Central Administrative Tribunal - Delhi
Rinku Kumar vs Gnctd on 30 April, 2024
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.3902/2023
With
M.A. No.734/2024
and
O.A. No.3990/2023
O.A. No.3960/2023
O.A. No.3961/2023
O.A. No.3910/2023
O.A. No.3991/2023
O.A. No.3992/2023
Orders reserved on : 04.04.2024
Orders pronounced on : 30.04.2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
O.A. No.3902/2023
1. Rinku Kumar, (Warder - 2179)
Group - C
Aged About 31 Years,
S/o Sh. Khushi Ram
R/o 365, Near Devi Mandir,
Village Rithala, New Delhi-110085
2. Rohit Kumar, (Warder - 2362)
Group -C
Aged About 28 Years,
S/o Sh. Krishan
R/o H.No. 184, Roshan Garden,
Part -II, Najafgarh,
New Delhi-110043
3. Akash, (Warder - 2188)
Group - C
Aged About 25 Years,
S/o Sh.Sunil Kumar
R/o V.P.0. Khungai, Dist., Jhajjar,
Haryana -124104
2 OA Nos.3902 with 3990, 3960,
3961 , 3910, 3991, 3992 of 2023
4. Devender Kumar, (Warder - 2334)
Group - C
Aged About 28 Years,
S/o Sh.Gangu
R/o A-28 Rana Park Siraspur,
New Delhi-110042
5. Raiendra Kumar Yadav, (Warder - 86/17)
Group - C
Aged About 27 Years,
S/o Sh. Dharmpal Yadav
R/o Khohara (malawali), The: Laxmangarh,
Dist. Alwar, Rajathan-32 1633
6. Rohit Panchal, (Warder - 2202)
Group - C
Aged About 28 Years,
S/o Sh.Satpal Singh
R/o H.No. 84, Veena Enclave, Nangloi,
New Delhi-110041
7. Manjeet, (Warder - 2203)
Group - C
Aged About 28 Years,
S/o Sh.Baljeet Singh
R/o H.No.117 VPO, Issapur, South West
New Delhi-110073
8. Dharm Singh, (Warder - 2391)
Group -C
Aged About 26 Years,
S/o Sh. Ganga Ram
R/o H.No 78, D- Block, Gali No.6,
Sitapuri Part-I, Palam Village South West
New Delhi - 110045
9. Roshan Lal Meena (Warder - 2150)
Group -C
Aged about 28 years,
S/o. Kailash Chandra Meena
R/o. Korda Khurd, Gumanpura -Post,
The- Sikrai, Dist. Dausa - Rajasthan - 303501
3 OA Nos.3902 with 3990, 3960,
3961 , 3910, 3991, 3992 of 2023
10. Vivek Chhikara (Warder 2142)
Group-C
Aged about 26 years,
S/o. Jagpal Singh,
R/o. H.No. 419 Main Bus Stand Village,
Jaunti, New Delhi- 110081
11. Prashant (AS)
Group - C
Aged about 30 years,
S/o. Ranbir Singh,
R/o. VPO Majra D, District Jhajjar,
Haryana - 124202
...Applicants
(By Advocate: Shri M.K. Bhardwaj)
VERSUS
1. Govt. of NCT of Delhi
through its Chief Secretary,
Delhi Secretariat, L.P. Estate,
New Delhi.
2. The Secretary (Services),
Govt. of NCT of Delhi,
Delhi Secretariat, L.P. Estate,
New Delhi 110002
3. Delhi Subordinate Services Selection Board
through its Chairman,
FC-18, Karkardoma, Institutional Area,
New Delhi - 110092
4. The Director General of Prisons
Prisons Head Quarters, Central Jail,
Tihar Jail, Govt. of NCT Delhi
New Delhi 058
...Respondents
(By Advocate: Shri Amit Anand and Shri Jagdish N.)
4 OA Nos.3902 with 3990, 3960,
3961 , 3910, 3991, 3992 of 2023
O.A. No.3990/2023
1. Anuj, (Warder - 2068)
Group - C
Aged About 27 Years,
S/o Sh. Naresh, R/o VPO Gorar, Tehsil Kharkhoda,
Distt. Sonepat, Haryana-131001
2. Sudhir Kumar, (Warder - 2164)
Group - C
Aged About 31 Years,
S/o Sh. Jainarain, R/o VPO Gijhi, Tehsil Sampla, Distt.
