Gauhati High Court
Sumal Das vs State Of Tripura And Ors. on 25 September, 2001
Author: A.K. Patnaik
Bench: A.K. Patnaik, H.K.K. Singh
JUDGMENT A.K. Patnaik, J.
1. This is an appeal against the judgment and order dated 10.5.1996 of the learned Single Judge in Civil Rule No. 184 of 1996.
2. The facts briefly are that the appellant was appointed as Rifleman and was enrolled as such on 27.10.1993 under the Commandant, 2nd Battalion, Tripura State Rifles. He suffered some ailment for which he was sent to the. Police Hospital, Agartala and he received treatment at the said Hospital during the period from 14.2.1994 to 5.3.1994 and he was discharged from the hospital on 6.3.1994. Even after his discharge from hospital, the appellant did not join his duties and he was served with some notices asking to join in service and, thereafter, discharged from service by order dated 30.6.1994 passed by the Commandant, 2nd Battalion, Tripura State Rifles. Aggrieved by the said order dated 30th June, 1994, the appellant filed a writ petition under Article 226 of the Constitution which was registered as Civil Rule No. 184 of 1996. In the said writ petition, the appellant contended that the impugned order of discharge was really an order of dismissal and has been passed without giving any opportunity to the appellant to defend himself against the charge of misconduct as contemplated by Article 311 of the Constitution.
3. The appellant also contended in the writ petition that a probationer could be terminated from service under Rule 15(1) of the Tripura State Rifles (Recruitment) Rules, 1984 (for short, the Rules 1984) on serving one month notice or on payment of one month's salary in lieu of the same under the orders of the appointing authority, but no such notice was served on the appellant nor a month's salary was paid to the appellant in lieu of such notice and instead the service of the appellant was terminated purportedly under the said Rule 15 with retrospective effect from 10.3.1994.
4. On behalf of the respondents it was contended that the order of discharge was in accordance with Rule 15(1) of Rules 1984 and was not violative of the provisions of Article 311 of the Constitution. The respondent also contended that the writ petition filed by the appellant should be dismissed by the Court on the ground of delay and laches as it had been filed against the Impugned order of termination dated 30.6.1994 some time in April 1996. By the impugned judgment and order dated 10.5.1996 the learned Single Judge held that as to whether the High Court should entertain the writ petition where there is delay is within the discretion of the High Court. The learned Single Judge after considering the nature of the case and the impugned order of discharge set aside the order of discharge from service only so far as it was retrospective from 10.3.1994, the learned Single Judge further directed that the appellant shall be entitled to one month's salary in lieu of one month notice in view of the facts and circumstances of the case.
5. Mr. B. Das, learned senior counsel for the appellant submitted that the order of discharge dated 30.6.1994 would on the face of it show that the service of the appellant was terminated on the ground of misconduct and indiscipline. According to Mr. Das, the impugned order of discharge of the appellant from service on the ground of misconduct and indiscipline could not have been passed without following the provisions of Article 311(2) of the Constitution which provides for giving a reasonable opportunity to a Government servant of being heard in respect of the charges of misconduct. Mr. Das further submitted that although some notices were purportedly served on the appellant for showing cause, Article 311(2) of the Constitution is not complied with by mere service of notice of show cause unless an opportunity of being heard in respect of the charges is given to the person sought to be removed or dismissed from service. Mr. Das cited the decision of the Supreme Court in Durga Prashad v. Debi Charan and anothers, (1979) 1 Supreme Court Cases, 61, in support of his aforesaid argument that an opportunity of being heard is to be given to a government servant under Article 311(2) of the Constitution. Mr. Das also relied on the decision of the Supreme Court in Dipti Prakash Banerjee, v. Saiyendra Nath Bose National Centre for Basic Sciences, Calcutta and others (1999) 3 SCC GO in support of his submission that where the order of termination is not an order of termination simpliciter but an order containing stigma which will affect the prospects of future employment of the employee, the order has to be quashed by the Court if it has not been passed after giving due opportunity to the employee. He also relied on a decision of the Supreme Court in D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 259 in which it has been laid down that while terminating the service of an employee, even a private employer has to follow the principles of natural justice as provided in the certified standing orders. It was next submitted by Mr. Das that on a plain reading of Rule 15(1) of the Rules 1984 it will be clear that a member of the Rifles who is on probation can be discharged from the service at any time on one month notice or on payment of one month's salary in lieu of the same under the orders of the appointing authority. Mr. Das pointed out that since the appellant was terminated from the service with retrospective effect from 10.3.1994 by the impugned order dated 30.6.1994, the service of the appellant was not terminated by one month notice. Mr. Das contended that the service of the appellant was also not terminated by making payment of one month's salary in lieu of the notice. He cited the decision of the Supreme Court in Senior Superintendent R.M.S. Cochin and another v. K.V. Gopinath, Sorter, AIR 1972 SC 1487, wherein the Supreme Court interpreting the provision of Rule 5 of the Central Civil Services (Temporary Services) Rules (1965) held that where services of a temporary Government servant was sought to be terminated without notice, payment was a condition precedent for the termination of the service forthwith, Mr. Das, vehemently argued that since the condition precedent for terminating the service of the appellant under Rule 15(1) of the Rules, 1984 i.e., one month notice or payment of one month's salary in lieu thereof, had not been fulfilled the order of discharge dated 30.6.1994 was liable to be quashed.
