Central Administrative Tribunal - Delhi
- vs - on 1 August, 2011
Central Administrative Tribunal Principal Bench OA No.4414/2010 New Delhi this the 1st day of August, 2011. Honble Mr. M.L. Chauhan, Member (J) Honble Dr.(Mrs.) Veena Chhotray, Member (A) Ravinder Kumar, S/o Sh. Murari Lal, R/o B-542, J.J. Colony, Inderpuri, New Delhi-12. (By Advocates Shri Srigopal Aggarwal ) -Versus- 1. Union of India through Secretary, Ministry of Labour, Sharam Shakti Bhawan, New Delhi. 2. Director General ESI, Panchdeep Bhawan, CIG Marg, New Delhi. 3. Director (Recruitment), Panchdeep Bhawan, CIG Marg, New Delhi-110002. 4. Directorate (Medical), Delhi, ESI Scheme: Dispensary Complex, Tilak Vihar, New Delhi-1100118. -Respondents (By Advocate Mrs. Rekha Palli with Ms. Punam Singh & Ms. Amrita Prakash) O R D E R Mr. M.L. Chauhan, Member (J):
This is the second round of litigation. Earlier the applicant has filed Writ Petition (Civil) No.6608/2008 before the High Court with a prayer that direction be given to the respondents to issue necessary appointment order to him appointing him to the post of Nursing Orderly for which he was selected pursuant to interview held on 13.03.2006. It was contended before the High Court that his candidature has not been cancelled but still the appointment letter has not been given to him despite the fact that he has been selected. The High Court disposed of the said Writ Petition vide its order dated 09.09.2008 on the basis of the statement made by one Mr. K.P. Mavi to the effect that the issue regarding appointment of the petitioner to the post of Nursing Orderly will be considered if four weeks time is granted. On that basis the High Court directed the respondents to consider and pass necessary orders regarding candidature of the petitioner for the post of Nursing Orderly within a period of 4 weeks from the date of passing of the order, under intimation to the petitioner. It was also made clear that in case petitioner is not satisfied with the same, he may avail legal remedies as may be available to him in accordance with law. However, in order to avoid any contempt of the High Court, as can be seen from the letter dated 18.11.2008 (Annexure A-13 colly., page 35 of the paper-book), the Director (Recruitment) requested the Director (Medical), Delhi, ESI Hospital, Basaidarapur, Ring Road, New Delhi-15 to take immediate action on the order of the High Court. Therefore, vide memorandum dated 26.11.2008 (Annexure A-14, page 38 of the paper-book) offer of appointment for the post of Nursing Orderly was given to the applicant purely on provisional basis for the terms and conditions mentioned therein. However, subsequently respondents issued a show cause notice dated 19/26.04.2010 (Annexure A-1 colly.) thereby stating that on scrutiny of the documents submitted by the applicant at the time of applying for the post, the experience certificate dated 10.10.2003 was found doubtful and an enquiry was ordered. It is further stated in the said letter that during the pendency of the investigation he was offered provisional appointment and as per the investigation report the experience certificate dated 10.10.2003 has been found to be forged and fake. The certificate has not been issued under the signature of the issuing authority. Thus, according to the respondents the applicant has secured appointment based on forged documents and therefore applicant was called upon to show cause as to why his services should not be terminated as per the terms and conditions of the advertisement and clause 1 (V) & 7 of the offer of appointment dated 26.11.2008 issued to him for production of false document for securing job in ESIC. The applicant was given 10 days time to file reply. The applicant submitted his reply to the show cause notice dated 19/26.04.2010. As the reply of the applicant was not satisfactory, accordingly vide impugned order dated 23.11.2010 (Annexure A-1 colly., page 18 of the paper-book) the services of the applicant were terminated with immediate effect on the ground that he has secured appointment on the basis of the forged documents. It is this order dated 23.11.2010 as well as show cause notice dated 19/26.04.2010 (Annexure A-1 colly., page 19 of the paper-book) which are under challenge in this OA. Applicant has sought the following reliefs:
i) to direct the respondents to reinstate the services of the applicant till the finalization of the original application.
ii) to set aside the impugned orders.
iii) To direct the respondents to re-instate the applicant in the services by holding the termination orders as illegal & irregular.
iv) To orders the respondents to pay back wages for the period the applicant remained out of job on account of illegal/irregular termination orders with all consequential reliefs.
v) to allow any other relief which this Honble Tribunal deem fit under the facts and circumstances of the case.
vi) to allow costs.
