Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 259 of 2004 Union of India ……Petitioner. Versus Central Administrative Tribunal, Allahabad and another. …Respondents. Ms. Anjali Bhargava, Advocate for the petitioner. Mr. Ravi Babulkar, Advocate for respondent no. 2. Dated: 31.5.2010 Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. Sudhanshu Dhulia, J. The present writ petition has been filed by the Union of India challenging the order of the Central Administrative Tribunal dated 25.5.2004 (Annexure -3 to the writ petition) passed in Original Application No. 846 of 1997, by which the Original Application of respondent no. 2 has been allowed and the order of termination dated 11.12.1996, has been set aside. Brief facts of the present case are as follows: The mother of the applicant/respondent no. 2 was in service as an Attendant in Command Military Hospital, Dehradun. She died while in service, and the applicant was given appointment vide order dated 14.12.1994. The said order of appointment dated 14.12.1994 states that respondent no. 2 is appointed as “Ward Sahayika” in the Hospital and that her appointment is on a “probation” for a period of two years from the date of the appointment. Respondent no. 2 joined her duties on 28.1.1995. All the same, barely two days after joining duties, she absented herself from her duties. Thereafter, she joined again on 13.5.1995 but again from 27.5.1995 onwards remained absent. 2 Meanwhile, she levelled allegations against a Senior Ward Sahayika Smt. Ram Pyari and stated that she was being harassed during her duties and gave an ultimatum to the authorities that she will only join her duties when a decision is taken on her complaint against her Senior Ward Sahayika Smt. Ram Pyari. The Hospital Authorities on the other hand vide letter dated 12.6.1995 and thereafter as well reasoned with the respondent and persuaded her to join her duties first, and only then her complaint will be looked into. But all this was in vain, as respondent no. 2 failed to report for her duties. Since she did not join her duties in spite of repeated reminders, the matter was referred to DDMS H.W. U.P. Area Bareilly, for necessary guidance and orders. Consequently, an enquiry was made in order to gather the entire facts about her case and consequently, her services were terminated vide order dated 24.10.1996. The appointment letter of respondent no.2 dated 14.12.1994 itself says that respondent no.2 was on probation for a period of two years. The services of respondent no. 2, therefore, were terminated during the period of probation. Respondent no. 2, all the same, filed an Original Application No. 846 of 1997 before the Central Administrative Tribunal and the Central Administrative Tribunal vide its order dated 25.5.2004 recorded a finding that though respondent no. 2 remained absent from time to time, yet this absence could be explained, as her husband was posted at Bareilly while she was working at Dehradun and also during this period, she became pregnant and gave birth to a child. However, the fact that during this period she was pregnant and gave birth to a child is not borne from 3 the evidence on record. Even in the counter affidavit filed by respondent no. 2, there is only a bald averment to this effect, which is not supported by any evidence. The medical certificates, which have been annexed before this Court with the counter affidavit also show that respondent no. 2 was being given the treatment of disease like “Amebic Colitis”, etc. and this was during the year, 2006 and not in the year, 2005, the period when largely remained absent. On the other hand, there is enough on record to show that the concerned authorities had exercised enough restraint and inspite of the unexplained absence on the part of respondent no. 2, they kept on sending reminders after reminders to respondent no. 2 to return for her duties. This bizarre conduct of respondent no. 2, where she joins her new job on 28.1.1995 and immediately within two days thereafter, (from 30.1.1995 onwards) goes on leave without any sanction, and then for a period of one and a half year remains absent, cannot be justified by even the most liberal administrative yardsticks. Respondent no. 2 was working for a military establishment. Moreover, as per the appointment letter 14.12.1994, respondent no. 2 was on a period of probation and it was during the probation period that respondent no. 2 remained absent. On these admitted set of facts, there was in fact no occasion for holding an enquiry because the fact of her absence is in fact admitted. The learned Tribunal, however, has allowed the application of respondent no. 2 on the ground that no inquiry was conducted before terminating the services of respondent no.2. The reasons assigned are as follows: “10. In the peculiar facts of this case, it was necessary for the authority to make an enquiry in 4 the matter before an order of termination was passed. It is no doubt true that for order under Rule 5 of Temporary Service Rules, it is not mandatory to hold an enquiry but if the facts disclose that the grounds of absence may be genuine, a model employer is required to find out the truth, instead of passing an arbitrary order to end the services of the employee who was appointed on compassionate grounds.” The plea of respondent no. 2 is that her appointment was not a temporary appointment, but a permanent appointment as it was an appointment made on compassionate grounds, as her mother died in harness and it was this contingency, which resulted in an appointment being given to respondent no. 2. She has also relied upon a decision of the Allahabad High Court in Ravi Karan Singh Vs. State of U.P. and others [1999 (2) E.S.C. 972 (ALL)], in which the compassionate appointment