Prajith Raj C vs The Secretary & Ors.

HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER

The applicant in this O.A was offered an appointment against the post of Khalasi (G.C.S. - Group 'D' – Non Gazetted – Non Ministerial) on a temporary basis in the National Institute of Fisheries, Post Harvest Technology & Training (NIFPHATT), Cochin vide the Memorandum dated 20.06.2014 produced at Annexure A-1. The terms of appointment indicate that the appointment was purely temporary and would not confer any title to permanent employment. It was also indicated that the appointment may be terminated at any time without notice and without assigning any reasons and that the appointment carried with it the liability to serve in any part of India or outside. The applicant submits in the O.A that the post had been notified initially for appointment as Khalasi in the Cochin Office of the NIFPHATT. However, soon after the selection and appointment offer, the post (along with the applicant) was transferred to the Visakhapattanam Unit of the NIFPHATT. Accordingly the applicant joined duty at Visakhapattanam on 09.10.2014. Meanwhile a candidate who had appeared in the selection process, Shri.Sajith.P.V., whose father Shri.P.V.Babu was an employee of the NIFPHATT as well as the Secretary of NIFPHATT Employees Federation, filed O.A.No.659/2014 in this Tribunal challenging the selection and appointment of the applicant herein. The O.A was however dismissed by this Tribunal on 13.08.2016. The applicant in that O.A., Shri.P.V.Sajith then filed O.P.(CAT) No.184/2017 in the Hon'ble High Court of Kerala against the above order of this Tribunal. It is submitted that the same is pending for disposal.

The applicant joined duty at Vishakapattanam on 09.10.2014 and submits that he worked there continuously in the post of Khalasi. He submits that 'in between' he took leave on a few occasions. He submits that the leave availed, including medical leave, compensatory off, earned leave etc., came to a total of 152 days, in the period from 01.01.2015 to 31.12.2018. On 18.08.2015 he applied for 12 days 'compensatory off' from 24.08.2015 to 05.09.2015 for proceeding to his native place at Ernakulam. However, he could not rejoin back on duty on 06.09.2015 as he contracted malaria. He was admitted in the Government General Hospital, Ernakulam for 23 days from 06.09.2015 to 01.10.2015. Since he had not joined on 07.09.2015 after the leave, the 3^rd respondent, who is the officer in-charge of NIFPHATT, Vishakapattanam issued a memo on 28.09.2015 to him stating that since he had not sought an extension of leave it would be tantamount to unauthorized absence. A copy of the memo has been produced at Annexure A-3. The applicant submits that he then appeared with his father before the 3^rd respondent on 08.10.2015. However, he was still not allowed to join duty and was compelled to return to his native place. Later, he submitted another representation on 13.10.2015 explaining the reasons and circumstances. He also produced the documents to substantiate his reason for absence. It is submitted that the 3^rd respondent was satisfied with his explanation and allowed him to join duty after his explanation. A copy of the said explanation is produced at Annexure A-4.

During the year 2016 the applicant availed another 23 days Earned Leave (EL). It is submitted that the 3^rd respondent then refused to disburse his salary for the months of April and May 2016. The applicant filed a representation, a copy of which is produced at Annexure A-5. He also submitted a complaint, copy produced at Annexure A-6, that his seniors were harassing him and forcing him to drink liquor as well as directing him to buy liquor for their consumption. In 2017 the applicant availed another 15 days EL. He submits that during 2018, from 04.01.2018 to 07.03.2018, he fell ill and was admitted at the Calicut Medical College with Arthritis (vatham). A Medical Certificate regarding his illness along with details of the treatment was also produced before the 3^rd respondent. He submits that after the 3^rd respondent was convinced about the treatment, his unauthorized absence for 73 days was condoned and regularised and he was permitted to rejoin duty. However, soon after this he was issued with the termination notice, which he has produced as the impugned order dated 06.10.2018 at Annexure A-12, which is the subject matter of this O.A.

The termination notice/order at Annexure A-12 indicates that in pursuance of Sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 [CCS (TS) Rules, 1965] the Director of the NIFPHATT has given notice to the applicant that his services would stand terminated with effect from the date of expiry of a period of one month from the date on which the notice was served on or as the case may be tendered to him. The applicant submitted a detailed representation to reconsider this order with a request to cancel the order of termination, a copy of which is produced at Annexure A-14. However, the 2^nd respondent, Director of NIFPHATT, Cochin rejected the representation vide the impugned order dated 02.11.2018 at Annexure A-15.

It is alleged by the applicant that since the father of the applicant in O.A.No. 659/2014 is a trade union leader and Supervisor in the NIFPHATT, he has taken measures to ensure that the applicant was somehow sent out of service of the NIFPHATT in order to induct his son Shri.P.V.Sajith as Khalasi. Further, it appears that the complaint and letter given by the applicant at Annexure A-5 and Annexure A-6 had added fuel to the fire. It also appears that, in between, an order dated 08.10.2016 extending his probation period by another 12 months with effect from 08.10.2016 had been issued, a copy of which is produced at Annexure A-7. The applicant submits that he had given a complaint, vide Annexure A-8 dated 25.06.2018, regarding the behaviour of his immediate superior for being drunk and abusing him. The applicant also draws attention to his Annual Confidential Report (ACR) dated 31.05.2017 where his assessment had been made 'below average'; based on which his probation was again further extended to 08.04.2018. A copy of the concerned ACR is produced at Annexure A-9 and a copy of the order of extension of probation up to 08.04.2018 (as per the decision of the DPC) is produced at Annexure A-10.

