Petitioner challenged termination of probationary services issued without inquiry, citing misconduct. Court held order stigmatic despite appeal by respondents, violating Article 311(2), and setzen aside order.
Impugned order quashed and set aside; rule made absolute subject to authorities powers under Rule 138.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
[1]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.206 OF 2007
Devendra Prasad Sharma,
residing at C/o Mr. D.P.
Sharma, Room No.405,
Jigar Apt., R.No.405,
Anupam Nagar, Murbad
Road, Kalyan (W). .... Petitioner
- Versus -
1. Union of India
Ministry of Railway,
Rail Bhavan,
New Delhi.
2. Divisional Security
Commissioner,
Central Railway,
O/o Railway Protection
Force, Bhusawal.
3. Dy. Chief Security
Commissioner, Central
Railway, Rly.Protection
Force, Mumbai CST-400 001.
4. Director General,
Railway Protection Force,
Railway Board, Rail
Bhavan, New Delhi. .... Respondents
Sarvasri A.S. Peerzada i/b Burhan V. Bukhari
for the Petitioner.
Shri J.J. Pandian for the Respondents.
CORAM: R.M.S. KHANDEPARKAR &
Smt. V.K. TAHILRAMANI, JJ.
DATED: AUGUST 02, 2007
ORAL JUDGMENT (Per R.M.S.Khandeparkar, J.):
1. Heard. Rule. Shri J.J. Pandian waives service on
[2]
behalf of the respondents. By consent, rule made
returnable forthwith.
2. By the present petition, the petitioner is
challenging the order dated 21-8-2001, Exhibit-D to the
petition. By the impugned order, the services of the
petitioner have been terminated by the railway
authorities.
3. The challenge to the impugned order is on various
grounds. However, it is not necessary to address to all
those grounds sought to be canvassed against the
impugned order and suffice to refer to only one ground
that inspite of the petitioner being selected by due
process of law regarding selection of candidates for
appointment in a permanent post and having so selected
and appointed on probation, during the period of
probation his services have been terminated on the
ground that he had shown gross neglect and discreditable
conduct without even holding an inquiry in that regard
and by passing a stigmatic order.
4. Apart from issuing show cause notice, neither
charge-sheet was issued nor any inquiry was held in the
matter before issuing the impugned order. Placing
reliance in the decision of the Apex Court in Jarnail
Singh and others, etc. v. State of Punjab and others,
[3]
reported in 1986 LAB I.C. 1086, the learned Advocate
for the petitioner has submitted that the respondents
could not have terminated the services of the petitioner
on the alleged ground of gross neglect and discreditable
conduct without issuing charge-sheet and holding the
necessary inquiry. The learned Advocate for the
respondents, on the other hand, placing reliance in the
decision of the Apex Court in the matter of Vijay Singh
v. Union of India & Ors., reported in AIR 2007 SC 1384,
submitted that the conduct of the petitioner clearly
disentitled him to continue to be in employment and,
therefore, no fault can be found with the impugned
order. Attention was also drawn to the decision of the
Apex Court in the matter of Union of India and others v.
A. Vasu, reported in (1998) 8 SCC 562 while contending
that if this Court is inclined to set aside the impugned
order, then the petitioner should be deemed to be on
suspension so that the authorities can proceed to
conduct the necessary inquiry and take appropriate
decision in the matter, and in that regard Rule 138 of
the Railway Protection Force Rules, 1987 is sought to be
relied upon.
5. The facts that the petitioner was on probation after
having been selected in accordance with the provisions
of law for the appointment in the post in which he was
appointed and that he was on probation at the relevant
[4]
time when the impugned order was issued are not in
dispute. It is also not in dispute that no charge-sheet
was issued nor any inquiry was conducted giving
opportunity to the petitioner to defend his case in the
matter or to place before the authority his say in the
matter are also not in dispute. In the circumstances,
the point which arises for consideration is whether the
impugned order is a stigmatic order and secondly,
whether such an order could have been passed while the
petitioner was on probation.
6. As regards the first point for consideration, bare
perusal of the impugned order discloses that the
services of the petitioner while on probation have been
sought to be terminated on the ground that he had shown
gross neglect and discreditable conduct and from the
attitude on his part, it was proved that he had shown
cowardiceness and had committed an offence under Rule
VIII of the Railway Protection Force Rules, 147. In
that regard, it is sought to be contended on behalf of
the respondents that Rule 57.3 of the said Rules
empowers the authority to take such an action under such
Rule. The Rule 57.3 provides that if during the period
of probation or any extension thereof as the case may
be, the appointing authority is of the opinion that the
member of force is not fit for permanent appointment the
appointing authority may terminate the services of a
[5]
direct recruit or revert the member of the force to the
post held by him prior to such appointment, provided
that in case of termination of services of a probationer
shall be given notice of one month to that effect or pay
in lieu thereof, and further that a notice or pay in
lieu thereof shall not be required where the termination
of services results as a consequence of the failure of
the probationer to pass the initial training course or
the repeat course, if any. From the provisions
comprised under Rule 57.3, therefore, it cannot be
disputed that the services of a probationer could have
been terminated if found to be unsuitable for
continuation in service. That is different from issuing
a stigmatic order. Undoubtedly, Rule 57.3 provides that
the authority is entitled to terminate the services
simpliciter on account of dissatisfaction of the
performance of an employee. That by itself will not
empower the authority to issue order in the form of
disciplinary action against the employee on account of
any misconduct as alleged above. In case of termination
of services even of a probationer on account of
misconduct on the part of the probationer, it is now
well-settled that the authorities have to conduct the
necessary inquiry before taking final decision in that
regard. Once the fact that no such inquiry was held and
the fact that the termination was on account of alleged
misconduct on the part of the employee is not in dispute
[6]
and further that the order of termination on the face of
it discloses it to be stigmatic, certainly such an order
cannot be sustained in the absence of inquiry. The
decision of the Apex Court in Jarnail Singh’s case
(supra) is very clear in that regard. It was held by
the Apex Court in Jarnail Singh’s case that:
"32. The position is now well-settled
on conspectus of the decisions referred
to hereinabove that the mere form of the
order is not sufficient to hold that the
order of termination was innocuous and
the order of termination of the services
of a probationer or of an ad hoc
appointee is a termination simpliciter
in accordance with the terms of the
appointment without attaching any stigma
to the employee concerned. It is the
substance of the order i.e. the
attending circumstances as well as the
basis of the order that have to be taken
into consideration. In other words,
when an allegation is made by the
employee assailing the order of
termination as one based on misconduct,
though couched in innocuous terms, it is
incumbent on the Court to lift the veil
[7]
and to see the real circumstances as
well as the basis and foundation of the
order complained of. In other words,
the Court, in such case, will lift the
veil and will see whether the order was
made on the ground of misconduct,
inefficiency or not. In the instant
case we have already referred to as well
as quoted the relevant portions of the
averments made on behalf of the
State-respondent in their several
affidavits alleging serious misconduct
against the petitioners and also the
adverse entries in the service records
to these petitioners, which were taken
into consideration by the Departmental
Selection Committee without giving them
any opportunity of hearing and without
following the procedure provided in
Art.311(2) of the Constitution of India,
while considering the fitness and
suitability of the appellants for the
purpose of regularising their services
in accordance with the Government
Circular made in October, 1980. Thus
the impugned orders terminating the
services of the appellants on the ground
[8]
that "the posts are no longer required"
are made by way of punishment."