has been held to be a permanent appointment and not a temporary appointment. On this aspect, it must be stated that even assuming that the appointment of respondent no. 2 may not be temporary in nature but the fact that she was at the relevant time on probation is admitted. Therefore, the above judgment does not really help the respondent on the facts of the present case. To substantiate her case, respondent no. 2 has annexed a letter dated 25.1.1995. However, it must be stated that the fact that respondent no. 2 was given the appointment on compassionate ground has not been established by respondent no. 2 either before the Tribunal or before this Court. Her actual appointment letter dated 14.2.1994 nowhere speaks that it is an appointment on compassionate grounds. It simply says that an authority of Director General of Medical Services 5 (Army) dated 5.10.2004, respondent no. 2 is appointed as “Ward Sahayika” in the Military Hospital. Inter alia, it also states that respondent no. 2. will be on probation for a period of two years and in case her services are not found satisfactory during probation period, then the services will be terminated without notice. For a ready reference, the copy of this appointment letter which is Annexure -1 to the present writ petition is being reproduced below: “EMPLOYMENT ASSISTANT : CIVILIANS 1. On the authority of Dte Gen of Medical Services (Army) order NO. 11346/DGMS-3 (B) dated 05 Oct 94, you are appointed as Wardsahayika in this Hospital. You are directed to report to this Hospital within 20 days on receipt of this letter, alongwith the following documents. (a) Medical examination certificate, issued by (CMO), Dehradun (copy attached) (b) Character vouching certificates from 2 Gazetted Officers/MLAs/MPs 2. You will be on probation of two 2 years from the date of appointment. In case your performance not found satisfactory during the probation period your services will be terminated without notice. 3. On appointment you will make your own arrangement of accommodation. No Government accommodation will be provided. 4. On travelling allowance will be paid. 5. Pay scale of the post is 775-12-071-EB- 14-1225, plus other allowances as admissible at Dehradun. 6. If you are willing, please report for duty within 20 days on receipt of this letter. (Authority : Sanction bearing No. 11346/DGMS-3(B) dated 5 Oct 94 received under HQ UP Area (Med) Bareilly letter No. 291973/1/M- 3(B) dated 07 Dec 94.” Respondent no. 2 has not denied that the actual appointment was on the basis of the aforesaid letter. The letter dated 25.1.1995, which respondent no. 2 has 6 annexed as Annexure-C.A. 1 to her Counter Affidavit is only a follow up of the actual appointment letter, which though mentions that the appointment of respondent no. 2 is on compassion i.e. “Karuna”, it cannot be treated to be an appointment on compassionate grounds. Moreover, even this letter states that the appointment is purely temporary. In any case, it is an admitted position that the appointment of respondent no. 2 was on a probation for a period of two years. The legal position is too well settled to even state that a compassionate appointment is given to those who are “dependents” of the incumbent who has died during harness. Such an appointment is under some statute, rule or order. No such rule or order has been shown before this Court under which this “compassionate appointment” was made on the post of “Ward Sahayika”, in a Military Hospital. All the same, assuming for the sake of argument that there could be such an appointment as alleged, the question would be whether respondent no. 2 was eligible for such an appointment, as admittedly she was a married women as is evident from the record. Normally, only unmarried daughters can be considered as a dependent in such cases. In short, the onus was entirely upon respondent no. 2 to prove that her appointment was on a compassionate appointment, a burden which she has not been able to discharge. Therefore, whether the appointment was a compassionate appointment cannot be looked into at this stage. Nevertheless since respondent no. 2 has quite heavily relied on the “principle of natural justice and fair- play” and has alleged violation of the same as also of Article 311 of the Constitution of India, it is worthwhile to 7 examine the legal submission of respondent no.2 on this aspect. The learned counsel for respondent no. 2 Sri Ravi Babulkar submits that since her termination order was based on a misconduct, which is “absence from duties” which was alleged against respondent no. 2 a due process was liable to be adopted and a disciplinary proceeding ought to have been initiated against respondent no. 2, where respondent no. 2 was liable to be heard and only then the impugned order could have been justified. The first case respondent no. 2 has relied upon is Parshotam Lal Dhingra v. Union of India reported in AIR 1958 SC 36 (V 45 C 6). The brief facts of the P.L. Dhingra’s case (supra) were that P.L. Dhingra was appointed to officiate in a Class-II service as Assistant Superintendent Railway Telegraphs. Thereafter, on the basis of certain adverse remarks having made against him, he was reverted as a subordinate till he made good his shortcomings. On this P.L. Dhingra made a representation to the General Manager, who gave him a notice reverting Dhingra to Class III post. It was this order, which Mr. P.L. Dhingra had challenged, first before the High Court and eventually before the Apex Court. The question for consideration before the Apex Court was whether the reversion of Mr. Dhingra amounts to reduction in rank within the meaning of Article 311 (2) of the Constitution of India and whether Dhingra was entitled to a reasonable opportunity or show cause