Central Administrative Tribunal - Delhi
Constable Sandeep No.6260/Ptc vs Govt. Of N.C.T.D on 31 January, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.2137 of 2009 New Delhi this the 31st day of January 2011 Honble Shri Shailendra Pandey, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Constable Sandeep No.6260/PTC, Roll No.925274, S/o Late Shri Natthu Singh, R/o H.No.30, Gali Ravidas Johripur, Delhi-94. .... Applicant ( By Advocate Shri Sachin Chauhan ) VERSUS 1. Govt. of N.C.T.D. Through Commissioner of Police, Police Headquarters, I.P. Estate, New Delhi. 2. The Principal, Police Training College, Jharoda Kalan, New Delhi Through Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi. .. Respondents ( By Advocate Shri R.N. Singh ) O R D E R Dr. Dharam Paul Sharma, Member (J) :
The present Application filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 is directed against the show cause notice dated 21.11.2008 calling upon the applicant to show cause as to why his services should not be terminated under Rule 5 (1) of the Civil Service (Temporary Service) Rules, 1965 for not disclosing his involvement in a criminal case in the Undertaking he gave at the time of appointment, a copy of which is at Annexure A/1, and the order of termination dated 5.2.2008 in pursuance of provisions of Sub rule (1) of Rule 5 of the Central Civil Service (Temporary Service) Rules, 1965 with immediate effect, a copy of which is at Annexure A/2.
2. The applicant joined as recruited Constable in Delhi Police on 25.5.2008. The applicant was got selected on the basis of his merit in the written, physical, interview and medical tests and in his application form as well as in the attestation form he was shown not to have been involved in any criminal case. At the time of joining, the applicant gave Undertaking which inter alia contained a declaration to the effect that he has neither been involved in any criminal case or been arrested/prosecuted /convicted/bound over/interned/externed as well as not dealt with under any law in force in any criminal case. No criminal case or court proceeding is pending against him at that time. It has further been stated in the Undertaking that his appointment is purely provisional and temporary subject to the verification of his character & antecedents and the documents submitted by him in support with his application form. In case of any document/certificate/declaration submitted by him is found to be false or adverse character & antecedents report is received, his aforesaid selection would be liable to be cancelled and his services would be liable to be terminated in which eventuality he would have no claim for the post of Constable (Executive) Male in Delhi Police, a copy of the said Undertaking is at Annexure A/6 at page 31 of the paper book.
3. It transpires that the applicants family was having some family dispute with his maternal uncle who was also leaving in the neighborhood of the applicant. On 14.3.2008, there was a quarrel between the members of the two families whereupon FIR No.53/2008 under Sections 323, 324, 452/34 IPC was registered in PS Karawal Nagar implicating the applicant along with his family members. The applicants family too registered cross-FIR being FIR No.91/2008 under Sections 323, 324/34 IPC on 24.5.2008. The applicant obtained anticipatory bail on 18.3.2008. The applicant duly informed this incidence as well as lodging of FIR to the Principal, P.T.S., Wazirabad, Delhi, the D.C.P., North East, Seelampur, Delhi, and the Commissioner of Police, Police Headquarters, I.P. Estate, New Delhi vide his letters dated 9.6.2008, 13.6.2008 and 14.6.2008, copies of which are collectively annexed with the Application as Annexure A/4. The applicant was thereupon issued the impugned show cause notice on 10.12.2008. it has, inter alia, been stated in the said notice that when he has jointed the department on 25.5.2008, he was already involved in a criminal case vide FIR No.53/2008 on 14.3.2008 and he did not disclose this fact in the Undertaking given at the time of his appointment. This is contrary to the specific instructions provided in such declaration. He informed the department of it only after joining. This act on the part of the applicant amounts to grave misconduct rendering him unbecoming of the police official of the disciplined force and, therefore, is `called upon to show cause as to why his services should not be terminated under Rule 5 (1) of the Central Civil Service (Temporary Service) Rules, 1965. The applicant duly replied to the said show cause notice wherein he has inter alia stated that the case in question has arisen on account of family rivalry with his maternal uncle who is in police and FIR was made solely with a view to deprive him of his appointment in Delhi Police out of malice. The applicant has not concealed the fact as at the time of filing the Application Form as well as Attestation Form, he was not involved in any case. The involvement in the case is a subsequent development and he has informed about this on his own. As such there is no concealment on his part. The respondents authorities, however, did not find this explanation satisfactory and passed the impugned order of termination