IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.09.2022

CORAM :

THE HONOURABLE MR. JUSTICE S.M. SUBRAMANIAM

W.P.No.23158 of 2017

P.Prasanth Vs. 1.The Director General, CRPF, Blocknoil, Kendriya Karyalaya Parisar,    Lodhi Road, New Delhi – 03. 2.The Inspector General, Southern Sector, CRPF, Road No.10C, Near New MLA/MP’s Colony, Gayathri Hills, Jubile Hills,    Hyderabad. 3.The Deputy Inspector General of Police, O/o. The Deputy Inspector General of Police, Group Centre, CRPF, Avadi, Chennai – 65. 4.The Commandant, O/o. Deputy Inspector General of Police, Group Centre, CRPF, Avadi,

… Petitioner

Chennai – 65.

… Respondents

PRAYER : Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus calling for the records of the 2nd respondent in his proceedings No. R . XIII-60 /2015 – Adm-7 dated

27.11.2015 confirming the order of the 4th respondent made in No.D.II.1 /2015 – EC-2 -GC-AVD dated 10.07.2015 and quash the same and

consequently directing the respondent 2 & 4 to reinstate the petitioner as Constable (GD) (Group – C), under the Central Reserve Police Force, Avadi with all monetary benefits.

For Petitioner          : Mr.N.Palanikumar

for Mr.P.Kannan Kumar

For Respondents                           :   Mr.P.R.Ramesh Babu

Central Government Standing Counsel

O R D E R

The order of termination issued by the 4^th respondent and the order of the 2^nd respondent/Appellate Authority, confirming the order of termination, are sought to be quashed in the present writ petition.

2.The writ petitioner states that he was appointed as Constable (GD) (Group-C) under the Central Reserve Police Force (CRPF), Avadi, Chennai, through Staff Selection Commission, by the 3^rd respondent, in proceedings dated 27.09.2014.  The petitioner was nominated to participate in South Zone (OPS) inter BN/GC Kabbadi competition at Group Centre, Avadi, from 11.03.2015 to 14.03.2015 and the team secured 1^st place in the Kabbadi competition.  While playing in the competition, the petitioner suffered ligament tear in his left shoulder, and initially, he ignored the same as minor injury.  Later on, the petitioner suffered severe pain in his shoulder and the same increased day by day, and finally, the pain reached unbearable level, and thereafter, he visited Composite Hospital at Group Centre, CRPF,

Avadi, on 13.04.2015.  Even after treatment in Composite Hospital at Group

Centre, CRPF, Avadi, the pain did not reduce and he was referred to MIOT

Hospital for specialty treatment, vide proceedings of the Deputy Inspector General of Police, Group Centre, CRPF, on 01.05.2015, and he took treatment at MIOT Hospital from 01.05.2015 to 05.05.2015.  Even then, there was no improvement in his health condition and a surgical procedure was discussed, however, it was not advised by the Doctors.  The petitioner availed Medical Leave from 05.05.2015 to 19.05.2015 for taking complete bed rest, based on the advice of the Composite Hospital at Group Centre, CRPF, Avadi.  With the assistance of his parents, the petitioner was taken to his native place and he took treatment in Tirunelveli Government Medical College Hospital, Tirunelveli, and thereafter, the pain gradually reduced. The petitioner was declared fit for joining the duty vide Fitness Certificate, dated 10.07.2015, issued by the Doctor.  Accordingly, he reported for duty before the office of the Group Centre, CRPF, Avadi, on 13.07.2015, but the petitioner was informed that disciplinary proceedings were initiated against him for his failure to report for duty on earlier occasion.  The petitioner states that he sent a letter on 18.05.2015 to the 4^th respondent for extension of Medical Leave, but the envelope was not posted by his relative, mistakenly.  The petitioner states that his conduct of not reporting for duty is unintentional and on account of bona fide reasons. He sustained injury while playing in Kabbadi competition, nominated by the CRPF South Zone, and therefore, his case is to be considered.

3.The learned counsel for the petitioner mainly contended that, at every stage of medical treatment, the authorities were aware of the fact.  At the first instance, the CRPF Hospital referred the petitioner to take specialty treatment at MIOT Hospital.  As per the advice of the CRPF Medical Centre, he took treatment in MIOT Hospital and thereafter, he went to his native place and took treatment in Tirunelveli Government Medical College Hospital, Tirunelveli.  Therefore, the authorities were aware of the fact that the petitioner suffered injury subsequent to the Kabbadi competition and they have permitted him to take treatment in CRPF Hospital and the CRPF Hospital also referred the petitioner to take specialty treatment in MIOT Hospital.  While so, declaring the petitioner as an unauthorized absentee, is improper.

