Central Administrative Tribunal - Cuttack
S B Moharana vs Indian Council Of Agricultural ... on 2 December, 2024
1 O.A.No. 260/00154 of 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00154 of 2017
Reserved on 27.11.2024 Pronounced on 02.12.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Satya Brata Moharana, aged about 28 years, son of Sri
Arjuni Chandra Moharana, permanent resident of
Bidyadharpur (Gopinath Bazar), P.O. Nayabazar, P.S.
Chauliaganj, Cuttack-753004.
......Applicant
VERSUS
1. Indian Council of Agricultural & Research (ICAR), An
autonomous body represented reptd. through its
Secretary, Krishi Bhawan, Dr. Rajendra Prasad Marg,
New Delhi-110001.
2. The Director, Central Plantation Crops Research
Institute (CPCRI), Kasarkode, Kerla-671124.
At./P.O.Kudlu, Dist.
3. The Scientist In-Charge, CPCRI Research Centre, Mohit
Nagar, Jalpaidguri, West Bengal-735102.
......Respondents
For the applicant : Mr. S.K.Ojha, Counsel
For the respondents: Mr. S.B.Jena, Counsel
2 O.A.No. 260/00154 of 2017
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
Brief facts of the case of the applicant are that in pursuance of Advertisement No. 01/12-13 (CPCRI), he applied for the post of LDC and, on being successful in the written examination and skill test, he was issued with the offer of appointment dated 18.04.2013 (A/5). Vide order dated 30.05.2013, he was appointed to the post of LDC in the forenoon of 02.05.2013 as per the terms and conditions stipulated in OM dated 18.04.2013. While the matter stood thus, as a bolt from the blue, vide office order dated 08.03.2017 (A/7), applicant's service has been terminated by invoking proviso to sub- rule (1) of Rule 5 of the Central Civil Service (Temporary Service) Rules, 1965. Being aggrieved, applicant has filed this OA praying as under:
"(i) To admit the Original Application;
(ii) To quash the Office order No. F.No. 7(2) Recruitment/2017-Confi, dated 08th March, 2017 (Annex.A/7) issued by the Respondent No.2 holding the same is illegal, arbitrary and contrary to law;
(iii) To direct the respondents to reinstate the applicant forthwith with all financial & 3 O.A.No. 260/00154 of 2017 service benefits;
(iv) To pass any other order......."
2. Respondents filed their counter opposing and contesting the case of the applicant. The main thrust of argument of the respondents is that six posts of LDC were notified by respondent No.2. Applicant having been selected was appointed provisionally. He was kept under two years probation from the date of his appointment. One of the aspiring candidates, viz. Sri Mithun E.P., who had appeared at the written test, filed OA 180/00048 of 2015 before CAT, Ernakulam Bench to set aside the entire selection process and the appointments made by CPCRI. Besides, the Chief Vigilance Commission, Govt. of India, also forwarded some complaint to ICAR directing to inquire the matter and take appropriate action. In view of these reasons, the clearance of probation was not considered by the competent authority and confirmation of a probationer after completion of period of probation is not automatic but it is to be followed by formal orders. Till a specific order of confirmation/ satisfactory completion of probation is issued, a probationer shall be deemed to have continued on probation and his period of probation 4 O.A.No. 260/00154 of 2017 remains in force till then. Mere continuing of an employee beyond the initial period of probation cannot give him right to be absorbed in regular service or made permanent. Since, after enquiry it was established that irregularities have been committed in appointment of Lower Division Clerks at CPCRI, after analyzing the investigation report, as per rules, the service of the applicant was terminated, which warrants no interference by this Tribunal.
3. It is further submitted by Ld. Counsel for the respondents that as per Clause-6 of Memorandum dated 18.04.2013, it was within the domain of the appointing authority that he/she may, at any time during the period of probation, discharge a probationer from service without notice. Since the termination of the applicant's service and all other similarly situated persons are not punitive in nature but by invoking proviso to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, which is within the purview of the power of the Respondents, no opportunity is required to be given to the applicant and, hence, there is no violation of Articles 14, 16, 21 and 311 of the Constitution of India as alleged by the applicant. It is also alleged in the counter that the applicant has approached this 5 O.A.No. 260/00154 of 2017 Tribunal without exhausting the departmental remedies available to him. Accordingly, respondents have prayed for dismissal of this OA. Applicant has filed rejoinder to the counter.
