Jammu & Kashmir High Court
Ravi Kumar vs U.O.I And Ors. on 3 February, 2014
HIGH COURT OF JAMMU & KASHMIR,
JAMMU
SWP No. 1038/2008
Date of Decision: 03.02.2014
Ravi Kumar vs. U. O. I. and ors.
Coram:
Hon'ble Mr. Justice Janak Raj Kotwal, Judge.
Whether approved for reporting
In Journal/Digest: Yes/No.
A
Appearing counsel:
For Petitioner(s) : Mrs. Asha Koul, Advocate.
For Respondent(s): Mr. K.K.Pangotra, ASGI with
Mr. Rajneesh Raina, Advocate.
1. Additional DIGP, GC, CRPF, Bantalab, Jammu, herein respondent no.3, issued letter no. RII.1/2005-EC-5 whereby offer of appointment for the post of Constable (GD) in CRPF was made to the petitioner. In this letter it was mentioned inter alia that the appointment is purely temporary and subject to verification of petitioner's educational and caste certificates. It was further mentioned in that letter that on appointment, the petitioner will be governed by CRPF Act, 1949 and Rules of 1955 and other Central Government Rules/Instructions as applicable to the members of the force issued from time to time. It was mentioned also that the petitioner will not leave camp under any circumstances without proper permission of 2 the competent authority and further that no leave of any kind will be granted to the petitioner till completion of basic training. It was also mentioned that if petitioner is found unfit for recruit's basic training and do not complete it successfully his services were liable to be terminated.
2. Pursuant to and in furtherance of the offer letter, the petitioner was enrolled as Constable (GD) in CRPF (for short, the Force) on 05.12.2005 under Force No.050020128 and sent to RTC-IV, CRPF, Srinagar for basic training commencing from 16.06.2006. During the training period, the petitioner was granted fifteen days leave from 01.01.07 to 15.01.07 by the RTC-IV.
3. On 07.03.07, respondent no.3 issued order no. P-VIII-
I/2007-EC-II whereby services of the petitioner were terminated with immediate effect in terms of proviso to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 (for short, Rules of 1965) providing further that the petitioner shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of notice at the same rate at which he was drawing immediately before termination of his service, or, as the case may be, for the period by which such notice falls short of one month.
34. Feeling aggrieved and dissatisfied with his termination, the petitioner has filed this writ petition to seek issue of a writ:
i) to annul and quash the termination order no. P-
VIII-I/2007-EC-II dated 07.03.07 and
ii) to command and direct the respondents to allow the petitioner to resume his duties with all consequential benefits.
5. The petitioner has impugned the legality and correctness of the termination order on following grounds:
a) that the petitioner is a member of the Force and his conditions of service are governed by a Special Statute, namely, the Central Reserve Police Force Act, 1949 (for short, the Act of 1949) and hence his termination under the Rules of 1965 is wrong and illegal;
b) that the termination order has been issued without holding any enquiry against the petitioner inasmuch as neither any show cause notice was issued to him nor his reply to explain his position was sought and hence the order is arbitrary, illegal, violative of the principles of natural justice and is hit by Article 311 of the Constitution of India, 4
c) that neither notice pay has been paid to the petitioner nor the notice has been served upon him and
d) that the termination order casts a stigma on the petitioner as the same is silent about the reasons of termination from the force even though the petitioner was prevented by a sufficient and reasonable cause from resuming his duties.
6. It is contended by the petitioner that after availing the leave, he had left his house on 16.01.2007 to join his duties. En route at Awantipora (Kashmir) he became unconscious on seeing an accident and was rushed to the training centre. After remaining under treatment in departmental hospital Hamana (Unit line) from 17.01.07 to 24.01.07 he was shifted to Composite Hospital, CRPF Bantalab, Jammu on 26.01.07. He was referred to the Government Medical College Hospital where he remained under treatment from 27.01.07 to 13.02.07. He remained under treatment in the Composite Hospital Bantalab from 13.02.07 to 27.02.07 and was again admitted in Government Medical College Hospital from 28.02.07 to 15.03.07. He was then advised rest at home and remained under treatment of a private doctor.
