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Pratap Singh Vs. Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1157 of 1969
Judge
Reported in1974WLN505
AppellantPratap Singh
RespondentUnion of India (Uoi) and anr.
DispositionPetition allowed
Cases ReferredCochin and Anr. v. K.V. Gopinath
Excerpt:
railway protection force rules, 1959 - rule 25(2)--termination of services of a probationer--attention of probationer to be drawn to reasons of termination.;as reasons in writing are to be given under the second part of sub-clause (2) of rule 25 of the rules, it is necessary to draw the attention of the probationer to the fact that for the reasons enumerated in the show cause notice his probation may be terminated and that after he has submitted his explanation and on considering the same, the appointing authority may either come to the conclusion of terminating his probation or may come to the conclusion that the period of his probation may be extended, so as to afford him further opportunity to prove his worth.;rule 25(2) of the rules requires that before any order is passed regarding.....d.p. gupta, j.1. the facts of this case lie in a narrow compass. the petitioner was selected for the post of sub-inspector grade ii in railway protection force, western railway in august, 1966. he was called upon to under go a training for the period of 15 months and also to execute a bond dated september 20, 1966 the leraned counsel for the parties are agreed that ex. r/1 may be taken to be the correct copy of the bond. after undergoing training, the petitioner was appointed as the sub-inspector on probation for a period of two years vide order ex r/3 dated november 25, 1967 with effect from november 1, 1967 the petitioner's case is that shri chandgi ram, inspector railway protection force was transferred sometime in april, 1968 and shri madan gopal took over charge of the said post as.....
Judgment:

D.P. Gupta, J.

1. The facts of this case lie in a narrow compass. The petitioner was selected for the post of Sub-Inspector Grade II in Railway Protection Force, Western Railway in August, 1966. He was called upon to under go a training for the period of 15 months and also to execute a bond dated September 20, 1966 The leraned Counsel for the parties are agreed that Ex. R/1 may be taken to be the correct copy of the bond. After undergoing training, the petitioner was appointed as the Sub-Inspector on probation for a period of two years vide order Ex R/3 dated November 25, 1967 with effect from November 1, 1967 The petitioner's case is that Shri Chandgi Ram, Inspector Railway Protection Force was transferred sometime in April, 1968 and Shri Madan Gopal took over charge of the said post as the immediate senior officer of the petitioner and he bore malice and ill-will against him and made certain false reports against him as a result of which the Security Officer, Ajmer gave him a notice dated August 28, 1968 (Ex. 5) under Rule 25(2) of the Railway Protection Force Rules, 1959 (hereinafter referred to as 'the Rules') in which 6 charges were levelled against him and it was alleged that he was negligent and dishonest in the discharge of his duties and that his work and conduct as Sub-Inspector and a member of Railway Protection Force was unbecoming and unsatisfactory. The petitioner was given an opportunity to submit his representation within 14 days of the date of receipt of the aforesaid notice Ex. 5. The petitioner submitted his representation on September J1, 1968, but after considering the same, the Security Officer, by his order dated October 9, 1968 (Ex. 7), held that 'the work and conduct' o' the petitioner as a member of the Railway Protection Force was 'unsatisfactory' and, therefore, ordered that the services of the petitioner be terminated with immediate effect'. The petitioner filed an appeal against the aforesaid order of the termination of his services before the Chief Security Officer However, the appeal was dismissed by the Chief Security Officer by his order dated May 29, 1969 in which it was observed that the conclusion arrived at by the Security Officer that the 'work and conduct' of the petitioner has been 'unbecoming and unsatisfactory' was correct and he entirely agreed with the same.

2. The petitioner felt aggrieved by the aforesaid order of termination of his services and has come up before this Court under Article 226 of the Constitution of India and has prayed that the order of the termination may be set aside and the respondents may be directed to re-instate him on the post of Sub Inspector. The Railway Administration has submitted its reply and has contended that the termination of the petitioner's services, who was merely appointed on probation, was in accordance with the provisions of the Rules and the grievance of the petitioner is not justified.

