Central Administrative Tribunal - Delhi
Surya Parkash Mishra vs Gnctd on 15 October, 2024
1
OA No.1243/2024
Court No.2 (item No.24)
Central Administrative Tribunal
Principal Bench
OA No. 1243/2024
Reserved on:09.09.2024
Pronounced on : 15 .10.2024
Hon'ble Mr.R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Surya Prakash Mishra
S/o Sh. Avdesh Narayan Mishra
R/o Village -Mishrapur,
Post-Pahapur,
District-Pratapgarh,
Uttar Pradesh,
PINCode-230136
(Aged about 43 years)
(Group „A‟) (Principal) - Applicant
(Through Advocate: Mr.Ajesh Luthra)
Versus
1. Govt. of NCT of Delhi
Through its Chief Secretary
Delhi Sachivalaya, Players Building
I.P. Estate, New Delhi.
2. Directorate of Education
(GNCT of Delhi)
Through its Director
Old Sachivalaya Delhi
PINCode-110052.
3. Additional Director
(Education)
Directorate of Education
(GNCT of Delhi)
Old Sachivlya Delhi
PINCode-110052.
2
OA No.1243/2024
Court No.2 (item No.24)
4. Lt. Governor of Delhi
Raj Niswas, Rajpur Road,
Delhi -110052.
-Respondents
(Through Advocate: Mr. Anuj Kumar Sharma)
ORDER
By Hon'ble Mr. Rajinder Kashyap, Member (A):-
The applicant has filed present Original Application under Section 19 of the Administrative Tribunals Act., 1985, seeking the following relief under para 8 of the OA:-
"8. It is therefore respectfully prayed that keeping in view the facts and circumstances of the case, this Hon‟ble Tribunal may graciously be pleased to:
(a) Quash and set aside the impugned notice/order dated 04.03.2024 (Annexure A/1) and
(b) accord all consequential benefits including continuity of services.
( c) award costs of the proceedings.
(d) Any other which this Tribunal deems fit and proper in favour of the applicant."
2. The brief facts of the case are that in response to an advertisement bearing No. 07/2021 dated 24.4.2021 inviting applications for recruitment by selection for various posts, the applicant applied and submitted his application for the post of Principal along with requisite fee. The respondents‟ department 3 OA No.1243/2024 Court No.2 (item No.24) conducted the written test on 17.07.2022 and the result was declared in the month of September, 2022. Subsequently, the applicant was interviewed on 15.2.2023 and in the final result dated 22.03.2023, the applicant was declared selected. After document verification on 12.4.2023, accepting UPSCs recommendation, the respondents issued offer of appointment to the applicant on 19.04.2023 (Annexure A-4). The applicant vide order dated 26.6.2023 (Annexure A-5) joined the respondents on 28.06.2023 and he was allocated to GBSSS, Shalimar Bagh Village on 30.06.2023. On 04.03.2024 (AnnexureA-1) the respondents issued notice terminating the services of the applicant with effect from the date of expiry of a period of one month from the date of service of notice invoking the powers under Rule 5 (1) of the CCS (Temporary) Service Rules. The said notice was served upon the applicant on 05.03.2024, perusal of which reveals that the said order is stigmatic as the applicant is alleged to have used various unfair means, fake and fabricated certificate/documents. The experience certificate No. DAV PS/Tanda/2020-21/54 dated 12.05.2021 was 4 OA No.1243/2024 Court No.2 (item No.24) also forwarded to the Principal, DAV Public School, TTPP, Asopur, TANDA, Ambedkar Nagar, U.P. for verification and the said Principal of aforesaid handed over the report dated 19.09.2023 of physical verification in respect of the applicant in a sealed envelope addressed to Addl. D.E. (Admn.). The same was opened by the Director (Education), wherein the Principal D.A.V Public School, TPP, TANDA, Admbedkar Nagar (U.P) has mentioned that "the experience certificate attached with your above referred letter is not issued by the office of D.A.V. Public School, TPP, TANDA,A.N.(U.P). It is further stated that the respondents have conducted an enquiry into a complaint against the applicant and terminated the applicant. The applicant states that the action of the respondents is unilateral and without affording him any opportunity of hearing to defend his case. The applicant also stated that neither the copy of alleged complaint nor the copy of enquiry report or alleged report/letter/statement of Principal, DAV School, TTPP, Tanda, Ambedkar Nagar has been furnished to him prior to issuing the impugned (Annexure A1) order. Aggrieved by the aforementioned impugned order 5 OA No.1243/2024 Court No.2 (item No.24) (Annexure A-1), the applicant has filed the present Original Application seeking the aforementioned relief(s).
