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CANTONMENT BOARD MEERUT THROUGH EXECUTIVE OFFICER AND ANR versus ARVIND KUMAR GUPTA AND ORS.

High Court of Judicature at Allahabad

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Cantonment Board Meerut Through Executive Officer And Anr v. Arvind Kumar Gupta And Ors. - SPECIAL APPEAL No. 982 of 1997 [2004] RD-AH 488 (10 August 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Special Appeal No. 982 of 1997

Cantonment Board, Meerut and another Vs. Arvind Kumar Gupta and others ~~~~

Hon'ble Tarun Chatterjee, CJ

Hon'ble Dilip Gupta, J.

(Delivered by Hon'ble Dilip Gupta, J.)

The appellants have assailed the judgment of a learned Judge by which the writ petition filed by a Junior Engineer (Electrical) in the Cantonment Board, Meerut for quashing the order dated 13.8.1996 terminating his services was allowed and the order of termination was set aside.

The petitioner respondent No. 1 in this Special Appeal was appointed by the Cantonment Board, Meerut as a Junior Engineer (Electrical) on probation for a period of two years in the first instance by means of the appointment order dated 26.7.1994. His period for probation was extended for a period of three months by means of the order dated 2.8.1996 but before this extended period of probation could expire, his services were terminated by means of the order dated 13.8.1996 by the Executive Officer exercising powers under the proviso to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 (hereinafter referred to as ''the CCS 1965 Rules'). A further direction was issued in the said order that he shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of notice. This order dated 13.8.1996 was sought to be challenged in the writ petition out of which the present Special Appeal arises on the ground that the CCS 1965 Rules did not apply to the officers of the Cantonment Board and in any case the petitioner was not a temporary employee. It was also contended that the services of the petitioner respondent No. 1 were governed by the provisions of The Cantonment Fund Servants Rules, 1937 (hereinafter referred to as ''the 1937 Rules') and the order of termination was by way of punishment and was not an order simplicitor dispensing his services.

The learned Judge, after recording a finding that the petitioner respondent No. 1 continued to be on probation on the date the impugned order was passed, held that the CCS 1965 Rules did not apply in respect of the employees of the Cantonment Board and, therefore, the impugned order which had been passed by the Cantonment Board under the CCS 1965 Rules could not stand. The learned Judge was also of the opinion that the impugned order had been passed by way of penalty without complying with the requirements of the principles of natural justice and, therefore, also the impugned order was liable to be set aside. In such circumstances, the writ petition was allowed and the impugned order dated 13.8.1996 was set aside.

We have heard the learned counsel for the appellants and the learned counsel appearing for respondent No.1 and have also examined the materials available on record.

Learned counsel for the appellants submitted that the petitioner respondent No. 1 had been appointed on a temporary basis and he continued to remain a temporary employee and as such his services were rightly terminated under the CCS 1965 Rules. He, therefore, submitted that the findings to the contrary recorded by the learned Judge were incorrect and in any view of the matter a mere mention of a wrong provision of law cannot invalidate the order if it is found that the authority which had taken the action was competent to take such an action under some other provision of law. He further submitted that the findings recorded by the learned Judge that the order of termination was by way of penalty without complying with the requirements of principles of natural justice was incorrect.

Learned counsel for the respondents, however, submitted that the petitioner respondent No. 1 was appointed on probation for a period of two years by means of the order dated 26.7.1994; that he was not a temporary employee; that his services were governed by the provisions of the 1937 Rules; that the CCS 1965 Rules were not applicable to the employees of the Cantonment Board and in any case since he was not a temporary employee, his services could not be terminated taking recourse to the provisions of these Rules. He also defended the order of the learned Judge that the order of termination was way of penalty which had been passed without even complying with the principles of natural justice.

The 1937 Rules have been framed in exercise of the powers conferred under Section 280 of the Cantonment Act, 1924. These Rules apply to all persons employed by any Cantonment Board in India. Rules 3, 3-A and 8 (1) of the 1937 Rules, which are relevant for the purposes of the controversy involved in the instant appeal are quoted below:-

"3. Chapter I to XI of the Fundamental Rules and the Supplementary Rules made under the rules contained in the said chapters, as continued in force and the Central Civil Services (Conduct) Rules, 1964 shall, so far as they are not inconsistent with these Rules, be deemed to apply to all servants. The powers of Local Government referred to in the said fundamental Rules shall be exercised in respect of such servants by the Officer Commanding-in-Chief, the Command.