3. Mr. Mehta, leraned Counsel for the petitioner, has submitted three contentions before me:

(i) That the order of the termination of the petitioner's service (Ex. 7) could not have been passed under the provisions of Rule 25(2) of the Rules as he was appointed on probation for the period of two years and the aforesaid period had not expired when the notice Ex. 5 was given or even when the order of termination Ex. 7 was passed and that his services could have been terminated during the probationary period only in accordance with the provisions contained in the service agreement (Ex. R/1), which provided that the Chief Security Officer could do so by giving him one month's notice or one month's pay in lieu of such notice. As such, it is submitted, that the order of termination Ex. 7 was illegal and without jurisdiction.

(ii) That the notice Ex. 5 mentioned five grounds, in which it was inter alia alleged that the petitioner was reported to be dishonest in the discharge of his duties as Sub-Inspector and that in the order passed by the Chief Security Officer, it was held that his 'work and conduct' were 'unbecoming and unsatisfactory' and in view of these facts it was not a case of termination simpliciter but was a case of in which stigma was attached to the alleged termination and it was clearly by way of punishment, which attract the provisions of Article 311(2) of the Constitution. But as no disciplinary proceedings were taken against the petitioner, the alleged order of termination was illegal and void.

(iii) That the appointing authority in the case of the petitioner was the Chief Security Officer and as such his services could not have been terminated by the lower authority namely, the Security Officer, and on this ground also the order of termination Ex. 7 was illegal.

4. Mr. Jain, leraned Counsel for the Railway Administration, on the other hand, contends that the termination of the petitioner's services was in accordance with the Rules. The notice Ex. 5 was under Rule 25(2) and so was the order of termination Ex. 7. He submits that as the procedure prescribed in Rule 25(2) has been complied with fully, the order of termination as prefectly valid. He further submits that the Railway Administration did not intend to attach any stigma to the termination of the petitioner's services. As a muter of fact no stigma was cast upon the petitioner, but his services have been terminated strictly in accordance with the provisions of the Service Rules and that the termination of his services under Rule 25(5) did not amount to a penalty within the meaning of Rule 41 on account of Clause (viii) of the explanation attached to the said rule As such the provisions of Article 311(2) of the Constitution are not attracted in the present case. Mr. Jain further submitted that under the provisions of Section 6 of th3 Railway Protection Force Act, the powers of appointment, of a Sub-Inspector were delegated to the Security Officer, in accordance with Rule 20 read with Schedule I appended 13 the Rules and as such the Appointing Authority, in the case of the petitioner was the Security Officer and not the Chief Security Officer. He, therefore, submits that the Security Officer had the jurisdiction to terminate the services of the petitioner, who was a mere probationer, during or at the end of the period of his probation.

5. In order to decide the contentions raised by the leraned Counsel for the petitioner, I may read Rule 25, which is as under:

25. Probation (1) All appointments by direct recruitment or promotion shall be on probation for two years subject to the provision that the appointing authority may extend this period in special cases.

(2) The appointing authority shall, on the expiry of the period of such probation or such extended period, pass an order declaring that, the probationer has completed the period of probation satisfactorily and is suitable for confirmation in that rank. If he considers him unsuitable, the probationer shall be informed in writing of the reasons for terminating his probation and given an opportunity to submit any representation he may wish to make within a reasonable time and any representation submitted within that time shall also be considered and final orders passed by such authority.

6. Clause (viii) of the Explanation appended to Rule 41 may also be noticed in this connection, which runs as under:

(viii) termination of service:

(a) of a member of the Force appointed on probation, during or at the end of the period of probation, in accordance with the terms of his appointment or the rules and orders governing probation; o r

(b) of a member of the Force employed under an agreement in accordance with the terms of such agreement;

(c) of a member of the Force appointed in a temporary capacity or for a specified period oil one month's notice or on tender of pay of one month in lieu of notice on the expiry of the period.

7. Clause (2) of the service agreement (Ex. R/1) runs as under:

2. I understand and agree that my services can be terminated:

(a) by the Chief Security Officer at any time oil issue of notice of one month or the tender of one month's pay in lieu of such notice; OR

(b) by the appointing authority without notice on failure to pass the final examination of the initial training course.

This service agreement was executed on September 20, 1966 in pursuance of the provisions of Rule 23 of the Rules. Leraned Counsel for the petitioner argues that the provisions of Rule 25 (2) of the Rules could only be made applicable at the end of the period of probation or the extended period of probation and that the procedure prescribed in Rule 25(2) of the Rules could not be applied, as in the present case, when the termination was during the period of probation.