of his services on 5.2.2008 under Rule 5 (1) of the Central Civil Service (Temporary Service) Rules, 1965 with immediate effect. While doing so, the authority passing the said order has observed that from perusal of the relevant documents it is undoubtedly clear that the R/Const. did not disclose his involvement in a criminal case in the Undertaking he gave at the time of his appointment despite clear instructions that submitting any false information or concealing any facts would be treated as disqualification. Furnishing of such false information and concealing the facts about involvement in a criminal case render R/Const. Sandeep No.6260/PTC (Roll No.925274) unbecoming of a suitable police officer. Feeling aggrieved, the applicant has filed this Application challenging the legality and correctness of the impugned show cause notice as well as the termination order on the ground of it being arbitrary and illegal. It has been stated that the applicant has not been facing any criminal case and court proceedings pending against him till date as no challan has been filed nor charges are framed against the applicant in the aforesaid FIR on the date, when the Undertaking has been given by the applicant. Mere registration of FIR does not mean that the criminal case is pending against the applicant. The termination order is not termination simplicitor and is stigmatic in nature. As such the applicant cannot be proceeded against without holding an inquiry under the applicable rules. The termination order is founded on the allegations of misconduct that there is no disclosure of involvement of the applicant in the criminal case. The applicant referred to the judgment of the Honble Supreme Court in the case of Chander Prakash Shahi vs. State of UP & others, 2000 Vol.V SCC 152, wherein it has been held that protection of Article 311 (2) of the Constitution of India is available not only to temporary servants but also to probationers and the Court in an appropriate case would be justified in lifting the veil to find out the true nature of the order by which the services were terminated. Any punitive action against the applicant can be taken only after holding the regular departmental inquiry. The lapse on the part of the applicant in not disclosing the factum of FIR in his Undertaking is at best a case of bonafide mistake as there is no knowledge and intention on the part of the applicant to conceal the information about the FIR as is evident from the fact that the applicant himself voluntarily informed about it subsequently. However, the respondents authorities have not given due consideration to this aspect of he matter and proceeded to pas the impugned termination order arbitrarily in mechanical manner without due application of mind.
4. Per contra, the respondents have opposed and denied the applicants contentions and submitted that the applicant has been given due show-cause notice and has been heard in O.R. also before passing the impugned order. Thus, the respondents have duly complied with the requirements of principles of natural justice and invoked the statutory rules of the Civil Service (Temporary Service) Rules, 1965 while terminating the services of the applicant. It is crystal clear that the applicant did not disclose his involvement in criminal case registered vide FIR No.53/2008 in his Undertaking and thus concealed the fact which rendered him disqualified. As such he got entry in Delhi Police by adopting deceitful means for which his service is liable to be terminated.
5. The applicant has filed his rejoinder in which averments made in the OA are reiterated.
6. At the hearing, the learned counsel for the applicant relied upon the two orders of this Tribunal, namely, Shri Mahender Singh vs. Govt. of NCT of Delhi and others in OA No.2207/2009 dated 26.11.2009 and Arun Kumar vs. Govt. of NCT of Delhi and another in OA No.1718/208 dated 8.9.2009. Both these cases dealt with termination of service for non-disclosure of involvement in criminal case of the applicant. Both these OAs were allowed quashing the termination of services in such cases.
7. We have given our careful consideration to the respective submissions of both the parties. We have also carefully perused the records of the case.
8. In the facts and circumstances of the case, the respondents should have proceeded against the applicant either in regular departmental inquiry or in accordance with the terms and conditions of employment or under the Civil Service (Temporary Service) Rules, 1965. The respondents have preferred to proceed under sub-rule (1) of Rule 5 of the Civil Service (Temporary Service) Rules, 1965. The said Rule reads as under:-
(1) (a) The services of a temporary Government servant shall be liable to termination at any time by a notice in writing given either by the Government servant to the Appointing Authority or by the Appointing Authority to the Government servant;
(b) the period of such notice shall be one month:
Provided that the service of any such Government servant may be terminated forthwith and on such termination, the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services or, as the case may be, for the period by which such notice falls short of one month.
