IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 30..01..2008 Coram The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W.P. Nos. 25090, 34277 and 35610 of 2004 and W.P.M.P. No. 30492 of 2004 in W.P. No. 25090 of 2004 Union of India Rep. by the Director BCG Vaccine Laboratory Guindy, 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. 25090/2004 2. Union of India Rep. by the Director BCG Vaccine Laboratory Guindy Chennai .. R1 in W.P. Nos. 34277 & 35610 of 2004 3. The Registrar Central Administrative Tribunal Madras Bench ... Respondents in all W.Ps. W.P. No. 25090 of 2004 filed under Article 226 of the Constitution of India praying to issue a writ of Certiorari calling for the records of the 2nd respondent made in O.A. No. 103 of 2004 on 29.6.2004 and the consequent review order dated 10.8.2004 made in R.A. No. 21 of 2004 and quash the same. W.P. No. 34277 of 2004 filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus 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 the first respondent to reinstate the petitioner in service with all attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ W.P. No. 35610 of 2004 filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus 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 first respondent in No. A-12021/18/98-Admn. Dated 29.01.2004 and quash the same and direct the first respondent to reinstate the petitioner in service with all attendant benefits. For Union of India : Mr. K. Rajasekar, SCGSC For Petitioners in : Mr. P. Rajendran W.P. Nos. 34277 & 35610 of 2004 & R1 in W.P. No. 25090 of 2004 COMMON ORDER (Order of the Court was made by K.CHANDRU, J.) Heard the arguments of Mr. K. Rajasekar, learned Senior Central Government 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 of 2004 and have perused the records. 2. W.P. No. 25090 of 2004 is filed by the Union of India represented by the Director of BCG Vaccine Laboratory challenging the order of the Tribunal dated 29.6.2004 in O.A. No. 103 of 2004 in directing the reinstatement of the first respondent with backwages from the date of removal till the date of reinstatement within a period of eight weeks from the date of the order. 3. W.P. Nos. 34277 and 35610 of 2004 were filed by the two petitioners challenging the order of the Tribunal dated 19.3.2004 made in O.A. Nos. 96 and 97 of 2004 in dismissing the Original Applications. 4. In W.P. No. 25090 of 2004, the first respondent was appointed as a Gardener in Group 'D' post by an order dated 01.6.1995. He was declared to have satisfactorily completed his probation on 31.5.1997 and the same was communicated by the petitioner Union of India vide letter dated 29.8.1987. He was also transferred to the post of Laboratory Peon from the post of Gardener by an order dated 01.6.2001. But, however, when he was working in the post of Laboratory Peon, by an order dated 03.02.2004, his services were terminated by invoking Rule 5 of the Central Civil Services (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 against the respondent in J-3 Police Station, Guindy, on 24.7.2003 and the same was registered in FIR No. 666 of 2003. The allegations made in the complaint was that he was called by the petitioner by his community name and it was also registered under Section 3 of the SC / ST Atrocities Act, 1999. Since enquiry was pending before the Police, he decided to remove the applicant under the Temporary Service Rules and dispensed with the services of the respondent. 6. The Tribunal, after referring to the relevant rules, held that inasmuch as the applicant's probation has been declared, he cannot be considered to be a temporary Government servant and invoking of the power under Rule 5 of the Temporary Service Rules will not arise. Therefore, the Tribunal held that it was a case of dismissal without holding any enquiry and since the first respondent has protection under Article 311(2) of the Constitution of India, the order of dismissal was set aside and the first respondent was directed to be reinstated with all consequential benefits by its order dated 29.6.2004. 7. Pending the writ petition, this Court granted stay on 02.9.2004 only for eight weeks. Thereafter, the same was not extended. In fact, by no stretch of imagination, the first respondent 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 declared to have been satisfactorily completed by order dated 29.8.1997 and only after a period of nine years after the entry into the service, he was sought to be terminated by invoking the Temporary Service Rules. We do not think that such a power exists in the hands of the respondent and once a person's probation is completed and it is declared that he has satisfactorily completed the probation, no further order is required to prove the said fact by any other DPC or other authority. In the present case, the order dated 29.8.1997 clearly shows that the probation of the first respondent was declared to have been satisfactorily completed only on the basis of the recommendation of the DPC. Under these circumstances, we do not find that any case is made out to interfere with the order of the Tribunal. Accordingly, W.P. No. 25090 of 2004 will stand dismissed. 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 on temporary basis from 12.02.1999. She had also completed the probation on 11.02.2001. The order dated 29.3.2001 declaring her probation was made only on the recommendation of the DPC. It was only when the petitioner R.Chithra made a complaint to the Co- operative Federation of the Central Government Employees about the sexual harassment meted to her by one Anandan, Section in charge, and the 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 Services seeking for comments, the respondent Director thought fit to terminate her services from the post of Laboratory Peon by an order dated 29.01.2004 by invoking Rule 5(1) of the Temporary Service Rules. It was this order which was challenged before the Tribunal in O.A. No. 96 of 2004. The Tribunal, by its order dated 19.3.2004, rejected the Original Application holding that the petitioner was only a temporary servant. Therefore, invocation of Rule 5(1) of the Temporary Service Rules will apply and that mere declaration of completion of probation will not make a person Government servant. 9. In the similar way, the petitioner in W.P. No. 35610 of 2004 (V.Kathiravan) was also appointed on temporary basis on 06.10.1998 as Laboratory Peon and his probation was confirmed with effect from 05.10.2000 by an order dated 15.02.2001 on the basis of the recommendation of the DPC. He was placed under suspension by an order dated 29.7.2003 in terms of Rule 10(5) of the Central Civil Services (Temporary Services) Rules, 1965. This was on the basis that a disciplinary proceedings was contemplated against the petitioner. However, by an order dated 29.01.2004, by invoking Rule 5(1) of the Temporary Service Rules, his services were dispensed with. It is this order which was challenged by the petitioner in O.A. No. 97 of 2004 and the Tribunal, overlooking the completion of probation, held that it was not a case of dismissal for a misconduct but 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. 