6. In reply to the aforesaid submissions of Mr. Das, Mr. U.B.Saha, learned Senior Government Advocate, Tripura, submitted that the law laid down in the case of Senior Superintendent of R.M.S. Cochin and Ano. v. K.V. Gopinath (supra) is no longer the law. In Union of India and Ano. v. Arun Kumar Roy, (1986) 1 SCC 675, the Supreme Court dealt with the provisions of Rule 5( 1) of the Central Civil Services (Temporary Services) Rules, 1965, as amended and held that under the amended Rule 5( 1) of the said Rules, payment of one month's salary in lieu of notice was not a pre-requisite for termination and payment can be made after the order of termination is served on the employee. He also cited the decision of the Supreme Court in State of M.P. v. Virendera Kumar Chourasiya 1999 AIR SCW 4917 in which the Supreme Court took note of the fact that one month's salary in lieu of the same had not been paid but held looking to the nature of appointment that the appellant had a right to terminate the service of the respondent simpliciter and that order was not vitiated by non-payment of one month's salary to the respondent. On the contention of Mr. B. Das that the order of discharge was passed without giving reasonable opportunity to the appellant as provided under Article 311(2) of the Constitution, Mr. Saha submitted that law is now well settled that where the object and intent of the order is only to terminate the service of the probationer on the ground of his unsuitability for retention of his service, no such opportunity need be given to the probationer. Mr. Saha, cited the decisions of the Supreme Court in Governing Council of Kidwai Memorial Institute of Oncology, Bangalore v. Dr. Pandurang Godwalkar and another (1992) 4 SCC 719, K.V. Krishnamani v. Lalit Kala Academy, (1995) 5 SCC 89, Kunwar Arun Kumar v. U.P. Hill Electronics Corporation Ltd.. and others, (1997) 2 SCC 191, Radhey Shyam Gupta appellant v. U.P. State Agro Industries Corporation Ltd. Respondent, AIR 1999 SC 609, Ganganagar Zila Dughd Utpadan Sahakari Sangh Ltd. v. Priyanka Joshi and another, (1999) 6 SCC 214, Chandra Prakash Shahi v. State of U.P. and others, AIR 2000 SC 1706, H.F. Sangati v. Registrar General, High Court of Karnataka and others, (2001) 3 SCC 117, and contended that distinction has to be made between foundation of order of termination and the motive for an order of termination and it is only when misconduct constitutes the foundation of the order of termination that a reasonable opportunity as provided under Article 311 of the Constitution will have to be given to the employee before his service is terminated and not otherwise. According to Mr. Saha, the reasons stated in the order of discharge dated 30.6.1994 do not constitute the foundation for termination of service of the appellant but are only motives for discharge from service of the appellant.
7. The order of discharge dated 30.6.1994 is extracted herein below:
Office of the Commandant 2nd Battalion T.S.R. Radhakishore Nagar P.O. Khas Naogaon.
