Union of India v. V. Kennedy & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 30..01..2008CoramThe Honourable Mr.Justice P.K. MISRAandThe Honourable Mr.Justice K.CHANDRUW.P. Nos. 25090, 34277 and 35610 of 2004andW.P.M.P. No. 30492 of 2004 in W.P. No. 25090 of 2004Union of IndiaRep. by the DirectorBCG Vaccine LaboratoryGuindy, Chennai... Petitioner in W.P. No. 25090 of 2004 R. Chithra... Petitioner in W.P. No. 34277 of 2004 V. Kathiravan... Petitioner in W.P. No. 35610 of 2004 vs.1.V. Kennedy... R1 in W.P. No. 25090/20042.Union of IndiaRep. by the DirectorBCG Vaccine LaboratoryGuindyChennai.. R1 in W.P. Nos. 34277 & 35610 of 20043.The RegistrarCentral Administrative TribunalMadras Bench... Respondents in all W.Ps.W.P. No. 25090 of 2004 filed under Article 226 of theConstitution of India praying to issue a writ of Certiorari callingfor the records of the 2nd respondent made in O.A. No. 103 of 2004 on29.6.2004 and the consequent review order dated 10.8.2004 made inR.A. No. 21 of 2004 and quash the same.W.P. No. 34277 of 2004 filed under Article 226 of theConstitution of India praying to issue a writ of CertiorarifiedMandamus calling for the records of the 2nd respondent made in O.A.No. 96 of 2004 upholding the order of the first respondent in No. A-1202/22/98-Admn. Dated 29.01.2004 and quash the same and direct thefirst respondent to reinstate the petitioner in service with allattendant benefits. https://hcservices.ecourts.gov.in/hcservices/ W.P. No. 35610 of 2004 filed under Article 226 of theConstitution of India praying to issue a writ of CertiorarifiedMandamus calling for the records of the 2nd respondent made in O.A.No. 97 of 2004 dated 19.3.2004 upholding the order of the firstrespondent in No. A-12021/18/98-Admn. Dated 29.01.2004 and quash thesame and direct the first respondent to reinstate the petitioner inservice with all attendant benefits. For Union of India : Mr. K. Rajasekar, SCGSCFor Petitioners in : Mr. P. RajendranW.P. Nos. 34277 & 35610 of 2004 & R1 in W.P. No. 25090 of 2004COMMON ORDER(Order of the Court was made by K.CHANDRU, J.)Heard the arguments of Mr. K. Rajasekar, learned Senior CentralGovernment Stating Counsel representing the Union of India and Mr. P.Rajendran, learned counsel appearing for the petitioners in W.P. Nos.34277 and 35610 of 2004 and the first respondent in W.P. No. 25090 of2004 and have perused the records.2.W.P. No. 25090 of 2004 is filed by the Union of Indiarepresented by the Director of BCG Vaccine Laboratory challenging theorder of the Tribunal dated 29.6.2004 in O.A. No. 103 of 2004 indirecting the reinstatement of the first respondent with backwagesfrom the date of removal till the date of reinstatement within aperiod of eight weeks from the date of the order.3.W.P. Nos. 34277 and 35610 of 2004 were filed by the twopetitioners challenging the order of the Tribunal dated 19.3.2004made in O.A. Nos. 96 and 97 of 2004 in dismissing the OriginalApplications. 4.In W.P. No. 25090 of 2004, the first respondent wasappointed as a Gardener in Group 'D' post by an order dated01.6.1995. He was declared to have satisfactorily completed hisprobation on 31.5.1997 and the same was communicated by thepetitioner Union of India vide letter dated 29.8.1987. He was alsotransferred to the post of Laboratory Peon from the post of Gardenerby an order dated 01.6.2001. But, however, when he was working inthe post of Laboratory Peon, by an order dated 03.02.2004, hisservices were terminated by invoking Rule 5 of the Central CivilServices (Temporary Service) Rules, 1965 [for short, 'CCS Rules'].It was this order, which was under challenge in O.A. No. 103 of 2004.5.It is seen from the records that the first respondent https://hcservices.ecourts.gov.in/hcservices/ Kennedy belonged to Scheduled Caste and he made a complaint againstthe respondent in J-3 Police Station, Guindy, on 24.7.2003 and thesame was registered in FIR No. 666 of 2003. The allegations madein the complaint was that he was called by the petitioner by hiscommunity name and it was also registered under Section 3 of the SC /ST Atrocities Act, 1999. Since enquiry was pending before thePolice, he decided to remove the applicant under the TemporaryService Rules and dispensed with the services of the respondent. 