Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment

Judgment:

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 0
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 1
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 2
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 3
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 4
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 5
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 6
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 7
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 8
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 9
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 10
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

11. We have carefully considered the rival contentions of the parties and perused the records.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 11
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 12
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 13
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 14
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 15
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 16
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 17
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The other terms and conditions of service are mutatis mutandis governed by the Education Code.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 18
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 19
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 20
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 21
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 22
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 23
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 24
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 25
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 26
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 27
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 28
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&S) 1011, that one who has a rightful claim can plead equity.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 29
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 30
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 31
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 32
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 33
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 34
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '54849',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Mithilesh Kumar Singh',
			'authreffered' => null,
			'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
			'casenote' => '',
			'caseanalysis' => '',
			'casesref' => null,
			'citingcases' => null,
			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Central Administrative Tribunal CAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2006-07-11',
			'deposition' => null,
			'favorof' => '',
			'findings' => '',
			'judge' => 'S Raju, A A V.K.',
			'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p align="justify">2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p align="justify">Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p align="justify">3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p align="justify">5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p align="justify">6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p align="justify">7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p align="justify">8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p align="justify">9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p align="justify">10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p align="justify">11. We have carefully considered the rival contentions of the parties and perused the records.</p><p align="justify">12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p align="justify">14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p align="justify">15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p align="justify">16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p align="justify">17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p align="justify">As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p align="justify">The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p align="justify">18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p align="justify">20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p align="justify">21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p align="justify">22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p align="justify">23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p align="justify">However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p align="justify">24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p align="justify">25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p align="justify">If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p align="justify">27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p align="justify">In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p align="justify">28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p align="justify">31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p align="justify">32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p align="justify">In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p align="justify">33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p align="justify">34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p align="justify">35. With the above, the O.A. stands disposed of with no order as to costs.',
			'observations' => '',
			'overruledby' => null,
			'prhistory' => null,
			'pubs' => '(2007)(2)SLJ315CAT',
			'ratiodecidendi' => null,
			'respondent' => 'Kendriya Vidyalaya Sangathan',
			'sub' => null,
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan',
	'args' => array(
		(int) 0 => '54849',
		(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
	)
)
$title_for_layout = 'Mithilesh Kumar Singh Vs Kendriya Vidyalaya Sangathan - Citation 54849 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '54849',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Mithilesh Kumar Singh',