Tripura West Pin-799008 No. 003/TSR-H/Disc/Reg/Estt/94/1454-63 Date the 30 June'94 To No. 93021180, R/Rifleman Sumal Das.
S/o Lt. Banamali Das, Vill - Jaganath Chownohani, P.O.&PSR.K. Pur, Dist. Tripura (South) Subject : Termination of service on grounds of his conduct and indiscipline. Since your enrolment your performance is found unsatisfactory. You were enrolled as Rectt/Rifleman on 27.10.1993. You served in this unit upto 9.3.1994 (AN). Thereafter, you left line on 10.3.1994 (AN) without leave and without obtaining prior permission from any of the superior officer. On 22.3.1994, a letter was sent to you vide this office letter No. 003/TSR-II/Warning/Adm/8237-38, dated 22.3.1994 directing, you to report Bn. Hqr. within 7 days from the date of receipt of this letter. But you failed to report Bn. Hqr. for duty in time. Again, a show cause notice was sent to you as per home address vide our letter No. 003/TSR-II Show-cause/94/273-74, dated 16.4.1994 and L/No. 003/TSR/II/Show-cause/94/745-46, dated 19.5.1994 directing you to report Bn. Hqr. by 30.4.1994 and 5.6.1994 failing which ex parte decision will be taken, On 11.5.1994, a memorandum was issued vide this office letter No. TSR-II/93-94/642-43, dated 11.5.1994 and you were directed to report Bn. Hqr. for duty within 30 days failing which service will be terminated on expiry of the date. You failed to rejoin duty in due course of time. Your over-all conduct has been found to be most un-becoming of a Rifleman. Your further retention in service will be detrimental to the interest and discipline of the TSR. I, therefore, discharge you from service under the provision of section 15 of the TSR (Recruitment) Rules, 1994 w.e.f. 10.3.1994 (A/N). Sd/ Commandant, 2nd Bn.
8. The subject indicated at the top of the aforesaid order itself mentioned 'Termination of service on grounds of misconduct and in-discipline". In the very first paragraph of the aforesaid order, it has been alleged that the appellant left unit line on 10.3.1994 (FN) without leave and without obtaining prior permission from any of the superior officers. In the second paragraph of the aforesaid order it has been further stated that by a letter dated 22.3.1994 the appellant was directed to report Bn. Hqr. within 7 days from the date of receipt of the letter, but the appellant failed to report Bn. Hqr. for duty in time.
9. The letter dated 2.3.1994 is part of the record produced before us and in the said letter it has been stated that the appellant was found absent from Unit line/out stationed posts/Camps/Overstaying leave on the spell/period mentioned therein. In the said letter the appellant has been asked to explain as to why disciplinary action should not be initiated against him for such lapses on his part. Spell/period mentioned in the letter dated 22.3.1994 is 10.3.1994 at 0700 hrs. till 22.3.1994. In the 3rd paragraph of the order dated 30.6.1994 quoted above it has been further stated that show cause notice dated 16.4.1994 and show cause notice dated 19.5.1994 were sent to the appellant directing to report to Bn. Hqr. by 30.4.1994 and by 5.6.1994 failing which ex parte decision will be taken. The said show cause notice dated 16.4.1994 is part of the record produced before the Court and in the said show cause notice dated 16.4.1994 it has been stated that the prolonged absence of a recruit is the most unbecoming conduct and warrants disciplinary action as per the Rules 1984 and by the said show cause notice dated 16.4.1994 the appellant was asked to show cause as to why his service may not be terminated as he was not likely to make as good Rifleman. The show cause notice dated 19.5.1994 is part of the record produced before the Court and in that show cause notice it has been stated that the prolonged absence of a recruit is the most un-becoming conduct and warrants disciplinary action as per TSR Act, 1984 and the Rules there under and by the said show cause notice dated 19.5.1994 the appellant has been directed to show cause as to why his services may not be terminated as he was not likely to make as good Rifleman.
