Central Administrative Tribunal - Jabalpur
Prakash Singh Markole vs The Union Of India on 3 July, 2013
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH,
JABALPUR
Original Application No.851 of 2009
Jabalpur, this Wednesday, the 3rd day of July, 2013
Honble Mr. Justice Dhirendra Mishra, Judicial Member
Honble Mr. G.P.Singhal, Administrative Member
Prakash Singh Markole, son of Net Singh Markole,
Aged about 24 years, Ex-Primary School Teacher in
Kendriya Vidyalaya Dindori, Dist Dindori (M.P.),
Resident of Shivdham Mohalla Ward No. 17, waraseoni,
Tahsil- waraseoni, District-Balaghat (M.P.)-481331 - Applicant
V e r s u s
1. The Union of India, Through the Secretary,
Human Resources & Development Department,
New Delhi, Pin-110011
2. The Assistant Commissioner Kendriya Vidyalaya
Sangathan, Ministry of Human Resources & Development,
Govt. of India, Jabalpur Region, GCF Estate,
Jabalpur (M.P.)-482001
3. The Principal, Kendriya Vidyalaya, Dindori,
District Dindori, (M.P.)-482001 -Respondents
(Date of reserving the order: 28.06.2013)
ORDER
By Dhirendra Mishra, JM.-
Through this Original Application the applicant has prayed for direction to the respondents to reinstate him as Assistant Teacher in the organization as the services of the applicant have been terminated vide order dated 16/20.10.2009 (Annexure A-4), while he was under probation on the ground that he remained absent from duty without sanction of leave.
2. The brief facts of the case, as narrated by the applicant, are that he was appointed as Primary Teacher in Kendriya Vidyalaya, Dindori on 31.8.2007. Since he had fallen sick, he remained absent from his duty from 06.07.2009 to 22.09.2009. However, he could not inform about his absence to respondent No.3 nor could intimate about the same to his father who is a retired person. He submitted his application for leave annexing medical certificate on 20.07.2009. He was initially served with a show cause notice on 02/03.09.2009 (Annexure A-2) under Article 81(d)(3) of the Education Code, calling upon him to submit his reply within 10 days. He submitted his reply on 22.09.2009 mentioning therein that he had already forwarded medical certificates regarding his sickness on 20.07.2009. He has also annexed medical certificate & fitness certificate of the Government Doctor Balagaht issued on 01.08.2009 and 17.09.2009. However, the respondents without considering his reply and medical certificates, regarding his sickness, terminated his services vide impugned order dated 16/20.10.2009 (Annexure A-4), whereas under the Leave Rules(Annexure A-5), a person who avails leave without informing the appointing authority and returns to his duty his absence may be condoned and he may be taken on duty. Reliance is also placed on the decision of Honble Calcutta High Court in the matters of Sanjay Wasudeorao Etankar Vs. Union of India & others, 1996 (4) SLR 324.
