A. Rajashekar vs State of Karnataka

Jayant Patel, J.—The present petition is directed against the order dated 28.1.2016 passed by the Tribunal whereby the Tribunal for the reasons recorded in the order has dismissed the petition.

We have heard Sri K.H. Heroor, learned Counsel appearing for the petitioner.

The contention raised on behalf of the petitioner was that no opportunity has been given nor any enquiry has been held in connection with the allegations or the grounds mentioned in the order of termination and the order of discharge. He submitted that even if the employee concern was on probation, if the services were to be terminated on the ground of misconduct, enquiry was required to be held. Learned Counsel further submitted that in similar matter, the Tribunal vide order dated 18.1.2010 passed in Application No. 5977 of 2008 had taken the view that the enquiry as per the Karnataka State Police (Disciplinary Proceedings) Rules, 1965 was required to be held and as was not held, the Tribunal set aside the order even though person concern w as on probation. It was submitted that the aforesaid decision was brought to the notice of the Tribunal. But the Tribunal has taken a different view in the present matter and therefore, the order of the Tribunal impugned in the present petition needs interference by this Court. Learned Counsel also relied upon certain decisions to which reference shall be made hereinafter.

It may be recorded that it is undisputed position that the petitioner was on probation and he was not confirmed in service. Further, the order is for discharge under Rule 6 of the Karnataka Civil Services (Probation) Rules, 1977 and is not for dismissal or removal from service. Since as per the Rule 6, the grounds are required to be mentioned, the grounds are mentioned in the impugned order of discharge that he failed in training in the 7 subjects out of 10 subjects. Subsequently, he passed in 5 subjects but in respect of other subjects the exam was not passed. He remained unauthorisedly absent on 15 occasions totalling into 89 days. Further, there is also reference to the case registered against the petitioner. Considering the totality of the circumstances, it has been decided that the petitioner is not continued in service and he has been discharged. The order, by no such of imagination can be said as removal from service or dismissal from service.

The contention raised that the opportunity of hearing was required to be given or any enquiry was required to be held would hold good only in a matter where the person is dismissed from services or removed from services, but such was not the situation hence the contention has no legs to stand. At this stage, we may usefully refer to Rule 6 of the Rules of 1977 which reads as under:

"6. Discharge of a probationer daring the period of probation.- (1) Notwithstanding anything Rule 5, the Appointing Authority may, at anytime during the period of probation, discharge from service a probationer on grounds arising out of the conditions, if any, imposed by tin rules or in the order of appointment, or on account of his unsuitability for the service or post; but the order of discharge except when passed by the Government, shall not be given effect to, till it has been submitted to and confirmed by the next higher authority.

(2) An order discharging a probationer under this rule shall indicate the grounds for the discharge but no formal proceedings under the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, shall be necessary."

The aforesaid rule expressly provides that the enquiry under the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 is not required. The rule also provides that in a case where termination is for misconduct, the enquiry may be required. In the present case, it is not a case of termination on the ground of misconduct and hence the enquiry as per Rules of 1957 was not required to be held. If the facts and circumstances are considered in the light of the aforesaid legal position, it cannot be said that the order passed for discharge in service was illegal. Hence, we do not find any case made out to interfere with the order passed by the Tribunal.

The reliance placed upon the decision of the Apex Court in case of O.K. Bhardwaj v. Union of India and others, (2001) 9 SCC 180, is ill founded inasmuch as in the said decision before the Apex Court, it was a matter for imposition of punishment. In the another decision of the Apex Court in case of State of Uttar Pradesh and others v. Anil Kumar Sharma and another, (2015) 6 SCC 716, the observations are made for the judicial restraint and discipline in the administration of justice, which has nothing to do with the facts of the present case. However, the learned Counsel for the petitioner contended that in similar matter same view was taken but the Tribunal in the present facts has taken different view. Therefore, discipline of judicial propriety is not maintained.

There cannot be a different view for the observance of the judicial propriety and the discipline. In our further consideration, it appears that contention that in similar matter the Tribunal had taken different view is ill founded inasmuch as earlier similar decision of the Tribunal for which the reference is made was a case of removal as stated in the order passed and was not a case of discharge. Therefore, if the facts and circumstances are different and the Tribunal has taken a different view, it cannot be said that the discipline is not maintained in administration of justice as sought to be canvassed.

In view of the above and reasons recorded by the Tribunal, we do not find any case made out for interference. Hence, the petition is dismissed.