IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 9TH FEBRUARY 2010 / 20TH MAGHA 1931 WP(C).No. 31863 of 2009(S) --------------------------------------- OA.594/2008 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): ---------------------- K.K.SAJIMONE, ICEMAN, INTEGRATED FISHERIES PROJECT, (NOW) NATIONAL INSTITUTE OF FISHERIES POST HARVEST TECHNOLOGY & TRAINING COCHIN-16. BY ADVS.MR.C.S.MANU MR.T.B.SIVAPRASAD RESPONDENT(S): -------------------------- 1. UNION OF INDIA REPRESNTED BY ITS SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF AGRICULTURE, KRISHIBHAVAN, NEWDELHI. 2. THE DIRECTOR, NATIONAL INSTITUTE OF FISHERIES, POST HARVEST TECHNOLOGY & TRAINING COCHIN-16. R1 & R2 BY ADV.MR.T.P.M.IBRAHIM KHAN,ASST.SOLICITOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/02/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.31863/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER DTD. 7.4.03 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL IN OS. 857/2002. P2:- COPY OF THE JUDGMENT DTD. 29.1.08 IN WPC. 3826/04. P3:- COPY OF THE MEMO NO.A3/WP/3826/04 /1216 DTD. 15.7.08 ISSUED BY THE 2ND RESPONDENT. P4:- COPY OF THE REPRESENTATION DTD. 29.7.08 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. P5:- COPY OF THE ORDER NO.A3/WP/3826/04 /1661 DTD. 10.9.08 ISSUED BY THE 2ND RESPONDENT. P6:- COPY OF THE OA. NO.594/08 FILED BY THE PETITIONER BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL. P7:- COPY OF THE REPLY STATEMENT DTD. 17.12.08 FILED BY THE RESPONDENT TO OA. 594/08. P8:- COPY OF THE REJOINDER DTD. 22.1.09 FILED BY THE PETITIONER TO THE REPLY STATEMENT. P9:- COPY OF THE ORDER DTD. 29.4.09 PASSED BY THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL IN OA. 594/08. P10:- COPY OF THE REPRESENTATION DTD. 4.6.09 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT WITH PSOTAL RECEIPT PERMITTING HIM TO JOIN DUTY. RESPONDENT'S EXHIBITS R1:- COPY OF THE MEMO NO.A2/2-1/98 DTD. 13.8.98 ISSUED BY THE 2ND RESPONDENT. R2:- COPY OF THE MEMO NO.A2/2-1/98/4254 DTD. 16.10.98 ISSUED BY THE 2ND RESPONDENT. R3:- COPY OF THE MEMO NO.A2-2-1/98/471 DTD. 18.7.2000 ISSUED BY THE 2ND RESPONDENT. R4:- COPY OF THE MEMO NO.A2/2-1/98/531 DTD. 26.8.2000 ISSUED BY THE 2ND RESPONDENT. R5:- COPY OF THE MEMO NO.A2/2-1/98/1298 DTD. 19.10.2000 ISSUED BY THE 2ND RESPONDENT. R6:- COPY OF THE MEMO NO.A2/2-1/98/1402 DTD. 3.11.2000 ISSUED BY THE 2ND RESPONDENT. W.P.(C) NO.31863/2009 R7:- COPY OF THE MEMO NO.A2/2-1/98 DTD. 29.12.2000 ISSUED BY THE 2ND RESPONDENT. R8:- COPY OF THE MEMO NO.A2-2-1/98/VOL.II/873 DTD. 4.7.02 ISSUED BY THE 2ND RESPONDENT. R9:- COPY OF THE MEMO NO.IFP/RE/EST/M/2001/5 DTD. 24.8.01 ISSUED BY THE 2ND RESPONDENT. R10:- COPY OF THE MEMO NO.A2/2-1/98/1486 DTD. 11.12.01 ISSUED BY THE 2ND RESPONDENT. R11:- COPY OF THE MEMO NO.A2/2-1/98/2398 DTD. 13.8.01 ISSUED BY THE 2ND RESPONDENT. R12:- COPY OF THE LETTER NO.A2/2-1/98 DTD. 11.10.2000 ISSUED BY THE 2ND RESPONDENT. R13:- COPY OF THE OFFICE ORDER NO.107/2001 DTD. 23.10.01 ISSUED BY THE 2ND RESPONDENT. R14:- COPY OF THE LETTER OFFICE ORDER NO.34/02 DTD. 10.5.02 ISSUED BY THE 2ND RESPONDENT. R15:- COPY OF THE SUBMISSION DTD. 25.3.03 FROM THE DIVISION HEAD OF THE APPLICANT INTIMATING HIS UNAUTHORIZED ABSENCE FROM 10.2.03. R16:- COPY OF THE LETTER NO.A2/2-1/98.VOL.II/993 DTD. 5.4.03 ISSUED BY THE 2ND RESPONDENT. R17:- COPY OF THE LETTER NO.A2/2-1/98. VOL.II/1533 DTD. 7.7.03 ISSUED BY THE IST RESPONDENT. R18:- COPY OF THE LETTER ORDER NO.19-149/82-FY ADMN DTD. 21.2.2006 OF THE IST RESPONDENT CONFERRING THE 2ND RESPONDENT WILL ALL THE POWERS OF THE DIRECTOR. TRUE COPY P.A.TO JUDGE tss C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. --------------------------------------- W.P.(C) No. 31863 OF 2009 --------------------------------------- Dated this the 9th day of February, 2010. J U D G M E N T ~~~~~~~~~~~ Ramachandran Nair, J. The petitioner is challenging the order issued by the CAT confirming the order of dismissal served on him by the 2nd respondent. We have heard the learned counsel appearing for the petitioner and the Central Government standing counsel appearing for the respondents. The petitioner was appointed on a provisional basis as an Iceman in the service of the 2nd respondent on 4.4.1998. Thereafter, he was appointed on regular basis for a period of two years on 3.10.1998. Eventhough his probation should have been declared on 3.10.2000, the DPC which considered his case found that he was unauthorisedly absent on several occasions and inspite of repeated warnings he did not correct himself. His probation was therefore extended by one year from 3.10.2000. Again when the DPC met to consider his regularisation, he was found to be unfit for absence from duty. His probation was therefore extended for W.P.