8. On the other hand, leraned Counsel for the respondents submits that the termination of services which has been referred to in Clause (viii) of the Explanation attached to Rule 41 of the Rules, is to be brought about in accordance with the procedure prescribed in Rule 25 (2) of the Rules and as Clause (viii) of the aforesaid Explanation provides that the termination of the services of a probationer could be made during or at the end of the period of probation', the provisions of Rule 25(2) of the Rules could not be limited to be exercised only at the end of the period of probation or the extended period.

9. I may observe that Sub-clause (i) of Rule 25 of the Rules provides that all appointments would be on probation for a period of two years and also confers the power on the appointing authority to extend this period of probation. The first part of Sub-rule (2) of Rule 25 of the Rules speaks of satisfactory completion of the period of his probation and provides that if at the end of the period of his probation, the probationer is found suitable for confirmation then the appointing authority shall pass an order to that effect. The second part of Clause (2) of Rule 25 of the Rules further provides that if the appointing authority considers the probationer unsuitable, he will be informed in writing of the reasons for terminating his probation and he will be given an opportunity to submit his representation and after considering the representation submitted by him, the appointing authority shall pass final orders. Now the question is as to whether two parts of Sub-rule (2) of Rule 25 of the Rules envisage different situations, on the expiry of the period of probation or the extended period and during the continuance of the period of probation or that they represent an integrated procedure for deciding the suitability or unsuitability of the probationer at the end of the period of his probation. In case such provisions are dis-junctive, the enquiry about the unsuitability can be made at an earlier stage during the period of probation, but if it is not so then such an enquiry could only be made at the end of the end of the probationer period. As I read Sub-clause (2) of Rule 25 of the Rules, I have no hesitation in holding that they represented an integrated procedure. The opening words of the second sentence of Sub-clause (2) of Rule 25 of the Rules are indicative of the fact that the procedure prescribed thereafter is applicable to the circumstances envisaged in the first sentence of Sub-clause (2). It is important to notice here that the second sentence in Sub-clause (2) of Rule 25 of the Rules begins with the words ''be considers him unsuitable'. Now 'he' refers to the appointing authority mentioned in the first sentence of Sub-clause (2) and 'him' refers to the probationer also mentioned in the first sentence of Sub-clause (2). It has been further provided in the second sentence of this Sub-clause that after consisting the representation, which may be submitted by the probationer in pursuance of the show cause notice given to him 'final orders'' shall be passed by such authority These words also go to show that reference is made to the situation envisaged in the first sentence of this Sub-clause. Leraned Counsel for the respondents has Said his emphasis on the words for terminating his probation' occurring in the second clause of Rule 26 of the Rules and submits that if the enquiry envisaged therein is to be at the end of the period of probation, then the question of termination of probation would not arise. I may, however, observe in this connection that the enquiry regarding satisfactory or unsatisfactory performance of work by the probationer is to be made sometime before the end of the period of probation and after that enquiry, three courses are open to the appointing authority namely.--

(a) if it is found that the probationer has completed the period of probation satisfactorily, then he will be declared suitable for confirmation;

(b) if it is found after considering the explanation submitted by the probationer that he is unsuitable then his probation shall be terminated; and

(c) if on considering the representation when may be made by the probationer in reply to the show cause notice, which is served upon him, the appointing authority may come to the conclusion that although the work of the probationer may not be satisfactory and he relay not be considered suitable for confirmation, yet it would be proper to give him further opportunity and in that event the appointing authority may extend the period of probation.

10. Thus, as Reasons in writing are to be given under the second part of Sub-clause (2) of Rule 25 of the Rules, it is necessary to draw the attention of the probationer to the fact that for the reasons enumerated in the show cause notice his probation may be terminated and that after he has submitted his explanation and on considering the same, the appointing authority may either come to the conclusion of terminating his probation or may come to the conclusion that the period of his probation may be extended so as to afford him further opportunity to prove his worth. In my opinion, it is because of these possibilities that the second part of Sub-clause (2) of Rule 25 of the Rules provides that the appointing authority shall pass final orders'. It is also possible that after considering the representation submitted by the probationer, the appointing authority may feel satisfied and may declare the probationer suitable for confirmation. The last mentioned order can only be passed under the first part of Sub-clause (2) of 25 of the Rules. This shows that Sub-clause (2) of Rule 25 of the Rules represents an integrated procedure, on the expiry of his period of probation and if it has been extended then at the end of such extended period. As the question of consideration of the performance of the probationer for ad judgment of his suitability for purposes of confirmation could only arise near the expiry of the period of his probation and at no earlier stage the probationer could be adjudged suitable for confirmation, the provisions of Rule 25 of the Rules could be made applicable only at that stage and not 'at any time' during the period of probation.

