Jammu & Kashmir High Court - Srinagar Bench
Ghulam Mohammad Makroo vs State Of J&K And Ors on 1 April, 2010
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 1092 of 2006 CMP No. 1872 of 2006 Ghulam Mohammad Makroo Petitioners State of J&K and ors Respondents !Mr. M. S. Reshi, Advocate ^Mr. A. M. Magray, Advocate Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 01/04/2010 :J U D G M E N T:
Petitioners services were regularized vide order No. 989 of 1996 dated 18.12.1996 and he was appointed as Warder in the J&K Prison Department against available vacancy of Sub Jail Kotebhalwal in the pay scale of Rs. 950-1500 plus usual allowances with effect from January 01, 1997.
Order of appointment provided that petitioner will undergo the prescribed training during his probation period of two years. It was also provided that appointment will be subject to satisfactory report regarding character and antecedents. The order of appointment is reproduced as under:
GOVERNMENT OF JAMMU AND KASHMIR OFFICE OF THE ADDL. DIRECTOR GENERAL OF PRISONS AND FIRE SERVICES J&K JAMMU.
ORDER No. 989 OF 1996 DATED 18-12-1996
1. Shri Gh. Mohammad Makroo S/o Sonaullah R/o Rainawari Srinagar Daily Wager/Adhoc in Central Jail Srinagar is hereby appointed as Warder in the J&K Prison Department against the available vacancy of Sub Jail Kotebhalwal in the pay scale of Rs. 950-1500 plus usual allowances admissible under rules with effect from January 1.1997.
2. He will produce original qualification certificate alongwith two sets of attested Photostat copies to this office for record.
3. The appointment shall be subjected to Medical/Physical fitness examination which shall be conducted at the concerned District Hospital and will include:
1. Chest X-Ray.
2. Urine Examination.
3. ECC from Government Hospital and
4. Certificate that the person is not stammering and is not having flat foot or bow-legs and has clear eye sight without glasses.
5. He will undergo prescribed training during his probation period of two years. The appointment will be subject to getting satisfactory report regarding character and antecedents.
(Veeranna Aivalli) Addl. Director General of Prisons/ Fire Services J&K Jammu. Petitioners probation was terminated vide order No. 146 of 1998 dated 28.08.1998 on the ground that he failed to undergo the basic training course for which he was deputed twice during the probation period. The order of terminating the probation of petitioner is reproduced as under:
GOVERNMENT OF JAMMU AND KASHMIR OFFICE OF THE ADDL. DIRECTOR GENERAL OF PRISONS AND FIRE SERVICES J&K JAMMU.
ORDER No. 146 OF 1998 DATED 28.08.1998 Whereas Shri Ghulam Mohammad Makroo, Warder was working on Adhoc basis in Central Jail, Srinagar and regularized vide this office order No. 989 of 1996 dated 18.12.1996.
Whereas the Warder was selected for undergoing basic training course at PTA Udhampur vide Order No. 113 of 1997 dated 23.06.1997 and was accordingly discharged from PTA vide order No. 551 dated 29.07.1997.
Whereas, the Warder could not even report in this office after he was discharged from PTA till 16.11.1997 AN. However, taking a lenient view in the matter he was allowed to resume duties w.e.f 17.11.1997 and the period of unauthorized absence w.e.f. 23.06.1998 to 16.11.1997 has been treated as dies non vide this office order No. 522 dated 26.12.1997 further mentioned that it shall not count for any renummerations, increments, pension etc and will entail break in his service. He was also ordered to be sent for training in the next batch and if he absents again, his service shall be terminated.
Whereas, the Warder was selected again to undergo training w.e.f. 15.02.1998 at PTA Udhampur, but he has totally failed to report for training at PTA Udhampur and has submitted application on 15.07.1998 in this office along with some medical documents. From the perusal of records, it is revealed, that he has never remained admitted as in-door patient in the Hospital. Therefore, the record shows that official has persistently avoided undergoing the prescribed basic training. As per earlier order, the official is liable to be terminated from service as he bing a probationer and has failed to avail two chances of training by remaining unauthorizedly absent for the one pretext or the other.
Therefore, the services of Shri Gh. Mohammad Makroo, Warder are terminated w.e.f. 15.02.1998.
Addl. D. G. Prisons/Fire Services J&K, Jammu. This petition was filed in the year 2006 calling in question the above referred order. The annexures appended with the writ petition show that petitioner had filed some representations.
Respondents have filed reply affidavit.
Heard learned counsel for parties. Considered the matter.