		'authreffered' => null,
		'casename' => 'Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan',
		'casenote' => '',
		'caseanalysis' => '',
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Central Administrative Tribunal CAT Delhi',
		'court_type' => 'TRI',
		'decidedon' => '2006-07-11',
		'deposition' => null,
		'favorof' => '',
		'findings' => '',
		'judge' => 'S Raju, A A V.K.',
		'judgement' => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.</p><p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.</p><p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.</p><p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.</p><p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.</p><p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.</p><p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.</p><p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.</p><p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.</p><p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.</p><p>11. We have carefully considered the rival contentions of the parties and perused the records.</p><p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.</p><p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.</p><p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.</p><p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.</p><p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.</p><p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.</p><p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.</p><p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.</p><p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.</p><p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.</p><p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.</p><p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.</p><p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.</p><p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.</p><p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.</p><p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.</p><p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.</p><p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.</p><p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.</p><p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.</p><p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.</p><p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.</p><p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.</p><p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.</p><p>35. With the above, the O.A. stands disposed of with no order as to costs.',
		'observations' => '',
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => '(2007)(2)SLJ315CAT',
		'ratiodecidendi' => null,
		'respondent' => 'Kendriya Vidyalaya Sangathan',
		'sub' => null,
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$args = array(
	(int) 0 => '54849',
	(int) 1 => 'mithilesh-kumar-singh-vs-vidyalaya-sangathan'
)
$url = 'https://sooperkanoon.com/case/amp/54849/mithilesh-kumar-singh-vs-vidyalaya-sangathan'
$ctype = ''
$content = array(
	(int) 0 => ' 1. Applicant, by virtue of this O.A., has impugned respondents' order dated 29.01.2004 whereby his services have been dispensed with. An order passed in appeal on 8.11.2004 is also being assailed.',
	(int) 1 => '<p>2. A brief factual matrix transpires that the applicant, who had been working elsewhere, on resignation, in pursuance of an advertisement issued by the respondents calling applicants for the post of TGT (S.St.), applied for the same. On being selected, applicant was offered appointment with the terms and conditions contained in the Memorandum dated 28.8.2003, which, inter alia, incorporates appointment of temporary post on a probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies. A stipulation in the order confers a right to the respondents to terminate the services by giving one month's notice on either side or in lieu of a sum equivalent to the pay and allowances for the period of notice. The other conditions are to be governed by the Education Code for Kendriya Vidhyalaya. Accordingly, the applicant joined on 15.9.2003. After working for a day only i.e. up to 16.9.2003, he received a message regarding the critical condition of his wife at Chittorgarh, Rajasthan. Applicant submitted an application to the Principal through one of his colleagues stating the reasons.',
	(int) 2 => '<p>Thereafter, he rushed to Rajasthan where his wife was found very critical. She remained under treatment of the competent medical authority and was even hospitalized. The applicant from time to time through postal communications informed about the illness of his wife and had sought permission for extension of leave.',
	(int) 3 => '<p>3. As the condition of applicant's wife further deteriorated, she was shifted to AIIMS, Delhi where after his best efforts to save her life, she passed away on 4.2.2004. On completion of the rituals as per Hindu customs, the applicant when reported for duty was shocked to know that his services have been dispensed with. An appeal preferred resulted in dismissal, gives rise to the present O.A.4. Mr. H.K. Gangwani, learned Counsel for applicant stated that an order passed is a stigmatic order where imputation of absence without prior permission as a misconduct has been levelled and without affording an opportunity to explain, the dispensation of service is in violation of Article 311(2) of the Constitution of India as well as principles of natural justice.',
	(int) 4 => '<p>5. In order to substantiate his plea, learned Counsel for applicant relied upon a decision of the Apex Court in Hardeep Singh v. Stale of Haryana and Ors.',
	(int) 5 => '<p>6. Learned Counsel stated that as per Clause 5 of the offer of appointment, condition precedent for dispensing the service during probation either service of the notice or payment in lieu thereof. As the respondents had neither issued a notice to the applicant nor paid him the pay and allowances in lieu thereof, the order passed by the respondents is nullity in law.',