11. So for as Clause (viii) of the Explanation of Rule 41 of the Rules is concerned it may be observed that the termination of the services of a probationer may be in accordance with the terms of appointment or the Rules or orders regarding probation and may be made during or at the end of the period of probation. Thus, it cannot be said that Rule 25 of the Rules overrides the powers of termination of services in accordance with the terms of appointment of the petitioner and in that respect reference may be made to the Service Agreement (Ex.B/1)executed in accordance with the prescribed form under Rule 23 of the Rule. The second clause of the service, agreement confers the power of termination of service which maybe exercised by the Chief Security Officer at any time and the only condition for the exercising this power is that the probationer should be given either one month's notice or one month's pay in lieu of such notice. If we read the provisions of the Rules harmoniously with the terms of the service agreement then it is apparent that the powers of termination of service by the appointing authority are to be exercised only at the end of the period of probation or the extended period. But the services of the petitioner can be terminated at any time during the period of probation by the Chief Security Officer by giving him one month's notice or one month's pay in lieu thereof under Clause (2) of the Service Agreement In my view, this would be the only conclusion which could be drawn by reading the provisions of the Rules together with the Service Agreement. If the Security Officer can exercise the powers of termination of service at any time during the period of probation under Rule 25(2) of the Rules then the power exercisable by the Chief Security Officer under the Service Agreement and that by the Appointing Authority, the Security Officer under Rule 25(2) of the Rules would be over lapping and then in which circumstances which Officer shall exercise his powers has not been specified. Further under Rule 25(2) of the Rules, the Security Officer has to make the enquiry about suitability of the probationer, before passing an order terminating his services. Such enquiry can be made at or near the expiry of the period of probation. But if he can do so at any time during the period of probation, he may make such an enquiry even one or two months after the probation period begins; reducing the entire concept of probation to an absurdity A minimum period of probation is normally assured so that the probationer may prove his worth for the post during that period. However, he could be removed earlier, during the period of his probation by the Chief Security Officer in exercise of his powers under service agreement.

12. In the present case, I find that the petitioner was appointed vide Ex. R/3 with effect from November 1, 1967 on probation for the period of two years and the period of his probation would have come to an end on October 31. 1969 However, the enquiry about his suitability was made by the Security Officer vide Ex 5 dated August 28, 1968 even before the expiry of the period of one year and the services of the petitioner were terminated 'with immediate effect' by the order Ex. 7 dated October 9, 1968, even prior to the expiry of about one year after the petitioner was appointed on probation. I am of the view that the Security Officer had no power to take recourse to the procedure under Rule 25(2) regarding the petitioner's work even before the end of one year of the period of his probation. Under the provisions of Rule 25(2) of the Rules his services could not have been terminated at that stage and the order could have been then passed by the Chief Security Officer under Clause (2) of the service agreement, by giving him one month's notice or one month's salary in lieu of such notice. This was not done but the services of the petition were terminated 'with immediate effect' by the order Ex. 7 by (he Security Officer. And as such the order of termination (E. 7) is illegal and deserves to be set aside.

13. As regards the second commission made by the leraned Counsel for the petitioner, be argued that a stigma has been cast by the order Ex. 7, because it mentioned that the service of the petitioner, has been terminated for his unsatisfactory work and conduct and further that the order passed by the Chief Security Officer Ex. 8(A) mentioned that the 'work and conduct' of the petitioner has been 'unbecoming and unsatisfactory'. Leraned Counsel relied upon the following passage in the judgment delivered by Das J., as he then was, in Parshottam Lal Dhingra v. Union of India AIR 58 SC 36:

The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences Thus if the order entails or provides for the forfeiture of his pay or the allowances or the loss of his seniority in his substantive rank or the postponement of his furture chances of promotion, then that circumstances may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank, under the terms of contract or employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty, the use of the Expression 'terminate' or 'discharge' is not conclusive. In spite of use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind here in before referred to? If the case satisfied either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service.