Rohtak, Haryana
3. Naveen, (Warder - 2166)
Group - C
Aged About 31 Years,
S/o Sh. Jaipal, R/o VPO Bohar Pana Melwan, Tehsil &
Distt. Rohtak, Haryana,
4. Jagbir, (Warder - 2109)
Group - C
Aged About 28 Years,
S/o Sh. Shivdhan,
R/o VPO Daataur, Near Shiv Mandir,
Tehsil Sampla, Distt. Rohtak, Haryana
5. Ravi Kumar, (Warder - 2139)
Group - C
Aged About 26 Years,
S/o Sh. Subhash Chander,
R/o H. No. 190, VPO Singhu, Delhi-110040
6. Parveen Dabas, (Warder 2060)
Group - C
Aged About 32 Years,
S/o Sh. Sandeep Kumar,
R/o H. No. 36, VPO Budhanpur,
Majra Dabas, Delhi-110081
7. Rinku Chhikara, (Warder -2157)
Group - C
Aged About 34 Years,
S/o Sh. Zile Singh Chhikara,
R/o H. No. 200, Mandir Wali Gali,
Baba Haridas Colony,
Tikri Kalan, Delhi-110041
5 OA Nos.3902 with 3990, 3960,
3961 , 3910, 3991, 3992 of 2023
8. Rajender Kumar Meena, (Warder - 2144)
Group - C
Aged About 34 Years,
S/o Sh. Mohan Lal Meena,
R/o VPO Dhigawara, Tehsil Rajgarh,
Distt. Alwar, Rajasthan-301414
9. Sudhir Dabas (Warder - 2064)
Group - C
Aged about 31 years,
S/o Sh. Manjit Singh,
R/o H. No. 6, VPO Rani Khera, Delhi
10. Retesh Kumar (Warder - 2069)
Group - C
Aged about 29 years,
S/o Sh. Balwan Singh,
R/o VPO Dhaur, Tehsil Beri,
Distt. Jhajjar, Haryana-124201
11. Tanuj (Warder - 2099)
Group - C
Aged about 28 years,
S/o Sh. Rajvir Singh,
R/o VPO Dhansa, Near Allahabad Bank, New Delhi
12. Sahil Dagar, (Warder 2095)
Group - C
Aged about 26 years,
S/o Sh. Rattan Singh,
R/o Pole No. 21, VPO Jharoda Kalan,
New Delhi-110043
13. Harbal Singh, (Warder - 2059)
Group - C
Aged about 28 years,
S/o Sh. Karmbir Maan,
R/o RZ-18A, Heera Park Extn.,
Najafgarh, New Delhi-110043
...Applicants
(By Advocate: Shri M.K. Bhardwaj)
VERSUS
1. Govt. of NCT of Delhi
through its Chief Secretary,
Delhi Secretariat, I.P. Estate,
New Delhi. 100001
6 OA Nos.3902 with 3990, 3960,
3961 , 3910, 3991, 3992 of 2023
2. The Secretary (Services), Govt. of NCT of Delhi,
Delhi Secretariat,
I.P. Estate, New Delhi-110001
3. Delhi Subordinate Services Selection Board
through its Chairman,
FC-18, Karkardoma, Institutional Area,
New Delhi 110092
4. The Director General of Prisons, Prisons Head Quarters,
Central Jail,
Tihar Jail, Govt. of NCT Delhi, New Delhi - 11 0048
...Respondents
(By Advocate: Shri Jagdish N. And Shri Amit Anand)
O.A. No.3960/2023
1. Sunil Kumar, (Termination),
(Assistant Superintendent)
Group - C
Aged About 41 Years,
S/o Sh. Jagdev,
R/o H. No. 36, Sadha Wali Gali, Budhan Pur,
Majra Dabas, Delhi 110081
