Point of Law : If misconduct was motive, order of termination cannot be treated as punitive but if same is foundation of termination, it is punitive.

JUDGMENT :

Heard Mr. R. Mazumdar, learned counsel for the petitioner. Also heard Mr. A.K. Dutta, learned CGSC, for Union of India.

2. This writ petition is filed assailing the order dated 20.11.2019 issued by the Commandant, 68 Bn, of Central Reserve Police Force (in short CRPF), whereby it was intimated that the service of the petitioner shall be terminated w.e.f. the date of expiry of one month from the date of receipt of the notice as per mandate of Sub Rule 1 of Rule 5 of Central Civil Services (Temporary Services) Rules, 1965. Further challenge is the order dated 24.12.2019, whereby the name of the petitioner was struck off from the Unit.

3. The petitioner was enrolled in the CRPF as Constable (General Duty) after a due selection process and by order dated 9.3.2004.

4. Mr. Mazumdar, learned counsel for the petitioner submits that though no separate confirmation order was issued or no extension of probation period was made by virtue of Rule 108 of CRPF Rules, 1955, the petitioner’s service was deemed to have been confirmed. Thereafter the petitioner continued to serve CRPF without any blemish till 19.12.2019, when the impugned order was issued, Mr. Mazumdar submits.

5. The learned counsel for the petitioner contends that the condition precedent required to issue the impugned order was not available in as much as in the given facts the petitioner cannot be treated as Temporary employee after 15 years of service in the Force and therefore provision of CCS (Temporary Service) Rule 1965 is not applicable in the case of the petitioner.

6. Mr. Mazumdar further submits that on the basis of alleged fraud in the matriculation certificate, the petitioner cannot be terminated without giving him a due opportunity of hearing as provided under Rule 27 of CRPF Rules, 1955. Accordingly, Mr. Mazumdar submits that entire process of removing the petitioner from the role of CRPF is illegal and same is liable to be interfered with and petitioner needs to be reinstated in service.

7. Mr. Mazumdar further contends that as it has been alleged that the petitioner has been terminated for the reason of submission of fake certificate, the CCS (Temporary Service) Rule shall not be applicable.

8. Mr. R. Mazumdar, forcefully submits that the petitioner in absence of any order of confirmation in service beyond the period of probation, need to be treated as confirmed and permanent employee and he relies on a judgment of this court in Rajendra Singh vs. Union of India and others reported in (2008) 4 GLR 101 in support of his submission, in support of his contention.

9. Per contra Mr. A.K. Dutta, learned CGC submits that as the petitioner’s service was not confirmed by virtue of Rules 108(2) of the CRPF Rule 1955, therefore the authority was right in issuing impugned termination order under CCS (Temporary Service) Rule, 1965.

10. This Court has given anxious consideration to the submissions made by the learned counsel for both the parties.

11. The Rule 108 of CRPF Rules, 1955(in short the Rules 1955) deals with the probation and confirmation. The said Rule provides that the period of probation is for two years. On completion of period of probation, if the employer considers the person to be fit for permanent appointment, the person need to be confirmed in their appointments subject to availability of substantive vacancy.

12. Sub Rule 3 of said Rules empowers the Government to extend the period of probation.

13. Sub-Rule 4 provides that if on expiration of probation or after extension of probation, the Government is of the opinion that the candidate is not fit for permanent appointment the Government may discharge the person from service or pass such order as they deem fit.

14. Sub Rule 5 mandates that when Govt passes no order under sub-Rule (2) or (3) or (4) of Rule 108, the period of service, after the prescribed of probation shall be treated as engagement from month-to-month basis and such service is terminable by either of the parties after expiry of a notice of one