Ashok Kumar vs Union of India and Others

Anil Kumar, J.—The petitioner has sought a writ against the respondents directing them to reinstate the petitioner as Constable/GD and he has also sought the quashing of order dated 21st March, 2011 passed by respondent. dismissing the appeal and order dated 10th August, 2010 passed by respondent No.3 dismissing the petitioner from service. Brief facts as alleged by the petitioner are that he was appointed in Central Industrial Security Force on 3rd October, 2009 as a Constable/GD on probation for a period of two years from the date of his appointment. The petitioner contended that he underwent training successfully in the 34th batch of Constable/GD at CISF RTC, Arakkonam.

The petitioner revealed that during the course of his training at RTC, Arakkonam on 11th November, 2009, while running in PT class he fell down and sustained an injury in his right hand little finger. The petitioner was medically examined at the CISF Hospital and thereafter, he was referred to CGHS Hospital. After the regular medical treatment he was declared medically fit to complete his

training course at MIOT Hospital on 19th December, 2009.

According to the petitioner, though he was declared medically fit to complete his training on 19th December, 2009, however, on 11th August, 2010 he was handed over a termination order dated 10th August, 2010 on behalf of Senior Commandant, respondent No.3 giving one month''s salary in lieu of one month''s notice and informing the petitioner that in view of the powers conferred by virtue of Rule 26(4) of the CISF Rules, 2001 the service of the petitioner have been terminated.

The petitioner further disclosed that he received a copy of Part-I, Service Order No.82/2010 on 13th September, 2010 under the heading strength decrease (termination from service).

Against the termination of his service, by order dated 10th August, 2010 passed by respondent No.3, Sr. Commandant, RTC, Arakkonam, the petitioner had preferred an appeal under Rule 26 of CISF Rules, 2001 before the Inspector General (IG/TS), respondent no.2. The appeal of the petitioner was also dismissed by respondent No.2 by order dated 21st March, 2011.

Aggrieved by his termination and rejection of his appeal, the petitioner has filed the present writ petition, inter-alia, on the grounds that the order of termination and the order rejecting his appeal are against the principles of natural justice. According to the petitioner, he was declared medically fit by a competent doctor and, therefore, there was no justification for terminating the services of the petitioner from CISF. According to the petitioner, the order of termination is on account of bias and as a result of pick and choose policy adopted by the respondents. The petitioner contended that he has been discriminated against as two of his crippled co-trainees namely DMRC (D) Pandav Natver Bhai Daliji (with hip joint fracture) and DMRC (D) Barhunkha Boka (with ankle joint fracture) have been retained in the service of CISF despite having physical disability and they were not given the same treatment as has been given to the petitioner. According to the petitioner, these persons are unable to move without wheel chairs. Referring to the order dated 13th September, 2010, the petitioner contended that it is contrary to the reasons given in the termination order as there was no decrease in the strength at the material time necessitating the termination of petitioner''s service.

The petitioner has also challenged his termination on the ground that he is the only earning member of his family and that the termination of his service has thrown his entire family on the verge of starvation and has caused grave miscarriage of justice. The petitioner, in the circumstances, has contended that his termination is against the mandate of Article 311 of the Constitution of India and is also against the mandate of law as laid down in CISF Act, 1968, CISF Rules, 2001 (as amended) and the law laid down by the Supreme Court of India and the various High Courts.

Mr. Himanshu Bajaj Advocate, the learned counsel for the respondents who appears on advance notice has refuted the pleas and contentions of the respondents and has drawn the attention of this Court to the order dated 21st March, 2011 categorically stipulating that the petitioner has not been dismissed from the service on account of the injuries sustained by him, as the petitioner was treated and after the treatment he was declared medically fit. The learned counsel has pointed out that the petitioner could not complete his basic training so he was advised medical rest for 43 days from 11th November, 2009 and he was to rejoin the training on 24th December, 2009. On account of the medical rest he had missed the major portion of the training and it was not possible for the petitioner to complete his basic training with the 34th batch and, therefore, the petitioner was relegated to 35th batch as he had failed in the PT, Drill and Weapons Training (WT) during the outdoor test. The order dated 27th April, 2010 was issued in this regard.

The learned counsel has also pointed out that the petitioner was again relegated by four weeks by order No.2867 dated 15th June, 2010 as he had again failed in the PT, drill and Weapons Training during the outdoor test of the 35th batch. As the petitioner could not qualify the PT, and weapon training and he was relegated on 27th July, 2010. The petitioner yet again failed for the third time in the outdoor test which was conducted in RTC, Arakkonam.

Since the agreement executed with the petitioner signed on 17th December, 2009 categorically stipulated that on failure of the petitioner to pass the final examination and the final training, he could be terminated by the appointing authority, therefore, the petitioner was terminated. The learned counsel for the respondents has contended that the termination of the petitioner has nothing to do with his medical sickness and in the circumstances, the alleged ground that the petitioner has been discriminated vis-a-vis Pandav Natver Bhai Daliji and Barhunkha Boka is not sustainable as the petitioner has failed the final outdoor test of his basic training even after giving him three chances and, therefore, the petitioner has no cogent reason to challenge his termination and alleged any discrimination.

This Court has heard the learned counsel for the parties. The plea of the petitioner that he was terminated on account of his "strength decrease" as per order dated 13th September, 2010 is a misconstruction of the said order. The strength decrease as stipulated in the order is not about the physical strength of the petitioner but the ramification of the termination of the petitioner. The order dated 10th August, 2010 and dismissal of his appeal is based on the fact that the petitioner failed to qualify the outdoor test though he was afforded three opportunities. In the first instance, he had failed in PT, drill and weapon training with the 34th batch and, therefore, he had been relegated to 35th batch. Even during the 35th batch the petitioner had to be relegated on account of four weeks absence and he had again failed in PT and the weapons training. The petitioner was entitled for three chances, therefore, he was again given another chance, however, the petitioner though relegated on 27th July, 2010 for the third time, yet again failed and thus after failing for three times in not completing the training, the petitioner became liable for termination in terms of the agreement which had been signed with him on 17th December, 2009. The learned counsel for the petitioner has not denied that the petitioner had signed the agreement dated 17th December, 2009. The order dated 21st March, 2011 which was produced by the petitioner in the writ petition has not been denied either, which categorically states the consequence of the three failures of the petitioner in the outdoor tests and the fact that he had entered into an agreement on 17th December, 2009 and his services were terminated in consonance with the same.

The appellate authority has also considered the pleas and contentions of the petitioner and has crystallized them in its order and has held that since the petitioner failed to complete his outdoor training and failed despite three opportunities afforded to him, therefore, there was no merit in his appeal and, therefore, his appeal was rejected.

In the circumstances, the petitioner has not been able to make any ground for his reinstatement or for setting aside the order of his termination and the dismissal of his appeal. For the foregoing reasons and in the facts and circumstances the learned counsel for the petitioner has failed to make out any illegality, irregularity or any such perversity in the orders of the respondents terminating his training so as to entitle interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. The writ petition is without any merit and it is, therefore, dismissed.