3. On admission of the OA, notices were issued to the respondents and they have filed their counter reply on 01.05.2024, to which the applicant has also filed his rejoinder on 03.05.2024. The respondents have also filed additional affidavit digitally on 19.05.2024 reiterating their stand earlier taken in their reply.
4. In response to their additional affidavit, the applicant has also filed reply to the additional affidavit on 01.07.2024. In support of his claim, the applicant relied upon the judgment of the Hon‟ble Supreme Court of India in the case of Ratnesh Kumar Choudhary vs. Indira Ghandhi Inst. Of M.S. Patna & Ors., decided on 15.10.2015. He further states that Writ Petition bearing No. W.P.(C) No.12768/2023 titled Navendu Charitable Trust vs. Directorate of Education & Ors. has been filed by a Trust before the Hon‟ble Delhi High Court alleging irregularities in the selection of at least 31 Principals including the applicant. CM NO. 54401/2023 has been filed therein 6 OA No.1243/2024 Court No.2 (item No.24) for impleadment of such Principals including the applicant in which notices had been issued. The applicant further states that to wash its hands away, instead of opposing the said petition, the respondents have issued alleged impugned (Annexure A-1) order against him.
5. The learned counsel for the respondents reiterating their stand states that DOPT OM Dt. 19.5.1993, provides as under:
"The matter has been examined in consultation with the Ministry of Law and Justice and it has now been decided that whenever it is found that a Government servant, who was not qualified or eligible in terms of the recruitment rules etc., for initial recruitment in service or had furnished false information or produced a false certificate in order to secure appointment, he should not be retained in service. If he is a probationer or a temporary Govt servant, he should be discharged or his services should be terminated. If he has become a permanent Govt. servant, an inquiry as prescribed in Rule 14 of CCS (CCA) Rules, 1965 may be held and if the charges are proved, the Government servant should be removed or dismissed from services. In no circumstances should any other penalty be imposed.
3. Such discharge, termination, removal or dismissal from service would, however, be without prejudice to the right of the Government to prosecute such Government servants."
He further states that this Hon'ble Tribunal in a batch of OAs including OA/3302/2011, has held as under:
"10. We note that there is marked distinction between the misconduct committed during the service and the deliberate misrepresentation in the form of furnishing fake/forged documents to secure employment. The former action attracts the provisions of discipline and appeal rules and gets covered under the Article 311 of the Constitution irrespective of the fact whether such employee is in 7 OA No.1243/2024 Court No.2 (item No.24) regular/adhoc/temporary service and simple termination of the without conducting proper enquiry under the relevant rules is punitive and stigmatic. On the other hand, in the latter case where employment is secured through fraudulent/deceitful means, a simple termination of such an employee will not be stigmatic, as the employees pre employment action does not attract the relevant discipline and rules. The cases under our consideration in the instant OAs belong to the latter category as it is admitted fact that the applicants pre employment information given to the 2nd and 3rd respondent about their respective HMV driving licenses are the basis for the issue of simple and innocuous termination orders against them. As such, on the analogy of the decision taken by us in Amar Singh Parihars case (supra), we are of the considered opinion that the impugned order dated 30.08.2011 cannot be treated to be stigmatic/punitive"
11. The second issue is that the termination order is violative of the principles of natural justice. It is trite law that the order canceling appointment of a person in Government service on the ground that the said selected person was not even qualified nor was otherwise eligible for the post, termination of temporary service in such circumstances would not attract the principles of natural justice. We may refer to the following judgments in this context".
12. While dismissing the Appeal (Civil) 4507-4508 of 2005 on 16-1-2006 in Mohd. Sartaj and Another Versus State of U.P.and Others (2006-2-SCC-315], the Honourable Apex Court considered the issue of the cancellation of appointment of the appellants to the post of Urdu Teacher on the ground that minimum qualification prescribed under Rule 8 of U.P. Basic (Teachers) Services Rules, 1981 was not fulfilled on the date of recruitment. The said cancellation order has been issued within very short span of time giving no probability for any legitimate expectation to the appellants regarding continuation of their services. It was held that no prejudice had been caused to the appellants by not serving notice or giving hearing before the order of cancellation was issued. Inter alia Honourable Supreme Court has scanned its judgments to identify the circumstances in which the principles of natural justice would be futile exercise being mere technical formality.