	(int) 6 => '<p>7. Learned Counsel would contend that the respondents have published a notice in Newspaper at the place of posting of the applicant whereas it was within the knowledge of the respondents that the applicant had been in Rajasthan due to illness of his wife. Learned Counsel denies that the applicant had ever been served upon any communication sent by the respondents.',
	(int) 7 => '<p>8. Learned Counsel further stated that the absence of the applicant is bona fide due to extenuating circumstances on account of critical illness of his wife, which has been established beyond any doubt, and ultimately the wife of the applicant had passed away. Therefore, the resort of decision to dispense with the services of the applicant is unreasonable and unjustified as well.',
	(int) 8 => '<p>9. On the other hand, Mr. S. Rajappa, learned Counsel for respondents vehemently opposed the contentions and stated that the applicant had been apprised of his duty to report back with a communication, which had not come back. There would be a presumption of service of the communication on the applicant. Learned Counsel would also contend that the order is not stigmatic as the applicant's performance was not satisfactory during probation and he has no right to hold the post and the order passed is simplicitor in terms of the service conditions.',
	(int) 9 => '<p>10. Learned Counsel relied upon a decision of the Apex Court in Oriental Insurance Corporation Ltd. v. T. Mohammed Raisuli Hassan 1993(1) SLJ 157 (SC) : 1993 SCC (L&amp;S) 297, to contend that one month's notice of pay, if not complied with, would not vitiate the termination order, as there is no such statutory rule to envisage the same.',
	(int) 10 => '<p>11. We have carefully considered the rival contentions of the parties and perused the records.',
	(int) 11 => '<p>12. The settled position of law with regard to termination of a probationer is no more res integra. A probationer has no right to the post and any action resorted to terminate the services. Unsatisfactory performance cannot be successfully assailed in the Court of law when the order is simple and without any punitiveness. The test to ascertain whether an order of termination is punitive or stigmatic, is when due process has been adopted to inquire into the misconduct and thereafter adopting a shortcut without following due process of law, resort to termination is made. A stigmatic order is that order which, on the face of it along with the annexures referred to in the order, casts aspersions against the person regarding his conduct. Merely because it is stated in the order that the performance is not satisfactory would not lead to a legal presumption of its being stigmatic. A stigmatic order is that order, which with relation to the misconduct accuses the concerned irrespective of his unsatisfactory performance. The aforesaid is an outcome of the ratio laid down by the Apex Court in Deepti Prakash Banerjee v. S.N. Boss, National Centre for Science .In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. 2002(1) SLJ 336 (SC) : 2002 SCC (L&amp;S) 170, the Apex Court ruled that when a probationer's appointment is terminated, the sine qua non is unfitness of his job. A stigma is always implicit in the termination order. The order must be in a language, which imputes over and above unsuitability for a job.',
	(int) 12 => '<p>14. It is trite law that inception of a Government servant is a contractual but the continuance on conditions of service is governed by the statutory rules framed under Article 309 of the Constitution of India.',
	(int) 13 => '<p>15. Kendriya Vidhyalaya Sangathan (hereinafter referred to "K.V.S."), though is an independent body under the Ministry of Human Resources Development, yet by virtue of Notification under Section 14 of Administrative Tribunals Act, 1985, has been brought within the jurisdiction of the Tribunal, insofar as the redressal of grievances of its employees regarding their service matters are concerned. Education Code for KVS is a compilation of the Rules laying down conditions of service of the employees of Sangathan, i.e., teaching and non-teaching both and governs conditions of service right from appointment to the retirement on superannuation. It itself is a complete Code, except by delegation and adoption of CCS (CCA) Rules, 1965. Other instructions issued by the Government of India from time to time, subject to its being ratified by the Board are adopted.',
	(int) 14 => '<p>16. Rule 10 of Kendriya Vidhyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971, provides that in the matter of direct recruitment, appointment on probation for a period of two years extended by another two years and Rule 12 of the Rules ibid provides that an employee appointed as a direct recruit to the post in KVS while on probation is liable to be discharged from the post any time with one month's notice or sum in lieu thereof.',
	(int) 15 => '<p>17. In the light of the above provisions of Rules, which are mandatory to be followed, assume the character of the Rules at par with the Rules framed under Article 309 of the Constitution. The terms and conditions contained in the Memorandum of Appointment clearly show the appointment on probation for a period of two years, which is extendable and the confirmation would be dependent on availability of permanent vacancies.',
	(int) 16 => '<p>As per conditions, a right has been conferred upon the respondents to terminate the services of an employee on one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice.',
	(int) 17 => '<p>The other terms and conditions of service are mutatis mutandis governed by the Education Code.',
	(int) 18 => '<p>18. In the light of the above, the contention of the applicant that the condition precedent for termination or dispensation of service on issue of one month's notice or payment of a sum equivalent to the pay and allowances for the period of notice, having not been satisfied, vitiates the termination order.Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly , which is followed by the decision in M.K. Agarwal v.Gurgaon Gramin Bank 1988(1) SLJ 75 (SC) : (1987) Supp. SCC 643, the rule providing termination simplicitor on three months' notice has been held to be unconstitutional.',