prior to the passing of this order. The Apex Court in this seminal judgment has held that the reversion of an officiating officer to his substantive post will not attract the provision of Article 311 (2) and that P.L. Dhingra was not entitled to protection under Article 311 (2). All the 8 same while coming to this conclusion, since the broad parameters of Article 311 were examined by the Constitution Bench, there were certain observations in the judgment, which the counsel for respondent no. 2 wanted to attract in his favour. However, as already referred above, the peculiar facts and circumstances of the present case are such that he is not helped by the observations of the Apex Court. In this judgment, it was also laid down by the Apex Court as to when and where the requirement of Article 311 of the Constitution of India are attracted. A termination of the service of a civil servant on such grounds must be as a punishment and, therefore, it operates as a forfeiture of his right and he is visited with the consequences of loss of pay and allowances. What has been stated in the Constitution Bench judgment in P.L. Dhingra (supra) is a settled proposition of law. However, the essential ingredients as required in such a contingency are not present in favour of respondent no. 2, for the primary reason that respondent no. 2 was on a probation. The inquiry, which respondent no. 2 alleges where no show cause notice was given to respondent no. 2 was not an inquiry as is being made out by the counsel for the respondent. All what was done, was that the entire facts relating to respondent no. 2 were collected. Broadly it all amounts to the number of days respondent no. 2 had remained absent from her duties without sanction. The fact that respondent no. 2 always remained absent from her duties, barring 17 days, is an admitted fact. This was enough reason for terminating the services of respondent no. 2. By and large, the same emphasis, as above, was laid by the counsel for respondent no. 2 Sri Ravi Babulkar while citing Khem Chand Vs. Union of India 9 and others reported in AIR 1958 SC 300 and it was emphasised that the reasonable opportunity as envisaged by the Constitution Bench of the Apex Court in the above case has not been given to respondent no. 2. Thereafter, the counsel for respondent no. 2 has relied upon the judgment of the Apex Court in Shamsher Singh Vs. State of Punjab and another reported in AIR 1974 SC 1992. The Apex Court in this judgment has also discussed various facets of service jurisprudence. However, the counsel for respondent no. 2 had focused his argument on the rights of a probationer as the Apex Court while discussing this aspect reiterated the position earlier stated in P.L. Dhingra’s case (supra). It has been held that although probationer does not have any right on the post and the period of probation is only a period of his test and trial, yet in case his services are terminated on the ground of misconduct, then an opportunity of hearing must be given to him, otherwise it would carry a stigma. However, where it is only a termination simpliciter, then whatever may be the motive in the minds of the authority, Article 311 of the Constitution of India would not be attracted. We, therefore, find that this also does not help the case of respondent no. 2, inasmuch as the present case is also a termination simpliciter and does not cause any stigma on respondent no. 2, therefore, we find no reason as to why Article 311 would be attracted in the present case. The next case cited by the counsel for respondent no. 2 is Radhey Shyam Gupta Vs. U.P. State Agro Industries Corporation Ltd. and another reported in AIR 1999 SC 609. In the said case, the services of a temporary employee were terminated after an inquiry was held, wherein evidence was collected on the misconduct 10 of the employee, all this behind the back of the incumbent. Here the termination was held to be bad as the inquiry was held behind the back of the incumbent and it was therefore held to be violative of the principle of “natural justice and fair-play”. However, this also does not help the case of respondent no. 2, as firstly respondent no. 2 was on probation and secondly, his services were terminated as she remained absent from her service almost during her entire tenure, without any plausible explanation. There was, in fact, no need for an inquiry in this case, nor is the inquiry the basis for terminating her services. Much emphasis has been laid down by the counsel for respondent no. 2 on the word “motive” and “foundation” in such cases. The counsel contends that where the inefficiency of the incumbent is the “motive” for terminating his/her services, then there is nothing wrong in such a termination. However, when the inefficiency is the very foundation, meaning thereby that it is on the inefficiency that a detailed inquiry is done behind the back of the incumbent and then the services are terminated, then such a termination cannot be sustained. The concept of “motive” and “foundation” has been explained by the Supreme Court in the case of Radhey Shyam Gupta Vs. U.P. State Agro Industries Corporation Ltd. and another AIR 199 SC 609, Chandra Prakash Shahi Vs. State of U.P. and others AIR 2000 SC 1706 and A.P. State Fed. of Coop. Spinning Mills Ltd. and another Vs. P.V. Swaminathan J.T. 2001 (3) SC 530. However, the facts of the present case are clearly distinct. In the present case, there was no great fact finding inquiry needed to ascertain that respondent no. 2 had remained 11 absent from her duties through out her tenure barring a few days, and that immediately after two days of her joining, she remained absent without sufficient cause. It is clearly a case, where the conduct of respondent no. 2 is the “motive” for