2. Aman Rathee, (Termination),
(Assistant Superintendent)
Group - C
Aged About 32 Years,
S/o Sh. Jagdish Rathee
R/o H. No. 277, Near Primary School,
VPO Hiran Kudna, New Delhi
3. Amit Siwach, (Termination),
(Assistant Superintendent)
Group - C
Aged About 30 Years,
S/o Sh. Joginder Siwach,
R/o D-185, Rajiv Nagar, Begampur, Delhi
7 OA Nos.3902 with 3990, 3960,
3961 , 3910, 3991, 3992 of 2023
4. Anuj Rana, (Termination),
(Assistant Superintendent)
Group - C
Aged About 30 Years,
S/o Sh. Ajit Singh Rana,
R/o A-28, Khera Kalan, Delhi
5. Sunil, (Termination),
(Assistant Superintendent)
Group - C
Aged About 30 Years,
S/o Sh. Omparkash Mor,
R/o VPO Bass Badshahpur, Tehsil Hansi,
Distt. Hisar, Haryana
6. Amit Kumar (Termination),
(Assistant Superintendent)
Group - C
Aged About 31 Years,
S/o Sh. Jai Bhagwan,
R/o VPO Chirana Teh Gohana,
Distt. Sonepat, Haryana
...Applicants
(By Advocate: Shri M.K. Bhardwaj)
VERSUS
1. Govt. of NCT of Delhi
through its Chief Secretary,
Delhi Secretariat, I.P. Estate, New Delhi. 110001
2. The Secretary (Services),
Govt. of NCT of Delhi,
Delhi Secretariat, I.P. Estate,
New Delhi 110001
3. Delhi Subordinate Services Selection Board
through its Chairman,
FC-18, Karkardoma, Institutional Area,
New Delhi - 110092
8 OA Nos.3902 with 3990, 3960,
3961 , 3910, 3991, 3992 of 2023
4. The Director General of Prisons,
Prisons Head Quarters,
Central Jail, Tihar Jail, Govt. of NCT Delhi,
New Delhi 116052
...Respondents
(By Advocate: Shri Shri Jagdish N. And Shri Amit Anand)
O.A. No.3961/2023
1. Deepak, (Termination) (Warder 2443)
Group - C
Aged About 28 Years,
S/o Sh. Raj Kumar,
R/o VPO Jasrana, Distt. Sonipat, Tehsil Gohana,
Haryana 13/001
2. Arjun, (Termination)
(Warder 2406)
Group - C
Aged About 35 Years,
S/o Sh. Mahabir Singh,
R/o VPO Paluwas, Distt. Bhiwani,
Tehsil Bhiwani, Haryana-127021
3. Ashish, (Termination)
(Warder 2454)
Group - C
Aged About 26 Years,
S/o Sh. Jaswant,
R/o Village Bakkargarh,
P.O Ujwa, New Delhi-110073
4. Vikash, (Termination)
(Warder - 2445)
Group - C
Aged About Years,
S/o Sh. Udal Singh,
R/o VPO Alawalpur Tehsil Palwal,
Distt. Palwal, Haryana,
9 OA Nos.3902 with 3990, 3960,
3961 , 3910, 3991, 3992 of 2023
5. Rahul Mann, (Termination) (Warder 2438)
Group - C
Aged About 27 Years,
S/o Sh. Bir Singh,
R/o 183, Hamidpur, Khampur, New Delhi-110036
6. Rahul, (Termination) (Warder 2439)
Group - C
Aged About 26 Years,
S/o Sh. Dinesh Sharma,
R/o VPO Jaurasi Khalsa, Tehsil Samalkha, Distt.
