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2014 Supreme(Mad) 1999
HIGH COURT OF JUDICATURE AT MADRAS
V. DHANAPALAN & S. VIMALA, JJ.
Union of India rep. By its Secretary to Government of India & Others
Versus
Sanjay Kumar Jha & Another
W.P. No. 21757 of 2011 & M.P. No. 1 of 2011
Decided on: 15-07-2014
Advocate Appeared
For the Petitioners: S. Udayakumar, SCGSC.
For the Respondents:R1, N. Fidelia, Advocate.
The termination of a probationer does not amount to penalty under Rule 11 of CCS (CC&A) Rules and the interregnum period cannot be treated as dies non.
Headnote:
Punishment of dies non - Probationer - CCS (CC&A) Rules, Rule 11, Rule 62 of P & T Manual Volume III, F.R. 54(2) and 54(4) - The court analyzed the application of Rule 11 of CCS (CC&A) Rules, the explanation to the said Rule, Rule 62 of P & T Manual Volume III, and F.R. 54(2) and 54(4) in the context of imposing dies non on a probationer. The court found that the termination of a probationer does not amount to penalty under Rule 11 and the interregnum period cannot be treated as dies non. The court remanded the matter to the competent authority for reconsideration of the first respondent's claim for pay and allowances in accordance with law.
Fact of the Case:
The first respondent, a probationer, was terminated from service during a criminal case, acquitted later, and reinstated. The dispute arose regarding the treatment of the interregnum period from termination to reinstatement for seniority and pensionary benefits.
Finding of the Court:
The court found that the termination of a probationer does not amount to penalty under Rule 11 and the interregnum period cannot be treated as dies non. The court remanded the matter to the competent authority for reconsideration of the first respondent's claim for pay and allowances in accordance with law.
Issues: The main issue was whether the period of termination of a probationer can be treated as dies non and counted for seniority and pensionary benefits.
Ratio Decidendi: The court held that the termination of a probationer does not amount to penalty under Rule 11 and the interregnum period cannot be treated as dies non. The matter was remanded to the competent authority for reconsideration of the first respondent's claim for pay and allowances in accordance with law.
Final Decision: The writ petition was disposed of with the observation that the dies non, as ordered by the authority, is not in accordance with law. The matter was remanded to the competent authority for reconsideration of the first respondent's claim for pay and allowances in accordance with law.
V. Dhanapalan, J.
1. What is challenged in this writ petition is the order of the Tribunal dated 23.11.2010 made in O.A.No.1047 of 2009, whereby the Tribunal held that the period for which the first respondent was out of service i.e. from 18.03.2003 to 12.11.2006 shall be counted for the purpose of seniority and pensionay benefits.
2. The matter entirely rests upon the question as to whether the punishment of dies non can be imposed upon a probationer.
3. The brief facts of the case are as follows:
(i) The first respondent was working as CPW Skilled in the third petitioner Cordite Factory and on 15.03.2003, during his probation period, he along with another employee of the Cordite Factory was arrested by the Wellington Police on the complaint of the Security Officer of the said Cordite Factory. The first respondent was implicated as second accused in C.C.No.30 of 2013. Subsequently, as criminal proceedings were initiated against him, he was dismissed from service from 18.03.2003. In the criminal case in S.C.No.41 of 2003 before the District and Sessions Court, Nilgiris, the first respondent and the other accused were convicted and imposed with life sentence, by an order dated 29.04.2004. The first respondent preferred an appeal before this Court in Crl.A.No.664 of 2004 and by a judgment dated 21.09.2006, he was acquitted from the criminal case whereas the first accused was convicted. On the representation made by the first respondent dated 28.10.2006, he was reinstated into service on 12.11.2006, by extending the probation period of the first respondent for a further period of one year from 07.04.2007. But the first respondent was denied of all the other benefits.
(ii) When the first respondent sought for the other benefits, the authority viz., the third petitioner herein vide an order dated 29.01.2008, rejected the claim stating that as the services of the first respondent was terminated during his probationary period by invoking Clause 2.1(b) of the appointment order, the termination cannot be construed as penalty/punishment under Rule 11 of Central Civil Services Classification Control and Appeal Rules (in short “CCS (CC&A) Rules”) and the interregnum period from 18.03.2003 to 11.11.2006 cannot be treated as period spent on duty. The third petitioner further ordered that the period from 18.03.2003 to 11.11.2006 has to be treated as dies non and that the said period will neither be counted as service nor be construed as break in service. Aggrieved against the same, the first respondent preferred an appeal to treat the said period as duty and the same was rejected vide order dated 30.10.2008. Challenging both the orders dated 29.01.2008 and 30.10.2008, the first respondent has preferred an Original Application before the Tribunal in O.A.No.1047 of 2009.
(iii) Before the Tribunal, the petitioners filed reply statement. In their reply statement, it has been stated that the first respondent was terminated, invoking Clause 2.1(b) of his appointment order dated 30.07.2001. It was further stated that technically, the first respondent was neither dismissed nor removed from service but was terminated from service while on probation. Therefore, initiation of departmental enquiry and awarding penalty does not arise. After his acquittal in the criminal case, the first respondent made a representation, requesting for reinstatement, which was also sympathetically considered by the appointing authority and he was reinstated into service with effect from 12.11.2006. But the first respondent was issued with a show cause notice dated 10.10.2007 as to why the interregnum period from 18.03.2003 to 11.11.2006 should not be treated as dies non. The first respondent's request to treat the above period as spent on duty was rejected.
(iv) On consideration of the case put forth by the petitioners as well as the first respondent, the Tribunal came to the conclusion that the petitioners have rightly extended the probation period of the first r