terminating her services. It is not the “foundation” inasmuch as the inquiry which was conducted was a mere fact finding inquiry and is not a kind of inquiry, which is being suggested by respondent no. 2. It was only an informal enquiry, and not the kind of a formal enquiry where the respondent was deprived from participation. This has clearly been explained by the Apex Court in paragraph 28 of Radhey Shyam Gupta’s case (supra), which is strongly being relied upon by respondent no. 2. Relevant paragraph 28 of Radhey Shyam Gupta’s case (supra) is being extracted hereunder:- “28. In other words, it will be a case of motive if the master, after gathering some prima facie facts, does not really wish to go into their truth but decides merely not to continue a dubious employee. The master does not want to decide or to direct a decision about the truth of the allegations. But if he conducts an inquiry only for purpose providing the misconduct and the employee is not heard, it is a case where the inquiry is the foundation and the termination will be bad.” It is by now well settled, even trite that the principle of natural justice and fair play is not an unruly horse nor “a bull in a China shop”. It is ultimately, as the Apex Court has observed “good conscience” in administration. This Court, therefore, fails to appreciate the logic of the Central Administrative Tribunal inasmuch as no exercise was needed to go to the truth of the matter and the fact that respondent no. 2 had remained absent during this period is an admitted fact. More so this has been done by respondent no. 2 while she was on 12 probation in a military establishment. Therefore, this Court is of the considered view that no inquiry was necessary and the “Rules of fairness and natural justice” cannot be extended to an extent that they appear absurd. The application of the concept of fairness and natural justice and fair play has been brilliantly defined in a Constitution Bench of Supreme Court in Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others (1978) 1 SCC 405 states as follows:- “For fairness itself is a flexible, pragmatic and relative concept, not a rigid, ritualistic or sophisticated abstraction. It is not a bull in a china shop, nor a bee in one’s bonnet. Its essence is good conscience in a given situation : nothing more –but nothing less.” In the present case also, this Court finds that as far as good conscience on the part of the Employer i.e. the petitioner is concerned, it was more than evident from the records. The conduct of respondent no. 2 is not such which requires any indulgence from this Court. The counsel for the petitioner, on the other hand has argued that in similar matters, where a probationer has remained absent without leave without plausible reasons, termination from service or the end of the period of service has been held to be correct. First case cited by the petitioner is State of Punjab Vs. Sukhvinder Singh (2005) 5 SCC 569, where a constable before completion of the probation period of three years remained absent from duty without seeking permission. His services were subsequently terminated. The Civil Court though held the order to be null and void and the appellate Court upheld the decision, the High Court as well dismissed the second appeal of the State and held that the absence 13 from duty was a misconduct and the imposition of the punishment of discharge on the respondent without holding a formal inquiry as envisaged under the Rules (Rule 16.24 of the Punjab Police Rules, 1934) vitiated the order of discharge. All the same, the Supreme Court in an appeal of the State of Punjab held that the respondent was only a probationer in terms of the Rules and the impugned order was neither stigmatic nor did it effect with any evil consequences and since the impugned order was passed in exercise of the powers conferred by the Rules, there was no necessity for holding a formal inquiry. The period of probation in fact gives time and opportunity to the Employer to watch the work, ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserves the right to dispense with his service without anything more during or at the end of the prescribed period, which is known as “the period of probation”. Therefore, it was held by the Supreme Court that High Court and the Civil Court were clearly in error in holding that the respondent’s absence from duty was the foundation of the order, which necessitated an inquiry as envisaged under the Rules. We find in the present case a similar set of facts, where the continuous absence from duty remains unexplained and in fact are admitted. Therefore, there was no occasion for holding any formal inquiry against respondent no. 2, who was during this period on probation. The order of terminating the services of respondent no. 2 is perfectly just under the circumstances. The Supreme Court in another case of State of Punjab Vs. Constable Avtar Singh (2008) 7 SCC 405 followed the earlier decision of State of Punjab Vs. 14 Sukhvinder Singh (supra) and in the similar set of facts stated as under: “….The decision in Sukhwinder Singh was given by a three-Judge Bench and in view of that decision in 2005, there is no scope for this Court to take a different view.” There is yet another aspect to this case, which is whether Article 311 of the Constitution of India would at all be attracted as the petitioner though was working on a “civilian post” yet it was in a defence establishment, as such she was not working on a “civil post” as contemplated under Article 311 of the Constitution of India. The protection of Article 311 (2) of the Constitution of India is to a person who is a member of a civil service of the Union or holds a civil post under the Union or a State. Respondent no. 2