The applicant submits that he had suffered from Malaria and Arthritis, which he could prove by way of his Medical Certificates/Records. It is this which had resulted in his absence from work. The respondents should have invoked Rule 17 (a) of the Fundamental Rules dealing with above, after conducting a detailed departmental enquiry. He submits that the spell of absence could have been treated as break in service without pay. However, he was served with a memo for unauthorized absence in spite of the medical certificates and other records that he had produced and even after his leave had been later regularized. His probation period was also unnecessarily extended even though the ACR does not reflect any adverse entries against him. The copies of the ACR at Column 22 indicates 'nil' against the question whether the officer concerned had been reprimanded for indifferent work. The overall grade has been marked as 'below average' in spite of Column 21 and 22, which reflects the mindsets of the Reporting and Reviewing Officers. The respondents had extended the probation by two spells and for no reason, finally a termination order had been issued, without proper enquiry which violates Article 311 (2) of the Constitution of India.

In addition, the rules/master circulars relating to Confirmation/Probation in Central Services issued by the Department of Personnel & Training (DoP&T), Government of India vide O.M dated 02.07.2018 have been produced by the applicant at Annexure A-11. It is submitted that as per the paragraph 5 of the Master Circular, it is stated that a probationer should be given an opportunity to work under more than one officer during the period of probation and reports of his work obtained from each one of these officers. The probation reports for the whole period may then be considered by a Board of senior officials for determining whether the probationer concerned was fit to be confirmed in service. It is submitted that the applicant had worked only under the 3^rd respondent which is a violation of the instructions issued by the DoP&T at Annexure A-11. In addition to this, the applicant submits that the Government of India, Ministry of Labour by Memorandum dated 15.10.1977 had notified that the Integrated Fisheries Project (later renamed as NIFPHATT) as an 'Industry' within the meaning of the Industrial Disputes Act is applicable. However, the 2^nd respondent had issued the notice of termination vide Annexure A-11 which is in violation of the Industrial Dispute Act (ID Act). The ID Act states that if a workman completes 240 days continuous employment in a year, he can be terminated only by following the procedure prescribed in the ID Act which is after conducting domestic enquiry. In his case though he had completed 4 years of continuous service the 2^nd respondent had issued a notice of termination. When a request was made to the 2^nd respondent it was rejected. The order of the Government of India notifying the Integrated Fisheries Project as an 'Industry' has been produced at Annexure A-13.

In essence, therefore, the applicant submits that his termination under the CCS (Temporary Service) Rules, 1965 under Rule 5(1) is illegal on the following grounds :

In addition to the above case the applicant has brought to notice the observations of the Hon'ble Apex Court in Chandra Prakash Sahi vs. State of U.P & Ors., 2000 (5) SCC 152. It was observed therein that the Court had earlier held that the benefit of protection of Article 311(2) of the Constitution of India is available not only to regular and temporary employees but also to a probationer. The Court in an appropriate case would be justified in lifting the veil to find out the true nature of the order by which the service was terminated. It was also held that if there were allegations of misconduct and an enquiry was held to find out the truth of that misconduct and an order terminating the service was passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question but to find out the truth of allegations of misconduct against that employee. The applicant strongly relies on this judgment of the Hon'ble Apex Court to submit that an employee, even under probation including the extended period of probation, cannot be terminated by a stigmatic/punitive order without an enquiry and without providing an opportunity to defend himself to prove his innocence. He points out that in his case there was no enquiry or even a show cause notice. He was simply served with the Annexure A-12 notice of termination order which is therefore illegal. Besides this, he submits that the notice of termination had been issued violating the provisions of the ID Act as he had been working continuously for nearly 4 years and no domestic enquiry had been conducted before his termination. He is not aware of the reasons for the notice of termination or non-confirmation of his service after 4 years. He further submits that he belongs to the Scheduled Caste (SC) category. As no reasons have been stated in the termination order, the same is prejudicial because he is now over-aged and is unable to get job elsewhere. This is a violation of his rights under Articles 14 and 16 of the Constitution. He again reiterates that no notice was issued asking for his representation or giving any reason for termination.

The respondents have given a detailed reply statement, filed by the 2^nd respondent, Directorate of the NIFPHATT, on behalf of all the respondents. At the outset it is submitted that the applicant had been appointed as Khalasi in the NIFPHATT in a temporary capacity, as is clear by the conditions in the offer of appointment at Annexure A-1 brought out earlier. It is submitted that the conditions of service for appointment besides being temporary and subject to termination at any time, included the provision that the applicant would be governed by the relevant rules and orders issued from time to time. His contention that the post had been notified for appointment as Khalasi in the Cochin Office of NIFPHATT was also not true. It had been indicated, even in the notice published in the newspaper inviting applications for the post, produced at Annexure R-1, that the post carried an all India service liability. It is submitted that the contention that the post and applicant were transferred to the Vishakapattanam Unit after recruitment is baseless. By the Annexure R-2 order dated 12.02.2014 the NIFPHATT Headquarters in Cochin had transferred a post of Khalasi to the NIFPHATT Vishakapattanam Unit. It was four months after this order that the offer of appointment dated 20.06.2014 produced at Annexure A-1 was issued to the applicant. It is clarified that after his acceptance of the terms and conditions vide his letter dated 04.07.2014, the applicant directed vide Annexure R-4 dated 27.09.2014 to report for duty at NIFPHATT, Vishakapattanam Unit not later than 15.10.2014. Accordingly, on his own volition he had joined duty at the Vishakapattanam Unit on 09.10.2014 as per joining report produced at Annexure R-5. Thus the applicant had joined the duty right from the beginning on 09.10.2014 at NIFPHATT, Vishakapattanam Unit. It had been also indicated in the Office Order of his appointment, produced at Annexure R-4, that the appointment was in a temporary capacity and that he will be on probation for a period of two years from the date of his joining in the Institution as Khalasi. It was also stated therein that his services were liable to be terminated at any time without any notice and without assigning any reason.

