WRIT PETITION 20396 on 18 December 2006

IN THE HIGH COURT AT CALCUTTACONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE

PRESENT:

HON’BLE JUSTICE SUBRATA TALUKDARANDHON’BLE JUSTICE ANIRUDDHA ROY

FMA 1030 of 2013With

CAN 1 of 2012 (Old No. CAN 10496 of 2012)

Union of India & Ors.

-Vs.-Kashinath Porey

For the Appellants: Ms. Susmita Saha Dutta Mr. Niladri Saha Mr. Subhajit DasFor the Respondent: Mr. Mujibar Rahaman Heard on : 21/12/2020Judgment on: 17/03/2021

Subrata Talukdar, J:

Under challenge in this appeal is the order dated 23[rd] August 2012 inWP No. 20396 (W) of 2009 as passed by the Hon’ble Single Bench. TheHon’ble Single Bench, inter alia, held as follows:

“In these circumstances, in my opinion, the finding of theEnquiry Officer and the Disciplinary Authority that thepetitioner had disobeyed the order of superior is notbased on evidence led before such authorities. There is no material to show that the petitioner was actually directedto report to Mandapam. The impugned order of thedisciplinary authority cannot be sustained and thepetitioner ought to be re-employed in the same post inwhich he was serving. Considering the fact that thepetitioner was engaged as a ‘casual labour’ holdingtemporary status, I do not direct payment of back wagesfor the entire period. In my opinion, a sum of Rs.75,000/-(rupees seventy five thousand only) would sufficientlycompensate the petitioner in this regard.

The impugned order of the disciplinary authoritypassed on 21[st] August, 2009 and the report of the EnquiryOfficer are accordingly quashed. The petitioner shall be re-inducted in the post of ‘casual labour’ having temporarystatus, in the location he was serving, if there is vacancyin the said post. If there is no vacancy subsisting in thesame post, then the petitioner shall be engaged in the saidcapacity in any other place of the Coast GuardOrganisation. Such engagement shall be given within aperiod of eight weeks from the date of communication ofthis order.

The writ petition is allowed in the above terms.”

Challenging the findings of the Hon’ble Single Bench, the present appellants/ the Union of India, who were respondents in the writ petition,have filed the instant appeal on, inter alia, the following grounds:

“IV. For that while passing the impugned order theHon’ble Judge incorrectly held that the presentrespondent was appointed by the Coast GuardOrganisation whereas all through the said respondentwas engaged as a Casual Labourer only and question ofhis appointment did not take place at all.

V. For that the Hon’ble Judge failed to appreciate that atthe time when the offer was made, the respondent hereinwas serving as a casual labourer having temporary statusand a written order vide Coast Guard RHQ (East) letterNo. CP/0226/1 dated 18 Dec 2006 was issued to therespondent to report at Mandapam on or before 29 Dec2006.

VI. for that the Hon’ble Judge erroneously hold that “Inthe absence of there being a specific directive requiring thepetitioner to join at Mandapam, his subsisting employment in temporary status cannot be held ought tohave been terminated on its own”, whereas the Hon’bleJudge should have considered that casual labourercannot be held to be of a subsisting employment under thepresent Appellants.

VIII. For that although the Hon’ble Judge held that theprocedure adopted by the present appellants broadlycorresponds to the requirement for compliance ofPrinciples of Natural Justice and could not find any fatalflaw on that count by which the proceeding wasconducted, the Hon’ble Judge without any justifiablegrounds compensated the respondent by directing yourappellant/petitioner to pay a sum of Rs. 75,000/- (RupeesSeventy five thousand only), which is based on no reasonand by further quashing the report filed by the enquiryofficer.

IX. For that the Hon’ble Judge by quashing the enquiryproceeding directed for re-induction of the respondentherein to the post of casual labour vacancy in the saidpost or be engaged in the same category in any other postin the Coast Guard Organisation if no vacancy issubsisting, within the period of eight weeks from the dateof communication of the order.”

Mrs. Susmita Saha Dutta, Ld. Counsel appearing for the appellants,submits that the Hon’ble Single Bench erred in directing the appellants topay a sum of Rs. 75,000/- as compensation to the writ petitioner/ theprivate respondent in the appeal although there is no denial of the fact thatthe private respondent was all along engaged in temporary status under theappellants/ the Union of India. It is submitted that facts being admitted quathe direction upon the private respondents to report for duties at CoastGuard Station Mandapam and, such direction having been accepted by theprivate respondent, the Hon’ble Single Bench could not have directed theappellants to re-induct the private respondent into service re-conferringupon him the status of a temporary worker.