14. Leraned Counsel for the petitioner also relied upon the decision of the Supreme Court in the State of Bihar v. Gopi Kishore Prasad : (1960)ILLJ577SC when in a notice was served, upon a person appointed on probation on a substantive post in the Bihar Civil Service, in which it was mentioned that there were grave doubts regarding his integrity and that he had the reputation of being a corrupt officer and that his annual confidential report showed that he had a bad reputation and his honesty was open to doubt. In consideration of these fact the State Government decided to terminate the services of the probationer. In this context their Lordships of the Supreme Court made the following observations:

If the Government came to the conclusion that the respondent was not a fit and proper person to hold a pm in the public service of the State, it could discharge him without holding any enquiry into his alleged misconduct. If the Government proceeded against him in the direct way, without casting any aspersions on his honesty or competence, his discharge would not, in law, have the effect of a removal from service by way of punishment and he would, therefore, have no grievance to ventilate in any court. Instead of taking that easy course, the Government chose the more difficult one of starting proceedings against him and of branding him as a dishonest and incompetent officer. He had the right, in those circumstances, to insist upon the protection of Article 311(2) of the Constitution.

15. Leraned Counsel for the petitioner also placed reliance upon the decision of the Supreme Court in S. Sukhbans Singh v. The State of Punjab AIR 1962 SC 1771, in which their Lordships of the Supreme Court placed reliance upon the observations made in Dhingra's case AIR 58 SC 36 extracted above, and considered the particular facts of the case before them and observed that although no reasons were given for reversion of the petitioner, but in the facts and the circumstances of that case it could not be held that the revision was made in the ordinary course or in the ordinary exercise of the Government's undoubted power to remove the petitioner because of his inimitability for the post. Their Lordships considered the facts that the work of the petitioner was appreciated by his superiors and he was given commendation certificate by the State Government for his outstanding performance and was also given the President of India's Sanad and Silver Medal for his excellent work. In these facts and circumstances their Lordships arrived at the following conclusion:

The only reasonable inference which can be drawn from all these facts is that the Government in fact wanted to punish him for what it thought was misconduct on his part and, therefore, revereted him. The omission of the Government to give reasons for his reversion does not make the action any less a punishment but as the requirements of Article 311(2) were not fulfilled, as they ought to have been, the Government wanted to give that reversion the appearance of an act done in the ordinary course entailing no penal consequences. The circumstances clearly show that the action of the Government was malafide and the reversion was by way of punishment for misconduct without complying with the provisions of Article 311(2).

16. In the case Madan Gopal v. The State of Punjab and Ors. : (1964)ILLJ68SC , the officer conceded was served with a charge sheet for having received illegal gratification and was given an opportunity to give his defence and the enquiry officer after examining the evidence held that the charge of receiving illegal gratification was proved and further held that the officer did not enjoy good reputation and was a person of doubtful integrity. After the report of the Enquiry Officer was submitted, the Deputy Commissioner passed an order terminating the services of the officer concerned forth with. Their Lordships of the Supreme Court considered as to whether any stigma was cast affecting the future career, while terminating the services of the appellant before them and whether the case was covered by the decision of the State of Bihar v. Gopi Kishore Prasad : (1960)ILLJ577SC or the case of the State of Orissa and Anr. v. Ram Narayan Das : (1961)ILLJ552SC and observed as follows:

In Ram Narayan Das's case (1961) 15CR 606 : AIR 1961 SC 177 enquiry was made pursuant to Rules governing the conduct of public servants for ascertaining whether the probation of the public servant concerned should be continued and a notice to show cause in that behalf was served upon him. On the report of the enquiry officer that the work and conduct of the public servant was unsatisfactory, an order of termination of employment was passed without affording him an opportunity of showing cause against the action proposed to be taken in regard to him This Court pointed out that the public servant had in right to the post he occupied and under the terms of his appointment he was liable to be discharged at any time during the period of probation. It was observed that mere termination of employment does not carry with it 'any evil consequences' such as forfeiture of his pay or allowances, loss of seniority, stoppage or postponement of future chances of promotion etc. and, therefore, there was no stigma affecting the future career of the public servant by the order terminating his employment for unsatisfactory work and conduct. The enquiry against the respondent was for ascertaining whether he was fit to be confirmed. An order discharging a public servant, even if a probationer, in an enquiry on charges of misconduct, negligence, inefficiency or other disqualification, may appropriately be regarded as one by way of punishment, but an order discharging a, probationer following upon an enquiry to ascertain whether he should be confirmed, is not of that nature.