The respondents have submitted that during the period from 09.10.2014, when he joined at NIFPHATT, Vishakapattanam Unit, till 08.11.2018 after he had been given the notice at Annexure A-12 dated 06.10.2018 that his services would stand terminated with effect from the date of expiry of a period of one month from the date on which the notice was issued, the applicant had availed of a total of 484 days of leave. This leave included 95 days Earned Leave (EL), 7 days of Commuted Leave, 61 days of Half Pay Leave (HPL) and 321 days of Extra Ordinary Leave (EOL). Thus, as per the details, produced at Annexure R-6, out of the total 1177 days of duty during this period, the applicant was on leave of one kind or the other for 484 days, which comes to a 41% attendance record. Further, in relation to the points that have been made in the O.A by the applicant, it is accepted that a memo had been served on him on 04.06.2015. However, a lenient view was taken at that time as it was for the first time and a warning dated 13.07.2015 was issued to him stating that in future overstay on leave, without prior approval of the competent authority, cannot be considered anymore and that disciplinary action as deemed fit will be initiated without any further communication. This warning dated 13.07.2015 has been produced at Annexure R-8. However, it is submitted that even after that he continued applying for leave and did not report for duty on the due date. A memo dated 28.09.2015 produced at Annexure A-3 was then served on him. It appears that the applicant finally reported for duty only on 04.11.2015, after producing medical certificates issued by the General Hospital, Ernakulam recommending leave on medical grounds with effect from 01.09.2015 to 04.11.2015.

The respondents submit that this had been the general habit of the applicant through the entire period. He would avail short spells of leave by way of Casual Leave (CL) and proceed to his native place. He would then over stay there without information, finally reporting for duty by submitting various medical and fitness certificates. This practice continued in 2016 as well. It is submitted that the Officer-in-Charge of the Vishakapattanam Unit had then requested the Head of NIFPHATT to initiate disciplinary proceedings since the applicant was frequently on such unauthorized absence and because these acts reflected dereliction/disobedience of the advice of the higher authorities. The respondents also submit that the contention that the applicant's salary for the months of April and May, 2016 was not paid was false because the same was disbursed to him after the regularization of the leave. However, it is also accepted by the respondents that in many cases applications for leave were regularized later by grant of EOL, HPL etc. This had been done in 2017 and also partially in 2018. However he continued to take leave as he did for the period from 27.08.2018 to 31.08.2018 by availing 5 days CL and 2 days RH. He did not resume his duty and remained absent for a total period of 34 days without seeking any extension or with any prior intimation/permission of the Head of Office. Even the Certificates that he submitted at that time approved to indicate that the period was tampered with and did not bear the counter signature of the concerned doctor. The respondents, therefore, by the narration of the above facts and circumstances, seek to emphasise that even though many times of the leave of the applicant was regularized, there was a continued problem of overstay on his part after applying for leave. Leave granted for shorter periods to him was being sought to be extended later by medical certificates and other documents on a regular basis.

Regarding the extension of his probation period, it is submitted that the applicant had been initially appointed as Khalasi on probation for a period of two years. As his appointment was in a temporary capacity his probation was with effect from the date of joining ie., 09.10.2014. When the two years service period was nearing completion on 08.10.2016, his case was taken up by the Departmental Promotion Committee (DPC) on 03.10.2016 for a declaration on his probation. The DPC found that he was not fit for clearing probation due to his irregularity in attendance and lack of promptness, aptitude and initiative in his work. His probation was then extended by the competent authority for a period of one more year from 09.10.2016. This was communicated to him by a memo dated 08.10.2016. When the extended one year period was nearing completion, the case was again taken up on 06.10.2017 for review. Finding that there had been no improvement in his habitual unauthorized absence, as well due to his willful disobedience the applicant's probation was once again extended for a further period of six months with effect from 06.10.2017. This was also communicated to him. His case was taken up again for the third review after six months on 06.04.2018. The probation was again extended for a further period of six months as there had been no improvement in his conduct. This last extension for a period of six months was with effect from 09.04.2018, which was also communicated to him. Thus, each time the probation was extended, the applicant was apprised of the position and advised to improve his punctuality, sense of responsibility, interest in work, promptness and initiative as was expected from a Government servant. In spite of this, it was seen that there was no qualitative improvement in his habits and complaints in this regard were received from his superior officers. Warning Memos were issued to him which did not in any way improve his habit and attendance. Finally, the DPC, after assessing his service records, assessment reports and A.C.Rs observed that the applicant had made no effort for improvement in his conduct and performance. The DPC found him unfit for retention in the post of Khalasi and it recommended termination of his service under the Temporary Service Rules. As per the recommendations of the DPC, the notice dated 06.10.2018, produced at Annexure A-12, was issued on him by the Director of the Institute under Sub-rule (1) of Rule 5 of the CCS (Temporary Service) Rules, 1965. The notice was for termination of service of the applicant on the expiry of one month, as he was a temporary Government servant. It is submitted that it is improper to allow such a person who showed utter disregard to duty to continue. It is submitted that allowing him to continue will be against the very principles of the appointment of a person in a civil post in Government service. The request of the applicant for reconsideration was also, therefore, not considered.

The respondents point out that the extant Government orders on probation indicate that on completion of the period of probation or any extension thereof, the officials have, if considered fit for permanent appointment, be retained in his appointment on a regular basis and be confirmed in due course. However, if the Government is of the opinion that an officer is not fit for permanent appointment, he is to be terminated or reverted to his lower post as the case may be. In the case of applicant there is no question of any reversion as he was directly recruited. The respondents have gone the extra mile and had given him a long rope by extending his probation. However, finally even they had no option but to terminate his services when there was no change and he continued to behave in the same way.