	(int) 19 => '<p>20. Assuming that the aforesaid clause is not unconstitutional, the dispensation of service of the applicant without show cause notice and without payment in lieu thereof, is an obligation to be discharged by the respondents as a condition precedent before dispensation of service of an employee even on probation. The decision in Oriental Insurance Corporation's case (supra) is distinguishable, as therein apart from the terms of appointment, no statutory rules envisage payment of pay and allowances or notice to be issued before termination, whereas in KVS Rule 12 of the Seniority Rules ibid clearly provides notice to be issued before termination or payment in lieu of notice period. As one of the statutory conditions before termination is resorted to has not been fulfilled or compiled with, termination resorted to in the present case is a nullity in law.',
	(int) 20 => '<p>21. As regards stigma cast upon the applicant, as contended, we find that whereas the applicant, who had informed the Principal through his application, which is not disputed, as to leaving the station on account of critical illness of his wife and his communications sent for extension of leave, no responding attitude of the respondents to his application where the extension of leave was prayed for, had not been rejected, a valid presumption in law is to be derived that this is a tacit approval of the respondents to the request of the applicant in mitigating circumstances to avail the leave. The order dispensing with the services clearly shows that applicant's unsatisfactorily performance is not the basis, as the applicant, who joined on 15.9.2003, had hardly worked for the days and had thereafter absented on account of his wife's illness. The recording of fact that applicant had unauthorisedly, without any information or permission from the Competent Authority, absented and was not interested to join duties is indicative of applying the test as held in Pavanendra Narayan Verma 's case (supra) that the termination had been resorted to on account of a misconduct of applicant's alleged absence without briefing the same and without according a reasonable opportunity to him to show cause. This is a punitive order where Article 311(2) of the Constitution having not been followed and moreover denial of reasonable opportunity is in violation of principles of natural justice. The order is also stigmatic in nature.',
	(int) 21 => '<p>22. In our Constitution, the Executive or the Government, being a welfare State, from the employees, who have been qualified and appointed to serve the Government as Government servants, certain duties are expected from them but certain rights, concessions and privileges are also bestowed upon them. A Government servant is entitled to leave of the kind due as envisaged under CCS (Leave) Rules, 1972, which are adopted by the KVS. Although leave cannot be claimed as a matter of right but every absence also cannot be treated as an unauthorized or willful absence. In order to qualify to be an unauthorized absence willfully, it has to be, before hand, established that it has been without any just cause and/or in utter defiance of the rules.',
	(int) 22 => '<p>23. The applicant has absented, which is not in dispute, but whether this absence would amount to unauthorized absence or willful, is to be examined in the backdrop of circumstances and antecedents to the termination order. Applicant, who received information regarding critical illness of his wife, sent an application for paucity of time through his colleague to the Competent Authority whereby he sought permission not only to leave the station but has also sought for grant of extension of leave stating the reasons. Applicant when reached at the place where his wife was critically ill, finding her situation to be very critical, from time to time sent communications to the respondents for sanction of leave apprising about the condition of his wife. The aforesaid has never been responded to by the respondents.',
	(int) 23 => '<p>However, the respondents sent communications to the applicant, which he denies to have received. Assuming that the same have been validly received, yet to the request of the applicant for grant of leave, neither there is any refusal nor any consideration of the same. As the illness of the wife of the applicant resulted in her death, there cannot be any doubt about the factum of illness. The ground of absence of the applicant was his wife's illness, which was bona fide and does not show this absence as unsatisfactory performance, as no work had been taken from the applicant. An unsatisfactory performance would be that which, inter alia, includes absence from duty, which has an iota of any deliberation on part of the concerned. An absence, which is not well explained and has no justification, it has been proved to be mala fide. A technical default of not seeking prior permission to leave, when in such an emergent situation, the applicant had informed the authorities, who were in the knowledge of his wife's illness of which bona fide had been established later on, would, by no stretch of imagination, be treated as either unauthorized or wilful.',
	(int) 24 => '<p>24. Though the respondents have a right to dispense with the services of a probationer, yet it cannot be actuated with mala fides, arbitrariness or as a result of an unreasonable consideration.',
	(int) 25 => '<p>25. In our democratic set up, when one of the wings of the Executive, the Controlling Authority as well as servants under control have mutual relationship, which is founded on trust, faith and discharge of duty.',
