Wp/6825/2004 Of The Chief Commissioner Of Income Tax, Vizag v. K.s.devasahayam

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE EIGTH DAY OF OCTOBERTWO THOUSAND AND FOUR PRESENT THE HON'BLE MR JUSTICE J. CHELAMESWAR AND THE HON;BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 6825 of 2004 Between: 1. The Chief Commissioner of Income Tax, Vizag. 2 The Chief Commissioner of Income Tax-1, Ayakar Bhavan, Hyderabad. AND ..... PETITIONERS K. S. Devasahayam, S/o K.S. Joseph, R/o H.No.42-1, Coles Compound, Kurnool-518 001 .....RESPONDENT Petition under Article 226 of the constitution of India praying that in thecircumstances stated in the Affidavit filed herein the High Court will be pleased toissue a writ, order or direction more particularly one in the nature of Writ of Certiorarito call for the records in O.A. No.1502 of 2003 on the file of the CentralAdministrative Tribunal, Hyderabad Bench, and declare the Order in O.A. No. 1502of 2003, dt 10—3-2004 on the file of the Central Administrative Tribunal, HyderabadBench, Hyderabad and consequently set aside the same in the interest of justice. For the Petitioners: Mr. B.Narasimha Sarma, Standing Counsel For the Respondent : K.S. Devasayayam (Party-in-person) The Court Made the Following: :: ORDER :: (Per the Hon’ble Mr Justice G. RAGHURAM) Aggrieved by the order of the Central Administrative Tribunal, Hyderabad Bench(the Tribunal), dated 10.3.2004 in OA No. 1502 of 2003, the respondents thereinhave filed this writ petition. While the OA was filed by the respondent herein,impleading as respondents the Chief Commissioner of Income Tax, Visakhapatnam,the Chief Commissioner of Income Tax-I, Hyderabad and the Union of Indiarepresented by the Secretary of Finance, the two Chief Commissioners of IncomeTax specified above have only chosen to file this writ petition. The respondent herein had preferred the OA aggrieved by the order dated 29.7.2003of the Chief Commissioner of Income Tax, Visakhapatnam, discharging him fromservice with effect from 29.7.2003 on the ground that he did not fulfil condition No.(xi)of the appointment order dated 22.5.1990 r/w Rule 19 of the Rules of DirectRecruitment. The respondent was selected as an Income Tax Inspector through a Staff SelectionCommission examination of 1985 pursuant to a notification dated 3.3.1985. He wasappointed as Income Tax Inspector by the proceedings dated 22.5.90 and assumedcharge of the post w.e.f. 1.6.1990. the appointment of the respondent herein, by the proceedings dated 22.5.90 was subject to certain specified conditions. One of theconditions (condition No.xi) is as under: “ He is also informed that he will have to pass departmental examination forInspector of Income Tax within a period of two years.” Another condition (No. iii) is – “ His retention in the service is subject to his beingfound suitable for Government service in all respects.” Under condition No.(vi), by the order of appointment, the respondent was informedthat his appointment will be purely on a provisional basis, he will be initially onprobation for a period of 2 years and if, in the opinion of the Government, his workingo r conduct is unsatisfactory or shows that he is unlikely to become an efficientIncome Tax Inspector, the Government may discharge him at any time. proceedings dated 22.5.90 was subject to certain specified conditions. One of theconditions (condition No.xi) is as under: “ He is also informed that he will have to pass departmental examination forInspector of Income Tax within a period of two years.” Another condition (No. iii) is – “ His retention in the service is subject to his beingfound suitable for Government service in all respects.” Under condition No.(vi), by the order of appointment, the respondent was informedthat his appointment will be purely on a provisional basis, he will be initially onprobation for a period of 2 years and if, in the opinion of the Government, his workingo r conduct is unsatisfactory or shows that he is unlikely to become an efficientIncome Tax Inspector, the Government may discharge him at any time. As per condition No. (xi) of the order supra, the respondent was placed on probationfor a period of two years. He however did not pass the departmental examination forthe post of Inspector of Income Tax within the period of two years. Nevertheless hisprobation was declared by the proceedings dated 9.9.1992. He was summarilyterminated from service by proceedings dated 1.2.1999, apparently invoking thepower under condition No. (vi) of the appointment order. Aggrieved thereby therespondent instituted OA No.289/99 before the Tribunal. The OA was allowed by theorder dated 14.10.99 on the conclusion that when the termination order was passedon 1.2.99, the respondent was not a temporary Government servant as his probationwas declared and therefore his service could not have been terminated withoutnotice or opportunity afforded to him. Accordingly the order of termination dated1.2.99 was set aside and the respondent was directed to be reinstated into serviceand the period from 1.2.1999 till his reinstatement was directed to be treated asleave due to him. The Tribunal also in the order in OA No.289/99, granted liberty tothe respondent to pass the requisite departmental examination