Among the major reasons that have been cited by the respondents underlying the termination is that, ever since the applicant's temporary appointment in the Vishakapattanam Unit, he had been in the habit of unauthorizedly absenting himself from duty frequently, without prior intimation or permission. Many complaints in this regard had been received in the Institutes, Headquarters from his Head of Office viz., the Officer-in-Charge. He had been issued several warnings and memos directing him to be regular in attendance in future. However, this did not result in any improvement in his habits and he continued being unauthorizedly absent from duty. It is submitted that the applicant never adhered to punctuality, discipline, office procedure, disobeyed the instructions given by the superiors, behaved harshly with seniors, never performed his duties and responsibilities with devotion, argued with staff members and misbehaved with them for petty reasons and also quarreled with staff and local people. He was also understood to have been involved in petty theft cases leading to an unofficial local police enquiry on his behaviour. The respondents have annexed a list of copies of memos and warnings issued to the applicant as well as the correspondences between the Head of Office, Vishakapattanam Unit with the Head of the Department of NIFPHATT, Cochin regarding the applicant in the reply statement at Annexure R-7 to Annexure R-37. It is submitted that a reading of these memos and warnings clearly establish that the applicant had been given a fair chance by the respondents by giving a large number of opportunities for improvement. In spite of this he continued with his callous behavior and never changed his attitude. It is reiterated that the applicant had been given more than ample opportunities to be regular in attendance and to show the required devotion to duty expected from a Government servant. In other words the cumulative effect of the warnings and memos not being heeded to by the applicant finally resulted in his termination. Thus the respondents seek to establish that sufficient warning had been given to the applicant by way of these documents, and the termination cannot be taken as a bolt from the blue.

Further, in relation to the applicant's contentions about his ACR it is submitted that the recordings of an ACR is based on an objective assessment of the work quality of the officer reported upon for a particular period of time. Even if specific details in relation to negative personal aspects may not be included in one particular report, it is clear from the overall assessment of his performance in the ACR produced at Annexure A-9 as 'below average' that his work quality was sorely lacking. Further regarding the point made that his applications for leave extensions were often later regularized, it is stated that the respondents had given him ample opportunities by way of their memos issued to him to be regular in attendance. It is accepted that all leave applications submitted by him with sufficient and proper documents were later sanctioned. This was done by taking a lenient view each and every time, so that it would not result in any grave injustice to the applicant and mar his future. Thus, it is submitted that his leave was regularized without leading to any break in service with the hope, now established to be misplaced, on the part of the respondents that there would be same change in his habits of being unauthorizedly absent by extending leave and that he would show proper devotion to his duty. However, this was not to be so in his case. It is also submitted that each time his probation was extended, he had been apprised of the precariousness of his position and advised to improve his punctuality, sense of responsibility, interest in work, promptness and initiative as was expected from a Government servant. In spite of all these warnings and the long rope given including the regularization of long periods of absence there was no qualitative improvements in his habits. However, nothing had any effect leading to his termination.

At this stage, this Tribunal observes that in the O.M dated 02.07.2018 of the DoP&T produced at Annexure A-11 regarding instructions on probation/confirmation in Central Services it is indicated at paragraph 11 that the appointing authority can declare successful completion or extend the period of probation or terminate the services of a temporary employee on probation on the basis of evaluation of performance. It is also indicated that an employee's probation cannot be treated as a mere formality. As per the circular it is also indicated that probation should not be extended as a matter of course and in case an official is considered unfit for the post on which he is placed on probation his reversion/termination should be considered. Action by way of termination is done in cases of direct recruitment whereas reversion may be ordered in cases of promotion.

The respondents submit that since the applicant was found unfit for confirmation in service despite several reviews by the Committee (the DPC) suitable administrative action had been recommended in the matter. They submit that since he had showed no sign of any improvement in his conduct and performance, he was found unfit for retention in the post of Khalasi. It is only after that, that action was taken for termination of his services under the CCS (Temporary Service) Rules. It is submitted that NIFPHATT is a subordinate office of the Government of India's, Ministry of Fisheries, Animal Husbandary and Dairying, Department of Fisheries. Thus all the rules and regulations applicable to and governing the Institute are the central civil service rules. It is submitted that all the posts in all the subordinate offices or institutions under the Department of Fisheries across India are subject only to the rules and regulations laid down as per the concerned applicable central civil service rules. This had also governed the process of recruitment and any subsequent action. The respondents submit that the offer of appointment to the applicant was done as per the Recruitment Rules applicable for the post of Khalasi, produced at Annexure R-40. Further, the classification of the post as per these Rules comes under 'General Central Service'. The applicant had been appointed to a temporary post of Khalasi (General Central Service – Group 'D' Non Gazetted Non Ministerial) purely on temporary basis. Thus, all the procedures laid down by the Government of India as per the CCS Rules have been followed in the appointment of the applicant. Accordingly his termination was also done as per the CCS (Temporary Service) Rules, 1965. Thus, any contention that the Institute is, as indicated in Annexure A-13, an 'Industry' under the ID Act is baseless. The 2^nd respondent, being the appointing and disciplinary authority of the applicant, had full right to terminate his services and was empowered to issue the termination order.

