Calcutta High Court: In a petition challenging the order of the Central Administrative Tribunal, Kolkata Bench, dated 13-09-2022, which set aside the termination of the respondent 1’s service as a probationary Civil Motor Driver at the Army Recruiting Office, Gopalpur, a division bench comprising of Gaurang Kanth* and Tapabrata Chakraborty, JJ., dismissed the writ petition, affirming the Central Administrative Tribunal’s decision. The Court held that “the termination letter dated 13th July, 2018 was issued without affording an opportunity of hearing to the respondent no. 1 and hence it is in violation of Article 311 (2) of the Constitution of India.”
Brief Facts
In the instant matter, respondent 1 was appointed on 27-11-2017, as a Civil Motor Driver on probation for two years. Respondent 1 was terminated from service based on alleged misconduct during a recruiting rally on 12-02-2018, where he was accused of providing his mobile number to candidates with ulterior motives. A Board of Officers conducted an inquiry, recommending disciplinary action against respondent 1. Integrated Headquarters of Ministry of Defence directed termination as per Para 3 of the appointment letter. The termination occurred on 13-07-2018, without affording an opportunity of hearing to respondent 1.
Respondent 1 challenged the said termination before the Central Administrative Tribunal, Kolkata Bench, and vide order dated 13-09-2022, the same was set aside. In the present petition, the petitioners challenged the impugned order passed by the Central Administrative Tribunal.
Moot Point
-
Whether the termination was a simple termination as per the appointment letter or a punitive measure for alleged misconduct?
-
Whether the termination violated Article 311(2) of the Constitution of India by not affording an opportunity of hearing?
Parties’ Contentions
The petitioners contended that the termination was within the powers of Para 2 & 3 of the appointment letter for a probationer. It was contended that the inquiry was a fact-finding exercise due to respondent 1’s probationary status, not requiring a full disciplinary process under Central Civil Services (Temporary Services) Rules, 1965. It was further contended that the respondent 1’s termination was simpliciter, with no stigma attached.
Respondent 1 contended that the termination violated due process, as respondent 1 was not given an opportunity of hearing. It was contended that the termination was punitive, impacting the character and integrity of respondent no. 1, justifying court intervention.
Court’s Analysis
The Court referred to legal precedents, including State of Punjab v. Sukhraj Bahadur, 1968 SCC OnLine SC 26 and Samsher Singh v. State of Punjab, (1974) 2 SCC 831, to establish principles governing the termination of probationers. The Court rejected the petitioners’ argument that the inquiry was only fact-finding, stating that it aimed to determine alleged misconduct.
“Even though, the termination order dated 13th July, 2018 was made under the camouflage or cloak of an order of termination simpliciter as per the terms of the appointment letter, it was actually a punishment on the ground of alleged misconduct.”
The Court concluded that the termination was based on an inquiry into alleged misconduct, not performance, making it punitive. The Court opined that the termination, though appearing simpliciter, lacked due process by not providing respondent no. 1 with an opportunity of hearing, violating Article 311(2) of the Constitution. The Court held that the Tribunal rightly quashed the termination with all the consequential benefits.
Court’s Decision
The writ petition is dismissed, and the termination order is set aside. The petitioners may initiate disciplinary proceedings in accordance with the law. No costs are awarded. A subsequent prayer for a stay is rejected.
[Union of India v. Soumitra Dey, 2023 SCC OnLine Cal 5095, order dated 15-12-2023]
*Judgment by Justice Gaurang Kanth
Advocates who appeared in this case :
Mr. Billwadal Bhattacharyya, Mr. Pramod Kumar Drolia, Mr. Santosh Kumar Pandey, Counsel for the Petitioners
Mr. P. C. Das, Counsel for the Respondent 1