It is further submitted that the principles of natural justice werefollowed in the Departmental Proceedings (DP) initiated by the appellantsagainst the private respondent for his lapses in not reporting for duties atCoast Guard Station Mandapam. It is pointed out that the DP arose out ofspecific disobedience of the order of posting by the writ petitioner. It isargued that the Hon’ble Single Bench could not sit in appeal over a reasoneddecision in the DP based on admitted facts.

Ld. Counsel for the appellants additionally submits that it was withinthe domain of the Disciplinary Authority (DA) to terminate the service of theprivate respondent on the grounds of his admitted disobedience to the orderof his superior authority. Such termination stands justified by the fact thatthe private respondent was expected to discharge duties in a disciplinedforce akin to civilian service in the armed forces.

Referring to several stages of the DP, Ld. Counsel submits that dueprocess was complied with and the conclusion of the DA is based on properanalysis and assessment of evidence. By failing to report for duties at hisnew posting, the DA had rightly concluded that the private respondent wasguilty of violating Rule 3 of the Central Civil Service (Conduct) Rules.

For a complete appreciation of the arguments raised by Ld. Counsel, itwould be necessary to briefly discuss the central facts.

This appeal arises out of the order of the Hon’ble Single Bench dated23[rd] August 2012 in WP No. 20396(W) of 2009.

By the said impugned order, the Hon’ble Single Bench set aside theDP terminating the private respondent from service with the Coast Guard.The ground on which the private respondent was terminated from hisservice was disobedience to the orders of his superior authority by refusingto join his place of posting at Mandapam. The pleadings in the writ petition,inter alia, run as follows:-

Conclusion

“That the appellant initially joined the Coast Guard,Kolkata as a casual labourer. He was granted TemporaryStatus w.e.f. 1[st] September 1993. His designationtherefore became Casual Labourer (Temporary Status orTy Status).”

By an Office Memorandum (OM) dated 27[th] February 2004 the CoastGuard Head Quarters at New Delhi confirmed the private respondent to theposition of Casual Labourer (Ty Status) on the basis of the followingconditions. Namely, that the conferment of the temporary status would bewithout reference to creation/ availability of regular Group-D posts. Second,that such conferment of temporary status will not involve any change in hisduties and responsibilities. His engagement will be on daily rates of pay onneed basis. The respondent will be liable to be deployed anywhere within therecruitment unit/station/territorial circle/Coast Guard Region (East) on thebasis of availability of work.

It is important for this discussion to set out Clause (C) of the OMdated 27[th] February 2004 in full:

“(c) The casual labourer who acquires temporary statuswill not be brought on to the permanent establishmentunless he is selected through regular selection process forGroup ‘D’ post.”

Regular benefits such as pay scale, DA, HRA, CCA, transportallowance, leave entitlement with further provision for contributing toGeneral Provident Fund (GPF) were also part of the OM dated 27[th] February2004. It was further stated that until the respondent is regularized he willbe entitled to productivity linked bonus/ ad hoc bonus and fifty percentoffice service rendered in temporary status would be counted for thepurpose of retirement effect after he is regularized.

It would be finally important to place Clause 4 of the OM dated 27[th]February 2004 in its entirety again, for the benefit of this discussion.

“4. Despite conferment of temporary status, the services ofthe casual labourer may be dispensed with by giving anotice of one month in writing. A casual labourer withtemporary status can also quit service by giving a writtennotice of one month. The wages for notice period will bepayable only for the days on which such casual worker isengaged on work.”

The respondent while continuing to work as Casual Labourer (TyStatus) applied to his higher authorities in August 2006 claimingregularization of service. His claim for regularization was considered by aBoard. The Board recommended him for appointment in the regular Group-D post of sweeper at Coast Guard Station, Mandapam. The respondentapparently communicated his willingness to join in the regular Group-Dpost but subsequently retracted from his willingness by submitting anapplication on 27[th] November 2006 claiming a posting at Kolkata or, nearby.

Since the respondent did not join at his transferred place of posting atMandapam despite repeated directions from the Coast Guard authorities todo so, it was decided by the Coast Guard authorities to institute aDepartmental Proceeding (DP) under the CCS (Conduct) Rules as applicableto Government Servants. Of the two Articles of Charges issued against therespondent, Article of Charge I) stood Not Proved. However, the Article ofCharges II) held the respondent to have disobeyed instructions by notjoining at his transferred place of posting at Mandapam and thereby havingacted in a manner unbecoming of a Government Servant.

The respondent thus, stood terminated from his service.

The Hon’ble Single Bench set aside such termination and directedreinstatement of the respondent without back wages but, withcompensation.

While holding as above, the Hon’ble Single Bench expressed thefollowing view:- “In the memorandum dated 31[st] October, 2006, I find thatthe offer was conditional one and it was specified thereinthat if the petitioner accepted the offer, then he was tocommunicate his acceptance to the Commanding Officer,Coast Guard Station, Mandapam. It was also specifiedthat if the acceptance was not received and the candidatefailed to report for duty by the prescribed date, the offerwould be treated as cancelled.