6.The Tribunal, after referring to the relevant rules, heldthat inasmuch as the applicant's probation has been declared, hecannot be considered to be a temporary Government servant andinvoking of the power under Rule 5 of the Temporary Service Ruleswill not arise. Therefore, the Tribunal held that it was a case ofdismissal without holding any enquiry and since the first respondenthas protection under Article 311(2) of the Constitution of India, theorder of dismissal was set aside and the first respondent wasdirected to be reinstated with all consequential benefits by itsorder dated 29.6.2004. 7.Pending the writ petition, this Court granted stay on02.9.2004 only for eight weeks. Thereafter, the same was notextended. In fact, by no stretch of imagination, the firstrespondent can be called temporary Government servant especially,when he was appointed on temporary basis on 01.6.1995 and,thereafter, is being a regular appointee, his probation was declaredto have been satisfactorily completed by order dated 29.8.1997 andonly after a period of nine years after the entry into the service,he was sought to be terminated by invoking the Temporary ServiceRules. We do not think that such a power exists in the hands of therespondent and once a person's probation is completed and it isdeclared that he has satisfactorily completed the probation, nofurther order is required to prove the said fact by any other DPC orother authority. In the present case, the order dated 29.8.1997clearly shows that the probation of the first respondent was declaredto have been satisfactorily completed only on the basis of therecommendation of the DPC. Under these circumstances, we do notfind that any case is made out to interfere with the order of theTribunal. Accordingly, W.P. No. 25090 of 2004 will standdismissed.8.In respect of W.P. No. 34277 of 2004, it is a case of one R.Chithra, who was employed as a Casual Labour from April 1996 and ontemporary basis from 12.02.1999. She had also completed theprobation on 11.02.2001. The order dated 29.3.2001 declaring herprobation was made only on the recommendation of the DPC. It wasonly when the petitioner R.Chithra made a complaint to the Co-operative Federation of the Central Government Employees about thesexual harassment meted to her by one Anandan, Section in charge, andthe same was forwarded to the Tamil Nadu State Commission for Women, https://hcservices.ecourts.gov.in/hcservices/ which forwarded the same to the Director General of Health Servicesseeking for comments, the respondent Director thought fit toterminate her services from the post of Laboratory Peon by an orderdated 29.01.2004 by invoking Rule 5(1) of the Temporary ServiceRules. It was this order which was challenged before the Tribunalin O.A. No. 96 of 2004. The Tribunal, by its order dated19.3.2004, rejected the Original Application holding that thepetitioner was only a temporary servant. Therefore, invocationof Rule 5(1) of the Temporary Service Rules will apply and that meredeclaration of completion of probation will not make a personGovernment servant. 9.In the similar way, the petitioner in W.P. No. 35610 of 2004(V.Kathiravan) was also appointed on temporary basis on 06.10.1998as Laboratory Peon and his probation was confirmed with effect from05.10.2000 by an order dated 15.02.2001 on the basis of therecommendation of the DPC. He was placed under suspension by anorder dated 29.7.2003 in terms of Rule 10(5) of the Central CivilServices (Temporary Services) Rules, 1965. This was on the basisthat a disciplinary proceedings was contemplated against thepetitioner. However, by an order dated 29.01.2004, by invokingRule 5(1) of the Temporary Service Rules, his services were dispensedwith. It is this order which was challenged by the petitioner inO.A. No. 97 of 2004 and the Tribunal, overlooking the completion ofprobation, held that it was not a case of dismissal for a misconductbut a case covered by Rule 5(1) of the Temporary Service Rules.Therefore, he is not entitled for any relief. 10.In view of the inter-connectivity between W.P. Nos. 34277and 35610 of 2004, both the petitions are heard together.11.The Tribunal, after arriving at the conclusion that the twopetitioners were only temporary civil servants held that the powerunder Rule 5(1) of the Temporary Services Rules can be invoked. Italso placed heavy reliance upon the judgment of the Supreme Court inDhananjay v. Chief Executive Officer, Zilla Parishad [2003 (2)SCC 386] and Union of India and others v. A.P. Bajpai [2003 (2)SCC 433]. 