4. We have heard the arguments advanced by Ld. Counsel for the parties and have gone through the records.
5. At the first instance, Ld. Counsel for the applicant placed reliance on the order of the Hon'ble Apex Court in the case of Satwati Deswal Vs State of Haryana & Ors, (2010) 1 SCC (L&S) 12, wherein the Hon'ble Apex Court has held that where order of dismissal is passed without initiating any proceeding and without following the principle of natural justice, there is no necessity to exhaust the departmental remedy. Since the service of the applicant was terminated vide order dated 08.03.2017 by invoking Proviso to sub- rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 and, thereafter, the applicant approached this Tribunal in this OA on 20.03.2017, we overrule the objection raised by the respondents that this OA should be dismissed on the ground of approaching this Tribunal without exhausting departmental remedies.
6 O.A.No. 260/00154 of 2017
6. Insofar as merit of the matter is concerned, Ld. Counsel for the applicant submits that application of CCS (Temporary Service) Rules, 1965 cannot be justified in terminating the service of the applicant without giving him any opportunity and complying with the principles of natural justice. It is submitted that applicant, after accepting the offer of appointment vide memorandum dated 18.04.2013, joined the post of LDC at CPCRI, Mohitnagar on 02.05.2013. It was stipulated at Sl. No.5 of the memorandum dated 18.04.2013 that "he will be on probation for a period of two years from the date of his joining the post, which may be extended at the discretion of the competent authority. Failure to complete the period of trial to the satisfaction of the competent authority will render him liable to be discharged from service". Since the applicant has already completed two years probation period, respondents cannot terminate his service by invoking CCS (Temporary Service) Rules, 1965. In this regard, he relies on the law laid down by Hon'ble Apex Court in the case of Head Master, Lawrence School, Lovedale Vs. Jayanthi Raghu & Anr., (2012) 1 SCC (L&S) 798 to submit that in the absence of appropriate order extending the probation period, the 7 O.A.No. 260/00154 of 2017 probation deemed to have been confirmed on completion of statutory period. It is submitted by him that even in the situation of temporary appointment, prior notice is also mandatory as per Rule 5(1) (a) & (b) of the CCS (Temporary Appointment) Rules, 1965 before termination.
7. Ld. Counsel for the respondents, on the other hand, submits that after filing of OA 48/2015 by one Sri Mithun E.P. before CAT, Ernakulam Bench alleging some irregularities in the selection process, the competent authority did not consider to clear the probation period of the applicant. On receipt of complaint from the Chief Vigilance Commission, Govt. of India, directing to inquire into the matter and take appropriate action, upon inquiry, it was established that there were irregularities committed in appointment process, in question. Hence, after analyzing the investigation report, the service of the applicant and all other appointees were terminated by invoking proviso to sub-rule (1) of Rule 5 of Central Civil Services (Temporary Service) Rules, 1965, which was not on any punitive ground. It is further submitted that a probationer cannot automatically be confirmed in service without any formal order and, 8 O.A.No. 260/00154 of 2017 unless such order is issued, he shall be deemed to be continued under probation. Clause-6 of Memorandum dated 18.04.2013 empowers the appointing authority to terminate the service of a probationer without any notice.
8. The moot question to be decided here is how far the termination of the applicant invoking sub rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 is justified when the undisputed fact of the matter is that applicant had completed the initial probation period of two years. Master Circular on probation/confirmation in Central Service issued vide OM dated 11.03.2019 stipulates as under:
"16. If the Appointing Authority thinks it fit, they may extend the period of probation of a Government servant by a specified period but the total period of probation should not exceed double the normal period. In such cases, periodic reviews should be done and extension should not be done for a long period at a time.
xxx xxx xxx
19. The decision whether an employee should be confirmed or his probation be extended should be taken soon after the expiry of the initial probationary period that is within six to eight weeks, and communicated in writing to the employee together with reasons, in case of extension. A probationer who is not making satisfactory progress or who shows himself to be inadequate for the 9 O.A.No. 260/00154 of 2017 service in any way should be informed of his shortcomings well before the expiry of the original probationary period so that he can make special efforts at self-improvement."