6. Learned counsel for the respondents states that advertisement No. 07/2021 (Vacancy No. 21040701324) to fill up 363 posts of Principal in the 8 OA No.1243/2024 Court No.2 (item No.24) pay scale of Level 12 in the Pay Matrix as per 7th CPC and as per the Recruitment Rules dated 10.01.2019 for the post of Principal, the followings Essential & Desirable qualifications were mentioned as under:-
"Essential Qualification:
(I) Master's degree from a recognized University/Institute.
(II) Bachelor of Education University/Institute. from a recognized.
(III) 10 Years' experience of teaching (Vice-Principal/Post Graduate Teacher/Trained Graduate Teacher) in a recognized High School/Higher Secondary School/ Senior Secondary School/Intermediate College.
Desirable Qualification:
(I) Holding Doctorate Degree from a recognized University /Institute.
(II) Experience of Administrative charge of a recognized High School/Higher Secondary School/Intermediate College."
7. The learned counsel for the respondents states that in pursuance of the aforesaid Advertisement No. 07/2021, the applicant applied for the post of Principal, under EWS Category and final result of the said examination was declared by the Commission on 22.03.2023 wherein the applicant (Roll No. 1106926/EWS) was selected for the post of Principal. The Commission, forwarded 334 dossiers (196 male and 138 female), recommended for appointment to the post of Principal in the Directorate of Education, Govt. of NCT of Delhi, in the pay scale of Level 12 in the pay 9 OA No.1243/2024 Court No.2 (item No.24) matrix as per the 7th CPC, plus allowances as admissible under rules. A memorandum dated 06-04- 2023 was issued to the applicant with a request to bring all certificates of Educational Qualification, Experience, Caste/ EWS/PH/OBC(NCL) Certificate (if applicable), and other relevant documents, along with one set of photocopies, in support of his claim for the post of Principal for verification. During the document verification on 12.04.2023, the applicant submitted all requisite documents except the NCTE certificate, Experience Certificate (Counter Signed by the Competent Authority), and a copy of the B.Sc. Degree (Annexure-R1). The aforementioned deficiencies were communicated to the Applicant vide a letter dated 12.04. 2023. In response, the Applicant submitted all documents vide a letter dated 20.04.2023. He further states that an Offer of Appointment vide Memorandum dated 19.04.2023 was issued to the Applicant with the following conditions:-
"the Appointment is provisional and is subject to verification of Educational Qualification Documents/ Experience Certificate through the proper channel. If the verification reveals that the claim of the candidate is false, the services of such candidates will be terminated forthwith without assigning any further reasons and without prejudice to such further action as may be taken under the provisions of Indian Panel Code for production of false certificates."10 OA No.1243/2024
Court No.2 (item No.24) The said terms and conditions were duly accepted by the Applicant and conveyed to the Department vide letter dated 20.04.2023 (Annexure R3). After accepting the terms and conditions, as contained in the Offer of Appointment, the Applicant was issued a Provisional Appointment letter vide a letter dated 26.06.2023, with the following condition:
"The provisional appointment of the above mentioned officer is further subject to subsequent verification of veracity of documents regarding Educational qualifications/experience certificate, Caste/Category/EWS/NCL/PwBD certificate and character antecedents by the concerned DDEs in a time bound manner and in the event of being found false or detected incorrect or incomplete at any stage or any ineligibility being detected after the appointment, the candidature/appointment is liable to be cancelled/terminated automatically without any notice and action can be taken by the Department as per rules. In case character antecedents of the candidates are found not verified or any false information is given by the candidates, the appointment shall be cancelled forthwith any other criminal/legal action may also be taken."