57. Respondents have opposed the writ petition. It is stated on behalf of the respondents in their objections that after having been enrolled on 05.12.2005, petitioner along with other recruits was sent to RTC-IV, CRPF Srinagar for training that commenced on 16.06.06. He was granted fifteen days leave from 01.01.07 to 15.01.07. He rejoined duty/basic training on 16.01.07 after availing the leave. During his stay at the RTC-IV, the petitioner all of a sudden started showing abnormal behavior like poor interaction with colleagues and reduced appetite etc. He was again sent on three days leave w.e.f 26.01.07 to 28.01.07 to attend his ailing mother. During this leave period he turned violent and was brought to Composite Hospital CRPF, Bantalab by his father on 26. 1. O7. The Medical Officer on duty at Composite Hospital found the petitioner very quiet and silent with superstitious feeling and expressed likely attack on his life etc. The petitioner was sent to Government Psychiatric Hospital, Jammu for psychiatric treatment where he remained admitted from 27.01.07 to 13.02.07. He was given antipsychotic medication and was discharged on 13.02.07. He remained in the Composite Hospital up to 27.02.07. On 28.02.07 he was again referred to and remained admitted in Government Psychiatric hospital, Jammu up to 15.03.07 for treatment/ evaluation. He got himself discharged from the Government 6 Psychiatric Hospital on 15.03.07 without any information to the Composite Hospital. It is stated further that case summary of the petitioner drawn by the Composite Hospital, Bantalab reveals that he was found to be restless and used to speak in a very low tone which was very difficult to comprehend. He was very weak to concentrate his attention and gain his energy and strength. "The petitioner reportedly heard 'Voice' of Guru Nanak Dev Ji that he would be killed in accident. Considering his psychosis during training and nature of duties and responsibilities that he would have to face during his service in CRPF, the M.O. of the Composite Hospital, Bantalab had opined that petitioner was not able to withstand stress and strain of a combatant and considered non-fit to continue as effective member of the force. His services, thus, came to be terminated with effect from 07.03.07 within the ambit of the Rules and Regulations.
8. As regards the grounds on which termination order has been impugned by the petitioner, it has been pleaded on behalf of the respondents that as per the offer of appointment issued vide letter dated 28.10.05 it was made very clear that if the individual is found unfit for recruit's basic training and do not complete it successfully, the service would be liable to be terminated. As the petitioner was unable to complete 7 the basic training so his services were terminated. It is urged on behalf of the respondents that as per Rule 5(2) of the Rules of 1965, a terminated Government Servant has the option to submit an appeal/representation to Appellate authority within three months for consideration, which the petitioner has not done and has straightway approached this court without availing the said statutory remedy. It is further pleaded on behalf of the respondents that petitioner being a temporary government servant, his services were liable to be terminated in terms of Temporary Service Rules without issuing any Show Cause Notice to him or holding enquiry.
9. It has been seen that petitioner has filed a rejoinder to the objections filed by the respondents in which the chronology of events pertaining to ailment and treatment of the petitioner during the treatment period has not been disputed or denied.
