This Special Appeal was dismissed. The High Court upheld the termination of the appellant's services under Rule 5(1) of the Central Civil Services (Temporary Services) Rules 1965 for unauthorized desertion, rejecting the argument that procedural defects in medical certificates warranted interference with the disciplinary order.
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Court No. - 39
Case :- SPECIAL APPEAL No. - 431 of 2018
Appellant :- Jitendra Kumar Respondent :- Union Of India And 2 Others Counsel for Appellant :- Hinchh Lal Pandey Counsel for Respondent :- A.S.G.I.
Hon'ble Dilip Gupta,J. Hon'ble Neeraj Tiwari,J.
This Special Appeal is directed against the judgement and order dated 24 April 2018 by which a learned Judge of this Court has dismissed Writ A No. 21222 of 2006 that was filed by the appellant for quashing the order dated 30 July 2005 terminating the services of the appellant under Rule 5(1) of the Central Civil Services (Temporary Services) Rules 1965 (herein after referred to as the 'Rules'). The appellant had also sought the quashing of the order dated 13 December 2005 by which the appeal filed by the appellant against the aforesaid order dated 30 July 2005 was dismissed.
It transpires that the appellant was enlisted in G.C.- C.R.P.F., Lucknow on 18 August 2004 and was subsequently allotted 169 Batallion C.R.P.F. The appellant reported on 22 August 2004 for basic training. However, during the course of training, the appellant deserted the campus on 5 May 2005 on his own without permission and returned back after five days on 9 May 2005. The appellant again deserted the campus on 23 July 2005 without permission/ sanctional leave and, therefore, a search was made but he could not be traced. Thereafter, an enquiry was conducted against the appellant and after conclusion of enquiry, services of the appellant were terminated w.e.f. 30 July 2005 after giving one month pay plus allowances for the period of notice.
The appeal filed by the appellant was also rejected and the relevant portion of the order is reproduced below:
"5. That contention of the appellant that he had applied for leave but it was not sanctioned, and hence, he left the camp to attend his ailling mother is not at all true. He had never applied for leave. There is record in Unit, when leave have been granted to the trainees at the time of exigency. Due considerateness and humane approached is shown and exercised for sanction of leave to recruits for meeting imminent and unavoidable social obligations. Accordingly request of the appellant would have definitely been considered had he applied for leave. Even, he did inform any one about the illness of his mother and deserted the training camp for two times unauthorisedly which is not in consonance with the laid down rules.
The medical certificate so forwarded with the appeal is also found to be not in proper format and also the name of authority who had signed the certificate, his designation, Regn. No. not found in the certificate.
It is these orders dated 30 July 2005 and 13 December 2005 that were assailed in writ petition out of which this Special Appeal arises.
The learned Judge noticed that it was imperative for the appellant to have submitted medical treatment papers but neither had the appellant submitted these papers before the Authority nor such papers were enclosed by the appellant in the appeal. The learned Judge also noticed that the medical certificates that were brought on record indicated that they were issued on 11 May 2005 by a Medical Officer of the Community Health Centre but they did not contain registration number nor were on letter pads. The learned Judge, therefore, found that the action taken by the authority was in accordance with the Rules.
Learned counsel for the appellant has submitted that if the medical certificates were not in a proper format, the authority should have required the appellant to have submitted the documents but could not have passed an order placing reliance on the documents that were filed by the appellant.
Sri S.P. Singh, learned Additional Solicitor General of India assisted by Sri Vinay Kumar Singh, learned counsel for the respondents, however, has submitted that the judgement does not call for any interference as the Appellate Authority was justified in dismissing the appeal.
We have considered the submissions advanced by learned counsel for the parties.
In order to appreciate the contentions advanced by the learned counsel for the parties, it would be appropriate to reproduce Rule 5(1) of the Rules:-
" 5. Termination of temporary service;
(1) (a) The service 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 services 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 rates at which he was drawing 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.
NOTE:- The following procedure shall be adopted by the appointing authority while serving notice on such Government servant under clause (a).
(i) The notice shall be delivered or tendered to the Government servant in person.
(ii) Where personal service is not practicable, the notice shall be served on such Government servant by registered post, acknowledgement due at the address of the Government servant available with the appointing authority.
(iii) If the notice sent by registered post is returned unserved it shall be published in the Official Gazette and upon such publication, it shall be deemed to have been personally served on such Government servant on the date it was published in the Official Gazette."
It is not the case of the appellant that the appellant was not a temporary employee and, therefore, the provision of Rule 5(1) of the Rules would be applicable.
The appellant had left the Campus on two occasions without submitting any application for leave as is clear from the appellate order. The authority permitted the appellant to join the duty when the appellant first left the Campus. However, when the appellant again left the Campus without informing, the authority conducted an enquiry and ultimately termination order was passed. It is not the case of the appellant that any leave application was submitted when he attended his ailing mother on both the occasions. It is also not the case that medical certificates were submitted by him during his absence from the Campus.
The appellant was a member of a disciplined force. Before proceeding on leave, the appellant should have submitted an application and thereafter filed documents but that was not done by the appellant. It cannot, therefore, be said that the order passed by the authority on 30 July 2005 terminating the services
of the appellant under the provisions of Rule 5(1) of the Rules suffers from any illegality.
The Special Appeal is, accordingly, dismissed.
Order Date :- 14.5.2018 Arvind
(Dilip Gupta, J.)
(Neeraj Tiwari, J.)
3 issues framed by the court
Whether the termination of services of a disciplined force member for desertion under Rule 5(1) of the Central Civil Services (Temporary Services) Rules 1965 is justified by the absence of a properly
Whether the Appellate Authority erred in relying on defective medical certificates issued without a formal application for leave.
Whether the Special Appeal against the dismissal of the writ petition filed for quashing the termination order merits interference.
1 provisions across 1 enactments
Jitendra Kumar
Union Of India
Other respondents
Dilip Gupta
Neeraj Tiwari
As recorded by the court registry
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