IMPORTANT POINTS
The termination order only referred to the show cause notice and his failure to submit any representation, upon which his services were terminated. The show cause notice specifically referred to in the order of termination, only speaks of continued absence from a prior date till the show cause notice was issued; without even an allegation of unauthorised absence, which alone would require an enquiry. As was noticed by the Hon'ble Supreme Court a termination order is implicitly stigmatic for reason of the probationer being found liable to be terminated on account of his unsatisfactory work. The issue has to be looked at on the basis of whether the allegation is the motive or foundation and whether it results in any evil consequences to the terminated probationer.

JUDGMENT :

Vinod Chandran, J.

The appellant was the applicant before the Tribunal, who challenged Annexure A5 order of termination. The Tribunal found that the applicant alleging physical illness had absented from duty from 29.10.2014 to 04.05.2015 without any sanction. He was found to have not attended the health unit of Railways at Chenkalpett where he was working or even the Railway hospitals in Kerala at Kottayam, Alleppy, Quilon and Ernakulam. The Tribunal found that the termination order was an order simplicitor without any allegation of misconduct. There was hence no requirement for a full fledged domestic enquiry; was the finding.

2. Sri.Martin G Thottan, the learned Counsel appearing for the petitioner submits at the outset that the termination order was passed by an officer who did not have jurisdiction. It was pointed out from the appointment order that the appointment was made by the Senior Divisional Personnel Officer while the termination was by the Assistant Divisional Engineer, a person lower in rank to the officer who issued the appointment order. The learned Counsel also relied on the Indian Railway Establishment Code and the Railway Servants (Discipline and Appeal)Rules, 1968 to submit that the appointing authority as seen from the Rules of 1968 is the highest authority among those indicated in Rule 2(1)(a). It is further argued that notice as required in the Railway Establishment Code, for termination for unsatisfactory service is not one in the nature of a show cause notice. The fact that a show cause notice was issued indicates an allegation of misconduct; which can only be culminated with an enquiry. Termination order is also said to be one for unauthorised absence and there is an imputation of something more than mere unsuitability. The learned Counsel also relies on the decisions in 1999(3) SCC 60 [Dipti Prakash Banerjee v Satyendra Bose National Centre for Basic Sciences] and (2002)1 SCC 520[ Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and another]. It is submitted that the language of the termination order has to be specifically looked at to find the existence of stigma. Though it is conceded that a probationer can be terminated for reason of unsatisfactory service, if the termination is found to be in the nature of a punishment the same has to be set aside, if there is no enquiry conducted, argues Counsel.

3. The learned Standing Counsel Sri Thomas took us through the 'Schedule of Powers' to contend that the appointing authority and the authority which terminated the appellant are in the same stage. Though the appointment shows that the Assistant Personnel Officer (APO) has issued the order for the Senior Divisional Personnel Officer (SDPO), in fact the APO is competent to issue such appointment order. Only because the SDPO had approved the appointment, the order was issued in that manner, which was only due to a bonafide mistake. It is also argued that there is no stigma attached to the termination of the applicant.

4. We will first consider the aspect of jurisdiction based on the Establishment Code, the Rules of 1968 and the Schedule of Powers. The Rules of 1968 define appointing authority under Section 2(1)(a). Different authorities are specified in clauses (i) to (iv) and in the end it is stated “whichever authority is the highest authority”. The submission of the learned Counsel for the petitioner is that when termination is ordered, it can only be by the highest authority. We agree with the said submission, but however, notice that such definition applies only in the context of termination in accordance with the Rules of 1968. In the present case, admittedly, there is no allegation of misconduct or a disciplinary enquiry conducted. The petitioner was terminated from service as per Paragraph 301 of Chapter III-'Termination of Service' under the Indian Railway Establishment Code Vol.I.

5. Para 301(3) of the Establishment Code speaks of Termination of Service of “Certain other rai