9. A plain reading of the said Rule would reveal that no show-cause notice is necessary as has been given in the present case. Nor any reasons are required to be mentioned in the termination order. Reference in this regard is made to the Govt. of India M.H.A. O.M. No.39/14/56-Ests. (A) dated 22.06.1956 providing that when case is taken under Rule 5 to terminate the services of a temporary employee, the order of termination, which should be passed by the appointing authority, should not mention the reasons for such termination. As a matter of fact, the standard pro formas for termination of service under Rule 5 have been prescribed under the Rules. The Rules required one months notice for termination of temporary servant or salary in lieu thereof. Proviso to Rule 5 (1) is clear on this aspect of the matter when it provides that services of any such Government servant may be terminated forthwith and on such termination, Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rate at which he was drawing them immediately before the termination of his services or, as the case may be, for the period by which such notice falls short of one month. Where notice under Rule 5 (1) has been given, the services are terminated by afflux of time on expiry of the notice period and no formal relieving is necessary.
10. It will be relevant to note in this regard the Government of India, M.H.A. OM No.4/10/66-Ests. (C) dated 26.08.1967 which deals with non-application of Rule 5 of termination of services in the case of probationers/persons on probation. The said OM reads as under:-
A question has arisen whether this rule should be invoked also in the case of persons appointed on probation where in the appointment letter a specific condition regarding termination of service without any notice during or at the end of the period of probation (including extended period, if any), has been provided. The position is that the CCS (TS) Rules do not specifically exclude probationers or persons on probation as such. However, in view of the specific condition regarding termination of service without any notice during or at the end of the period of probation (including extended period, if any), it has been decided, in consultation with the Ministry of Law, that in cases where such a provision has been specifically made in the letter of appointment, it would be desirable to terminate the services of the probationer/person on probation in terms of the letter of appointment and not under Rule 5 (1) of the CCS (TS) Rules, 1965.
11. The terms and conditions of employment relating to declaration of involvement in criminal case etc. at the time of making Application Form and submission of Attestation Form and declaration clearly provide that furnishing of false information and concealing material information in this regard would render the appointment liable to be cancelled. The respondents could have invoked these powers, if they so desired.
12. Since the show-cause notice as well as the termination order are prima facie stigmatic as well as punitive in nature, it was not open to the respondents to take recourse to the provisions of the Civil Service (Temporary Service) Rules, 1965, as a short cut to terminate the services of the applicant without holding inquiry as per the applicable rules.
13. It is seen in the present case that no notice has been given to the applicant in terms of sub-rule (1) of Rule 5 of the Civil Service (Temporary Service) Rules, 1965. Nor he has been given pay and allowances in lieu of notice. Yet the services of the applicant have been terminated with immediate effect under the said Rule. Such an action is ex facie contrary to the provisions of the said rules and as such not sustainable in law. The impugned termination order is, therefore, quashed and set aside being devoid of provisions of sub-rule (1) of Rule 5 of the Civil Service (Temporary Service) Rules, 1965 and the respondents are directed to reinstate the applicant forthwith with all consequential benefits. In view of this, we need not go into other submissions made by the applicant. The respondents shall, however, be at liberty to proceed against the applicant, if they so desire, after following due process as per the applicable rules. While doing so, it will be desirable for the respondents to keep in mind the submissions of the applicant in this Application with a view to curtail any avoidable litigation in the matter for it shall be open to raise all these submissions afresh in appropriate proceedings as and when occasion arise to do so. The respondents should, therefore, keep all such submissions in mind while taking any further action in this matter.
14. In the facts and circumstances of the case and for the reasons recorded above, the present Application is allowed. No order as to the costs.
(Dr. Dharam Paul Sharma) (Shailendra Pandey)
Member (J) Member (A)
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