34277 and 35610 of 2004, both the petitions are heard together. 11. The Tribunal, after arriving at the conclusion that the two petitioners were only temporary civil servants held that the power under Rule 5(1) of the Temporary Services Rules can be invoked. It also placed heavy reliance upon the judgment of the Supreme Court in Dhananjay 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 temporary Government servant as can be seen from the following passage found in paragraph 4: Para 4: "It is not in dispute that the appellant was appointed on a temporary basis; his services could be terminated without notice and without assigning any reason within a period of one year. In fact, his services were terminated 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 be answered is: whether the order of termination of services is simpliciter or is punitive attaching stigma to the appellant." 13. Dhananjay's case is a case where an employee was holding only a temporary service thereby there was no controversy regarding his status. But in the present cases, both the petitioners are not temporary Government servant but they have been engaged for a long number of years and after regular appointment, their probation was also declared to have been satisfactorily completed on recommendations 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 temporary Government Servant in a temporary post or officiating service in a permanent post under the Government of India." 14. In both the cases, there was no dispute with reference to the status of the employees covered. In fact, both decisions referred to the case in 1999 (3) SCC 60 [Dipti Prakash Banerjee v. Satyandra Nath Bose National Centre for Basic Sciences] and quoted with approval. 15. In all these cases, the question was how to construe the order of termination passed against the Government employee and if it is held that the termination was not founded on allegations or misconduct and complaints given only by motive for passing such termination, it cannot be a dismissal. 16. Further, all these three judgments followed the observations found in Mathew P. Thomas v. Kerala State Civil supply Corporation Ltd. [2003 (3) SCC 263]. The following passage found in the said judgment can be usefully quoted: "From a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorise or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability 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 present case, admittedly, both the petitioners were in long service and they were taken into regular employment with the probation prescribed and on the basis of the DPC recommendations, their probations were declared to have been satisfactorily completed. But in the case of R. Chithra, the petitioner in W.P. No. 34277 of 2004, it is a clear case where she has made a complaint of sexual harassment on her superior before the Tamil Nadu State Women's Commission and without making any enquiry as amended by Vishaka v. State of Rajasthan [1997 (6) SCC 241], the respondents have taken an easy recourse of dispensing with service whereby not only the problem is dispensed with even the services of the problem maker was dispensed with. 18. In the case of Kathiravan, the petitioner in W.P. No. 35610 of 2004, he was suspended from service after completion of probation, by having recourse to Rule 10(1) of the Central Government Classification Rules, which itself would show that he was not a temporary servant. In fact, the very same Tribunal, in the case of one V.Kennedy set aside the order of the termination passed under Rule 5(1) in O.A. No. 103 of 2004 by order dated 29.6.2004. The challenge to the said order by the Union of India in W.P. No. 25090 of 2004 was rejected by this Court by our judgment and the order of the Tribunal was confirmed. The case of Mr. Kennedy is not different from the case of the two petitioners in these two writ petitions. Once the petitioners are no longer probationers, then to still call them as persons rendering temporary service, is not only contrary to the Rules but also contrary to the facts of the case. Even in case of probationer, the Supreme Court laid down the circumstances under which the services of the probationer can be dispensed with by termination simplicitor. 19. The Supreme Court in Anoop Jaiswal v. Government of India an another [1984 (2) SCC 369] dealt with a case and paragraphs 12 and 13 may be usefully extracted below: Para 12: "It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee. Para 13: In the instant case, the period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An https://hcservices.ecourts.gov.in/hcservices/ explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the gymnasium and acting as one of the ringleaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries were made behind the back of the appellant. Only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ringleaders were not seriously taken note of. Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 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 further emphasised by the Constitution Bench in Jagdish Mitter v. Union of India. That was a case of a temporary employee. The discharge from service was by way of an order “simpliciter”. But there, an enquiry was held and the termination order was based on it as it stated on its face that it was “found undesirable” to retain the employee and hence his services were being terminated. The order was held to be punitive on its face and was quashed. Gajendragadkar, J. (as he then was) discussed the earlier cases and held that in every case the purpose of the enquiry was crucial. If the enquiry was held “only for the purpose of deciding whether the temporary servant should be continued or not”, (emphasis supplied) it could not be treated as punitive and that the motive operating in the mind of the authority was not relevant. But “the form in which the order terminating his services is expressed will not be decisive”. It was held: “What the Court will have to examine in each case would be, having regard to the material facts existing up 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 but the “substance” was." 21. If it is seen in this context, the orders of termination passed against the petitioners are clearly illegal and the Tribunal was wrong in rejecting the Original Applications filed by the two petitioners. 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 stand dismissed. Connected Miscellaneous Petition is closed. W.P. Nos. 34277 and 35610 of 2004 will stand allowed. The respondents are directed to comply with this order within a period of four weeks from the date of receipt of a copy of this order. However, there will be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. gri To 1. The Director BCG Vaccine Laboratory Guindy Chennai 2. The Registrar Central Administrative Tribunal Madras 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.4317 W.P. Nos. 25090, 34277 & 35610 of 2004 CMP(CO) JJM(13/03/08) https://hcservices.ecourts.gov.in/hcservices/