10. A clear view of the scenario leading to termination of the petitioner vide the order impugned is available from the chronology of events stated in the pleadings of the parties read with the documents produced by the petitioner along with the petition. The petitioner had undergone the recruit's training at RTC-IV Srinagar without any obstruction up to December 2006. He was granted fifteen days leave from 01.01.07 to 15.01.07 8 and had rejoined his duties at the RTC-IV on 16.01.07. Immediately thereafter he fell sick. In this context, contention of the petitioner is that while he was proceeding to rejoin his duty on 16.01.07, en route at Awantipora he had become unconscious on seeing a serious accident and was rushed to the training centre. Contention of the respondents, however, is that after rejoining his duties on 16.01.07, the petitioner all of a sudden had started showing abnormal behavior, like poor interaction and loss of appetite. It is admitted case of both sides that the petitioner was given treatment in the CRPF Composite Hospital, Bantalab, Jammu and Government Hospital for Psychiatric Diseases(GMC), Jammu from 16.01.2007 to 15.03.2007. Petitioner remained admitted in Government Hospital for psychiatric diseases (GMC) Jammu from 27.01.07 to 13.02.07 and 28.02.2007 to 15.03.2007. This is borne out also from the Patient Discharge Card of the said Hospital produced by the petitioner. The Discharge Card for the period 27.01.2007 to 13.02.2007 would show that the petitioner was giving clinical impression of "acute psychosis". Discharge card for the period 28.02.2007 to 15.03.2007 shows that this time the petitioner was giving clinical impression of "relapse of psychosis". In this context say of the respondents is that petitioner had got himself discharged from the Government 9 Hospital on 15.03.07 without any information to the CRPF Composite Hospital. As against this, say of the petitioner is that he was advised rest at home and after that he remained under the treatment of the private doctor. A Certificate dated 23.03.07 issued by Dr. Sushil Razdan, D.M. (Neurology), Consultant Neurologist, Bhagwati Nagar, Jammu produced by the petitioner would show that petitioner remained under his treatment as he was suffering from "acute abnormal behavior with thought disturbances". He had been advised to continue with the medicines. Another Certificate dated 15.06.07 issued by the same doctor would show that the petitioner had been under his treatment since 23.03.07 and was suffering from "acute abnormal/thought disturbances" and was under regular medication and was advised to continue with the medicines. Yet another Certificate dated 18.06.08 issued by the same doctor produced by the petitioner shows that the petitioner had been under his treatment and was declared fit to resume his duties.
11. What thus, emerges and can be taken as admitted case of the petitioner that before he could complete and midway during the recruit's training, he developed Psychiatrics problem and was unfit to resume the 10 duties/training right up to 18. 6. 2008, when he was declared fit to resume duties by Dr. Sushil Razdan.
12. In the intervening period, however, the Medical Officer of the CRPF Composite Hospital, Bantalab had opined that petitioner was not able to withstand the stress and strain of Combatant and considered not fit to continue as an effective member of the Force and the petitioner thus came to be discharged vide the order impugned herein, dated 07.03.07.
13. Ms. Asha Koul, learned counsel appearing on behalf of the petitioner sought to demonstrate that service conditions of the petitioner are governed by the Act of 1949 and the Central Reserve Police Rules, 1955 framed under the said Act (for short, CRPF Rules of 1955). Respondent no.3, therefore, had no power to terminate the services of the petitioner having recourse to the provisions of the Rules of 1965 as they have no application to the members of the Force. On this score the impugned termination order is without any authority and therefore, illegal. Ms. Koul would say further that under the Act of 1949 and the CRPF Rules of 1955, services of the petitioner could not have been terminated without notice and inquiry because termination of service is a punishment which could not have been imposed without notice and holding 11 enquiry. Ms. Koul sought to draw support from sections 9, 10 & 11 of the Act of 1949.
14. Per contra, Mr. K.K.Pangotra, learned ASGI, would say that petitioner being a temporary Constable was liable to be terminated in terms of Rule 5(1) of the Rules of 1965 which apply to the members of the Force by virtue of Rule 102 of the CRPF Rules of 1955. Mr. Pangotra would say further that services of a temporary Central Government Servant can be terminated without inquiry and without assigning any reason and the only remedy available to him is appeal under Rule 5 (2) of the Rules of 1965 which petitioner has not availed.
15. Argument of the learned counsel for the petitioner is not impressive and would not prevail having regard to the facts of the case and the rule position. It is not disputed that the petitioner at the time of his termination was a temporary member of the Force. This was clearly mentioned in the office letter (supra). This position is clear from Rule 16 (a) of CRPF Rules of 1955, which reads:
"16(a): Period of Service.- 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 12 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 and those who are quasi- permanent shall be liable to discharge on three months' notice in accordance with the said rules, as amended from time to time.