Their Lordships held that holding of an enquiry is not decisive of the question-What is decisive is whether the order was made by way of punishment in the light of the tests laid down in Dhingra's case AIR 58 SC 36. Their Lordships of the Supreme Court considered that in Ram Narain Das's case : (1961)ILLJ552SC , the enquiry against the probationer was for ascertaining whether be was fit to be confirmed and thus their Lordships emphasised upon the importance of the nature of the enquiry which might result in the termination of the services of the probationer.

17. In Jagdish Mitter v. The Union of India : (1964)ILLJ418SC their Lordships of the Supreme Court held that the grounds of termination mentioned that the person concerned was found to be 'undesirable to be retained in Government service'. It cast a stigma and it was not a termination simpliciter.

18. Similar observations were made also in P.C. Wadhwa v. The Union of India and Anr. : (1964)ILLJ395SC , where the officer concerned was referred to as 'problem child and 'immature person', and in. that case their Lordships considered that the reversion was not for administrative reasons or in the ordinary course but the reversion was held to be malafide.

19. On the other hand, leraned Counsel for the respondents, relied upon the decision of the Supreme Court in the State of Orissa another v. Ram Narain Das : (1961)ILLJ552SC . In that case the enquiry was held against a Sub-Inspector on probation under Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules to find out as to whether the services of the probationer should be terminated. The Rules impelled upon the authority concerned to apprise the probationer of the ground or specific facts on account of which he was considered unsuitable and also to give him an opportunity, to show cause against it. An order of discharge was passed after the enquiry envisaged under Rule 55-B was conducted. The State of Bihar v. Gopikishore's case : (1960)ILLJ577SC was distinguished by their Lordships and following the tests laid down in Dhingra's case AIR 58 SC 36 their Lordships made the following observations:

The respondent had no right to the post held by; him. Under the terms of his employment, the respondent could be, discharged in the manner provided by Rule 55-B. Again mere termination of employment does not carry with it 'any evil consequences' such as forfeiture of his pay or allowances, loss of his seniority, stoppage or postponement of his future chances of promotion etc. It is then difficult to appreciate that 'indelible stigma affecting the future career' pf the respondent was cast on him by the order discharging him from employment for unsatisfactory work and conduct. The use of the, expression 'discharge' in the order terminating employment of a public servant is not decisive it may, in certain cases, amount to dismissal. If a confirmed public servant holding a substantive post is discharged, the order would amount to dismissal or removal from service; but an order, discharging a temporary public servant mayor may not amount t dismissal. Whether it amounts to an order of dismissal depends upon the nature of the enquiry, if any, the proceeding, taken therein and the substance of final order passed on such enquiry.

Leraned Counsel for the respondents also relied upon the judgment of this court in Kailash Chandra Sethia v. Rajasthan State Electricity Board 1973 RLW 544, wherein an Assistant Engineer appointed under the Rajasthan State Electricity Board was discharged as his services were found unsatisfactory during the probation period.