10. In the 4th paragraph of the order of discharge dated 30.6.1994 quoted above, it has been stated that memorandum dated 11.5.1994 was also issued and the appellant was directed to report Bn. Hqr. for duty within 30 days failing which his service would be terminated on expiry of the date. The said Memorandum dated 11.5.1994 has been produced along with the records. It has been stated, inter alia, therein that it has been reported that the appellant is absent from basic training of the duty and also absent from Unit line Battalion with effect from 10.3.1994 and that the appellant has not informed the Platoon Havildar or even Company Havildar Major or any of his colleagues while proceeding and that is indiscipline conduct at this stage does not display a good and healthy sign on his performance and has set a bad example before other recruits/service personnel and it is imperative that such conduct also does not warrant for any further retention of his service.
11. In the last paragraph of the order of discharge dated 30.6.1994 quoted above, it has been further stated that the over-all conduct of the appellant has been found to be most un-becoming of a Rifleman and his retention in service would be detrimental to the interest and discipline of the Tripura State Rifles.
12. It is just clear from the very reasons given in the order of discharge dated 30.6.1994 that the appellant has been discharged from service as he had left the Unit line on 10.3.1994 without leave and without obtaining prior permission of any of the superior officer and that his over-all conduct has been found to be most un-becoming of a Rifleman. Further, in the show cause notices dated 22.3.1994, 16.4.1994 and 19.5.1994 as well as in the memorandum dated 11.5.1994 to which reference has been made in the order of discharge dated 30.6.1994, this very misconduct on the part of the appellant for remaining absent without leave and without obtaining prior permission from any of the Superior Officer have been reiterated. The aforesaid conduct of the appellant in remaining absent without leave and without prior permission have also been referred to as acts of indiscipline on the part of the appellant. We have, therefore, no doubt in our mind that the foundation for discharging the appellant from service in the aforesaid order dated 30.6.1994 was the misconduct on the part of the appellant of leaving the unit line and without obtaining prior permission from any of the superior officer and for not reporting for duty thereafter. Further the language used in the order of discharge dated 30.6.1994 that the over-all conduct of the appellant has been found to be most un-becoming of a Rifleman was stigmatic in nature inasmuch as it will affect the prospects of future employment in any organisation which insists on good discipline.
13. In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta (supra), the Supreme Court referring to the Seven Judges Bench decision in Samsher Singh v. State of Punjab (1974) 2 SCC 831 and the decision in Bashan Lal Gupta v. State of Haryana (1978) 1 SCC 202 observed that in the matter of stigma the court has held that the effect which an order of termination will have on a person's future prospects of employment is a matter of relevant consideration and if a simple order of termination was passed that would enable the officer to make good in other walks of life without a stigma, but if the order contains a stigma, the termination will be bad for the individual concerned must suffer substantial loss of reputation which may affect his future prospects. In the said decision of Dipti Prakash (supra) the Supreme Court also referred to Kamal Kishore Lakshman v. Pan American World Airways Inc., (1987) 1 SCC 146 in which the word 'stigma' was held to mean something that detract from the character or reputation of a person.
14. The Supreme Court further held in the said case of Dipti Prakash Banerjee (supra) that for the purpose of finding out as to whether the order of termination contained stigma, it may be open for the Court to refer not only to the order of termination but also to other orders or proceedings referred to the order of termination or in an annexures thereto and if the court finds that the order of termination is stigmatic it will quash the order of termination. We have already referred to the order of discharge dated 30.6.194 as well as the show cause notices dated 22.3.1994, 16.4.1994, 19.5.1994 and the memorandum dated 11.5.1994 referred to in the order of termination to show that the order of discharge dated 30.6.1994 is not only stigmatic but also founded on misconduct or alleged acts of indiscipline on the part of the appellant.