A letter dated 15.09.2023 was issued to the Principal of D.A.V. Public School, Tanda, Ambedkar Nagar, requesting verification of the authenticity of Certificate dated 12.05.2021. The said certificate was submitted by the applicant at the time of document verification wherein the period of teaching experience in favor of the Applicant was mentioned as 01.07.2009 to 12.05.2021. They submit that the appointment is subject to verification of original documents submitted 11 OA No.1243/2024 Court No.2 (item No.24) by the candidates. Upon verification, report issued by the Principal of D.A.V. Public School, TTPP, Tanda, Ambedkar Nagar, (U.P), was enclosed in a sealed cover and was addressed to the Additional Director of Education. The sealed cover was opened in the presence of Director (Education), where:-
"The experience certificate attached with your above referred letter is not issued by the office of the undersigned."
8. It is further contended by the learned counsel for the respondents that the Applicant submitted forged and fabricated documents to secure the appointment as Principal in the Directorate. A request was made vide letter dated 26.09.2023 to the Deputy Commissioner of Police to file an F.I.R. against the applicant submitting fake documents. In the Offer of Appointment dated 19.04.2023 it is clearly mentioned that (Annexure - R2):
"the Appointment is provisional and is subject to verification of Educational Qualification Documents/ Experience Certificate through the proper channel. If the verification reveals that the claim of the candidate is false, the services of such candidates will be terminated forthwith without assigning any further reasons and without prejudice to such further action as may be taken under the provisions of Indian Panel Code for production of false certificates.".12 OA No.1243/2024
Court No.2 (item No.24) In the order dated 26.06.2023 it is clearly mentioned that (Annexure - R4):
"The provisional appointment of the above mentioned officer is further subject to subsequent verification of veracity of documents regarding Educational qualifications/experience certificate, Caste/Category/EWS/NCL/PwBD certificate and character antecedents by the concerned DDEs in a time bound manner and in the event of being found false or detected incorrect or incomplete at any stage or any ineligibility being detected after the appointment, the candidature/appointment is liable to be cancelled/terminated automatically without any notice and action can be taken by the Department as per rules. In case character antecedents of the candidates are found not verified or any false information is given by the candidates, the appointment shall be cancelled forthwith any other criminallegal action may also be taken."
9. As the applicant joined the Department on 28.06.2023 and has not completed one year of probation, his service is governed by the Central Civil Services (Temporary Service) Rules, 1965. All relevant facts concerning the applicant were presented before the Hon'ble Lt. Governor, Delhi, being the Appointing Authority. After considering all relevant facts and records of the case, the Hon'ble Lt. Governor, Delhi, approved the termination of the applicant's services as Principal, under the proviso to Sub-Rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, with one month's notice served. After following due procedure and obtaining prior approval from the 13 OA No.1243/2024 Court No.2 (item No.24) Hon'ble Lt. Governor, Delhi, a Notice dated 04.03.2024 has been issued to the applicant to terminate his service from the date of expiry of a one-month period from the date on which the notice is served upon him under the proviso to Sub-Rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 (Annexure-R6).
10. The learned counsel for the respondents has filed additional affidavit on 01.05.2024 stating that pursuant to the interim order of this Tribunal, the salary for the March, 2024 has already been released on 02.04.2024 and for April, 2024 on 13.05.2024. The salary for May, 2024 would also be released in due course. He further states that at point number 8 of the advertisements, the following is laid down:-
"Action against candidates found guilty of misconduct candidates are warned that they should not furnish any particulars that are false or suppress any material information in filling up the application form. The candidates are also warned that they should not in any case correct or alter or otherwise tamper with any entry in a document or its attested oblique certified copy submitted by them nor should they submit the tampered/ fabricated document. If there is any inaccuracy or any discrepancy between two or more such documents or they are attested oblique certified copies, an explanation regarding this discrepancy should be submitted as under:
A. candidate who is or has been declared by the Commission to be guilty of:14 OA No.1243/2024
Court No.2 (item No.24) B. Submitting fabricated documents or documents which have been tampered with;"
In addition to rendering himself liable to criminal prosecution be liable:
"(i). To be disqualified by the commission from selection for which he is a candidate and/or
(ii). To be debarred either permanently or for a specified period.
(iii). If he is already in service under government two disciplinary action under the appropriate rules."
