IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.09.2017 CORAM THE HONOURABLE MR. JUSTICE V.PARTHIBAN W.P.(MD)No.817 of 2012 and M.P.(MD) No.1 of 2012 R.Thiyagarajan .. Petitioner Vs.
1. Union of India rep. By its Secretary to Government, Ministry of Home Affairs, New Delhi.
2. The Director General, Central Industrial Security Force, Head Quarters, CGO Complex, Lodhi Road, New Delhi – 110 003.
3. The Inspector General, Training Sector, Central Industrial Security Force, National Industrial Security Academy, Hakimpet, Hyderabad – 78.
4. The Deputy Inspector General, Central Industrial Security Force, South Zone Head Quarters, Besant Nagar, Chennai – 90.
5. The Principal, Central Industrial Security Force, Regional Training Centre, Suraksha Campus, Arakkonam, Vellore District, Tamil Nadu – 631 152.
6. The Group Commandant, Central Industrial Security Force, Group Head Quarters, Sacket, New Delhi – 110 017.
7. The Commandant, Central Industrial Security Force Unit, Regional Training Centre, Suraksha Campus, Arakkonam, Vellore District, Tamil Nadu – 631 152. .. Respondents Petition filed under Article 226 of The Constitution of India praying for the issuance of a writ of certiorari to call for the records relating to the termination order passed by the 7th respondent in his order No.V-15014/CISF/RTC(A)/Disc/Termination/2012/658 dated 09.01.2012 and quash the same and to direct the respondents to take the petitioner into the strength of CISF as SI/Executive and complete the basic training for remaining 10 weeks with seniority and to pay all monetary benefits.
For Petitioner .. Mr.R.Thiyagarajan, Party – in - Person For Respondents .. Mr.T.Tirumalaisamy, CGSC ORDER The petitioner/party-in-person has approached this Court seeking the following relief:
to issue a writ of certiorari to call for the records relating to the termination order passed by the 7th respondent in his order No.V- 15014/CISF/RTC(A)/Disc/Termination/2012/658 dated 09.01.2012 and quash the same and to direct the respondents to take the petitioner into the strength of CISF as SI/Executive and complete the basic training for remaining 10 weeks with seniority and to pay all monetary benefits.
2. The case of the petitioner is that he joined the Central Industrial Security Force as Constable on 01.08.1999 in Chennai. After undergoing training he was posted at IRB in Madhya Pradesh. According to him, he served all over India upto 17.04.2008 including hard and difficult areas. His services were regularised as Constable on completion of two years of probation successfully in 2001.
3. On 18.01.2010, there was a Notification notifying applications from eligible departmental candidates for filling up vacancies of the post of Sub Inspector (Executive) in CISF through Limited Department Competitive Examination (LDCE). Since the petitioner was eligible for the post, he applied for the same. Thereafter, he was subjected to selection process viz., physical test, written examination etc., in the month of August, 2010. However, he was not selected in the selection on the ground that he was awarded the penalty to pay fine on 26.09.2005. Aggrieved by the rejection, the petitioner had approached this Court in W.P.No.8210 of 2010. This Court has allowed the writ petition on 06.08.2010.
4. After the writ petition was allowed and a direction was issued to consider the petitioner for appointment, the petitioner represented to the fifth respondent on 07.08.2010 enclosing a copy of the order dated 06.08.2010. Thereafter, the petitioner was permitted to participate in the written examination. However, he was not successful in the examination and therefore, on the basis of the request, his paper is subjected to revaluation. According to the petitioner, he performed well in the written examination and hence his fail in the written examination as declared by the authority cannot be correct. In the meanwhile, the petitioner's juniors had been appointed to the post of Sub Inspector (Executive) with effect from 02.12.2010.
5. In the above circumstances, the petitioner once again was constrained to approach this Court in W.P.No.20064 of 2011 and the same is admitted and pending. However, by order dated 08.09.2011, the fifth respondent has finally offered appointment to the petitioner as Sub Inspector (Executive) and he was put on probation for a period of two years in the first instance subject to the provision that the appointing authority may extend the same in special case. Thereafter, the petitioner underwent training and completed the same successfully on 09.01.2012.
6. While matter stood thus, to the petitioner's shock and surprise, termination order was issued on 09.01.2012 under Rule 25 of the CISF Rules and the said Rule is extracted below:
“25.Probation:-(1)Every member of the Force except those appointed on deputation/absorption, shall be on probation for the period specified in relevant column of the Recruitment Rules:
Provided that in the absence of a specific order of confirmation or a declaration of satisfactory completion of probation, a member of the Force shall be deemed deemed to be on probation:
Provided further that no member of the Force shall ordinarily be kept on probation for more than twice, the period prescribed in respective recruitment rules.
(2) If during the period of probation the appointing authority is of the opinion that a member of the Force is not fit for permanent appointment, the appointing authority may discharge him or terminate the services from the Force after issue of notice of one month or after giving one month's pay in lieu of such notice, or revert him to the rank from which he was promoted or repatriated to his parent department as the case may be.
(3) On successful completion of probation by a member of the Force, the appointing authority shall pass an order confirming the member of the Force in the grade in which he joined the Force.”