(C) No.31863/2009 2 a period of six months from 3.10.2001 and having been found unfit again, his probation was further extended for a period of six months from 3.4.2002. However, even after being in the roles of the 2nd respondent for over four years, the petitioner was found irregular in attendance and irresponsive to warnings against unauthorised absence. When chronic absence was noticed, disciplinary proceedings under Rule 14 of the CCS (CCA) Rules were initiated for unauthorised absence for a continuous period of one month, that is, from 27.3.2001 to 26.4.2001. Eventhough the notice was issued pursuant to the initiation of proceedings, the petitioner did not respond in any manner. Many notices sent were even returned unserved and with the endorsement “absent”, “not claimed”, “not found” etc. Since the petitioner did not turn up for work, the DPC decided to terminate his service and send show cause notice. The allegation in the show cause notice was that from 10.2.2002 the petitioner was continuously absent from duty without availing leave. Even after the show cause notice was given, the petitioner did not respond and therefore the termination order was issued. When the petitioner challenged the termination order before the Tribunal, the W.P.(C) No.31863/2009 3 Tribunal initially vacated the order stating that no proper enquiry was conducted. 2. The respondents challenged the said order of the Tribunal before this Court in W.P.(C) No.3826/2004. When the matter came up for hearing, it was submitted in open court that the petitioner was already in service and therefore, this Court confirmed the order of the Tribunal cancelling the termination order issued against the petitioner. This Court left freedom to the respondents to take appropriate action including the removal from service, if the petitioner was still absent from duty. Eventhough the judgment was pronounced on 29.1.2008 and the petitioner was not in service, so far nobody filed any petition before this Court for correction of the judgment. The facts stated in the judgment based on the submission made by the counsel was thoroughly incorrect because the petitioner had never rejoined service after his first termination from service in November, 2000. In other words, for the last eight years the petitioner has not been able to rejoin the service inspite of favourable orders issued by the Tribunal and confirmed by this W.P.(C) No.31863/2009 4 Court though not on merits. Strangely, the petitioner did not choose to take advantage of the judgment dated 29.1.2008 or file any petition for review or clarification. However, based on the observation in the judgment, the respondents again initiated action against the petitioner for continued absence from 2008 onwards. This led to Ext.P5 order issued on 10.9.2008, once again terminating the petitioner from service. 3. The counsel for the petitioner contends that no proper enquiry was conducted before petitioner's termination neither in the first round nor in the second round. The standing counsel appearing for the respondents reiterated the allegations stated in the impugned order by which the petitioner was terminated. 4. We notice from the provisional order that since the petitioner's termination on 25.12.2002, the petitioner has not rejoined duty. Eventhough the termination order was cancelled by the Tribunal and under mistake, this Court upheld the same, the petitioner did not make use of the judgment. On the merits, we find no justification to reinstate the petitioner in service W.P.(C) No.31863/2009 5 because he was a chronic defaulter in service eversince his appointment as a probationer. Inspite of unsatisfactory performance for two years' during probation, he has given two more years which did not improve him in any way. Even though counsel for the petitioner submitted that petitioner's mother was mentally unstable and that is the reason why he could not attend the office regularly, we do not think the petitioner is justified in his continued absence from service. Since the petitioner did not complete his probation satisfactorily, he is not entitled to any regularisation in service. So the order removing him cannot be taken as an order of dismissal; but an order of release, of the candidate appointed on probation found unfit for regularisation. We therefore, dismiss the Writ Petition. (C.N.RAMACHANDRAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) ps