9. It is born out of the record that the process of selection, based on which the applicant was selected and appointed to the post in question, was the subject matter of challenge before the Ernakulam Bench of the Tribunal in OA No. 48/2015. During pendency of the said OA, the process of selection was investigated into. When the said factum was brought to the notice of the Ernakulam Bench of the Tribunal, the OA was disposed of on 23.03.2017 in following terms:
"It is submitted by learned counsel for respondents that the selection which is impugned in this case has already been set aside and hence this Original Application has become infructuous. It is so submitted on behalf of the applicants also. Hence this Original Application is closed. In view of the fact that this Original Application has become infructuous, the direction to produce the files stands withdrawn. No order as to costs."
10. It is also born out of the record that as an outcome of the investigation, the service of the applicant was terminated vide order dated 08.03.2017 in terms of Proviso to sub-rule 1 of Rule 5 of the CCS (TS) Rules, 1965 by paying him one month's pay and allowances in lieu of statutory notice. The applicant in this OA challenges the 10 O.A.No. 260/00154 of 2017 said order dated 08.02.2017 on two counts, viz. applicant was appointed on probation basis for a period of two years and in absence of any order of extending the period of probation, the applicant was deemed to have been confirmed and, therefore, before terminating, the respondents ought to have followed the procedures provided under the CCS (CCA) Rules, 1965 by way of giving due opportunity to him in compliance of principle of natural justice. Thus, termination of his service under Proviso to sub-rule 1 of Rule 5 of the CCS (TS) Rules, 1965 is bad in law. His second argument is that although the order of termination seems to have been made without any stigma but, for the reason given in the counter, ultimately, establishes that the termination is by way of stigma/punishment without following due procedure of rules and without complying with the principle of natural justice and, hence, the said order is bad in law.
11. On perusal of the rules quoted above, we find that there is no such ex facie provision of deemed confirmation in absence of extension of the period of probation on completion of initial period of probation of an employee. Ld. Counsel for the applicant relied on 11 O.A.No. 260/00154 of 2017 the decision of the Hon'ble Apex Court in the case of Head Master, Lawrence School, Lovedale Vs. Jayanthi Raghu & Anr (supra) and we have also gone through the same. We find that, it was a case of employees of Lawrence School, who having been terminated during probation approached before the Hon'ble High Court of Madras by stating that in absence of any extension of order of probation, they were deemed to have been confirmed and their termination without holding due procedure provided under the rules was bad in law. The Hon'ble High Court of Madras allowed the matter, which order was challenged before the Hon'ble Apex Court. Their Lordships of the Hon'ble Supreme Court set aside the order of the Hon'ble High Court of Madras by observing as under:
"23. Bearing in mind the aforesaid conceptual meaning, when the language employed under Rule 4.9 is scrutinised, it can safely be concluded that the entitlement to continue till the age of superannuation, i.e., 55 years, is not absolute. The power and right to remove is not obliterated. The status of confirmation has to be earned and conferred. Had the rule making authority (1986) 3 SCC 91 intended that there would be automatic confirmation, Rule 4.9 would have been couched in a different language. That being not so, the wider interpretation cannot be placed on the Rule to infer that the probationer gets the status of a deemed confirmed employee after expiry of three years of probationary period as that would defeat the basic 12 O.A.No. 260/00154 of 2017 purpose and intent of the Rule which clearly postulates "if confirmed". A confirmation, as is demonstrable from the language employed in the Rule, does not occur with efflux of time. As it is hedged by a condition, an affirmative or positive act is the requisite by the employer. In our considered opinion, an order of confirmation is required to be passed. The Division Bench has clearly flawed by associating the words `if confirmed' with the entitlement of the age of superannuation without appreciating that the use of the said words as a fundamental qualifier negatives deemed confirmation.
Thus, the irresistible conclusion is that the present case would squarely fall in the last line of cases as has been enumerated in paragraph 11 of Satya Narayan Jhaver (supra) and, therefore, the principle of deemed confirmation is not attracted.
24. In the result, the appeal is allowed and the judgment and order passed by the High Court are set aside to the extent that the first respondent had acquired the status of confirmed employee and, therefore, holding of enquiry is imperative. As far as the conclusion recorded by the Division Bench that no stigma was cast on the respondent is concerned, the same having gone unchallenged, the order in that regard is not disturbed. The parties shall bear their respective costs."