within two attemptsin any of the two examinations to be held immediately after the order of the Tribunaland in case he fails to qualify in any those examinations, the petitioners herein wereaccorded liberty to terminate his service after giving him a notice. Aggrieved by the above order of the Tribunal the Union of India and the petitionersherein filed W.P. No. 23990/99. This writ petition was partly allowed by the judgmentof a Division Bench of this court dated 7.11.2001. While confirming the invalidation of the order dated 1.2.99 terminating the service of the respondent, this court heldthat as the probation of the respondent was declared, he had acquired a vestedinterest in the post and any adverse impact on such a vested interest requirescompliance with the principles of natural justice. As admittedly the probation of therespondent was declared w.e.f. 1.5.1990 by proceedings dated 9.9.92, this courtheld he could not have been terminated from service without issuing a notice to him. In so far the liberty granted by the Tribunal for the respondent to get qualified withintwo more opportunities, this court held that whether such extension of time should begranted to the respondent is a matter that is exclusively within the discretionarydomain of the Department and the Tribunal or this court should not usurp suchdiscretion. The direction of the Tribunal, on this aspect was set aside. It was alsomade clear by this court that the judgment of this court does not preclude thedepartment from initiating action against the respondent in conformity with theprinciples of natural justice and the relevant regulation. Pursuant to the judgment ofthis court above confirming the order of the Tribunal in OA No. 289/99 he wasreinstated into service on 13.2.2002. In so far the liberty granted by the Tribunal for the respondent to get qualified withintwo more opportunities, this court held that whether such extension of time should begranted to the respondent is a matter that is exclusively within the discretionarydomain of the Department and the Tribunal or this court should not usurp suchdiscretion. The direction of the Tribunal, on this aspect was set aside. It was alsomade clear by this court that the judgment of this court does not preclude thedepartment from initiating action against the respondent in conformity with theprinciples of natural justice and the relevant regulation. Pursuant to the judgment ofthis court above confirming the order of the Tribunal in OA No. 289/99 he wasreinstated into service on 13.2.2002. By a memo dated 25.2.2003 the respondent was issued a show cause notice whyhis service should not be terminated within 15 days from the date of issue of theorder, as he did not pass the departmental qualifying examination in two attempts inany of the two examinations to be held immediately after the issue of the order of theTribunal. It requires to be noticed that this memo dated 25.2.2003 was issued muchlater to the judgment of this court dated 7.11.2001 in W.P. No. 23990/99 wherein thiscourt has set aside the liberty granted by the Tribunal to the respondent hereinenabling him to pass the requisite departmental examinations in two furtherattempts. Meanwhile the petitioners herein preferred a SLP against the order of thiscourt dated 7.11.2001. The Supreme Court dismissed the SLP summarily at thestage of admission. Three more memos were issued in reiteration of the memodated 25.2.2003 and by an order dated 27.9.2003 the respondent was dischargedfrom service w.e.f. 29.7.2003. The reasons and the operative portion of the orderdated 29.7.2003 read as under: “ 6. Keeping in view the observations of the Hon’ble High Court of AndhraPradesh mentioned above, and also the failure of the official to pass thedepartmental examination for Inspector of Income-tax, a show cause noticewas issued to him by the Commissioner of Income-tax-3, Hyderabad, vidememo in F.No.CIT-3/Estt/01-02, dated 21.02.2002 calling for his explanation as to why his services would not be discharged for not having passed thedepartmental examination within the prescribed period as required by theRules. There was no reply to the said memorandum from the Official. Anothermemorandum was thereafter issued by this office on similar lines calling forhis reply/objection vide memo in CC.VSP.DP.7/02-03, dated 22.07.2002. Thesaid memorandum was duly served on the official. But the official did notchoose to comply with the said memorandum. One more opportunity wasgiven to the official vide this office memorandum in F.No. CC.VSP.DP 7/02-03, dated 14.11.2002 calling for his explanation as to why he should not bedischarged from services for not having passed the departmental examinationin terms of Rule 9 of the Rules read with conditions of Appointment and as towhy his failure for not offering explanation/representation to the earliermemorandum should not be treated as acceptance of the proposed action.This memorandum was also duly served on the official. Even tot his, theofficial did not respond or did not file any explanation. However, a finalopportunity was given to the official calling for his explanation as to why heshould not be discharged from service for not having passed thedepartmental qualifying examination in terms of Rule 9 of the Rules read withconditions of appointment and as to why his failure in not offeringexplanation/representation to the earlier memoranda should not be treated asacceptance of the proposed action, vide this office memorandumF.No.CC.VSP/DP.7/2002-2003, dated 17.06.2003. The said show causenotice was duly served on the official. In compliance with this memo a replyhas, however, been received from the official on 7[th] July, 2003. 