2. Notice of this application was given to the respondents. Respondents have justified their action. Besides making a submission that the Lawyer who appeared before the High Court and made a statement that the action regarding appointment of the applicant shall be taken within a period of one month was never engaged by the respondents, have further stated that the offer of appointment was given to the applicant to avoid any contempt of Delhi High Court. It is further stated that since the investigation was underway and more time was needed to verify the experience certificate, offer of appointment, purely provisional was given to the applicant. It is further stated in the reply that the High Court has not given any direction to issue appointment letter to the applicant. On merits it is stated that two documents dated 10.10.2003 and 20.09.2006 are contradictory to each other, which is evident from another document dated 23.10.2009 submitted by Dr. Malhotra. It is further stated that even Dr. Malhotra has himself raised doubt about the document dated 10.10.2003 issued by him vide his statement dated 23.10.2009. It is further pleaded that the applicant tried to secure the said appointment on the basis of the forged experience certificate. Respondents have categorically stated that the previous employer of the applicant not only denied the genuineness of experience certificate dated 10.10.2003 but also failed to produce any related vital documents such as wage register which showed that the applicant had actually worked with him during the period 1.2.1996 to 30.3.2001. Thus, according to the respondents present OA deserves to be dismissed and the action of the respondents in terminating the services of the applicant, who was a probationer, is valid. Applicant has filed rejoinder and along with the rejoinder he has also annexed another document dated 25.11.2010 issued by the same Dr. Rakesh Malhotra regarding the experience certificate dated 10.10.2003.
3. We have heard the learned counsel of the parties and gone through the material placed on record. Learned counsel of applicant argued that both the certificates dated 10.10.2003 and 20.09.2006 are genuine and as such it was not permissible for the respondents to terminate the services of the applicant. The second submission made by the learned counsel of applicant is that the order of termination is stigmatic and thus in view of the law laid down by the Apex Court in the case of V.P. Ahuja v. State of Punjab and others, (2000) 3 SCC 239 and the decision of the Apex Court in the case of Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta and others, JT 1999 (1) SC 396, the termination of the applicant without holding a regular enquiry is not valid. On the contrary, learned counsel of respondents has placed reliance on the decision of the Apex Court in the case of Union of India & Ors. v. Bipad Bhanjan Gayen, (2008) 11 SCC 314 to contend that the finding recorded by the authority to the effect that applicant has secured appointment on forged documents and thus cannot be said to be punitive. Learned counsel of respondents has drawn our attention to para-2 of the judgment whereby while discharging the services of the respondent before the Apex Court services of the respondent were terminated with immediate effect because of his involvement in the police case as reported by the D.M., Alipore and suppression of this factual information in the attestation form by the candidate. The Apex Court held that since the respondent was still under probation at the time his services had been terminated and it is also apparent from the record that respondent had been given appointment on probation subject to verification of facts given in the attestation form. The Apex Court held that an enquiry revealed that the facts given were wrong the appellant was at liberty to dispense with the services of the respondent as the question of any stigma and penal consequences at this stage would not arise.
4. Another decision relied upon by the learned counsel of respondents is in the case of Kamal Nayan Mishra v. State of Madhya Pradesh and others, (2010) 2 SCC 169, whereby the Apex Court has held that no enquiry, as contemplated under Article 311 of the Constitution of India is necessary in the case of probationer. But once a probationer is confirmed in the post, his position and status become different as he gets protection of Article 311. It was further held that if it is found that the government servant is the holder of a civil post, that will have to be treated as a misconduct, and punishment can be imposed only after subjecting him to an appropriate disciplinary proceedings as per the relevant service rules. Thus, according to the learned counsel of respondents since the applicant was a probationer and he has not only given false declaration but also produced forged documents on the basis of which he was selected, as such no opportunity was required to be given to the applicant. It is argued that since the show cause notice was given to him and it is only after considering his reply that services of the applicant were terminated.
5. We have given due consideration to the submissions made by the learned counsel of the parties. At this stage, few facts may be noticed. It is not in dispute that the respondents invited applications from general public for the post of Nursing Orderly in June, 2004. Pursuant to such advertisement applicant submitted his application and along with the said application applicant also annexed experience certificate dated 10.10.2003. The said experience certificate has been placed on record as Annexure A-5, page 22 of the paper-book. At this stage, it will be useful to quote the said certificate in ex tenso, which thus reads:
Dr, Malhotras Nursing Home & Children Hospital, 82/2 Kirti Nagar, W.H.S., New Delhi-110015.