At the time the offer was made, the petitioner wasserving as ‘casual labourer’ having temporary status.There is no substantive order of transfer requiring him toreport to Mandapam. The letter of offer only specified thatif he did not accept the order, then the same would betreated as cancelled. Case of the respondents is that suchoffer was made on the basis of his undertaking given during the interview that he would serve at any place inIndia. But the letter by which the post was offered to himdoes not require him to report for duty at Mandapam. Onthe other hand, it stipulates that if he does not give hisacceptance, the offer would be treated as cancelled. In theabsence of there being specific directive requiring thepetitioner to report to Mandapam, his subsistingemployment in temporary status cannot be held to havebeen terminated on its own. The offer was conditional andin the event the petitioner did not accept the offer, it couldnot have been treated to be an act of disobedience of theorder of his superior or acting in a manner unbecoming ofa government servant. The petitioner has been cleared ofthe charges of unauthorized absence. ”

In the considered view of this Appellate Bench, the principle of lawwould tritely apply that the service of a Government Servant begins with acontract and rises to a status. In the further view of this Court, the Hon’bleSingle Bench was correct in holding that the respondent having merelyreceived an offer to join the transferred place of posting at Mandapam,having resiled from such offer subsequently, the service contract ofregularisation and transfer conditional thereto was not complete betweenthe parties, i.e. the Coast Guard and the respondent.

In such view of the matter the respondent, not being willing to converthimself into a regular employee of the Coast Guard on the condition oftransfer attached to such regularisation, could not have been treated as afull-fledged Government Servant for the purpose of conducting a DP underthe CCS (Conduct) Rules. It is the respondent’s case that having refused theoffer of transfer on regularisation to join at Mandapam, he wanted to rejoinduties in his previous capacity of Casual Labourer (Ty Status) in Coast Guard, Kolkata. However, the appellant has alleged that he was not allowedto join his earlier duties on the pretext of a transfer order and the attendantDP.

This Court is therefore of the view that the arguments of the Ld.Counsel for the Union of India to the effect that the DP has been fairly andsquarely conducted, could carry reason only if such DP was jurisdictionallypermissible. This Court holds that since the respondent, by refusing theconditional offer of regularisation on transfer, opted out of from the contracttreating him as a regular Government employee, no DP could have beenconducted against the appellant treating him as a regular GovernmentServant who disobeyed an order of transfer. The respondent therefore had aright to claim re-instatement as Casual Labourer (Ty Status).

Having found that the DP is jurisdictionally voidqua the respondent,this Court is not required to examine the merits of the stand taken by Ld.Counsel for the Union of India defending the correctness of the procedureand decision making in the DP.

With reference to the above discussion, this Court relies on AIR1967SC 1889 (at 1894), In Re: Roshan Lal Tandon vs. Union of India of whichParagraph 6 reads as follows:- “ ........ It is true that the origin of Government service iscontractual. There is an offer and acceptance in everycase. But once appointed to his post or office theGovernment servant acquires a status and his rights andobligations are no longer determined by consent of bothparties, but by statute or statutory rules which may beframed and altered unilaterally by the Government. Inother words, the legal position of a Government servant is more one of status than of contract. The hall-mark ofstatus is the attachment to a legal relationship of rightsand duties imposed by the public law and not by mereagreement of the parties. The emolument of theGovernment servant and his terms of service are governedby statute or statutory rules which may be unilaterallyaltered by the Government without the consent of theemployee. It is true that Article 311 imposes constitutionalrestrictions upon the power of removal granted to thePresident and the Governor under Article 310. But it isobvious that the relationship between the Governmentand its servant is not like an ordinary contract of servicebetween a master and servant. The legal relationship issomething entirely different, something in the nature ofstatus. It is much more than a purely contractualrelationship voluntarily entered into between the parties.The duties of status are fixed by the law and in theenforcement of these duties society has an interest. In thelanguage of jurisprudence status is a condition ofmembership of a group of which powers and duties areexclusively determined by law and not by agreementbetween the parties concerned. The matter is clearlystated by Salmond and Williams on Contracts as follows:”

The above legal position has been approved again in AIR 1985 SC1416 (at 1437) In Re: Union of India Vs. Tulsiram Patel at Paragraph 43A.

In the backdrop of the above discussion, the order impugned of theHon’ble Single Bench requires no intervention.

FMA 1030 of 2013 with CAN 1 of 2012 (Old No. CAN 10496 of2012) stands dismissed.

There will be no order as to costs.

Parties shall be entitled to act on the basis of a server copy of theOrder placed on the official website of the Court.

Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.

I agree.

(Aniruddha Roy, J.) (Subrata Talukdar, J.)