7 . It is pertinent to mention here that the official Sri K.S. Devasahayamreported to duty in this office on 03.07.2002 on transfer from Hyderabad andapplied Earned Leave from 04.07.2002 to 12.07.2002. This leave wasgranted to him with a direction that he should not proceed on leave withoutprior intimation and sanction of leave by the appropriate authority. Hereported to duty on 15.07.2002 and immediately filed a leave application on06.07.2002 seeking leave from 07.02.2002 to 30.07.2002 and left theHeadquarters without sanction of leave applied for. And as a matter of fact, hehas not reported to duty till today. In the meantime, he was issued a memo inCC.VSP.DP.7/2002-2003, dated 17.021.2003 calling for his explanation as towhy disciplinary action should not be taken against him for the unauthorisedabsence from duty. But the official did not prefer to comply with the saidmemo. 8 . The explanation offered by the official in response to this officememorandum F.No. CC/VSP/DP.7/2002-03, dated 17.6.2003 has beenconsidered by the undersigned and found that there is no merit in the saidexplanation. The fact remains that the official never chose to appear and passdepartmental examination as per the condition (xi) of the Appointment Orderand also as per rules for the Direct Recruitment. By not fulfilling the conditioncontained in the order of Appointment and by not complying with the Rules forDirect Recruitment he has made himself liable to be discharged from theGovernment Service. 9. In view of the above Sri K.S.Devasahayam, Inspector of Income-tax ishereby discharged from service with effect from 29[th] July, 2003 after noon,since he did not fulfil the condition (xi) of the Appointment Order dated22.05.1990 read with the Rule 19 of the Rules for Direct Recruitment, whichis prerequisite for continuation in the service.” Aggrieved by his discharge from service the respondent filed OA No.1502 of 2003before the Tribunal. The Tribunal allowed the OA. It held that the service of therespondent was duly confirmed on his declaration of probation; that condition No.(xi)did not expressly or by any necessary implication stipulate that non-passing of thedepartmental examination would entail termination from service; no conclusioncould be drawn from the above condition that on the respondent not passing therequisite examination he would be terminated; nor did the conditions specify as tohow many chances in the specified two years the applicant could avail. The Tribunalin substance held that as the order of declaration of probation of the respondent wasnot rescinded or cancelled it is not open to the department to contend that the orderof confirmation was erroneous. As the respondent was an approved probationerthere was no escape from following the CCS Rules before terminating his services.Since the terms of the respondent’s appointment did not specifically stipulate thatthe passing of the departmental examination was mandatory before declaration ofprobation or his confirmation in the post, the Tribunal declared that it would now beunfair to contend that the order of declaration of the respondent’s probation waserroneous. The Tribunal invalidated the order dated 29.7.2003 discharging therespondent from service, on the ground that such discharge which amounts totermination of service, could not have been made without following the CCS Rulesand that mere calling for explanation from the petitioner without following thedetailed procedure for termination of service, was unsustainable. Indisputably the respondent is an approved probationer in the post of Inspector ofIncome Tax. His probation was duly declared as having been satisfactorilycompleted. Mr. B.Narasimha Sarma, learned Standing Counsel for the Department –writ petitioners, on instructions stated before this court that the declaration of therespondent’s probation was on the basis of an assessment and recommendation ofa Departmental Promotion Committee and a consequent order of the competentauthority. Indisputably the respondent is an approved probationer in the post of Inspector ofIncome Tax. His probation was duly declared as having been satisfactorilycompleted. Mr. B.Narasimha Sarma, learned Standing Counsel for the Department –writ petitioners, on instructions stated before this court that the declaration of therespondent’s probation was on the basis of an assessment and recommendation ofa Departmental Promotion Committee and a consequent order of the competentauthority. Responding to a query from this court as to whether any action was initiated againstany officer or officers responsible for the grossly negligent conduct of declaring thepetitioner’s probation without his having passed the departmental examination, thelearned Standing Counsel for the department states that as none of the writpetitioners are competent to initiate any