4.The learned counsel for the petitioner made a submission that the allegation of overstayal is incorrect, as the authorities very much had the knowledge about the treatment undergone by the petitioner.  That apart, the call letters, dated 09.06.2015 and 30.06.2015, were communicated to the writ petitioner in the same cover, which was received after 30.06.2015. Subsequently, the impugned order of termination was issued in proceedings, dated 10.07.2015, invoking the provisions of Sub-Rule (1) of Rule (5) of the

Central Civil Services (Temporary Service) Rules, 1965.  Thus, the order impugned and the appellate order are not in consonance with the facts and the respondents have issued the order of termination by way of penalty, by invoking Sub-Rule (1) of Rule (5), which is untenable.

5.The learned Central Government Standing Counsel, appearing on behalf of the respondents, objected the said contentions by stating that the petitioner was overstaying after the Medical Leave.  Regarding the overstayal, two call letters were issued, asking him to report for duty. However, the petitioner failed to report for duty and thus, the authorities had invoked the proviso to Sub-Rule (1) of Rule (5) of the Central Civil Services (Temporary Service) Rules, 1965, which require no further notice, and the petitioner is entitled for one month’s salary, which he is permitted to claim at any point of time from the Department.  Thus, the authorities have followed the Rules in letter and spirit and there is no infirmity in respect of the order of termination passed.

6.The learned Central Government Standing Counsel reiterated that the petitioner was a probationer/temporary Constable, and thus, regular disciplinary proceedings are not required.  The petitioner is yet to undergo training period, and within a period of 6 months from the date of appointment, he has overstayed, and thus, the order of termination is in accordance with the Rules in force, and consequently, the writ petition is liable to be rejected.

7.Considering the arguments between the parties to the lis on hand, it is not in dispute that the petitioner was appointed vide proceedings dated 27.09.2014.  As per the terms and conditions of appointment, the services of the writ petitioner is liable to be terminated at any time on one month’s notice during the initial period of service, i.e., 2 years by the Appointing Authority without assigning any reason in accordance with the provisions contained in CRPF Rules, 1955/Central Civil Services (Temporary Service) Rules, 1965.  In the present case, the authority competent invoked the Central Civil Services (Temporary Service) Rules, 1965.  They contend that the order of termination was issued by invoking Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965.  Thus, the writ petition is to be rejected.

8.The facts and circumstances placed before this Court reveal that the petitioner participated in the South Zone (OPS) inter BN/GC Kabbadi competition, held at Group Centre, CRPF, Avadi, from 11.03.2015 to 14.03.2015.  He suffered ligament tear in his left shoulder and initially, he ignored the minor pain and the said pain developed subsequently and reached unbearable level.   Thus, the petitioner took treatment in Composite Hospital at Group Centre, CRPF, Avadi.  Thus, the competent authorities were aware of the fact that he took treatment in the Composite Hospital at Group Centre, CRPF, Avadi, and they have granted Medical Leave to him for a further period of 15 days to take specialty treatment at MIOT Hospital, as the Composite Hospital, Group Centre, CRPF, Avadi, referred him to the MIOT Hospital.  Thus, the authorities had complete knowledge about the injury suffered by the petitioner and the treatment took by him, both at Composite Hospital, Group Centre, CRPF, Avadi, and also at MIOT Hospital.  Having knowledge about the injury and the treatment of the petitioner and having considered his case for grant of Medical Leave for a while, there is no reason to turn around and issue a call letter asking the petitioner to report for duty.   The petitioner submitted an explanation by stating that he has submitted a leave letter through his relative, who in turn, has mistakenly not posted the same.  That apart, when he was taking treatment in MIOT Hospital, as he was a bachelor, his parents came over to Chennai from Thoothukudi and he was taken back to his native for further treatment, which he undertook at Tirunelveli Government Medical College Hospital, and thereafter, he was relieved from pain slowly.  The entire sequence of facts reveals that the petitioner was under continuous treatment for his ligament tear, initially at Composite Hospital, Group Centre, CRPF, Avadi, and thereafter, based on the reference, at the MIOT Hospital, and finally, in Tirunelveli Government Medical College Hospital at Tirunelveli.

9.The petitioner was not able to respond immediately to the call letters asking him to report for duty.  However, he reported for duty based on the full fitness issued by the Doctor on 13.07.2015.  The authorities refused to take him back and served the order of termination.

10.Let us consider the scope of Rule (5) of the Central Civil Services (Temporary Service) Rules, 1965.  Rule 5(1)(a) enumerates that “the services of a temporary Government servant shall be liable to termination

 

at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant”.  Based on the above Rule, the said condition was contemplated in the order of appointment issued to the writ petitioner.  Thus, either the authority, i.e., the employer, or the employee is entitled to one month’s notice for the purpose of quitting from the temporary service.  Sub-Clause (b) to Rule 5(1) stipulates that “the period of such notice shall be one month”. The proviso clause indicates that “the services of any such Government servant may be terminated forthwith and on such termination, the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or as the case may be, for the period by which such notice falls short of one month”.  Relying on the proviso clause, the learned Central Government Standing Counsel, appearing for the respondents, reiterated that the impugned order of termination was issued, invoking the proviso clause, and therefore, the petitioner is at liberty to claim one month’s salary at any point of time after issuing the order.  However, the petitioner has not claimed the same and filed the present writ petition.