Learned counsel for petitioner submitted that order terminating the probation of the petitioner is not an order simplicitor, but punishment has been inflicted on the petitioner. Learned counsel further submitted that petitioner was relieved for undergoing basic training course at PTA, Udhampur vide Government order No. 113of 1997 dated 23.06.1997 and on his failure to undergo the said training course his period of unauthorized absence was treated as dies-non and thus punishment was inflicted on the petitioner. Learned counsel further submitted that subsequently, petitioner during probation period was again ordered to undergo basic training course at PTA Udhampur, but he could not undergo said training for the reason that he was ill, and despite that his probation was terminated on the alleged misconduct of having remained unauthorizedly absent from duty. Learned counsel accordingly in support of his contention referred to and relied upon host of judgments reported in AIR 1987 SC 229, AIR 1999 SC 609 AIR 1974 SC 2192 AIR 1960 SC 689 AIR 1963 SC 581 AIR 1999 SC 609 AIR 1958 SC 36 and 2005 (2) JKJ page 121. Learned counsel thus submitted that the order of termination impugned in this petition is passed on the alleged misconduct of the petitioner and no enquiry has been conducted, therefore, the same stands vitiated in the eyes of law and thus deserves to be quashed. Learned counsel for respondents submitted that order of termination of the petitioner is an order simplicitor as petitioner has failed to comply with the condition No. 4 of the appointment order which provided that during his probation period of two years he will undergo prescribed training course and since he failed to undergo the said prescribed training course during the probation period, there was no option left with the authorities but to terminate the probation of petitioner. Learned counsel also referred to Rule 6 of the Jammu and Kashmir Jails (Subordinate) Service Recruitment Rules, 1985 (for short Rules of 1985) to indicate that a person appointed to the service either by direct recruitment or by promotion shall be on probation or trial for two year. Learned counsel further submitted that Rule 6 (2) of the Rules of 1985 provide that if a probationer has not passed prescribed departmental examination or training, he is required to be discharged from service. Learned counsel also referred to Rule 21(2)(a) of the Civil Services (Classification, Control and Appeal) Rules, 1956 (for short Rules of 1956) to indicate that when a probationer fails to acquire the special qualifications or to pass the special tests, if any, prescribed or to acquire such other qualifications as may be considered by Government to be equivalent to the said special qualifications or special tests, the appointing authority shall forthwith by order, discharge him from service. Learned counsel for the respondents accordingly submitted that authorities have only complied with the above referred rules in passing the impugned order. Learned counsel also submitted that the order is not founded on any alleged misconduct but the failure of the petitioner to undergo the basic training for which he was deputed twice necessitated passing of impugned order.
The contention of learned counsel for petitioner that the order impugned is founded on alleged misconduct of the petitioner inasmuch as when he was, in the year 1997, ordered to undergo basic training course, he failed to undergo the same and his period of unauthorized absence was treated as dies non, so punishment was inflicted on him is devoid of any merit.
The period of unauthorized absence from duty, in the year 1997, has not been treated as misconduct as no disciplinary enquiry was initiated against petitioner for remaining unauthorizedly absent from duty and, accordingly, no punishment has been inflicted on him. The authorities took a lenient view and condoned the period of unauthorized absence from the duty by treating it as dies-non. Period of unauthorized absence from duty when treated as dies-non would not constitute a punishment in service jurisprudence.
The other contention of the learned counsel for petitioner is that impugned order has been passed on the ground of petitioner having remained unauthorizedly absent from the duty does not stand to reason in view of the language used in the impugned termination order. The impugned termination order is founded on the ground that petitioner failed to undergo the basic training course for which he was deputed twice during his period of probation. It was the condition of the appointment order of the petitioner that he will undergo prescribed training course during his period of probation. Rule 6 of the Rules of 1985 also provided that an appointee will be deemed to be on probation and he shall have to undergo the training course. Rule 21(2)(a) of the Rules of 1956 do authorize the competent authority to terminate the probation of the probationer in case he fails to undergo the prescribed training course. Petitioner having failed to undergo prescribed training course despite having been afforded two opportunities by deputing him to undergo said training course during his probation period, resultantly invited the enforcement of Rule 21(2)(a) of the Rules of 1956. The judgments cited at the bar by learned counsel for petitioner would show that they would either pertain to the permanent employees or in the case of probationer, probation was terminated on the allegation of serious misconduct and on the basis of preliminary enquiry conducted to prove that misconduct. These judgments do not support the case projected by the petitioner as the petitioner has not been discharged on allegation of misconduct.
A person when appointed against a permanent post, on the terms and conditions of his appointment order and the rules governing his service, he does not become member of the service but is only on trial during the period of probation. The provision under Section 126 of Constitution of J&K and Article 311 of the Constitution of India will not be attracted to the case of the probationer except, of course, in the circumstances the probationer is discharged on his alleged misconduct. For the above stated reasons this petition, being meritless, is accordingly dismissed along with all connected CMP(s).
Srinagar (Muzaffar Hussain Attar) 01.04.2010 Judge Paramjeet