3. On the other hand, the respondents submitted that the applicant remained unauthorisedly absent from his duties from 06.07.2009. He was not available at home and his whereabouts were also not known. Therefore, the Principal issued memorandum dated 06.07.2009 (Annexure R-1), whereupon the applicants father informed that the applicant might have gone to Jabalpur or elsewhere. He was again issued notice on 09.07.2009 (Annexure R-2) for his unauthorised absence, which was again received by his father (Annexure-R-3), as the applicant was not available at home. However, the applicant was not traceable and first communication was received from him on 31.7.2009 through speed post, containing application dated 20.7.2009, which was actually mailed on 25.7.2009 from Waraseoni Post Office along with a medical certificate dated 06.07.2009 issued by Dr.V.K.Choudhary of District Hospital Balaghat, advising him rest upto 31.7.2009 due to typhoid. The medical certificate issued on 1.8.2009 does not mention the period of illness for which rest is necessary as per opinion of the doctor, whereas the doctor issued medical fitness certificate on 17.9.2009, issued on the basis of original medical certificate. That apart, the applicant as a Class Teacher of Class-IV collected fees @ Rs.480/- from four students and did not deposit the same with the office of the Principal and absconded from duty from 4.7.2009. The above fact was brought to the notice of the Principal by the Co-class teacher on 10.7.2009 (Annexure R-4). The guardians of the students also made written complaints to the Principal on 10.7.2009 (Annexures R-5 to R-8). The Principal also informed the Police regarding unauthorised absence of the applicant vide Annexure R-11 dated 20.7.2009. The provisions of the leave rules, referred by the applicant, are applicable to the permanent employees, but the same are not applicable to probationer/temporary employees. The applicants services are governed by the service conditions mentioned in the appointment order, which clearly lay down that a probationer may be terminated from service by issuing a months notice or payment of one month salary in lieu of notice period. Since the services of a teacher are essential for completion of syllabus of the academic year in order to maintain academic standard of the students, the unauthorised absence, for a long period, by a probationer exposes him to removal from service as per conditions of appointment order. It is settled law that a probationer has no right to the post and termination of the probationer without casting any stigma does not attract the provisions of Article 311 of the Constitution of India. The respondents have placed reliance on the decisions of the Honble Supreme Court in the matters of Ganganagar Zila Dugdh Utpadak Sahkari Sangh Ltd. & another Vs. Priyanka Joshi & another, AIR 1999 SC 2363, Oil and Natural Gas Commission Vs. Dr.Md.S.Iskander Ali, AIR 1980 SC 1242, State of Punjab & others Vs. Sukhwinder Singh, AIR 2005 SC 2960, K.V.Krishnamani Vs. Lalit Kala Academy, AIR 1996 SC 2444, State of Maharashtra Vs. Veerappa R.Saboji & another, AIR 1980 SC 42, Ranendra Chandra Banerjee Vs. Union of India & another, AIR 1963 SC 1552.
4. Though the applicant was afforded sufficient opportunity to file rejoinder, no rejoinder has been filed. Thus, the pleadings in the reply filed by the respondents have not been controverted by the applicant.
5. Since none was present on the date of final hearing and the parties were heard at length in the past and they have also submitted their written arguments and this Original Application is pending since 2009, we are deciding this Original Application in the absence of the counsel for parties by applying the provisions of Rules 15 and 16 of the Central Administrative Tribunal (Procedure) Rules, 1987.
6. It is not in dispute that the applicant remained unauthorisedly absent from 06.07.2009 without submitting any application for leave. The notice issued by the respondents under Article 81(d)(3) of the Education Code, on 02.09.2009 (Annexure A-2) could not be served on the applicant personally as he was missing from his home and his whereabouts were not known even to his father. The respondents received the leave application dated 20.07.2009 through speed post only on 31st of July, 2009, along with a medical certificate purportedly issued on 06.07.2009. The application for leave dated 20.7.2009 was in fact dispatched on 25.7.2009 from Waraseoni, whereas the applicant was allegedly undergoing treatment at district hospital Balaghat. Considering all these facts, the competent authority doubted the veracity of the medical certificates and further considering the complaints of guardians of the students that the applicant received fees from four students and did not deposit the same in the school account and absconded from the duty, have terminated the services of the applicant, while he was in probation vide impugned order dated 16/20.10.2009 (Annexure A-4).
7. The question for our consideration is whether the impugned order of termination is stigmatic and punitive in nature warranting observance of principles of natural justice. The impugned order reads as under:
Whereas Shri P.S.Marskole was appointed as PRT and jointed duty as Primary Teacher at KV Dindori on 13.09.2007.
Whereas Shri P.S.Marskole, PRT, KV Dindori under probation remained absent from his duties from 06.07.2009 without sanction of leave.
Whereas, Shri Prakash Singh Marskole, PRT, Kendriya Vidyalaya, Dindori (MP) submitted his Representation dated 22.09.2009 along with the Medical/fitness certificate showing his inability to join duty but he has failed to produce the proper medical certificate to establish the genuine ground regarding absence from duty.
Now, therefore, in terms of Para 5 of the Offer of appointment, the undersigned being the appointing authority hereby terminates the services of Shri P.S.Marskole, PRT KV Dindori with immediate effect.