A rejoinder has been submitted by the applicant to the reply statement where he has largely reiterated the same points that he had made in the O.A. He submitted that there was no negligence or laches on his part in the leave taken by him or in the overstay of the leave applied. This was due to compelling circumstances of his fever, vadham etc., at different points of time. Further, all the alleged unauthorized leave has been later regularized by the respondents. In addition, no tampering has been done by him in the medical reports or certificates unlike what has been alleged. It is reiterated that terminating his appointment because he was in a temporary capacity is erroneous and that the same cannot be done without conducting a disciplinary action by way of an oral enquiry in accordance with law, affording him an effective opportunity to defend his case, as stipulated in Article 311 (2) of the Constitution of India. The Annexure A-12 and Annexure A-15 orders are stigmatic and punitive, issued without providing an opportunity to defend himself and prove his innocence. He relies on the orders of the Principal Bench of this Tribunal in T.A.No.1471/2009 described earlier to submit that it is well settled legal position that when the services of an employee may have to be terminated on alleged misconduct, there has to be an enquiry into the matter giving a proper opportunity to the employee to defend himself. It would also not make any difference even if the employee is a probationer. The protection of Article 311 (2) of the Constitution of India is available even to a probationer. The Court can be justified in lifting the veil to find out the true nature of the order by which the services were terminated. Further, the applicant brings to notice the judgment of the Hon'ble Apex Court in State of Punjab vs. Dr.P.L.Singla, in Civil Appeal No.4969/2008 dated 31.07.2008, wherein the Hon'ble Apex Court held that a request for condoning absence may be favourably considered where the unauthorized absence is only of a few days or a few months time and the reason for absence is stated to be the sudden, serious illness or unexpected bereavement in the family. It was also held therein that where the employee who is unauthorizedly absent does not report back to duty and offer any satisfactory explanation or where the explanation offered by the employee is not satisfactory, the employer will take recourse to disciplinary action in regard to the unauthorized absence. Thus, in the light of all these orders, both the Annexure A-12 and Annexure A-15 orders are bad in law and are liable to be set aside.

It is further submitted in the rejoinder that the leave rules are framed by the government as a beneficial legislation for the employees. Unauthorized leave has to be dealt either with the Rule 17(1) or 17-A of the Fundamental Rules. Nowhere it is mentioned that the services of the employee should be terminated for unauthorized leave, otherwise than in accordance with law. It should be noted that all the leave applied for by him were later regularized as and when he explained the same to the respondents. The respondents thus knew very well that his requests were genuine. At no point of time did he abandon his job nor did he have an intention to do so. He did not unauthorizedly absent himself from service but was compelled to seek leave or overstay of leave due to his acute illness and under compelling circumstances which was beyond his control. Further, at no time did the respondents inform the applicant that he had no devotion to duty and never advised to him to improve the quality of his work. It is submitted by the applicant that the records of memos/communications produced from Annexure R-7 to Annexure R-37 are preplanned records, even after the grant and regularization of his leave periods in order to enable the respondents to terminate his services. This has been done with the dubious motive to induct or appoint the aforementioned Shri.P.B.Sajith, son of Shri.P.V.Babu, who is the Joint Secretary of NIFPHATT Employees Association, Cochin.

It is also submitted by the applicant in the rejoinder that the averments made in the reply statement are not correct. It is not clear as to why the respondents hesitated in ordering an enquiry into the complaints raised by him in Annexure A-8. The applicant also has stoutly objected to the allegation that he had been involved in petty theft cases leading to an unofficial local police enquiry. He submits that this is an utter falsehood which has been placed before the Tribunal. He had only given complaints about his superior officers in relation to their activities in the Vishakapattanam office of the unit. However, the same was neither redressed nor enquired into. On the other hand the respondents have only harassed and humiliated him by denying his salary for two months had taken every opportunity to penalize him. His letter at Annexure A-8 contains the real and true facts about the harassment he had been made to undergo. This has lead to his termination notice, as any enquiry on the Annexure A-8 letter will bring out the real truth about the misconduct of his supervisors. Further, in relation to the ACR it is submitted that at no point of time was his work 'below average' or not upto the bench mark. He was neither admonished, reprimanded, advised or asked to improve by any of his superiors like the Plant Operator, Processing Technologist or the 3^rd respondent before such entries were made in the ACR. He was also not given any notice of the adverse entries made in the ACR by the Reporting Officer and the Reviewing Officer. He was also not given a copy of the same before the issuance of the Annexure A-12 and Annexure A-15 letters. Hence, uncommunicated adverse entries in ACR cannot be acted upon, as repeatedly held by the Hon'ble Apex Court. It is submitted that the Reporting Officer and Reviewing Officer in the Annexure A-9 ACR, being the Head of the Institute, had been biased towards him and that he should have got at least 'Very Good' if the ACR was properly recorded.

Overall, therefore, the applicant submits that all the allegations and contentions, especially those in paragraph 14 and 20 of the reply statement, are erroneous and denied. There was no break in his service in his entire service till the issuance of Annexure A-15. All leave applied for was sanctioned and regularized. Hence, the order of termination by Annexure A-12 is unwarranted, perverse, erroneous and illegal. If he had no devotion to duty, the respondents would not have paid him overtime allowances and given him compensatory off. The reason of unauthorized absence on the basis of which his services have been terminated even without an enquiry is, as envisaged in CCS (CCA) Rules, bad in law. The applicant had been away from his duty station in his native place due to illness and, therefore, he could not proceed to Vishakapattanam immediately because of practical difficulties which caused the overstay of leave. Further, even in the Memos, Warnings etc., served on him, what is stated is that in the event of his repeating the alleged misconduct, suitable disciplinary action or proceeding as per CCS (CCA) Rules for lapses on his part will be initiated. However, no such disciplinary action as contemplated in CCS (CCA) Rules has been initiated in his case. There is no finding of any charge proved against him as per the Rules. He contends that this is not being done because the respondents were aware of that his leave applied for and the overstay of leave was always subsequently sanctioned and regularized by the appropriate authority, after his convincing them of the justified real reasons for the same. He submits that the directions by the Hon'ble Apex Court in Dr.P.L.Singla (supra) in cases of unauthorized leave/absence are relevant. Hence, his consequential termination is clearly bad in law and is liable to be set aside, especially when no disciplinary action was taken under CCS(CCA) Rules. He reiterates that the benefit and protection under Article 311 (2) of the Constitution of India is available not only to regular and temporary employees but also to probationers as has been held by the Hon'ble Apex Court in the matter of Chandra Prakash Sahi (supra). He cannot, therefore, be terminated from service by a stigmatic/punitive order without holding an enquiry and without providing him an opportunity to defend himself to prove his innocence.