12.Dhananjay's case (cited supra) arose out of the temporaryGovernment servant as can be seen from the following passage foundin paragraph 4:Para 4:"It is not in dispute that the appellant was appointedon a temporary basis; his services could be terminatedwithout notice and without assigning any reason withina period of one year. In fact, his services wereterminated within a period of one year under Rule 5(1)of the Central Civil Services (Temporary Service) https://hcservices.ecourts.gov.in/hcservices/ Rules. The only question that is required to beanswered is: whether the order of termination ofservices is simpliciter or is punitive attaching stigmato the appellant." 13.Dhananjay's case is a case where an employee was holdingonly a temporary service thereby there was no controversy regardinghis status. But in the present cases, both the petitioners are nottemporary Government servant but they have been engaged for a longnumber of years and after regular appointment, their probation wasalso declared to have been satisfactorily completed onrecommendations by the DPC. In fact, the term "Temporary Service'is defined under Rule 2(d) of the Temporary Service Rules:"'Temporary service' means the service of a temporaryGovernment Servant in a temporary post or officiatingservice in a permanent post under the Government ofIndia."14.In both the cases, there was no dispute with reference tothe status of the employees covered. In fact, both decisionsreferred to the case in 1999 (3) SCC 60 [Dipti Prakash Banerjee v.Satyandra Nath Bose National Centre for Basic Sciences] and quotedwith approval. 15.In all these cases, the question was how to construe theorder of termination passed against the Government employee and if itis held that the termination was not founded on allegations ormisconduct and complaints given only by motive for passing suchtermination, it cannot be a dismissal. 16.Further, all these three judgments followed the observationsfound in Mathew P. Thomas v. Kerala State Civil supply CorporationLtd. [2003 (3) SCC 263]. The following passage found in the saidjudgment can be usefully quoted:"From a long line of decisions it appears to us thatwhether an order of termination is simpliciter orpunitive has ultimately to be decided having due regardto the facts and circumstances of each case. Many atimes the distinction between the foundation and motivein relation to an order of termination either is thinor overlapping. It may be difficult either tocategorise or classify strictly orders of terminationsimpliciter falling in one or the other category, basedon misconduct as foundation for passing the order oftermination simpliciter or on motive on the ground ofunsuitability to continue in service.”17.Ultimately, the emphasis is that such a test has to be https://hcservices.ecourts.gov.in/hcservices/ applied on the question of facts of each case. In the presentcase, admittedly, both the petitioners were in long service and theywere taken into regular employment with the probation prescribed andon the basis of the DPC recommendations, their probations weredeclared to have been satisfactorily completed. But in the case ofR. Chithra, the petitioner in W.P. No. 34277 of 2004, it is a clearcase where she has made a complaint of sexual harassment on hersuperior before the Tamil Nadu State Women's Commission and withoutmaking any enquiry as amended by Vishaka v. State of Rajasthan[1997 (6) SCC 241], the respondents have taken an easy recourse ofdispensing with service whereby not only the problem is dispensedwith even the services of the problem maker was dispensed with. 18.In the case of Kathiravan, the petitioner in W.P. No. 35610of 2004, he was suspended from service after completion of probation,by having recourse to Rule 10(1) of the Central GovernmentClassification Rules, which itself would show that he was not atemporary servant. In fact, the very same Tribunal, in the case ofone V.Kennedy set aside the order of the termination passed underRule 5(1) in O.A. No. 103 of 2004 by order dated 29.6.2004. Thechallenge to the said order by the Union of India in W.P. No. 25090of 2004 was rejected by this Court by our judgment and the order ofthe Tribunal was confirmed. The case of Mr. Kennedy is notdifferent from the case of the two petitioners in these two writpetitions. Once the petitioners are no longer probationers, thento still call them as persons rendering temporary service, is notonly contrary to the Rules but also contrary to the facts of thecase. Even in case of probationer, the Supreme Court laid down thecircumstances under which the services of the probationer can bedispensed with by termination simplicitor. 