	(int) 26 => '<p>If, by dint of hard work, a Government servant contributes to the functioning of the Government, reciprocity mandates as an obligation on the Government being welfare State to look after the welfare and interests of the Government servants. Whatever is being paid to a Government servant is not a bounty rather it is a remuneration of work rendered by him. A Government cannot be dispassionate or unfair to its employees. Government servant is working to assist in running the administration. He is not a slave apart from public life, a Government servant has to maintain a personal family life, which has his own duties, obligations to be discharged. When there is no direct conflict between two, both the duties can be discharged simultaneously. However, in certain cases where the absence on an unjustifiable ground was intentional and it had raised a loss to the running of the administration would have to be viewed seriously, 26. But in the present case, when the applicant, who had been validly appointed, in extenuating circumstances, was obligated to attend to his family on highly critical condition of his wife. When this absence, which has a condition precedent, discharged ail the obligations of information by the applicant to the concerned authority, resort to termination is not legal.',
	(int) 27 => '<p>27. When there is an application of rules and law, it is settled that equity and compassion cannot be claimed as a matter of right but equity, good conscience, fair play and legitimate expectation are the doctrines developed with prescription and application of law. A legitimate expectation and equity, though not enforceable right in itself but are the cardinal test to check arbitrariness, as held by the Apex Court in State of West Bengal v. Niranjan Singha (2001) 2 SCC 326.',
	(int) 28 => '<p>In the matter of equity in Tondon Brothers v. State of West Bengal and Ors. , the Apex Court held that while applying equity in administrative law when the action of the Government runs counter to good faith, not supported by reasons, the justice requires good conscience. It is also settled by the Apex Court in Bank of India and Ors. v. Avinash D. Mandivikar and Ors. 2006(1) SLJ 47 (SC) : 2005 SCC (L&amp;S) 1011, that one who has a rightful claim can plead equity.',
	(int) 29 => '<p>28. The Wednesbury principle of reasonableness checks the arbitrary action of the administrative authorities. What is reasonable in the circumstances is a fact situation. The malafide and arbitrariness of the respondents are apparent from the fact that whereas the respondents in the termination order dispensed with the services in terms of Clause 5 of offer of appointment and it is stated in the arguments that there is no statutory principle envisaging issue of notice or payment of notice pay in lieu thereof, which is contradictory and is in juxtaposition to the existing rules, referred to above. Rule 12 ibid clearly mandates, as a condition precedent as well as condition of service, for issuance of notice or payments lieu thereof.State of M.P. v. Sanjay Kumar Sharma (2005) 11 SCC 513, in the matter of termination on account of absence from duty upheld the decision of the Tribunal wherein it is held that dispensation of service without conducting proper inquiry is an illegality.National Aluminium Company Limited v. Deepak Kumar Panda 2002 SCC (L&amp;S) 851, insofar as automatic termination of an unauthorized absence from the standing orders, rules that when an application is made by the concerned for grant of leave and if no decision is taken on the leave application by the date, order of dispensation of service or the ground of absence has been negated, the automatic termination without inquiry or even show cause is not sustainable.',
	(int) 30 => '<p>31. We also find that the applicant had preferred a representation to the concerned authorities, yet the respondents have not responded the said representation by a reasoned order. Though, as a quasi-judicial authority, the Administrative Authorities are bound by the doctrine of justice. Reasons are sine qua non of fairness. It indicates application of mind. A close mind is apparent from non-speaking order. When discretion is vested in the authorities, it was to be exercised judiciously. If contentions raised are neither considered nor rebutted, non-speaking order passed does not stand scrutiny of law.',
	(int) 31 => '<p>32. Mr. S. Rajappa, learned Counsel for respondents attempted to distinguish Rule 12 ibid and its applicability thereof by contending that the applicant was appointed on a temporary post, as such he cannot be treated as a probationer. The aforesaid is misconceived as Rule 12 ibid refers to direct recruitment and does not distinguish between the temporary employee or a probationer. What is required is the probation.',
	(int) 32 => '<p>In the present case, the memorandum of appointment shows that applicant's being on probation for a period of two years. Moreover, if the contention of the learned Counsel for respondents as to applicability of CCS (Temporary Servant) Rules, 1965 is accepted, then their own order terminating the service does not refer to and the conditions of appointment have been made applicable to dispense with the services of the applicant. Moreover, in the memorandum also, the service conditions would be governed by Education Code, which, inter alia, provides a notice of one month or pay in lieu thereof. As such the objection raised by the respondents is illogical and liable to be rejected.',
	(int) 33 => '<p>33. In the result, for the foregoing reasons, we are satisfied that in the present case the respondents on their ipse dixit misused their power by dispensing the services of the applicant and as a punitive measure causing stigma on the applicant resorted to termination, which is not preceded by a reasonable opportunity to show cause or a disciplinary proceeding. The order passed cannot be sustained in law.',
	(int) 34 => '<p>34. Accordingly, we allow the O.A. Orders impugned in the O.A. are set aside. Respondents are directed to forthwith reinstate the applicant in service as TSI (S.St.). In that event, he shall be entitled to all consequential benefits.',
	(int) 35 => '<p>35. With the above, the O.A. stands disposed of with no order as to costs.'
)
$paragraphAfter = (int) 1
$cnt = (int) 36
$i = (int) 35
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

35. With the above, the O.A. stands disposed of with no order as to costs.

Court	Central Administrative Tribunal CAT Delhi
Decided On	Jul-11-2006
Judge	S Raju, A A V.K.
Reported in	(2007)(2)SLJ315CAT
Appellant	Mithilesh Kumar Singh
Respondent	Kendriya Vidyalaya Sangathan

Mithilesh Kumar Singh Vs. Kendriya Vidyalaya Sangathan - Court Judgment