11. He further submitted that in addition to the present action by the department, the applicant is also liable for being debarred from any future exams. He states that the department has already initiated action for criminal prosecution of the applicant. It is stated by the learned counsel for respondents that even the EWS Certificate provided by the applicant at the time of uploading of documents with the commission, had uploaded an EWS certificate dated 9th of April 2021 bearing serial number 1480, which was in Hindi and did not bear the year for which it was being issued. However, later on at the time of document verification another EWS certificate was submitted by the applicant which was in English and bore the year for which it was being issued, having serial number and 15 OA No.1243/2024 Court No.2 (item No.24) year as the earlier certificate, but issued in 2023. A letter has been forwarded to Teshildar (Lalganj), Taluka- Lalganj, District-Pratapgarh, Uttar Pardesh- 230132 on dated 16.05.2024 with the request to verify as to whether both EWS certificates (singed on 09.04.2021 and 04.02.2023) in r/o Surya Prakash Mishra S/o Sh. Avdesh Narayan Mishra has been issued from your office or not, and on what basis these certificates were issued (Annexure R-2).
12. The learned counsel for the respondents has placed reliance on the order passed by this Tribunal in OA/ 3302/2011 in this Tribunal has already held in as under:-
"10. We note that there is marked distinction between the misconduct committed during the service and the deliberate misrepresentation in the form of furnishing fake/forged documents to secure employment. The former action attracts the provisions of discipline and appeal rules and gets covered under the Article 311 of the Constitution irrespective of the fact whether such employee is in regular/adhoc/temporary service and simple termination of the without conducting proper enquiry under the relevant rules is punitive and stigmatic. On the other hand, in the latter case where employment is secured through fraudulent/deceitful means, a simple termination of such an employee will not be stigmatic, as the employees pres employment action does not attract the relevant discipline and rules. The cases under our consideration in the instant OAs belong to the latter category as it is admitted fact that the applicants pre employment information given to the 2nd and 3rd respondent about their respective HMV driving licenses are the basis for the issue of simple and innocuous termination orders against them. As such, on the analogy of the decision taken by us in Amar Singh Parihars case 16 OA No.1243/2024 Court No.2 (item No.24) (supra), we are of the considered opinion that the impugned order dated 30.08.2011 cannot be treated to be stigmatic/ punitive".
13. The learned counsel for the respondents states that the second issue is that the termination order is violative of the principles of natural justice. It is trite law that the order canceling appointment of a person in Government service on the ground that the said selected person was not even qualified nor was otherwise eligible for the post, termination of temporary service in such circumstances would not attract the principles of natural justice. He further states that while dismissing the Appeal (Civil) 4507-4508 of 2005 on 16-1-2006 in Mohd. Sartaj and Another Versus State of U.P. and Others [2006-2- SCC-315], the Hon‟ble Supreme Court considered the issue of the cancellation of appointment of the appellants to the post of Urdu Teacher on the ground that minimum qualification prescribed under Rule 8 of U.P. Basic (Teachers) Services Rules, 1981 was not fulfilled on the date of recruitment. The said cancellation order has been issued within very short span of time giving no probability for any legitimate expectation to the appellants regarding continuation of their services. It 17 OA No.1243/2024 Court No.2 (item No.24) was held that no prejudice had been caused to the appellants by not serving notice or giving hearing before the order of cancellation was issued. Inter alia Hon‟ble Supreme Court has scanned its judgments to identify the circumstances in which the principles of natural justice would be futile exercise being mere technical formality. He states that the experience rendered by the applicant as a contractual teacher, cannot be considered, as the experience rendered as a guest faculty cannot be counted, as per the advertisement.
14. The learned counsel for the applicant has also filed sur-rejoinder to the additional affidavit filed by the respondents narrating his stands that the said additional affidavit do not cover under the expression „discovery of new facts‟ and infact, the respondents have already got FIR No. 0427 dated 05.10.2023, PS Civil Lines, under section 468 and 471, registered against the applicant, prior to issuance of impugned order. He states that EWS certificates of the applicant have already been verified by the respondents immediately after his appointment and the respondents are bent upon to harass the applicant for no valid 18 OA No.1243/2024 Court No.2 (item No.24) reason and they have leveled serious allegations without even waiting the report on their letter dt. 16.05.204 written to Tehsildar (Lalganj) which is annexed with the additional affidavit.
15. In the present OA, the applicant has contended that the impugned order is stigmatic and found on the allegations of misconduct/falls/forged/fabricated documents on which preliminary enquiry has been held and having received at the back of the applicant and findings having been arrived at against the applicant without any opportunity to defend himself, hence, the impugned order is bad in law. He has stated that the impugned order is absolutely illegal, arbitrary, discriminatory, unfair and unjustified. The applicant further contends that the impugned order is stigmatic in nature. The impugned order dated 4.3.2024 terminating the services of applicant reads as follows:-
NO.F1(5)/EON/SECTT/RPU/PL/DR/6/2023/437-44 dated 04.03.2024.