19.The Supreme Court in Anoop Jaiswal v. Government of Indiaan another [1984 (2) SCC 369] dealt with a case and paragraphs 12 and13 may be usefully extracted below:Para 12:"It is, therefore, now well settled that where the formof the order is merely a camouflage for an order ofdismissal for misconduct it is always open to the courtbefore which the order is challenged to go behind theform and ascertain the true character of the order. Ifthe court holds that the order though in the form ismerely a determination of employment is in reality acloak for an order of punishment, the court would notbe debarred, merely because of the form of the order,in giving effect to the rights conferred by law uponthe employee.Para 13: In the instant case, the period of probation had notyet been over. The impugned order of discharge waspassed in the middle of the probationary period. An https://hcservices.ecourts.gov.in/hcservices/ explanation was called for from the appellant regardingthe alleged act of indiscipline, namely, arriving lateat the gymnasium and acting as one of the ringleaderson the occasion and his explanation was obtained.Similar explanations were called for from otherprobationers and enquiries were made behind the back ofthe appellant. Only the case of the appellant was dealtwith severely in the end. The cases of otherprobationers who were also considered to be ringleaderswere not seriously taken note of. Even though the orderof discharge may be non-committal, it cannot standalone. Though the noting in the file of the Governmentmay be irrelevant, the cause for the order cannot beignored. The recommendation of the Director which isthe basis or foundation for the order should be readalong with the order for the purpose of determining itstrue character. If on reading the two together theCourt reaches the conclusion that the alleged act ofmisconduct was the cause of the order and that but forthat incident it would not have been passed then it isinevitable that the order of discharge should fall tothe ground as the appellant has not been afforded areasonable opportunity to defend himself as provided inArticle 311(2) of the Constitution."20.In Radhey Shyam Gupta v. U.P. State Agro Industries Corpn.Ltd. [(1999) 2 SCC 21], the Supreme Court held as follows:Para 23:"The theory of “object of the enquiry” was furtheremphasised by the Constitution Bench in Jagdish Mitterv. Union of India. That was a case of a temporaryemployee. The discharge from service was by way of anorder “simpliciter”. But there, an enquiry was held andthe termination order was based on it as it stated onits face that it was “found undesirable” to retain theemployee and hence his services were being terminated.The order was held to be punitive on its face and wasquashed. Gajendragadkar, J. (as he then was) discussedthe earlier cases and held that in every case thepurpose of the enquiry was crucial. If the enquiry washeld “only for the purpose of deciding whether thetemporary servant should be continued or not”,(emphasis supplied) it could not be treated as punitiveand that the motive operating in the mind of theauthority was not relevant. But “the form in which theorder terminating his services is expressed will not bedecisive”. It was held:“What the Court will have to examine in each casewould be, having regard to the material facts existingup to the time of discharge, is the order of discharge https://hcservices.ecourts.gov.in/hcservices/ in substance one of dismissal?” Therefore, the “form” was not of importance butthe “substance” was."21.If it is seen in this context, the orders of terminationpassed against the petitioners are clearly illegal and the Tribunalwas wrong in rejecting the Original Applications filed by the twopetitioners. In the light of the same, the petitioners in W.P.Nos. 34277 and 35610 of 2004 are entitled to succeed.22.In view of the above, W.P. No. 25090 of 2004 will standdismissed. Connected Miscellaneous Petition is closed. W.P. Nos.34277 and 35610 of 2004 will stand allowed. The respondents aredirected to comply with this order within a period of four weeks fromthe date of receipt of a copy of this order. However, there willbe no order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.griTo1.The DirectorBCG Vaccine LaboratoryGuindyChennai2.The RegistrarCentral Administrative TribunalMadras Bench+ 1 CC to Mr.P.Ragendran, Advocate SR NO.4319+ 1 CC to Mr.Y.Bhuvanesh kumar, Advocate SR NO.4285+ 1 CC to Mr.K.Rajasekaran, Advocate SR NO.4567+ 1 CC to Mr.p.Rajendran, Advocate SR NO.4320+ 1 CC to Mr.K.Rajasekaran, Advocate SR NO.4568+ 1 CC to Mr.P. Rajendran Advocate SR NO.4317W.P. Nos. 25090, 34277 & 35610 of 2004 CMP(CO)JJM(13/03/08)