20. In the present case Rule 25 (2) of the Rules requires that before any order is passed regarding the termination of the services of a probationer, if he is considered unsuitable, then he should be informed in writing of the reason for terminating his services and he should also be considered by the Appointing Authority. It was thus obligatory upon the appointing authority to apprise the petitioner of the reasons on account of which his work and conduct was considered unsuitable. Ex 5 is the notice by which such reasons were communicated to the petitioner and he was given an opportunity to submit his representation in respect thereof. After considering the representation, the Security Officer, by his order Ex 7, held that the work and conduct of the petitioner was unsatisfactory. The petitioner preferred an appeal and Chief Security Officer while deciding the appeal observed that the work and conduct of the petitioner was 'unbecoming and unsatisfactory. The argument of the leraned Counsel for the petitioner is that while the officer concerned could have mentioned in the order terminating the services of the petitioner regarding the unsatisfactory nature of his work but no such observation could have been made regarding his conduct. He further argued that word 'unbecoming' used in the order Ex. 8(A) cast a stigma upon the petitioner and it can be inferred there from that the order is not of termination simpliciter. According to Webster's dictionary 'unbecoming' means 'unsuitable' Thus by employing the word 'unbecoming' nothing further has been said about the work and conduct of the petitioner. In Ram Narayan Das's case : (1961)ILLJ552SC the words employed were unsatisfactory work and conduct's and in that case the Supreme Court held that expression employed therein did not cast any aspersion or stigma and order of discharge was not by way of punishment Rule 25 (2) of the rules is also of the same nature as Rule 55 B of the Civil Services (Classification, Control and Appeal), Rules, which were considered in the case and their Lordships of the Supreme Court held that in view of the specific provisions, the probationer could not have been discharged from service without making any enquiry so as to adjudge his suitability for service. Then the authorities were required to act according to the provisions of such rules and were bound to the make such enquiry which did not lead to the conclusion that a penalty was being inflicted. In the case before me also there is no material on record on the basis of which I can come to the conclusion that the order of termination was malafide in any manner. In my humble opinion the present case squarely falls within the dictum of their Lordships of the Supreme Court in Ram Narayan Das's case : (1961)ILLJ552SC and the cases cited by the leraned Counsel for the petitioner are clearly distinguishable. I may further observe that in the present case there was no enquiry at all against the petitioner for the purpose of taking any disciplinary action him but the enquiry held against him clearly mentioned that it was under Rule 25 (2) of the Rules, which pertain to the holding of an enquiry for adjudgment for the suitability of a probationer. Thus, from the materials on the record I come to the conclusion that to the termination of the petitioner's services (Ex. 7) was not by any of payment but it was an ordinary order of discharge of a probationer, passed under the administrative authority of the employer.

21. Coming to the third submission made by the leraned Counsel for the petitioner, although Section 6 of the Act provides that the Chief Security Officer shall be the appointing authority but the proviso thereto gives the Chief Security Officer a power to delegate the authority of appointment to the Security Officer as he may specify, Further, Rule 20 of the Rules provides that the power of the superior officers to make appointments of all the members of the Railway Protection Force would be as specified in the first schedule, appended to the Rules. In the first schedule, the power of making appointments of all members of the Railway Protection Force is delegated lo the Security Officer up to the rank of a Sub-Inspector. As the petitioner was appointed on the poet of a Sub-Inspector on probation, the appointing authority so far as he was concerned was the Security Officer, Ajmer in accordance with the provisions of Rule 20 read with Schedule I.

22. The leraned Counsel for the petitioner argued that under proviso to Section 6, only the Chief Security Officer could delegate the powers to another officer for making appointments and the delegation could not have been made by the provisions of the Rules for making appointments. But it is not necessary to consider this controversy in the present case, in view of the fact that by an order Ex.R/2, the Cheif Security Officer expressly delegated the powers of making appointment on the post of Sub-Inspector to the Security Officer of the respective zones. The petitioner's name appears in Ex R/2 and he has been allotted to Jaipur division for appointment by the Security Officer of that zone. It was in pursuance of the order Ex. R/2, that the Security Officer of Ajmer zone passed an order of appointment of the petitioner dated November 25, 1967, which, is Ex R/3 It cannot be contested that the appointment of the petitioner was made by the Security Officer, under delegated powers from the Chief Security Officer. However, the contention of the leraned Counsel for the petitioner is that the Chief Security Officer should be considered to be the appointing authority as he issued the order Ex. R/2. I am unable to accept this contention. The order of appointment was issued by the Security Officer in pursuance of the directions given or delegation made by the Chief Security Officer. In the Union of India v. Ramgopal Tanwar Bhargava J., held that it is the officer who hasactually made offers and assed the orders of appointment who should be considered to the appointing authority and observed that it is one thing to give directions and quite other thing to make appointment. In Gangadhar Pandey v. The Union of India : AIR1964Pat102 , the Traffic Manager of Railways sent, a letter to the District Traffic Superintendent for appointing selected candidates as Assistant Station Master, The District Superintendent issued appointment orders under his signatures. In those circumstances, it was held that the District Traffic Superintendent was the appointing authority. Therefore I am of the view that the Security Officer was the appointing authority so far as the petitioner is concerned. He was competent to take action against the petitioner under Rule 26(2) of the Rules, if the petitioner was found unsuitable.