Dr. Rakesh Malhotra, Dr. Anil Malik, M.BB.S., DCH M.D. M.S. Child Specialist Surgeon Dated: 10.10.2003 To Whom It May Concern
This certified that Mr. Ravinder Kumar S/o Sh. Murari Lal, Address B-542, Budh Nagar, Inder Pur, New Delhi-110012 has worked as Nursing Orderly in this Nursing Home w.e.f. 01 Feb. 1996 to 30th March, 2001. He was drawing consolidated salary of Rs.1900/- per month.
He was punctual during above period and his work was always satisfactory. Any job of responsibility can be assign to him.
I wish him all success in near future.
Sd/-
10.10.03.
Dr. Rakesh Malhotra, M.B.B.S. C.C.H. M.D.
6. As can be seen that this certificate was given on the letter head containing the address of Dr. Malhotras Nursing Home and Children Hospital, 82/2, Kirti Nagar, New Delhi. Further perusal of this document reveals that applicant had worked as Nursing Orderly in this Nursing Home w.e.f. 1.2.1996 to 30.3.2001. It is further certified that the applicant was punctual during the above period and his work was always satisfactory. As already noticed above, this certificate is dated 10.10.2003 signed by Dr. Malhotra. According to the applicant, this is a genuine certificate which he produced along with the application on the basis of which he wants to procure appointment to the post of Nursing Orderly. Further the case of the applicant is that he has also submitted another certificate dated 20.09.2006 from the same Doctor. It may be stated that this certificate dated 20.09.2006 was produced by the applicant after he has qualified the selection test for the post of Nursing Orderly and the result was published on 10/16.-6.2006 and it was also mentioned that the candidature of the above candidates is provisional subject to verification of certificates in respect of educational qualification, professional qualification, caste, experience etc. and subject to fulfillment of eligibility conditions for the above posts. According to the applicant this second certificate dated 20.09.2006 was submitted by the applicant on the directions of the respondents. At this stage, it may also be useful to quote the second medical certificate dated 20.09.2006 in extenso, which thus reads:
Malhotra Medical Centre Clinic: 5379/69, Regar Pura, Karol Bagh, New Delhi-110005.
Medical Certificate 20/9/06 To Whom it concerns Certified that Mr. Ravinder Kumar S/o Shri Murari Lal has worked as N.O. in my erstwhile Nursing Home & Children Hospital (now closed as premises sold out, R/o 82/2, Kirti Nagar, WHS, N.D. w.e.f. 1.2.96 & 30.3.01. I have no objection for his selection & working in any Govt./private institution, if he so desires.
Signature of sd/- Mr. Ravinder Kumar 20.9.06 Sd/- Dr. Rakesh Malhotra
7. This certificate has been issued on the letter head of Malhotra Medical Centre Clinic 5379/69, Regar Pura, Karol Bagh, New Delhi. This certificate specifically mentioned that Malhotra Medical Clinic has now been closed as premises sold out. Respondents have also placed on record a letter dated 28.02.2008 written by Dr. Rakesh Malhotra and addressed to Joint Director, ESIC, New Delhi, which with reference to his earlier letter dated 03.12.2007 whereby Dr. Malhotra has stated that he has sold out the premises at Kirti Nagar long back, which premises were owned by his father. It was further mentioned in the said letter dated 03.12.2007 that no document regarding its sale and ownership are available at present. Even the record of attendant/wages paid was also destroyed as junk. He has further certified that two documents dated 10.10.2003 and 20.09.2006 are genuine. Subsequently, vide letter dated 23.02.2008 Dr. Malhotra has given the following clarification/observation to the queries raised during the discussion of the case, which thus reads:
I wish to give following observations to queries raised during discussion of case.
1. That the premises 87/2, WHS Kirti Nagar, Timber Block, New Delhi was disposed in the year 2000 by my father who owned the premises, the Nursing Home was closed (Non-operative since 1999).
2. That Mr. Ravinder Kumar worked as N.O./Compounder/Asstt. For a period of 4-5 years, the period of work may overlap (one year on either side) since all records were sold out as junk long back.
3. That Mr. Ravinder Kumar, is a sincere, hard working, intelligent person & I recommend him for the post purely on merit.