11.This Court is of the considered opinion that the inference to be drawn with reference to the impugned order is that the allegation against the petitioner, even as per the respondents, was that he overstayed after the expiry of the Medical Leave granted to him.   The allegation of overstayal was established in view of the fact that two call letters were sent by the respondents, asking the petitioner to report for duty.  Thus, the order of termination is very much attached with the misconduct of overstayal.  It is not in dispute that the overstayal is a misconduct, as per the Discipline and Appeal Rules.  The Central Civil Services (Temporary Service) Rules, 1965, more specifically, Rule (5) contemplates termination of temporary services, wherein, no stigma can be attached on the employee.  In the present case, though the allegation of overstayal is a ground for invoking Rule (5), the one month’s notice as contemplated under Rule 5(1)(a) is mandatory.  The proviso clause can be invoked only at certain exceptional circumstances, where the authorities have no other option except to proceed without issuing the one month’s notice to the temporary employee.

12.A proviso clause cannot supercede the main provision.  Proviso clauses are provided with the Statutes and Rules, enabling the authorities to deal with the cases, where the circumstances are not falling under the main provision.  Thus, whenever the authorities are unable to invoke the main clause, due to certain exceptional circumstances, only then, they are empowered to invoke the proviso clause for the purpose of waiving or dispensing with the condition stipulated in the main clause.

13.In order to make it more clear, in the present case, the competent authorities, at the first instance, are empowered to invoke Rule 5(1)(a) by issuing one month’s notice, as contemplated in Sub-Clause (a) to Rule 5(1). If at all there is an emergency circumstance on account of certain reasons, then the authorities shall invoke the proviso clause dispensing with the one month’s notice and by allowing the employee to take one month’s salary. Contrarily, no authority can invoke the proviso clause at the first instance with reference to the facts, where there is no such exceptional circumstance.

14.Let us consider whether, there is any exceptional circumstance in this case, or not.  This Court, considering the facts, has no hesitation to arrive at a conclusion that there is no such exceptional or extraordinary circumstance for the purpose of dispensing with the mandatory one month’s notice, as stipulated in Rule 5(1)(a) of the Central Civil Services (Temporary Service) Rules, 1965.  Contrarily, the respondents have issued two call letters.  The call letters were issued and intended to provide opportunity to the writ petitioner to report for duty.  Therefore, such call letters cannot be equated with the mandatory notice issued under Rule

5(1)(a) of the Central Civil Services (Temporary Service) Rules, 1965. Statutory notices must contain the proposed action to be taken.  In the present case, if at all a notice is proposed to be issued under Rule 5(1)(b), then such notice must indicate the action proposed to be initiated on the one month’s notice as contemplated.  In the absence of any such specific notice citing Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965, the call letters asking the petitioner to report for duty, cannot be equated with the mandatory notice contemplated under the provisions of the

Rules.

15.Beyond the above provisions, the petitioner has not remained absent intentionally or willfully.  The cogent facts placed before this Court would be sufficient enough to consider that the petitioner had no intention to overstay or not report for duty and only on account of the continuous treatment in three Hospitals at various places, he was not able to report for duty, and therefore, the compelling circumstances made him to remain absent and he had no intention to remain absent at any point of time.  The petitioner had taken all efforts to join duty and due to continuous treatment and the pain suffered by him, he failed to join duty and such an act cannot be construed as misconduct committed by the petitioner.  That apart, the respondents have not complied with the mandatory condition stipulated under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965.  Therefore, the order of termination is in violation of the Rules and more so, contrary to the factual circumstances, which were established by the writ petitioner in the present case.

16.For all these reasons, the writ petitioner is entitled to succeed.

Accordingly, the order of termination impugned, issued by the 4^th respondent in proceedings No.D.II.1/2015-EC-2-GC-AVD, dated 10.07.2015, and the appellate order, confirming the order of termination, issued by the 2^nd respondent in proceedings No.R.XIII-60/2015-Adm-7, dated 27.11.2015, stand quashed and the writ petition is allowed.  No costs.

17.The respondents are directed to reinstate the petitioner within a period of one month from the date of the order, without backwages, but with continuity of service.

16.09.2022

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Internet :Yes

Index    : Yes

Speaking order

To

1.The Director General,

CRPF, Blocknoil,

Kendriya Karyalaya Parisar,    Lodhi Road, New Delhi – 03.

2.The Inspector General,

Southern Sector, CRPF,

Road No.10C, Near New MLA/MP’s Colony,

Gayathri Hills,

Jubile Hills, Hyderabad.

S.M. SUBRAMANIAM, J.

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3.The Deputy Inspector General of Police,

O/o. The Deputy Inspector General of Police,

Group Centre, CRPF,

Avadi,

Chennai – 65.

4.The Commandant,

O/o. Deputy Inspector General of Police,

Group Centre, CRPF,

Avadi,    Chennai – 65.

W.P.No.23158 of 2017

16.09.2022