7. As regards the decision of the Apex Court in Vijay
Singh’s case (supra), the respondents cannot take any
assistance therefrom as in that case charges were framed
and necessary inquiry was conducted before taking
decision. Being so, the termination of the employee on
account of misconduct in Vijay Singh’s case was after
following the necessary procedure in terms of the Rules
applicable to the parties, that is not the case in the
matter in hand.
8. Once it is apparent on the face of the record that
the order of termination is a stigmatic one and was
issued without holding any inquiry and without giving
opportunity to the petitioner to place before the
concerned authority his say in the matter, the impugned
order cannot be sustained and is liable to be set aside.
9. The Rule 138 of the Railway Protection Force Rules
undoubtedly provides that where the penalty of
dismissal, removal or compulsory retirement from service
imposed upon a member of the Force is set aside or
declared or rendered void in consequence or by a
decision of the Court and the disciplinary authority on
consideration of the circumstances of the case, decides
[9]
to hold a further inquiry against him on the allegation
on which the punishment of dismissal, removal or
compulsory retirement was originally imposed, the member
of the Force shall be deemed to have been placed under
suspension by the competent authority from the date of
the original order of dismissal, removal or compulsory
retirement and shall continue to remain under suspension
until further orders, provided that no such further
inquiry shall be ordered unless it is intended to meet a
situation where the Court has passed an order purely on
technical grounds without going into the merit of the
case. Plain reading of this Rule would disclose that
the occasion for application of the said Rule would
arise only after passing of the order by this Court and
not prior thereto. Besides, for applicability of the
said Rule, the disciplinary authority is required to
take a decision consequent to the passing of the order
by this Court that further inquiry against the
petitioner on the allegation made in the original order
is worthwhile and necessary. Being so, the occasion to
apply the said Rule is yet to arise.
10. As regards the decision of the Apex Court in A.
Vasu’s case (supra), it was held therein that in terms
of Rule 10(4) of the CCS (CCA) Rules, 1965, that
according to the said Rule the employee was deemed to
have been placed under suspension with effect from the
[10]
date of the original order of dismissal consequent to
setting aside of the order of dismissal of the employee
by the Tribunal and consequent to the decision of the
disciplinary authority to hold further inquiry into the
matter. As the matter stands today, in the case in
hand, the disciplinary authority is yet to take decision
in that regard as regards the requirement of further
inquiry in the matter and it will be too premature for
us to express any opinion regarding the applicability of
Rule 138 of the said Rules. The appropriate decision in
that regard has to be taken by the concerned authority
of the respondents consequent to the disposal of this
petition.
11. In the result, therefore, the petition succeeds on
the limited ground as stated above and the impugned
order is hereby quashed and set aside and consequently
the rule is made absolute in terms of Para 20 (a) and
(b), albeit subject to the powers of the concerned
authorities in terms of Rule 138 of the said Rules.
There shall be no order as to costs.
(Smt.V.K.Tahilramani, J.) (R.M.S.Khandeparkar, J.)
sjs/A7wpj206.7
3 issues framed by the court
Whether termination of services on grounds of gross neglect and discreditable conduct without inquiry constitutes a stigmatic order violating Article 311(2).
Whether such a stigmatic order can be sustained when passed against a probationer without the conduct of a necessary inquiry.
Whether Rule 138 of the Railway Protection Force Rules applies prior to a court set-aside order or only after.
Colour shows how this judgement treated each authority
Jarnail Singh and others v. State of Punjab and othersRelied on¶19
1986 LAB I.C. 1086
Vijay Singh v. Union of India & Ors.Distinguished¶21
AIR 2007 SC 1384 · Who else cites this
Union of India and others v. A. VasuDistinguished¶22
(1998) 8 SCC 562 · Who else cites this
3 provisions across 2 enactments
Devendra Prasad Sharma
Union of India
Divisional Security Commissioner, Central Railway, Bhusawal
Dy. Chief Security Commissioner, Central Railway, Mumbai
Director General, Railway Protection Force, New Delhi
R.M.S.Khandeparkar
V.K.Tahilramani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court