3-A. Notwithstanding anything contained in Rule 3, the Central Civil Services (Leave) Rules, 1972, shall, in so far as may be, apply to all servants appointed on or after the 18th September 1937, who are still continuing in service.

8. (1) The Board or the officer appointing a servant may discharge such servant-

(a) during or at the end of his period of probation;

(b) on his being declared by a medical officer approved by the Board to be medically unfit for further service;

(c) at any time after he has attained the age of fifty five years or has completed thirty years qualified service; subject to such directions as the Central Government may issue from time to time in this regard

(d) in accordance with the terms of a written contract, if any, between such servant and the Board; or

(e) in pursuance of a reduction or revision of establishment and not otherwise.

(2) A servant in receipt of a monthly wage, who is discharged under clause (a) of sub-rule (1); shall, in the absence of a written contract to the contrary be entitled to one month's notice before discharge or to one month's salary in lieu thereof; and a servant not having attained the age of fifty eight years who is discharged in pursuance of clause (c) or clause (e) of the said sub-rule shall, in the absence of a written contract to the contrary, be entitled to three months notice before discharge or three month's salary in lieu thereof:

Provided that before a servant is discharged under clause (a) of the said sub-rule he shall be apprised of the grounds on which it is proposed to discharge him and given an opportunity of showing cause against it.

........."

A perusal of the aforesaid Rule 3 indicates that Chapter I to XI of the Fundamental Rules and the Supplementary Rules made under the rules contained in the said chapters and the Central Civil Services (Conduct) Rules, 1964 shall, so far as they are not inconsistent with these Rules, be deemed to apply to all servants. Rule 3-A further provides that notwithstanding anything contained in Rule 3, the Central Civil Services (Leave) Rules, 1972, shall, in so far as may be, apply to all servants appointed on or after the 18th September, 1937, who are still continuing in service. It is, therefore, clear that the CCS 1965 Rules have not been made applicable to the employees of the Cantonment Board. Such being the position, we agree with the learned Judge that the CCS 1965 Rules do not apply to the employees of the Cantonment Board.

Even otherwise, as stated above, the petitioner respondent No.1 had been appointed on probation initially for a period of two years which was subsequently extended for a period of three months. There is nothing in the appointment letter to indicate that he was appointed on a temporary basis. Rule 5 of the CCS 1965 Rules provides that the services of a temporary government servant shall be liable to termination at any time by notice in writing. Since the petitioner respondent No.1 was not a temporary servant, the provisions of Rule 5 could not have been resorted to by the Cantonment Board for terminating his services.

We now come to the next submission advanced by the learned counsel for the appellants that a mere mention of a wrong provision of law does not vitiate the order if it is established that the power can be traced to some other provision of law. Though the learned counsel for the appellants has not pointed out the other provision of law under which such a power could be exercised, we find that Rule 8 (1) of the 1937 Rules does provide for discharge of a servant during or at the end of the period of the probation. Rule 8(2), however, provides that a servant in receipt of a monthly wage, who is discharged under clause (a) of sub-rule (1); shall, in the absence of a written contract to the contrary be entitled to one month's notice before discharge or to one month's salary in lieu thereof provided that before a servant is discharged under clause (a) of the said sub-rule he shall be apprised of the grounds on which it is proposed to discharge him and given an opportunity of showing cause against it. Thus, even if the order of termination is traced to the powers flowing under Rule 8(1) of the 1937 Rules, then too the order cannot be justified since the petitioner respondent No.1 had not been apprised of the grounds on which it was proposed to discharge him and he was not given an opportunity of showing cause against it. This being the position, even this submission of the learned counsel for the appellants cannot be accepted.

In view of the fact that the quashing of the termination order can be justified on the grounds indicated above, we do not feel it necessary to examine the other contention raised by the learned counsel for the appellants in respect of the additional reason given by the learned Judge for quashing the termination order by holding that the order was punitive in nature and could not have been passed without complying with the principles of natural justice.

For the reasons stated above, the Special Appeal is liable to be dismissed and is, accordingly, dismissed. There shall be no order as to costs.

Dt/-

Sharma


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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