NOTICE Whereas, on the recommendations of UPSC, Sh. Surya Prakash Mishra- 20233039, (D.O.B.01.01.1981) was provisionally appointed to the post of Principal in Deptt. of Education Des,GNCT of Delhi vide provisional appointment order dated 26.06.2023 And Whereas, Sh. Surya Prakash Mishra joined DoE on 28.06 2023 to the post of Principal and posted in Govt 19 OA No.1243/2024 Court No.2 (item No.24) Boys Sr. Secondary School (ID: 1309273). Shalimar Village, Delhi since 30.06.2023 And Whereas, as per the Recruitment Rules for recruitment to the post of Principal Ten years' experience of teaching (Vice Principal/Post Graduate Teacher Trained Graduate Teacher) in a recognized High School/ Higher Secondary School/Senior Secondary School/Intermediate College, is mandatory.
And Whereas, Sh. Surya Prakash Mishra had submitted an experience certificate no. DAV PS/Tanda/2020-21/54 dated: 12.05.2021 issued by Principal, DAV Public School, TTPP, AsapUI, TANDA, Ambedkar Nagar, U.P, for considering his eligibility for appointment to the post of Principal.
And Whereas, during verification of documents scheduled from 10.04.2023 to 17.04.2023, on 12.04 2023 Sh. Surya Prakash Mishra again submitted a countersigned/self-attested copy of the experience certificate no. DAV PS/Tanda/2020-21/54 dated:
12.05.2021.
And Whereas, point no. 3(vi) of the Terms and conditions in the offer of appointment issued by the Dte. Of Education vide memorandum dated: 19.04.2023 states that "If the declaration given or any information furnished by the officer proved to be false or the officer is found to have wilfully suppressed any material information, he/she shall be liable for removal from service and such other action Government may deem necessary."
And Whereas, point no. 5 of the terms and conditions in the offer of appointment issued the by the Dte. Of Education vide memorandum dated: 19.04.2023 states that "The appointment to the post of Principal is provisional and is subject to verification of Educational Qualification Documents/Experience Certificate through the proper channel. If the verification reveals that the claim of the candidate is false, the services of such candidates will be terminated forthwith without assigning any further reasons and without prejudice to such further action as may be taken under the provisions of IPC of production of false certificate."
And Whereas, Provisional Appointment Order dated:
26.06.2023 was subject to subsequent verification of veracity of documents regarding Educational qualifications/experience certificate, Caste/Category/EWS/ NCL/PWBD certificate and character antecedents by the concerned DDEs in a time bound manner and in the event of being found false or detected incorrect or incomplete at any stage or any ineligibility being detected after the appointment, the Candidature/appointment is liable to be cancelled/terminated automatically without any notice and action can be taken by the Department as per rules.20 OA No.1243/2024
Court No.2 (item No.24) And Whereas, Sh. Surya Prakash Mishra on 20.01.2023 (diary no. 96, dt. 20/04/2023/Sectt. Br.) had accepted all the terms and conditions as enumerated in the Offer of Appointment, dated: 19.04.2023.
And Whereas, a complaint was received against Sh. Surya Prakash Mishra. The complainant had alleged that Sh. Surya Prakash Mishra has used various unfair means, fake and fabricated certificates/documents.
And Whereas, the experience certificated no. DAV PS/Tanda/2020-21/54 dated: 12.05.2021 was also forwarded to the Principal, DAV Public School, TTPP, ASOPUR, TANDA, Ambedkar Nagar, U.P, for verification.
And Whereas, teams were constituted and deputed to visit the office of certificate issuing authorities to enquire into the matter.
And Whereas, Principal D.A.V Public School, TPP, Tanda, Admbedkar Nagar (U.P) handed over the report dated: 19.09.2023 of physical verification in r/o Sh Surya Prakash Mishra S/o Sh. Avdesh Narayan Mishra in a sealed envelope addressed to Addl. D.E(Admn.) marked as confidential. The sealed cover was opened by the Director (Education) wherein the Principal D.A.V Public School, TPP, Tanda, Admbedkar Nagar (U.P) has clearly mentioned that "The experience certificate attached with your above referred letter is not issued by the office of undersigned".