15. Coming now to the question as to whether or not payment of one month's salary in lieu of notice was a condition precedent for discharge of a probationer under Sub-rule (1) of Rule 15 of Rules 1984, we find that the decisions of the Supreme Court in Senior Superintendant R.M.S. Cochin v. K.V. Gopinath, (supra), cited by Mr. Das, learned counsel for the appellant, and the decision of the Supreme Court in Union of Indian v. Arun Kumar Roy (supra) cited by Mr. U.B. Saha, learned Senior Government Advocate are based on interpretation of Rule 5(1) of the Central Civil Services (Temporary Services) Rules, 1965 as it existed prior to amendment by the Amendment of 1971 with retrospective effect from 1.5.1965 and as It was in force after the said amendment. Prior to the aforesaid amendment, the proviso to Rule 5(1) of the said Rules stipulated that the services of any government servant may be terminated forthwith by payment to him of the equivalent amount of his pay plus allowances for the period of notice. This is a proviso to the main provision of Rule 5(l)(b) which stipulated that the service of a temporary government servant could be terminated at any time by a notice In writing by the appointing authority to the government servant and the period of such notice shall be one month. By interpreting the words "terminated forthwith by payment", the Supreme Court held that where services of a government servant is sought to be terminated without notice of one month, the termination forthwith was to be by payment to the government servant of the sum mentioned in the said proviso. After the aforesaid amendment, the language of Rule 5(1) was substantially changed and it was provided in Rule 5(1) that the period of notice shall be one month, provided the services of a government servant may be terminated forthwith and "on such termination, the government servant shall be entitled to claim a same equivalent to the amount" of his pay plus allowances for the period of notice. By the amended Rule 5(l)(b) the government servant was only entitled to claim the equivalent amount for the period of notice and the termination of service was not to be by payment. Thus, the Court has to find out from the language of sub-rule (1) of Rule 15of the Rules 1984 as to whether discharge of service of a probationer could be made only on payment of one month's salary in lieu of notice or could be made by an order without making such payment of one month salary in lieu of such notice.
16. Sub-rule (1) of Rule 15 of the Rules 1984 is quoted here-under :
"A member of the Rifles shall be on probation for the period of 3 years during which period he shall be liable to discharge at any time on one month notice or on payment of one month's salary in lieu of the same under the orders of appointing authority."
17. A plain reading of Sub-rule (1) of Rule 15, would show that a member of Rifles on probation was liable to be discharged at any time, on one month notice or "on payment of one month's salary in lieu of the same". A member of the Rifles on probation is sought to be discharged without serving one month notice on him, such discharge can be made only on payment of one month's salary in lieu of one month notice. The language of the aforesaid sub-rule (1) of Rule 15 is different from the amended Rule 5(1) of the Central Civil Services (Temporary Services) Rules, 1965 interpreted by the Supreme Court in Union of India v. Arun Kumar Roy (supra) to mean as only an entitlement of the employee to the amount for the period of notice and not as a pre-requisite for termination. In our considered opinion, the aforesaid decision of the Supreme Court in Union of India v. Arun Kumar Roy (supra) is not applicable considering the language of Sub-rule (1) of Rule 15 of the Rules 1984. As has been held in the earlier decision of the Supreme Court in the case of K. V. Gopinath (supra) payment of one month's salary in lieu of notice of one month is a condition precedent for termination of service of the probationer under Rule 5(1) of the Rules 1984.
18. Since the order of discharge dated 30.6.1994 violative of the provisions of Article 311(2) of the Constitution, as well as sub-rule (1) of Rule 15 of the Rules 1984, it is liable to be quashed and we accordingly quash the order of discharge from service and direct his reinstatement forthwith. The next question is as to whether the appellant should be granted back wages for the period from 30.6.1994 when he was discharged from service till today. It appears from the records produced before us that show cause notices were issued to the appellant stating that the appellant has been absent from duty without permission and without leave. The appellant has himself annexed to the writ petition a copy of the show cause notice dated 19.5.1994. He has also annexed to the writ petition a copy of his reply dated 27.5.1994 to the Commandant, 2nd Battalion, Tripura State Rifles stating therein that he has been suffering from serious type of jaundice from some time and that he could not resume duties. The appellant has also annexed to the writ petition a copy of the certificate dated 28.1.1996 of Dr. Prafulla Kumar Sharma, J.M.O. Grade-IV, Tripura Health Services which states that the appellant had been suffering from acute gastritis and severe jaundice with anemia for the period mentioned therein. The Commandant, 2nd Battalion, Tripura State Rifles will decide as to whether the appellant had any cause for absence and if so for what period, and will also take into consideration all other relevant considerations and pass orders in accordance with the relevant rules as to what amount of back wages should be granted to the appellant in the facts and circumstances of the case within a period of three months from the date of receipt of a certified copy of this order.
19. With the above order and observations, this writ appeal is disposed of.