No reasons were spelt out for terminating the services of the petitioner abruptly without any notice. Aggrieved by the same, the petitioner is before this Court.
7. The petitioner has assailed the order of termination by raising several grounds in the writ petition, particularly attacking the impugned order that no notice has been given and no opportunity has been afforded to the petitioner and therefore, the impugned action is violative of the established principles of natural justice. Moreover, the petitioner would contend that in view of his approaching this Court on earlier occasions, the authorities had taken vindictive action and terminated the services of the petitioner without spelling out any reasons in the order and such order, without reasons, amounts to malafide exercise of law. He would further submit that he has rendered effective services as Constable from 1999 onwards and by his merit, he got selected as Sub Inspector (Executive) and immediately after completion of his training, his services came to be terminated rather abruptly by invoking Rule 25 of the CISF Rules. The petitioner would submit that terminating his services is bad in law for the reason that he was appointed by way of promotion to the post of Sub Inspector (Executive) from the feeder grade of Constable and therefore, even if he is found unsuitable for the post of Sub Inspector (Executive), he could only be reverted to the post of Constable, as per the CISF Rules particularly Sub- rule 2 of Rule 25.
8. Upon notice, Mr.Tirumalaisamy, learned counsel entered appearance on behalf of the respondents and filed a detailed counter affidavit. In the counter affidavit, in more than one paragraph, it is stated that the petitioner suffered from contumacious conduct and not following the orders passed on some occasions and he entered into arguments with his colleagues. According to the counter affidavit, he did not follow the discipline or dress code during the period of training and used to have unnecessary arguments with his colleagues. Such behaviour was not in consonance with the discipline expected from a uniformed service personnel and therefore his services came to be terminated during the period of probation. According to the learned counsel for the respondents, for terminating the petitioner during the period of probation, no detailed enquiry is necessary as the petitioner was found to be unfit to be retained as Sub Inspector (Executive).
9. Although the petitioner had raised a ground that the impugned order has been passed by the incompetent authority and suffers from jurisdictional error but the same had been properly explained in para 16 of the counter affidavit and therefore, the said submission made by the petitioner cannot be accepted as a valid ground of attack.
10. However, it has to be seen that the counter affidavit contains several allegations against the petitioner. But however the petitioner was not given any opportunity to explain his version to the allegations. Even though he was a probationer as Sub Inspector (Executive), the petitioner is entitled to proper notice and he must be given proper opportunity to defend his position. The essence of principles of natural justice must be extended to all Government Servants regardless of the position of employment while any adverse order is passed against them.
11. In the instant case, although the petitioner's services came to be terminated during the period of probation, yet, the counter affidavit contains several allegations against the petitioner, which formed the basis of issuance of the impugned order of termination and the order passed by the authority without giving any opportunity to the petitioner is therefore per se unreasonable, arbitrary and the same suffers from colourable exercise of power. Moreover, it has to be seen that terminating the services of the petitioner, who was merely a promotee from the earlier rank of Constable is contrary to the Rules and the said action on the part of the authority concerned discloses the vindictive mind set and therefore, this Court can safely infer that the termination is founded on malafide intention and cannot be sustained in law.
12. Although several grounds have been raised while assailing the impugned order of termination, but this Court is of the view that the termination being founded on the basis of certain allegations against the petitioner and no opportunity had been afforded to the petitioner for disproving such allegations, the termination is per se bad in law and cannot be sustained. Even otherwise, it has to be seen, as narrated above, that the authority with a malafide intention slapped the order of termination on the petitioner without spelling out any reason. In the said circumstances, this Court has no hesitation in allowing the writ petition. The impugned order dated 09.01.2012 cannot be sustained under any circumstances and therefore the same is set aside. The respondents are directed to reinstate the petitioner as Sub Inspector (Executive) within a period of two months from the date of receipt of a copy of this order.
13. The writ petition stands allowed on the above terms. No costs. Consequently, connected miscellaneous petition is closed.
20.09.2017 Index:Yes/No mmi Note: Issue copy of the order on 21.09.2017 To
1. The Secretary to Government, Ministry of Home Affairs, New Delhi.
2. The Director General, Central Industrial Security Force, Head Quarters, CGO Complex, Lodhi Road, New Delhi – 110 003.
3. The Inspector General, Training Sector, Central Industrial Security Force, National Industrial Security Academy, Hakimpet, Hyderabad – 78.
V.PARTHIBAN, J.
mmi
4. The Deputy Inspector General, Central Industrial Security Force, South Zone Head Quarters, Besant Nagar, Chennai – 90.
5. The Principal, Central Industrial Security Force, Regional Training Centre, Suraksha Campus, Arakkonam, Vellore District, Tamil Nadu – 631 152.
6. The Group Commandant, Central Industrial Security Force, Group Head Quarters, Sacket, New Delhi – 110 017.
7. The Commandant, Central Industrial Security Force Unit, Regional Training Centre, Suraksha Campus, Arakkonam, Vellore District, Tamil Nadu – 631 152.
W.P. (MD) No.817 of 2012 20.09.2017