It is further submitted by the applicant that Paragraphs 5, 7 and 18 of Annexure A-11 DoP&T Master Circular on probation / confirmation have certain specific stipulations which have not been followed by the respondents. He should have been allowed to work under more than one officer during the period of his probation which was not done. Hence no reports from different officers each of them have been obtained as contemplated. Further, he was neither informed of his shortcomings if any in performance of his duties during the period of his probation, nor in the extended probation period, in order to enable him to make special efforts at self-improvement. At no point of time was he given written warnings to the effect that his general performance had been as such so as to deny him his confirmation. He was not warned that unless he showed substantial progress/improvement within a specified period the question of discharging him would have to be considered. Since this was not been resorted to by the respondents in his case, it has to be inferred that he had performed his duties and responsibilities very well. This is also buttressed by the fact that approval had been given for overtime work to him. Thus, the order by the 2^nd respondent produced at Annexure A-12 is clearly, perse, illegal, tainted by malice in law and arbitrary. While in service he had never been informed that he was unfit to hold the post and hence, therefore, the same cannot be the basis for terminating the services later illegally.

It is obvious from the detailed summation made above that we have noted all the contentions made in the exhaustive pleadings by the applicant as well as by the respondents. We have already noted that there are a number of judicial pronouncements broadly covering the issue some of which have been brought to our notice by the applicant. In regard to the cessation of service by termination under the CCS (Temporary Service) Rules, 1965, we note that in the Government of India's Decision No.5 brought out under Rule 5.1 in Swamy's Compilation, relates in fact to the “Non-applicability of Rule 5 for termination of service in the case of probationers/persons on probation”. This decision, as per the Government of India's, MHA OM No.4/10/66-Ests. (C) dated 26.08.1967, at the outset indicates that the applicability of the CCS (TS) Rules does not specifically exclude probationers or persons on probation as such. However, it is further stated that a question had arisen whether Rule 5 should be invoked in the case of persons appointed on probation, where, in the appointment letter a specific condition regarding termination of service without any notice during or at the end of the period of probation (including extended period, if any) has been provided. It seems to be indicated in the said O.M that, in view of the specific condition regarding termination of service without any notice during or at the end of the period of probation (including extended period, if any), it has been decided in consultation with the Ministry of Law that in cases where such a provision has been specifically made in the letter of appointment, it would be desirable to terminate the services of the probationer/person on probation in terms of the letter of appointment and not under Rule 5(1) of the CCS (TS) Rules, 1965.

We looked at this case in the above aspect. We note that in letter of appointment to the applicant, a copy of which has been produced at Annexure R-3, there is, in the terms of appointment, a provision that the appointment may be terminated at any time without notice and without assigning any reasons. As such, it seems that it would have been more desirable in terms of the above circular that the termination ought to have been done under the provisions of the letter of appointment rather than under the CCS (TS) Rules. The usage of the CCS (TS) Rules, 1965 for termination of service of a probationer is of course not specifically prohibited under this circular. Nor has it been contended by the applicant that the spedific Rule used for his termination is an invalid usage. The Office Order produced at Annexure R-4 had also indicated that the services of the applicant were liable to be terminated at any time without any notice and without assigning any reason and that he is on probation for a period of two years. Overall, therefore, at the outset, we are not faulting the use of CCS (TS) Rules, 1965 for terminating the services of the applicant on any legal grounds mainly as it is not explicitly debarred by any Circulars, including the one described aforesaid.

Next we note that the period of probation of the applicant which was initially for two years had been extended on the recommendations of the DPC from time to time. In this regard, the Master Circular on Probation/Confirmation in Central Services at Annexure A-11 contains certain provisions in relation to the extension of probation period. At point no. 15 of the Circular under the Sub-head of “Extension of Probation Period” it is indicated that “The Appointing Authority may, if it so thinks fit, extend the period of probation of a Government servant by a specified period but the total period of probation does not exceed double the normal period.” (sic) It is also indicated that “In such cases, periodic reviews should be done and extension should not be done for a long period at one time.” In this case as the applicant had been appointed with effect from the forenoon of 09.10.2014, his first initial probation period came to an end on 08.10.2016. This was extended by a series of orders as was brought out earlier, right up to the date of his termination vide order dated 06.10.2018, which in turn indicated a date of effect of one month from the date on which the notice was served (Annexure A-12). Later, the respondents issued another order dated 18.12.2018, produced along with their reply statement at Annexure R-39 stating that in continuation to the notice of termination dated 06.10.2018, the applicant stood terminated with effect from 08.11.2018 afternoon. In effect, therefore, the provision of the Master Circular on Probation at point 15, that the period of probation cannot be extended by a specified period but the total period of probation should not exceed double the normal period appears to have been maintained by the respondents as the notice of termination under the CCS (TS) Rules, 1965 was issued within a period of four years from the date of joining. We will not, therefore, go into this basic issue as the probation rules to that extent appear to have been followed. Nor is there it is to be noted any pleadings in this connection to the contrary by the applicant or his learned counsel.