And Whereas since, Sh. Surya Prakash Mishra joined DoE on 28.06.2023, joined Govt. Boys Sr. Secondary School (ID: 1309273), Shalimar Village, Delhi on 30.06.2023, has not completed one year probation period, therefore, his service is regulated by the Central Civil Services (Temporary Service) Rules, 1965.
Now, therefore, in pursuance of the proviso to sub- rule (1) of rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, this notice of termination of service is hereby issued to Sh. Surya Prakash Mishra, Principal (Emp ID:20233039). Hence, his services shall stand terminated with effect from the date of expiry of a period of one month from the date on which the notice is served upon him.
This issues with the prior approval of the Competent Authority i.e. Hon'ble Lt. Governor, Delhi."
16. We examine the position of law with regard to any order passed by the authorities under Rules 5 (1) of CCS (Temporary) Service Rules and which are stated to 21 OA No.1243/2024 Court No.2 (item No.24) be stigmatic in nature. The law laid by the Hon‟ ble Courts/ Tribunals is as follows:-
(i) The judgment passed by Hon‟ble Supreme Court in the case of A P State Federation of Coop.
Spinning Mills Ltd. & Another Vs. P. V. Swaminathan in Civil Appeal No. 5037/1997. The relevant portion of the same reads as under:-
"3. The legal position is fairly well settled that an order of termination of a temporary employee or a probationer or even a tenure employee, simpliciter without casting any stigma may not be interfered with by the court. But the court is not debarred from looking at the attendant circumstances, namely, the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the order of termination or formed the foundation for the same order. If the court comes to a conclusion that the order was, in fact, the motive, then obviously the order would not be interfered with, but if the court comes to a conclusion that the so-called inefficiency was the real foundation for passing of order of termination, then obviously such an order would be held to be penal in nature and must be interfered with since the appropriate procedure has not been followed. The decisions of this Court relied upon by Mr. K. Ram Kumar also stipulate that if an allegation of arbitrariness is made in assailing an order of termination, it will be open for the employer to indicate how and what was the motive for passing the order of termination, and it is in that sense in the counter-affidavit it can be indicated that the unsuitability of the person was the reason for which the employer acted in accordance with the terms of employment and it never wanted to punish the employee. But on examining the assertions made in paras 13 and 14 of the counter-affidavit, in the 22 OA No.1243/2024 Court No.2 (item No.24) present case it would be difficult for us to hold that in the case in hand, the appellant-employer really terminated the services in accordance with the terms of the employment and not by way of imposing the penalty in question."
(ii) In the case of Mangal Singh Vs. The
Chairman, National Research Development
Corporation & Ors. decided on 10.08.2009 (2009:
DHC: 3147) in W.P.(C) 2553/2007; wherein the Hon‟ble High Court of Delhi in para 23 has held as under:-
"23. In the light of the discussion above, in my opinion, the Petitioner was dismissed without affording him the opportunity of presenting his case before the disciplinary authority, thereby violating the protection guaranteed to temporary servants under Article 311(2) of the Constitution of India. Further, the order of termination was not a discharge simplicitor but a dismissal, and was stigmatic and punitive in character. Also, the misconduct of the Petitioner was the foundation of the order of termination and not merely the motive. Resultantly, the impugned order of termination is held to be stigmatic and punitive and not sustainable. I, therefore, allow this petition and set aside the impugned orders dated 4th of June 2004 and the consequent order in appeal dated the 1st of December, 2006 passed by the Respondent-Corporation. The Respondents are directed to reinstate the Petitioner, with all consequential benefits. This, however, will not prevent the Respondents from taking action in accordance with law.23 OA No.1243/2024
Court No.2 (item No.24)
(iii) The order passed by this Tribunal in OA No. 1219/2021 in the matter of Satyender Satyender Vs. GNCTD decided on 02.06.2023 which was upheld by the Hon‟ble High Court of Delhi in the Writ Petition (C) 12635/2023 in the matter of GNCTD & Ors. Vs. Satyender. The ratio laid down in the above mentioned judicial orders/judgment is applicable in this case also.
