SANJAY VASUDEORAO ETANKAR Vs. UNION OF INDIA
LAWS(CAL)-1996-2-8
HIGH COURT OF CALCUTTA
Decided on February 28,1996

SANJAY VASUDEORAO ETANKAR Appellant
VERSUS
UNION OF INDIA Respondents


Referred Judgements :-

SAMSHER SINGH V. STATE OF PUNJAB AND ANOTHER ETC. [REFERRED TO]
N.M. KHAN NADIAD V. STATE OF GUJARAT AND OTHERS [REFERRED TO]
ANOOP JAISWAL V. GOVERNMENT OF INDIA AND ANOTHER [REFERRED TO]
BISWAJIT DEB ROY V. INDIAN OVERSEAS BANK AND OTHERS [REFERRED TO]
SRI RAM SUBAL NONIA V. UNION TERRITORY OF MIZORAM AND OTHERS [REFERRED TO]
PARSHOTAM LAL DHINGRA VS. UNION OF INDIA [REFERRED TO]
DEOKINANDAN PRASAD VS. STATE OF BIHAR [REFERRED TO]
OIL AND NATURAL GAS COMMISSION VS. DK MD S ISKENDERALI [REFERRED TO]
INDRA PAL GUPTA VS. MANAGING COMMITTEE MODEL INTER COLLEGE THORA [REFERRED TO]
RAJINDER KAUR VS. STATE OF PUNJAB [REFERRED TO]


JUDGEMENT

- (1.)BY this Writ Application under Article 226 of the Constitution of India the Writ Petitioner Sanjay Wasudeorao Etankar (hereinafter referred to as petitioner) has prayed the Court for issue of a writ of or in the nature of mandamus "commanding the respondents and each of them to recall, rescind and/or to forbear from giving effect or further effect to the said impugned notice dated 4. 7. 91" as contained in Annexure 'a' herein", along with the other reliefs prayed for therein, for the reasons stated and on the grounds made out therein. It is contended by the petitioner that he had been appointed as a Probationer constable with effect from 10. 3. 1990 after completion of his initial, course of training, and had been working under Shalimar Division under the Administrative control of the Assistant Security Commissioner, R. P. F. , S. E. Railway, Shalimar. The probationary period of a Constable or every member of the Force on appointment to the Force according to Rule 57 of the Railway Protection Force Rules, 1987 (hereinafter referred to as Rules) is for a period of two years. The Controlling authority may, however, extend the period of probation in accordance with the instructions issued by the Central Government from time to time. It is contended that the petitioner had not completed his probationary period of two years. But he had suddenly received a purported notice dated 31. 7. 91 of termination of service during his probationary period alleging therein that he had unauthorised absented himself from duty on four occasions which proves his indifferent attitude and serious misconduct, unbecoming of the Member of the R. P. F. , an Armed Force of the union, being Annexure 'a' to the Writ Application. In terms of the said Notice he is thus sought to be terminated by putting a stigma against his conduct without giving him any opportunity of hearing, contrary to the principles of natural justice, which is not sustainable in law, and is accordingly liable to be set aside. Hence the instant writ Application.
(2.)THE petitioner's Writ Application is resisted by the contending Respondents by filing Affidavit-in-Opposition wherein it is contended, inter alia, in Paragraph-4 thereof that the petitioner is most indisciplined, unbecoming of the Member of the disciplined Force, and his refusal to accept the notice further confirms his indifferent and adamant attitude and it has thus been considered that he is not a fit person to be retained in the Disciplined Force; and as such the Authority concerned in exercise of the powers conferred on him under Rule 57. 3 of the Rules had issued the aforesaid impugned Memo, dated 31. 7. 91 for termination of his service, which was served upon him (petitioner) on 24. 8. 91 on due acknowledgment, and his service as a Probationer Constable has been terminated, being discharged from service with effect from 24. 9. 91 on the expiry of one month's notice. The Writ Application is, accordingly, liable to be rejected.
(3.)RULE 57 of the Rules provides that every Member on appointment to the Force either by direct recruitment or by promotion shall be on probation for a period of two years, which may be extended in terms to the proviso thereof. Rule 57. 2 prescribes that on successful completion of the period of probation or any extension thereof, a Member of the Force shall be retained in his appointment on regular basis and be confirmed in due course against the available substantive vacancy. And, Rule 57. 3 provides that if during the period of probation or any extension thereof, as the case may be, the appointing Authority is of the opinion that the Member of the force is not fit for permanent appointment, the appointing Authority may terminate the services of a direct recruit or revert the Member of the Force to the post held by him prior to such appointment in terms thereof.- A look to the impugned notice dated 31. 7. 91, being Annexure 'a' to the Writ application, such as it is, would at once clearly indicate that it is not a case of termination of service simpliciter on the ground that the appointing Authority is of opinion that the petitioner is not fit for permanent appointment. It has been clearly indicated in the aforesaid impugned notice that during the period of his two years probation it has been reported by the Assistant Security Commissioner, R. P. F. , shalimar that he (Petitioner) had absented himself from duty unauthorised on four occasions i. e. from 23. 4. 90 to 16. 6. 90 for 53 days, 15. 8. 90 to 24. 8. 90 for 10 days, 16. 9. 90 to 1. 11. 90 for 47 days, and from 17. 12. 90 till date. A Notice was also sent to the petitioner by registered post at his home address advising him to resume duty within three days which was received back with the remarks by the Postal department on the cover thereof on 27. 2. 1991 as 'refused'. It has been clearly stated in the aforesaid impugned notice that the petitioner's repeated unauthorised absence without intimation and refusal to accept the official documents amply proves his indifferent attitude and serious misconduct, unbecoming of a Member of the R. P. F. , an Armed Force of the Union. It was thus considered by the Authority concerned that the petitioner's retention in the service would be undesirable and detrimental to the interest of the Disciplined Force for which the former had decided to terminate the petitioner. Hence the aforesaid impugned notice of termination of service of the petitioner which was to take effect on the expiry of one month's notice in terms of Rule 57. 3 of the aforesaid Rules.
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