8. As can be seen from this letter, Dr. Malhotra has categorically stated that he has sold the premises 87/2, WHS Kirti Nagar, Timber Block, New Delhi in the year 2000 and the nursing home was closed/Non-operative since 1999. We fail to understand how Dr. Rakesh Malhotra could have issued a certificate dated 10.10.2003 and subsequent certificate dated 20.09.2006 thereby certifying that the applicant had worked as Nursing Orderly in the Nursing Home w.e.f. 1.21996 to 30.03.2001. We have also perused the photo copy of the certificate dated 10.10.2003 and another certificate dated 20.09.2006 stated to be genuine as per the subsequent version of Dr. Malhotra. Admittedly the signature appended on those two certificates is not signed by the same person. Even the applicant and Dr. Malhotra have themselves admitted that the signatures on two certificates differ but to our utter surprise Mr. Rakesh Malhotra has given yet another reason why his certificate dated 25.11.2010, which has been placed on record at Annexure RA-1 that the signature differ because of trauma in right hand during that period when certificate was issued. At this stage, it will be useful to quote the said certificate dated 25.11.2010 (Annexure RA-1), which thus reads:
Reg: Genuineness of experience certificate issued to Sh. Ravinder Kumar Dated 10-10-2010.
1. That I am hurt to note that the services of Mr. Ravinder Kumar S/o Sh. Murari Lal has been terminated on account of allegedly false experience certificate from my Centre.
2. I once again confirm/certify that above mentioned certificate (10-10-2003) is genuine.
3. Apparently Signature in two certificate (dated 10-10-2003 & 20.9-2006) differ because of trauma . Hand during that period when Certificate was issued. I have never denied that experience certificate dated 10-10-2003 was not issued under my signature.
4. Mr. Ravinder Kumar worked in the Nursing Home and other details given in previous letters to ESIC officials during their enquiry.
9. Thus as can be seen from the tenor of this letter it appears that Dr. Rakesh Malhotra was out to help the applicant for reasons best known to him as he was hurt by his termination. According to us, if the authority concerned on the basis of the aforesaid document has taken the decision that the certificate dated 10.10.2003 is not genuine, it cannot be said that the conclusion arrived at by the authorities is perverse and based on no documentary evidence. In exercise of our power of judicial review it is not possible for us to substitute the finding so recorded by the respondents on the basis o the aforesaid documents and to come to a conclusion that the certificate dated 10.10.2003 is a genuine document.
10. Since the applicant has procured appointment on the basis of the experience certificate dated 10.10.2003, which document was not prima facie found genuine by the respondents, which led to further enquiry, we are of the view that it was permissible for the respondents to terminate the services of the applicant as the fraud has vitiated every thing and the Apex Court in the case of Vice-Chairman, Kendriya Vidyalaya Sangathan & Another v. Girdhari Lal Yadav 2004 (2) SLJ SC 138 has held that where the appointment is procured on the basis of the false OBC certificate there is no violation of principles of natural justice. In the case before the Apex Court also enquiry was held by the DM regarding the genuineness of the OBC certificate. Thereafter, notice was issued to the respondent before the Apex Court and ultimately services were terminated. It was held that there was no violation of principles of natural justice where the appointment is procured by forged document. The ratio laid down by the Apex Court in the case of Girdhari Lal Yadav (supra) is squarely applicable to the facts and circumstances of this case. Learned counsel of respondents has also placed before us letter dated 23.10.2009 signed by Dr. Malhotra, in which Dr. Malhotra has categorically stated that the certificate dated 10.10.2003 does not bear his signature. At this stage, it will be useful to quote the relevant portion of that letter, which thus reads:
In reference to enquiry regarding Mr. Ravinder Kumar I wish to say he worked as N.O. in the aforesaid period. The signature appearing in Annexure I dt. 10.10.03 does not match my signature. However, one experience certificate was issued by me earlier.
11. The respondents have also made available to us the report submitted by the investigating officer, which is also to the effect that during interrogation Mr. Rakesh Malhotra accepted that the certificate issued vide reference No.118/2003 dated 10.10.2003 on the letter head of DR. MALHOTRA NURSING HOME & CHILD HOSPITAL, 82/2, Kirti Nagar, W.H.S. New Delhi-15 for experience certificate was not by him and signature shown is forged. At this stage it is useful to quote the report given by the Investigating Officer, which thus reads:
I have visited personally to the clinic of Dr. Rakesh Malhotra mention in D(M)D letter and interrogated Dr. Rakesh Malhotra. During the interrogation Dr. Rakesh Malhotra told that he has done M.B.B.S. from LALA LAJPAT RAI MEMORIAL MEDICAL COLLEGE MEERUT and M.D. Pediatrics from TOPI WALA NATIONAL MEDICAL COLLEGE, MUMBAI CENTRAL. Previously he was running a nursing home at 82/2, KIRITI NAGAR, Delhi, which is now closed on 20.03.01. The clinic was situated at 5379/69 Ragar Pura, New Delhi-5 and it was in very very bad shape and there is no board of Malhotra Medical Centre and non-existence of nursing home.