The Hon‟ble High Court of Delhi while deciding the matter on 05.03.2024 has held as under:-
"2. We find that the issue raised in the present petition is squarely covered against the petitioner by a recent decision of a Co-ordinate Bench dated 28.02.2024 in W.P.(C) 12696/2023 titled Govt of NCT of Delhi and Ors v Virendra. From a perusal of the record, it emerges that till date notice has not been issued in the present petition. Even today, an adjournment slip has been moved by the petitioner, but despite the matter being passed over, none appears on behalf of the petitioners.
3. In these circumstances, when we find that the matter is already covered by a recent decision of a Coordinate Bench in Virendra, we have proceeded to consider the petition on merits. As noted hereinabove, the learned Tribunal has set aside the impugned order after finding that even though the termination of the respondent was punitive and stigmatic, the same had been passed without holding any enquiry or following the principles of natural justice. Since a similar stigmatic order passed under Rule 5 of CCS (Temporary Services) Rules, 1965, was quashed by the Co-ordinate Bench in Virendra, we may usefully refer to paragraph nos. 45 to 48 of this decision. The same read as under:
"45. The stand of the petitioners before the Tribunal and before us is by relying upon the fact that the petitioner was absent between the period April 11, 2017 to April 21, 2017 for which a memorandum was issued to the 24 OA No.1243/2024 Court No.2 (item No.24) respondent. A reference is also made to the FIR registered against respondent under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Ac', for short). So it follows that the absence / the FIR were the foundation' for terminating the services of the respondent and as such the same could not have been done without following the principles of natural justice. The said order of termination is stigmatic and punitive in nature. We may also state that, had the rules permitted, a government servant who is 'found unlikely to prove himself an efficient police officer' may be discharged by the employer within three years of enrollment, as was the rule in the case of Jaswant Singh (supra) would justify the termination, but no such rule has been shown to us. In any case, the termination being under Rule 5, the same has to be an order simpliciter.
46. In the present case, we have already held that the impugned order is stigmatic and that the Tribunal was justified to the extent of holding that the termination order of the respondent was bad. But, what we do not agree is the conclusion arrived by the Tribunal, that is, the Tribunal while setting aside the order of termination had granted liberty to the petitioners to initiate disciplinary enquiry and/or take action in accordance with the relevant rules depending upon the final outcome of the FIR, which according to us shall mean that the employer needs to wait for the final decision on the FIR, which will take its own time.
47. We would state here that, mere pendency of an FIR shall not restrain/preclude the employer to initiate disciplinary proceedings under the relevant rules, as it is a settled law that, a Criminal Case & Departmental Enquiry are two different proceedings and for holding the charge against a government servant in a departmental enquiry, the same needs to be proved on the principles of preponderance of probability.
48. We dispose of the petition by directing the petitioners to reinstate the respondent in service within six weeks of the receipt of the copy of this order with all consequential benefits in accordance with the relevant rules and instructions but with liberty to the petitioners to initiate action against the respondent in accordance with the conduct rules and proceed accordingly. No costs."
In the light of the aforesaid, when a Co-ordinate Bench of this Court has already taken a view that a stigmatic 25 OA No.1243/2024 Court No.2 (item No.24) order cannot be passed under Rule 5 of CCS (Temporary Services) Rules, 1965 without holding an enquiry and following the principles of natural justice, we find absolutely no reason to interfere with the impugned order which while setting aside a stigmatic order passed against the respondent, has granted liberty to the petitioner to initiate action against him as per law if deemed necessary."
17. In wake of law laid down on the subject, we hold that the impugned order 4.3.2024 issued by the respondents is punitive and stigmatic.
18. In view of the above, the present OA is partly allowed with following directions:-
(i) The impugned order dated 4.3.2024 (Annexure A-1) is quashed and set aside. The respondents are directed to reinstate the applicant in services forthwith with all consequential benefits in accordance with the rules and instructions on the subject.
(ii) The aforesaid directions shall be complied with by the respondents as expeditiously as possible preferably within 8 weeks from the date of receipt of a certified copy of this order.
(iii) However, the respondents shall be at liberty to initiate the disciplinary action against the 26 OA No.1243/2024 Court No.2 (item No.24) applicant, if so advised, but inconformity with principles of natural justice and the rules and instructions on the subject.
(iv) No order as to the costs. Pending MAs, if any, stand closed.
(Rajinder Kashyap) (R. N. Singh) Member (A) Member (J) /mk/