority and pensionary benefits. In our considered opinion, this factor needs to be examined by the authority in accordance with the Rules in a sympathetic manner. As has been done for reinstatement of the terminated probationer, the authority is also bound to take a decision in a manner as to how the benefits have to be extended to the first respondent for the above period, in view of the reinstatement ordered, by taking into account the acquittal in the criminal case.
16.Accordingly, while making it clear that the dies non, as ordered by the authority, is not in accordance with law, in respect of the claim of the first respondent for pay and allowances, the matter is remanded back to the competent authority for reconsideration in accordance with law. The competent authority shall take into account the above facts and pass appropriate orders within a period of twelve weeks from the date of receipt of a copy of this order.
17.With the above observation, the writ petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
(V.D.P.J.) (S.V.J.)
15.07.2014
Index:Yes/No
Internet:Yes/No
mmi
To
The Registrar,
Central Administrative Tribunal,
City Civil Court Building,
Chennai 104.
V.DHANAPALAN, J.
and
S.VIMALA, J.
mmi
W.P.No.21757 of 2011
15.07.2014