such enquiry the Union of India has beenaddressed recently in the matter. Apparently neither was any corrective actioninitiated by way of recalling or rescinding the order dated 9.9.1992 declaring therespondent’s probation, after notice and opportunity to the respondent nor was anyinhouse enquiry initiated against the negligence if any in the matter of declaring therespondent’s probation. As the respondent is an approved probationer he could notbe summarily discharged/terminated from service is what the Tribunal held. On behalf of the petitioner reliance was placed on a decision of the Supreme Courtin Commandant, 11[th] Battalion, A.P. Special Police (IR), Cuddapah, CuddapahDistrict vs B. Shankar Naik (). The facts – certain persons were appointed asConstables and placed on probation for a period of 3 years. They were required toundergo training in the A.P. Police Recruits School u/Rule 11(a) of the AP PoliceSubordinate Service Rules. The appointment order was subject to conditions. Oneof the conditions was that the appointee should pass the language test within theperiod of probation and in case of failure he would be discharged from service. Theywere sent for training and on completion were to be posted to work as Constables.The appointment order clearly indicated that they should undergo 10 months basictraining. The services of some of the appointees were termination u/Rule 6(f)(i) of theAP State and Subordinate Service Rules 1996 on the ground that they failed to passthe prescribed test within the prescribed period of probation. The orders oftermination were challenged by the effected appointees on the ground that theserules are not applicable to them as they passed the SSC examination in Telugu asthe medium of instruction and were thus exempted from passing any test u/Rule 14.The A.P. Administrative Tribunal, before which the orders of discharge werechallenged, dismissed the application on the ground that successful completion ofthe training was mandatory and failure thereat entails discharge from service.Aggrieved the petitioners approached this court. This court declared the orders ofdischarge unsustainable on the ground that as the constables had passed the SSCexamination in Telugu medium, they were entitled to exemption and the order ofappointment did not refer to any other tests in which the selected recruitees were required to come out successful. Before the Supreme Court in appeal it wascontended that the orders of discharge were based on several grounds includingnon-passing of the language test and failure in the training. If a candidate did notsuccessfully complete the training there was no justification to continue him inservice, was the contention in appeal before the Supreme Court. In defence of thislater contention by the appellants, the appointees contended that the appointmentorder only referred to the period of probation and language test but there was noprescription of completing the training successfully. Rejecting this contention theSupreme Court held that if the contention of the appointees is accepted it wouldmean that the training was intended to be a meaningless and purposeless exercisehaving no relevance. A person who is sent for training is required to complete thesame and where the authority finds that the trainee has not succeeded in the testconducted after the training, the inevitable conclusion is that he has not undertakentraining successfully, held the Supreme Court. Thus, the requirement stipulated inthe appointment order would not have been complied with. In such a case theauthorities would be justified in passing the order of discharge, ruled the Apex court. Applying the above ratio enunciated by the Supreme Court the contention of therespondent herein cannot be countenanced that mere absence of a specificstipulation in the order of appointment dated 22.5.90 that non-passing of thedepartmental examination for Inspectors of Income Tax within a period of two yearswould entail termination or discharge from service, would disentitle the departmentto discharge an Inspector of Income Tax from service even if he failed to clear thedepartmental examination. The passing f the departmental examination within thestipulated period is a sine qua non for the continuance in service of such anemployee. However, as the respondent was an approved probationer in the post of Inspector ofIncome Tax, he could not be merely discharged from service as rightly held by theTribunal, but could be discharged only on compliance with the procedural rigour ofthe CCS Rules. Nothing in this order of this court should be construed as a limitationor prohibition on the exercise of appropriate power by the petitioners to deal with therespondent, including any steps to recall or rescind the order dated 9-9-1992, inaccordance with law. On the above analysis we find no error in the order of the Central AdministrativeTribunal, Hyderabad Bench, dated 10.3.2004 in OA No. 1502 of 2003, warranting interference in this writ petition. The writ petition is accordingly dismissed. No orderas to costs. Date:08.10.2004 -------------------------- Pvsn Justice J. Chelameswar ----------------------------- Justice G.Raghuram Copy to To 1. The Registrar, Central Administrative Tribunal,Hyderabad. 2. 2CD copies