16. Contextually, it would be in place to refer to Rule 102 of the CRPF Rules of 1955 too, which is comprised in Chapter XIII that provides for "APPLICABILITY OF CENTRAL GOVERNMENT RULES AND ORDERS" to the members of the Force. Rule 102 reads:
"102. Other conditions of service.- The conditions of service of members of the Force in respect of matters for which no provision is made in these rules shall be the same as are for the time being applicable to other officers of the Government of India of corresponding status.
17. Rule 5(1)(a) and 5(1)(b) of the Rules of 1965 read:
"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 service 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 rate at which he was drawing 13 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."
18. Rule 16 of the CRPF Rules of 1955 gives an unambiguous scheme about the enrollment and nature of service of a recruit to the Force. It clearly states that a member of the Force shall be enrolled for a period of three years and during this period, he shall be liable to be discharged any time on one month's notice by the Appointing Authority and at the end of that period, the recruit could be considered for substantive status and those who are not given substantive status may be made quasi-permanent. Once recruit is made quasi-permanent or is given substantive status, he would be governed by CRPF Rules of 1955. A recruit, who, however, is not made quasi-permanent or given substantive status, shall continue as temporary Government employee. A temporary member of the Force would be liable to be terminated/discharged with one month's notice both under Rule 16 of the CRPF Rules of 1955 as well as Rule 5 of the Rules of 1965. In addition, proviso to Rule 5(1) of the Rules of 1965 empower to the Competent Authority to terminate a temporary member forthwith without notice.
19. Rule 16 of the CRPF Rules of 1955 as well as Rule 5 of the Rules of 1965, thus, vest the competent Authority 14 with the power to terminate/discharge a temporary member of the Force with one month's notice. Besides, proviso to Rule 5(1) of the Rules of 1965 further vests power in the competent Authority to terminate service of a temporary Government servant (say member of the Force) forthwith but on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowance for the period of the notice at the same rate at which he was drawing them immediately before termination of his service or for the period for which such notice falls short of one month, as the case may be.
20. Neither Rule 5 (1) of the Rules of 1965 nor Rule 16 of the CRPF Rules 1955 as also not even any provision of the CRPF Act 1949 indicate much less contemplate issuing a show cause notice to or holding enquiry against the temporary Government servant (member of the Force) to be terminated.
21. The Rule position being clear too, it cannot be said that the respondent no.3 in terminating the services of the petitioner with immediate effect has acted without authority are illegally. It also cannot be said that the termination has been made in violation of the principles of natural justice because Rules do not 15 contemplate issuing show cause notice and holding of enquiry.
22. Impugned termination order has also been challenged on the ground that the same has been passed for ulterior motives, is punitive in nature and casts stigma on the petitioner as the same is silent about reason of termination. This contention too would not prevail. The letter of offer of appointment clearly provided that if the petitioner is found unfit for recruit's basic training and do not complete it successfully, he would be liable to be terminated. It is almost admitted position that during his training period, petitioner suffered psychiatric problem, which started immediately after his return from leave on 16.01.07 and as per petitioner's own admission continued up to 18.06.08 when Dr. Sushil Razdan issued him fitness certificate. During this period, he remained under constant treatment and was given treatment in CRPF Composite Hospital Bantalab, Jammu, Government Psychiatric diseases Hospital, Jammu and Dr. Sushil Razdan and therefore, could not complete the recruit's basic training. The Medical Officer of the Composite Hospital had opined that petitioner was not able to withstand stress and strain of combatant and not fit to continue as an effective member of the Force. In such a factual backdrop, respondent no.3 cannot be said to 16 have acted unfairly, arbitrarily or with ulterior motive in terminating the services of the petitioner in exercise of power vested in him under Rule 5(1) of the Rules of 1965.
23. For all what has been said and discussed above, the writ petition filed by the petitioner has no merit and is, therefore, dismissed.
(Janak Raj Kotwal) Judge Jammu :
03 .02.2014 Pawan Chopra