During interrogation Mr. Rakesh Malhotra accepted that the certificate issued vide reference No.118/2003 dated 10.10.2003 on the letter head of DR. MALHOTRA NURSING HOME & CHILD HOSPITAL, 82/2, Kirti Nagar, W.H.S. New Delhi-15 for experience certificate was not by him and signature shown is forged. However, medical certificate of dated 20/09/2006 was issued by him.
Findings:
That the Sh. Ravinder Kumar, N.O., s.o Sh. Murari Lal submitted the experience certificate bearing signature of Dr. Rakesh Malhotra is forged.
12. Thus, if the matter is seen in the light of the material, which has been made available before us and the fact that Dr. Rakesh Malhotra has made a categorical contradictory statement and more particularly the certificate dated 10.10.2003 and subsequent certificate issued by Dr. Malhotra dated 20.09.2006 does not bear the signature of the same person, it cannot be said that the certificate dated 10.10.2003 produced by the applicant on the basis of which he procured appointment to the post of Nursing Orderly was genuine. We agree with the submission made by the learned counsel of respondents that reliance place by the applicant on the judgments of the Apex Court in Dipti Prakash Banerjee (supra) and Bipin Bhanjan Gayen (supra) is not attracted in the facts and circumstances of this case, as the services of the applicants are not terminated on account of his work and conduct during the probation period but his services have been terminated because he procured appointment on the basis of the false and forged documents and thus, according to the respondents, the law laid down by the Apex Court in the case of Girdhari Lal Yadav (supra) and Kamal Nayan Mishra (supra) is squarely attracted. It may be stated that in the case of Kamal Nayan Mishra (supra) the Apex Court has formulated the following two questions for its consideration, this thus read:
(i) Whether the ratio decidendi of the decision in Ram Ratan Yadav apply to this case? Does it hold that State government could dismiss or remove the holder of a civil post, without any enquiry or opportunity to show cause, once it is found that he has given incorrect/false information in the personal attestation form?
(ii) Whether the termination of the appellant is valid?
Thereafter in para-14 the Apex Court made the following observations:
14 Therefore, the ratio decidendi of Ram Ratan Yadav is, where an employee (probationer) is required to give his personal data in an attestation form in connec-tion with his appointment (either at the time of or thereafter), if it is found that the employee had suppressed or given false information in regard to matters which had a bearing on his fitness or suitability to the post, he could be terminated from ser-vice during the period of probation without holding any inquiry. The decision dealt with a probationer and not a holder of a civil post, and nowhere laid down, a propo-sition that a confirmed employee holding a civil post under the State, could be terminated from service for furnishing false information in an attestation form, without giving an opportunity to meet the charges against him.
13. In para-17 the Apex Court has followed the reasoning given by the Apex Court in the caste of Ram Ratan Yadav, (2003) 3 SCC 437 to the effect that where services of the probationer who gave wrong information in regard to material particulars having a bearing on his fitness or suitability for appointment, can be terminated without giving any opportunity to show cause against the proposed termination. But once a probationer is confirmed in the post, his position and status become different as he gets the protection of Article 311. If it is found that the government servant who is the holder of a civil post, has given any false information during the course of employment, that will have to be treated as a misconduct, and punishment can be imposed only after subjecting him to an appropriate disciplinary proceedings as per the relevant service rules.
14. Admittedly, the applicant was a probationer. He was put on probation for a period of two years, as can be seen from his appointment letter. It is also admitted fact that his services were terminated before expiry of two years. It is also an admitted fact that applicant was given a show cause notice and his services were terminated thereafter, whereas in terms of the law laid down by the Apex Court in the case of Ram Ratan Yadav (supra) services of such person could have been terminated without even giving any show cause notice. The contention raised by the applicant that there is violation of principles of natural justice and he should have been terminated after holding a regular enquiry and the said order is stigmatic, deserves outright rejection. As already stated above where the appointment is obtained by fraud such an appointment is void ab initio and no enquiry is to be held in such type of cases.
15. Accordingly, for the foregoing reasons, OA is found bereft of merit, which is dismissed. No costs.
(Dr. Veena Chhotray) (M.L. Chauhan)
Member (A) Member (J)
San.