12. From the above, it is clear that the Hon'ble Apex Court interfered in the matter since there was no provision in the rules applicable to the employees of the Lawrence School making any such provision of deemed confirmation in absence of any order extending the period of probation. Since, in the instant case, the applicant did 13 O.A.No. 260/00154 of 2017 not produce any such rule establishing that in absence of any order extending his probation, he is deemed to have been confirmed in the service, by applying the law relied on by the Ld. Counsel for the applicant, his argument to the effect of deemed confirmation falls to the ground. Rather, we find that the concept of deemed probation, in the circumstances as in the present case, was lucidly dealt into by the Hon'ble Apex Court in the case of High Court of Madhya Pradesh Vs Satya Narayan Jhavar, (2001) 7 SCC 161, the Hon'ble Apex Court held as under:
"The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The 14 O.A.No. 260/00154 of 2017 inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired.
It has further been held in the aforesaid decision as under:
"..........Ordinarily a deemed confirmation of a probationer arises when the letter of appointment so stipulates or the Rules governing service condition so indicate. In the absence of such term in the letter of appointment or in the relevant Rules, it can be inferred on the basis of the relevant Rules by implication, as was the case in Dharam Singh (supra). But it cannot be said that merely because a maximum period of probation has been provided in Service Rules, continuance of the probationer thereafter would ipso facto must be held to be a deemed confirmation which would certainly run contrary to Seven Judge Bench Judgment of this Court in the case of Samsher Singh (supra) and Constitution Bench decisions in the cases of Sukhbans Singh (supra), G.S. Ramaswamy (supra) and Akbar Ali Khan (supra)."15 O.A.No. 260/00154 of 2017
13. In the case of Director of Panchayat Raj & Anr vs Babu Singh Gaur, 1972 AIR 420, it was held by the Hon'ble Apex Court that a temporary government servant does not become Permanent unless he gets that capacity either under some rule or he is declared or appointed by the government as a permanent government servant. At the time of the conversion of the temporary post into permanent posts the government did not consider the question of confirmation of the officers holding those posts. And no rule has been shown under which the respondents can be considered as having been appointed either permanently or in a substantive capacity to permanent posts.
14. In view of the fact and law discussed above, the stand of the applicant that in absence of any order of confirmation after expiry of the period of probation he deemed to have been confirmed and his services ought not to have been terminated by invoking proviso to sub-rule (1) of Rule 5 of the Central Civil Service (Temporary Service) Rules, 1965 do not have any substance and hence the same is rejected.
16 O.A.No. 260/00154 of 2017
15. His next contention is that the termination is stigmatic and, therefore, he should not have been thrown out of employment without complying with the principles of natural justice. The order of termination is quoted hereunder:
"F. No.7(2) Recruitment/2017-Confl. Dated the 08th March, 2017 OFFICE ORDER In pursuance of the Proviso to sub-rule (1) of Rule 5 of the Central Civil Service (Temporary Service) Rules, 1965, I, Director ICAR-CPCRI, Kasaragod hereby terminate forthwith the service of Shri Satya Brata Moharana, LDC and direct that he shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of notice at the same rates at which he was drawing them Immediately before the termination of his service, or, as the case may be, for the period by which such notice falls short of one month."
16. On a microscopic examination of the aforesaid order, it is clear that the language of the termination letter does not cast any aspersions or doubt on the conduct and character of the probationer/applicant. In the pleadings it is not the case of the applicant that the termination was due to lack of his efficiency or 17 O.A.No. 260/00154 of 2017 integrity or unsuitability. From the counter, it is also not forthcoming that termination was due to any of the aforesaid reasons.
17. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was a full scale formal enquiry into allegations involving moral turpitude or misconduct which culminated in a finding of guilt. If all three factors are present, the termination has is to be held as punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination cannot be said to be stigmatic. Thus, going by the order of termination and the pleadings, we do not find any substance on the stand of the applicant that his order of termination is stigmatic one.
18. In the result, we find no merit in this OA, which is dismissed accordingly, by leaving the parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra)
Member (Admn.) Member (Judl.)
RK/PS
18 O.A.No. 260/00154 of 2017