We now come to the crux of the issue, in relation to the process used by the respondents by which he has been terminated. The applicant has vigorously contested this on various grounds, one of which was that no sufficient prior notice or alerts were intimated to him before the action was abruptly taken for his termination that his conduct had been unsatisfactory or that his performance was not upto the mark. However, we find that the documents that have been produced along with the reply statement, particularly the documents from Annexure R-7 to Annexure R-34 clearly establish that sufficient advance indication/warnings had been given to the applicant. These advance warnings/memos had covered the issue of unauthorized absence on his part, not paying attention to the work assigned by superiors, going on absenting himself without prior intimation and also absconding himself during office hours. He was also accused, as for example in the memo produced at Annexure R-14, of indiscipline, disobedience and dereliction of duties etc. He seems to have been warned at that time about the possibility that suitable action could be initiated against him as per CCS (CCA) Rules for lapses on his part. Thus it is fair to say that the problems caused by his unauthorized absence and behaviour issues had been pointed out by the respondents and were indeed communicated to the applicant at various earlier periods. Thus, he should have been quite aware of them, which is fairly evidenced by the warning given to him dated 17.03.2017, produced at Annexure R-19. The important point to be noted here is that he did not protest at that time that the allegations communicated through these warnings or memos were wrong or had originated due to other factors. No evidence has been brought that there were objected to contemporaneously. All these have been contested only in the O.A. Hence, there memos/warnings have to be taken as part of the record built up against him. Our view is that as an employee on probation with no confirmation being given and probation being extended from time to time, would not a conscious or disciplined employee with the right attitude, attempt either to rectify his behaviour or otherwise respond objecting to these memos/warnings? The only response from him appears to have been some apologetic explanatory letters and medical certificates to get his unauthorized absence regularized, which the respondents by way of grant a very long rope and perhaps, as it is now been realized, a great deal of misplaced sympathy, allowed him the regularization of the absence. This action only seems to have embolded him further to take even more leave, with the expectation that it would also be regularized in course of time and also to continue with unacceptable behavioural aspects, about which he had been warned in the series of memos and warnings. We note therefore that the contemporaneous records only reveal continued misbehaviour, poor attention to duties, overstaying of leave as well as an uncooperative attitude, all strong grounds for a decision for terminating his services even earlier.

Now coming to the various grounds that the applicant has taken, especially the judgments by the Hon'ble Apex Court judgments and the orders/Principal Bench orders cited. It is clear that these cases have examined the issue as to whether the services of an employee who has been on the extended period of probation or otherwise can be terminated, without holding an enquiry if he is alleged to have committed misconduct. The issues in these cases, including the T.A.No.1471/2009 decided by the Principal Bench of this Tribunal, have generally related to misdemendous including financial irregularities etc., committed by the employee. This was the matter looked into in the case of Shri.R.C.Dubey (supra) in T.A.No.1471/2009 decided the Principal Bench. The applicant therein had been working as a Principal of a school and later was appointed by the Navodaya Vidyalaya Samiti as Principal of one of its schools on probation. It was noted in the case that it is a settled proposition of law that when the order terminating services of an employee is punitive, the employee shall have the right to be heard in the matter. It does not made any difference whether the employee is on probation, temporary, on contract or on adhoc basis or he may be a regular employee. The issue that has been brought out in these cases is that one has to lift the veil to find out the real reason behind the terminating of services of an employee. It was held that if the order of termination is founded on allegation of misconduct, then the same would be punitive and stigmatic. Such considerations are also applicable in the cases of probationers as well as was held in Chandra Prakash Sahi (supra). In essence, therefore, in T.A.No.1471/2009 the Principal Bench ordered that in the totality of facts and circumstances and well settled legal position that, when services of an employee may have to be terminated on alleged misconduct, there has to be an enquiry into the matter giving proper opportunity to the employee to defend himself. It would not make any difference if the employee is on probation. It was held that the court can always lift the veil to find out the real reason leading to the order terminating the services of the employee, even though the order may seem to be innocuous. The protection of Article 311(2) of the Constitution was available even to a probationer and the Court can be justified in lifting the veil to find out the true nature of the order by which the services were terminated. Thus the TA was allowed and the respondents were directed to reinstate the applicant as Principal and also to initiate a departmental enquiry. Further, certain benefits of salary were also ordered to be given to the applicant in that case.

It is to be noted that the respondents have not responded to the findings of the Hon'ble Apex Court/Principal Bench in Chandra Prakash Sahi (supra) and T.A.No.1471/2009, respectively, in their reply statement or otherwise leaving this Tribunal to examine the implications. In addition to this learned counsel for the applicant, during oral submissions, brought to our notice another order dated 02.06.2011 of the Principal Bench of this Tribunal in O.A.No. 2349/2010 in the matter of Shyoraj Meena vs. Government of NCT of Delhi, through Commissioner of Police, New Delhi. This order of the Principal Bench of this Tribunal in fact related to the respondents' action in terminating the service of the applicant by recourse to the provision of Rule 5 of the CCS (TS) Rules, 1965. The main thrust of the contention put forth by the learned counsel for the applicant therein was that the termination order was bad for being stigmatic and punitive in nature and that the same was not permissible under Rule 5 of the CCS (TS) Rules, 1965. In support of this, it appears that a number of cases are cited by the applicant in the application and so it was strongly urged by the learned counsel for the applicant that the applicant was entitled to the protection of Article 311 of the Constitution of India, which cannot be denied by taking recourse to the Rule 5 of the CCS (TS) Rules, 1965. It was argued by learned counsel for the applicant that the show cause notice as well as termination order were founded on the allegation of employing deceitful means for obtaining employment, which the respondents viewed as grave misconduct. Thus, it was contended by the applicant therein that the respondents ought to have held a regular departmental enquiry before terminating the service, rather than taking the shortcut by the provision of Rule 5 of the CCS (TS) Rules, 1965, which is not meant for punishing some one for an alleged misconduct. The Principal Bench of this Tribunal, after careful consideration of the respective submissions, observed that the issue involved in the case essentially relates to manner and not the substance of the action taken by the respondents. When the services of a person is sought to be brought to an end for the reason of furnishing of false information or suppression of material information in his application for recruitment to the post and attestation form required to be filled up for character verification, more than one option is available to the respondents. They may either cancel the candidature of the candidate in terms of conditions of employment, if the person has not been appointed to the service, or, if the person has already been appointed to the service, the service can also be terminated in accordance with the conditions of appointment. It was observed that so long services are temporary the provisions of CCS (TS) Rules, 1965 can also be invoked by issuing appropriate orders thereunder. After examining the protection provided under Article 311 (2) to the employees as well as the impact of the termination under CCS (TS) Rules, 1965, the Tribunal stated that where the petitioner complains that the order of discharge was made with the object of punishing the petitioner for some misconduct, the Court would go behind the terms of the order of discharge and examine all the attendant circumstances, in order to find out whether the form of the order only a camouflage for an order of dismissal for misconduct, which could not be made without complying with Article 311 (2). The Tribunal in paragraph 9 of its order referred to a number of cases of the Hon'ble Supreme Court which laid down this view. In the specific case of Shyoraj Meena (supra) it was found that a simple reading of the impugned order by which the services of the applicant have been terminated would show that it is not an order of termination simpliciter but stigmatic in nature. It was not in Form II as prescribed under the Rules, but was a detailed order passed on an inquiry conducted by the authorities. Thereafter, after observing that the Hon'ble Apex Court had in Chandra Prakash Sahi (supra) had allowed the protection of Article 311 (2) of the Constitution not just to temporary servants but also to a probationer, the Tribunal found that the show cause notice issued to the applicant therein in Shyoraj Meena (supra) would fall short of requirement of Article 311 (2) of the Constitution of India. It was also found that the services of the applicant had been terminated under CCS (TS) Rules, 1965 which was not in the form II as prescribed under the said Rule, but that the said order was a detailed order casting stigma on the applicant and rendering the termination punitive in nature.