8. A copy of the aforesaid order had been forwarded to the Principal Kendriya Vidyalaya, Dindori, with a direction to release one month pay to the applicant in lieu of notice period. The aforesaid order has been passed without conducting any enquiry and without recording any finding of guilt against the applicant.
9. The Honble Supreme court in the matters of State Bank of India and others Vs. Palak Modi and another, (2013) 3 SCC 607, while considering termination of services of probationers, after referring to catena of its earlier judgments, held that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of probation on account of general suitability for the post held by him. If the competent authority holds an enquiry for judging the suitability of the probationer for his further continuance in service or for confirmation and such enquiry is the basis for taking decision to terminate his service, then the action of the competent authority can not be castigated as punitive. However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice. The Honble Supreme Court in the aforesaid judgment has referred to the decision of the Honble Supreme Court in the matters of Dipiti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences,1999 (3) SCC 60 with approval and the same are quoted as under:
17. In Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences the two-Judge Bench considered the appellants challenge to the termination of his service after adverting to the various communications sent by the Head of the Organisation to the appellant and formulated the following points:
(1) In what circumstances, the termination of a probationers services can be said to be founded on misconduct and in what circumstances could it be said that the allegations were only the motive? (2) When can an order of termination of a probationer be said to contain an express stigma? (3) Can the stigma be gathered by referring back to proceedings referred to in the order of termination? (4) To what relief? While dealing with the first point, the Court referred to various earlier judgments and observed:
As to in what circumstances an order of termination of a probationer can be said to be punitive or not depends upon whether certain allegations which are the cause of the termination are the motive or foundation. In this area, as pointed out by Shah, J. (as he then was) in Madan Gopal v. State of Punjab there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. This very question was gone into recently in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. and reference was made to the development of the law from time to time starting from Parshotam Lal Dhingra v. Union of India to the concept of purpose of enquiry introduced by Shah, J. (as he then was) in State of Orissa v. Ram Narayan Das and to the seven-Judge Bench decision in Samsher Singh v. State of Punjab and to post-Samsher Singh11 case-law. This Court had the occasion to make a detailed examination of what is the motive and what is the foundation on which the innocuous order is based.
If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as founded* on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid.
10. If we apply the ratio of law laid down by the Honble Supreme Court in the aforesaid judgment, we find that in the instant case the competent authority considering that the applicant remained unauthorisedly absent without submitting any application for leave and even left his home without leaving his address with his father, and submitted application for leave through speed post, which was dated 20.7.2009 whereas it was actually dispatched only on 25.7.2009 from Waraseoni and annexed medical certificate purportedly issued on 06.07.2009 itself by doctors at District Hospital, Balaghat, did not consider the application as genuine and further considering that the complaints of the parents of the students regarding deposit of fees with the applicant, which was never deposited in the school account, terminated the services of the applicant during probationary period, as per para 8 of his appointment order by paying him salary of a month in lieu of notice period. The aforesaid order has been passed without conducting any enquiry, as the competent authority did not want to continue the applicant, who remained unauthorisedly absent for a long period without submitting any application for leave and against whom there were serious complaint of accepting fees from the students of his class and not depositing the same in school account. The enquiry was never held and no findings of guilt were arrived against the applicant and the employer was also not inclined to conduct an enquiry and at the same time the employer did not want to continue the applicant against whom there were complaints. Thus, it was a case of motive and the order of termination can not be said to be bad in law. We are fortified in our view by the judgment of the Honble Supreme Court in the matters of Priyanka Joshi (supra), wherein on similar facts, the Honble Supreme Court upheld the termination of a probationer, who remained unauthorisedly absent from duties without submitting any application for leave.
11. In view of the latest judgment in the matters of Palak Modi (supra), the ratio of law laid down by the Honble High Court of Calcutta, in the matters of Sanjay Wasudeorao Etankar (supra), relied upon by the applicant, can not be applied in the present case.
12. In the result, we do not find any merit in this Original Application. The same deserves to be and is accordingly dismissed, however, without any order as to costs.
(G.P.Singhal) (Dhirendra Mishra) Administrative Member Judicial Member rkv 7 Sub: Termination OA 851/2009 Page 7 of 7