U.0.1.

A v.

A.P. BAJPAI AND ORS.

JANUARY 20, 2003

[SHIVARAJ V. PATIL AND H.K. SEMA, JJ.) B

Service Law:

Central Civil Services (Temporary Service) Rules, 1966; Section 5(1): Termination of Services of temporary employee-On ground of negligence C and dereliction of duty-Order of termination simpliciter-Challenge to-Set aside by Central Administrative Tribunal-On appeal, Held: since factors assessing suitability of the incumbent to continue in service or otherwise were stated in the counter affidavit as grounds for termination, finding of Tribunal that termination order involved stigma attached to incumbent is erroneous. D

Reslll!ndent No.I was appointed as a temporary Assistant Central Intelligence Officer-II in the Intelligence Bureau. His services were terminated on the ground of negligence and dereliction of duty. His representation against the order of termination was rejected by the competent authority. Central Administrative Tribunal set aside the E termination order. Hence the present appeal.

On behalf of the appellant, it was contended that the servies of Respondent No. I were terminated by passing an order of termination simpliciter under the provision of Central Civil Services (Temporary Service) Rules, on the ground of negligence and dereliction of duty and p

not on the ground of misconduct; and that the Tribunal, on the basis of averments in counter affidavit, erroneously concluded the termination order stigmatic.

It was submitted for Respondent No.I that certain adverse comments were made by the authorities against Respondent No.I in connection with G negligence and dereliction of duty.

Allowing the appea~ the Court

HELD: I.I. The appointment of Respondent No.I was temporary and H 429

A his services could be terminated under sub-rule (1) of Rule 5 of the Central

Civil Services (Temporary Service) Rules. The order of appointment of Respondent No.I by its own terms was termination simpliciter. The Tribunal, in the impugned order, relied on the statements made by the appellants in their counter affidavit to support the order of termination of services. There was no other material or circumstance before the B Tribunal to take a view that the order of termination was not simpliciter

and that any stigma was attachec! to Respondent No.I in terminating his services. 1432-B, CJ

State of Uttar Pradesh & Anr. v. Kaushal Kishore Shu/cJa, [1991) 1 sec C 91 and Krishnadevaraya Education Trust & Anr. v. L.A. Ba/akrishna, [2001)

9 sec 319), relied on.

1.2. Tribunal committed a serious error in law and on facts. of the case in concluding that tlte order of termination of services involved stigma attached to Respondent No.I. The grounds stated in the counter affiaavit D in answer to the challenge made by Respondent No.I were the factors to assess his suitability or otherwise to continue in service. Having regard to all relevant aspects, the authorities reached a conclusion that Respondent No.I was not suitable to continue in service. The order of termination of his services was simpliciter without attaching any stigma to his conduct. Hence the impugned order cannot be sustained.

(432-H; 433-A-B)

CIVIL APPELLATE JURISDICTION Civil Appeal No. 16838/ 1996.

From the Judgment and Order dated 27.5.96. of the Central F Administrative Tribunal, Lucknow Bench in OA 281/93)

P.P. Malhotra, Hemant Sharma, Ms. Anjana Aiyagari, Ms. Sushma Suri and P. Panneswaran with t.:m for th~ Appellant.

S. Muradihar for the Respondent.

G The following Judgment of the Court was delivered by

SHJVARAJ V. PATIL J. This appeal is directed against the order dated 27th May, 1996 passed by the Central Administrative Tribunal, Lucknow Bench. The respondent no. l was appointed as Assistant Central intelligence H officer-11/G/in short A.C.1.0.-11 in the Intelligence Bureau, Ministry of Home

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...

Affairs as a temporary employee. His performance was found to be A unsatisfactory on account of his negligence and dereliction of duties as he was found sleeping during duty hours on 24.6.1990 when he was posted at airport, New Delhi; he frequently went on leave and as such remained on leave for about six months during his tenure of about one and half years which is not disputed and he left the station and absented himself from duty B in anticipation of sanction of leave from 16.4.1992 on account of his marriage and the marriage of his cousin sister. Under the circumstances, an order of tennination simpliciter was passed exercising power under sub-rule (I) of Rule 5 of Central Civil Services (Temporary Service) Rules, 1965 (for short "the Rules").