Learned counsel for the applicant submitted that the finding in Shyoraj Meena (supra) are also applicable in this matter too, as the termination herein has also been done by taking recourse to the CCS (TS) Rules, 1965. We have considered these aspects. Drawing from reasoning from this as well as the precedents earlier cited, the issue for us to first examine whether there was any punitive or stigmatic nature in the order of termination under the CCS (TS) Rules, 1965 in the case of the applicant herein, comparable to the above cases. We have already established that there is no illegality per se, in the order being issued under Rule 5 of CCS (TS) Rules, 1965, even though it would have been better had the applicant been terminated in terms of the letter of appointment and not under Rule 5.1. Further we have noted that the action was also done within the allowed period of probation and before any order of confirmation and there is nothing illegal in this regard as well. Next, in relation to whether any stigma or punitive nature can be attached to the order in question we are of the opinion that there cannot be any such conclusion drawn. The termination order clearly followed the format prescribed and was not in conclusion of an order of suo moto enquiry in Shyoraj Meena (supra). Thus it is difficult to discern any stigma or punitive aspect being attached in the order of termination served on the applicant as was the issue in the number of cases discussed earlier. Herein, the issue was not relating to any criminal misdemeanor based on wrong information being given on the part of the applicant or due to financial grounds or due to criminal suppression of an arrest, as was in Shyoraj Meena (supra). Termination was ordered on the ground of unauthorized absence, irresponsible behaviour, poor attitude towards job etc. Thus even after lifting the veil of the termination order and looking at the overall situation, we note that the applicant, who had been working as a Khalasi for a total period of almost four years clearly exhibited continued negative aspects such as unauthorized absence, poor behaviour, below average performance, misbehaviour with staff members, all of which were duly communicated to him from time to time by way of issue of memos and warnings. Thus, it cannot be submitted that he was not aware of the fact that his behaviour was creating grave concern to the respondents and could lead to deeper consequences.

It is also not correct to state, as has been tried to be established in his rejoinder by the applicant, that he was not informed of shortcomings in his performance of duties. He would have been quite aware because of the warnings of the possibilities of harsher action. This was also clear as his probation was also being extended from time to time. That, along with ACR grading of 'below average' should have been taken as a warning to him to improve his performance. Any other allegation now being made by him relating to pressures by his superior officials has to be assessed by whatever supporting evidence he has produced. This, in any case, to our mind is also not so much relevant in the circumstances of his specific case of termination as his own behavioral grounds. Even the allegations made by him about the influence of an employee who is a trade union leader is not relevant, as that employee had not got his way in the earlier O.A challenging the appointment of the applicant before this Tribunal. Thus, even after lifting the veil and examining the available facts we do not find that the reasons underlying the order at Annexure A-12 would drive some other conclusion. On the other hand, it appears that the respondents were justified in terminating the services of the applicant. As mentioned earlier, they had extended a very long rope to him and were quite sympathetic to him, which is evident by the steps taken to regularize his absence.

As we have noted, we do not find the facts and circumstances of this case covered by the principles underlying the judgments of the Hon'ble Supreme Court as well as that of the Principal Bench of this Tribunal. The facts in those cases, as was observed by the Hon'ble Supreme Court/Principal Bench, required that a proper departmental enquiry be conducted for establishing the misdemeanor. The dismissal/termination orders therein were clearly found to be stigmatic and punitive as the reasons for termination were communicated without a full enquiry, especially, as can be seen in Shyoraj Meena (supra). Here no such issue of punitiveness or stigma is established in the termination order. We do not think the protective camouflage of Article 311 (2) is applicable in this case. There were a series of missives served on the applicant by way of memos and warnings issued to the applicant which have not met by any denial on his part. On the other hand with the continued misbehaviour on his part while being on probation, the action for termination was justified and has no legal malice. We also note in this connection that often Courts take a larger view in relation to such applicants before them and order fresh consideration. Herein, in the backdrop of the factual considerations outlined earlier, we do not feel that any such sympathetic reconsideration is warranted. The avenues for safe and secure public employment in this country are available only for fortunate few and any such employment has to be treated as a privilege extended to a lucky citizen. The actions of the applicant after securing a coveted government job do not show that he was grateful for this rare privilege.

We, therefore, do not find sufficient ground for allowing the relief sought for by the applicant in this O.A. The O.A is accordingly dismissed. No order as to costs.