23. Mr. Jain, the leraned Counsel for the Railway Administration, submitted that the petitioner has made a prayer that order of the Security Officer should be set aside, but he has not made any prayer for setting aside, the subsequent order passed on appeal by the Chief Security Officer dated May 29, 1969 (Ex. 8 (A)). I do not think that this would be sufficient to refuse to grant relief to the petitioner of the present case in as much as besides making a prayer for quashing the order passed by the Security Officer (Ex. 7), the petitioner has also made a prayer that the respondents No. 1 and 2 be directed to reinstate him on his post. The respondent No. 2 in the writ petition is the Chief Security Officer. It would be necessary to set aside the order of the Chief Security Officer before granting the relief regarding re-instatement of petitioner. I may also observe that this Court is not precluded from moulding the relief to the petitioner on the basis of the findings arrived at in these proceedings. The prayer made in the writ petition may not be happily worded but the petitioner has specifically referred to the order of the Chief Security Officer in para 15 of the writ petition and has specifically mentioned the fact that his appeal has been rejected by the Chief Security Officer on May 29, 1969 and a copy of that order has also been placed on record as Ex. 8(A). As these facts are on the record and the order of the Chief Security Officer Ex.8(A) has already been produced by the petitioner, I do not think that the petitioner can be defeated only on the basis that his prayer or relief has not been properly expressed.

24. Leraned Counsel for the respondents has further argued that the petitioner was appointed as a probationer for the period of two years by the order Ex R/3 and that after the termination of his services by the respondents during the pendency of present writ petition, the probationary period of two years has elapsed and as such the petitioner is not entitled to any relief. In support of this argument, leraned Counsel for the respondents, relied upon two cases namely Prabhat Kumar Mukherjee v. State of Bihar and Ors. 1969 SLR 470 and G.S. Bajwa v. L.S. Gill AIR 1971 Punj 188. I am afraid that both these cases have no application to the facts of the present case in as much as those cases related to fixed term appointments. In the case of the petitioner he was appointed after undergoing training as Sub-Inspector Grade II of probation for two years by the order Ex. R/3. Under Rule 25(1) of the Rules the period of his probation could have been extended. But before the probationary period came to end, the services of the petitioner were terminated by the order Ex. 7. If the termination of his services during the period of two years was illegal the petitioner continued to be a probationer and was entitled to get his relief. It may be noticed that the period of his probation could have been extended under Rule 25(1) of the Rules and his services were not liable to be terminated automatically on the expiry of two years. Thus, the petitioner continues on probation until and unless either his appointment on probation is bought to an end in a lawful manner or he is confirmed. An illegal termination could not have the effect of nullifying the relief prayed by him in the writ petition.

25. At the end Mr. Jain sought permission and argued that in the present case if it is considered that the Chief Security Officer alone had the powers to terminate the services of the petitioner during the probationary period under the terms of the contract, the Chief Security Officer himself passed the order Ex 8(A) and that it should be considered to be valid for the purposes of the termination of the petitioner's employment. I am unable to accept this contention as well Clause (2) of the service agreement (Ex. R/1) clearly provides that the Chief Security Officer may terminate the service of the petitioner at any time by issuing a notice of one month or by the tender of his pay for one month in lieu of such notice. Thus the powers of the Chief Security Officer to terminate the service of a probationer under the service agreement is hedged with a condition that such termination could be brought about only by issuing a notice for the period of one month or by a tender of the sum equivalent to one month's pay in lieu of such notice. As the petitioner's services were sought to be terminated 'forthwith' the aforesaid condition was not fulfilled. Their Lordships of the Supreme Court have recently observed in Senior Superintendent, R.M.S., Cochin and Anr. v. K.V. Gopinath, Sorter : (1972)ILLJ486SC in respect to a similar condition contained in the proviso to Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965 that the termination of services shall be simultaneous with the payment to the employee. Thus the services of the petitioner could have been terminated by the Chief Security Officer either by giving him one month's notice or one month's pay in lieu of such notice but as it was not done, the order of the Chief Security Officer cannot be considered to be in compliance with the requirements of the provisions of the service agreement.

26. In view of my finding that the Security Officer, Ajmer had no power to terminate the services of the petitioner before the end of the two years' period of his probation, the termination of the petitioner's services for the reasons mentioned above, is illegal.

27. The writ petition is consequently allowed and the order passed by the Security Officer Ex. 7 dated October 9, 1968 and order passed by the Chief Security Officer Ex. 8(A) dated May 29, 1969 are quashed. The petitioner shall get his costs from the respondents.


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