The respondent no. I made representation against the said order of tennination of his services which after consideration was rejected by the competent authority. Being aggrieved, he filed O.A. No. 281 of 1993 before

the Central Administrative Tribunal, Lucknow Bench. The Tribunal, after considering the rival contentions, allowed the 0.A. and set aside the order of tennination of his services and declared him to be in continued service with D all consequential benefits. Hence, this appeal is filed challenging the correctness and validity of the order of the Tribunal.

The learned Senior Counsel for the appellants contended that the appointment of the respondent no. I, as is evident from the Memorandum E dated. I0.5.1988, was temporary; the appointment could be terminated at any time by a month's notice by either side and the services of the respondent, no.I could be tenninated under Rule 5(1) of the Rules. He submitted that the said order of tennination was a termination simpliciter; it was not stigmatic in any way; the Tribunal committed a manifest error in relying on the averments made in the counter affidavit as to his unsatisfactory work and F dereliction of his duties and these avennents were made in the counter affidavit in order to meet the grounds raised in the 0.A. According to the learned Senior Counsel, the respondent no. I was found unsuitable on account of his taking frequent leave, sleeping when on duty and going on 1-.ave in anticipation before it was sanctioned; the order of tennination was not passed based on G any misconduct so as to remove him from service. He brought to our notice the decisions of this Court in support of his submissions .

Per contra, the learned counsel for the respondent no. I argued in support and justification of the impugned order. He contended that as is evident from Annexure C-3 referred to in the impugned order, certain adverse comments H

A are made against the respondent no. I in regard to his dereliction of duty and negligence. He further .submitted that the Tribunal was right in relying on the same.

, L--

It is not in dispute that the appointment of the respondent no. I was

B temporary and his services could be terininated under sub-rule (I) of Rule S of the Rules. The order of appointment of the respondent no. I by its own terms was termination simpliciter. The Tribunal in the impugned order relied ..,. on the statements made by the appellants in their counter affidavit to support the order of termination of services, annexingAnnexure A3. There was no other material or circumstances before the Tribunal to take a view that the c order of termination was not simpliciter and that any stigma was attached to the respondent no. I in terminating his services. This Court in State of Uttar Pradesh & Anr. v. Kaushal Kishore Shukla, [1991] I SCC 91. dealing with the case of termination of service of a temporary employee in terms of ,>Ill

contract as well as under the relevant rules applicable to a temporary

D Govemme'lt servant held that the allegations made against the temporary Government servant in the counter affidavit by way of defence filed on behalf of the appellants did not change the nature and character of the order of termination.

In recent case in Krishnadevaraya Education Trust & Anr. v. L.A. • E Balakrishna, [200 I J 9 .sec 3 I 9 dealing with a case of termination simpliciter of a probationer this Court observed that there can be no manner of doubt that the employer is entitled to engage the service of a person on probation ,.

and if his service are not satisfactory during the period of probation, which means he is not suitable for the job, then the employer has a right to terminate the services. If such an order is challenged, the employer will have to indicate F the grounds on which the services of a probationer were terminated. The Court went on to act "Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment".

G The grounds stated in the counter affidavit filed by the appellants in answer to the challenge made by the respondent no. I in the 0.A. before the Tribunal were only the basis to assess the unsuitability of the respondent no.I to continue in the sensitive post for which he was appointed. It may be added that Annexure C-3 on which the Tribunal heavily relied to say that the impugned order wac; stigmatic was an annexure to the counter filed by the H appellants. It was a confidential letter written by the Assistant Director C?f the

Department. In our view, the Tribunal committed a serious error in law and A on facts of the present case in concluding that the order of termination of services of ihe respondent no. I involved stigma attached to respondent no. I.

The grounds stated in the counter affidavit in answer to the challenge made by the respondent no. I were the factors to assess the suitability or otherwise of respondent no. I to continue in service. Having regard to all relevant aspects, B the authorities reached a conclusion that respondent no. I was not suitable to continue in service. The order of termination of his services was simpliciter

..#,; without attaching any stigma to the conduct of respondent no. I. In this view, the impugned order cannot be sustained. Accordingly, it is set aside and the appeal is allowed. No costs.

S.K.S.

Appeal allowed. c