Panipat, Haryana-132101
7. Nishant Dahiya, (Termination)
(Warder 2203)
Group - C
Aged About Years,
S/o Sh. Rajender Dahiya,
R/o H. No. 2A, CPWD Colony,
Vasant Vihar, New Delhi
8. Sanjeev Kumar, (Termination)
(Warder 2282)
Group - C
Aged About 32 Years,
S/o Sh. Baljeet Singh,
R/o H. No. 350, Bazaar Panna,
VPO Karala, Delhi-110081
9. Sandeep Kumar, (Termination)
(Warder - 2182)
Group - C
Aged about 30 years,
S/o Sh. Randhir Singh,
R/o VPO Imlota, Distt. Charkhi Dadri,
Haryana-127306
10. Parveen, (Termination)
(Warder 2244)
Group - C
Aged about 29 years,
S/o Sh. Karamchand,
10 OA Nos.3902 with 3990, 3960,
3961 , 3910, 3991, 3992 of 2023
R/o Arya Nagar, Near Chander Vatika Wali Gali,
Near Jeet Arya School,
Najafgarh Road, Bahadurgarh Road,
Haryana-124507
11. Aman, (Termination)
(Warder 2230)
Group - C
Aged about 26 years,
S/o Sh. Jagmat,
R/o Village Dohki, P.O Kitlana,
Tehsil & Distt. Charkhi Dadri, Haryana-127309
12. Anil, (Termination)
(Warder 2384)
Group - C,
Aged about years,
S/o Om Parkash,
R/o VPO Gorar, Tehsil Kharkhoda,
Distt. Sonipat, Haryana
13. Devender, (Termination)
(Warder 2181)
Group - C,
Aged About Years,
S/o Sh. Narender,
R/o VPO Silana, Distt. Jhajjar, Haryana
14. Varsha, (Termination) (Matron - 2036)
Group - C,
Aged About Years,
D/o Sh. Bijender Singh,
R/o VPO Juan, Sonepat, Haryana
15. Babita, (Termination)
(Matron -2123)
Group - C,
Aged About 30 years,
D/o Sh. Jai Prakash,
R/o Village Charkhi Dadri,
Near Hariom Ashram, Ghikara Road, Haryana
...Applicants
(By Advocate: Shri M.K. Bhardwaj)
11 OA Nos.3902 with 3990, 3960,
3961 , 3910, 3991, 3992 of 2023
VERSUS
1. Govt. of NCT of Delhi
through its Chief Secretary,
Delhi Secretariat, I.P. Estate, New Delhi. 110001
2. The Secretary (Services),
Govt. of NCT of Delhi, Delhi Secretariat,
I.P. Estate, New Delhi-11000)
3. Delhi Subordinate Services Selection Board
through its Chairman,
FC-18, Karkardoma, Institutional Area,
New Delhi - 110092
4. The Director General of Prisons,
Prisons Head Quarters, Central Jail,
Tihar Jail, Govt. of NCT Delhi,
New Delhi 110098
...Respondents
(By Advocate: Sh. D.K. Singh for Ms. Purnima Maheshwari)
O.A. No.3910/2023
SATYAWAN
S/o Umed Singh,
106, 2nd Floor, Housing Board, Sector-7,
Bahadurgarh, Jhajjar, Haryana-123507
...Applicant
(By Advocate: Shri Avi Kalra and Shri Prateek Lakra)
VERSUS
1. GOVT. OF N.C.T. OF DELHI
(THROUGH THE CHIEF SECRETARY)
5th Floor, Delhi Sachivalaya,
New Delhi 110002
2. DELHI SUBORDINATE SERVICES SELECTION BOARD
(THROUGH ITS CHAIRMAN)
GOVT. OF N.C.T. OF DELHI
F-18, KARKARDOOMA INSTITUTIONAL AREA,
DELHI-110092
12 OA Nos.3902 with 3990, 3960,
3961 , 3910, 3991, 3992 of 2023
3. DELHI PRISION ESTABLISHMENT
(THROUGH THE DIRECTOR GENERAL (PRISONS)) GNCT
OF DELHI, NEAR LAJWANTI GARDEN CHOWK,
JANAKPURI, NEW DELHI 65
...Respondents
(By Advocate: Shri Sh. D.K. Singh for Ms. Purnima
Maheshwari)
O.A. No.3991/2023
NAVEEN SHOKEEN
S/o Vijender Kumar,
B-84, Kaba Mohalla, Chhawala,
South West Delhi, Delhi-110071
...Applicant
(By Advocate: Shri Avi Kalra and Shri Prateek Lakra)
VERSUS
1. GOVT. OF N.C.T. OF DELHI
(THROUGH THE CHIEF SECRETARY)
5th Floor, Delhi Sachivalaya,
New Delhi 2
2. DELHI SUBORDINATE SERVICES SELECTION BOARD
(THROUGH ITS CHAIRMAN)
GOVT. OF N.C.T. OF DELHI
F-18, KARKARDOOMA INSTITUTIONAL AREA, DELHI-
110092
3. DELHI PRISION ESTABLISHMENT
(THROUGH THE DIRECTOR GENERAL (PRISONS))
GNCT OF DELHI,
NEAR LAJWANTI GARDEN CHOWK,
JANAKPURI, NEW DELHI
...Respondents
(By Advocate: Sh. D.K. Singh for Ms. Purnima Maheshwari)
13 OA Nos.3902 with 3990, 3960,
3961 , 3910, 3991, 3992 of 2023
O.A. No.3992/2023
ASHISH VERMA
S/O SANJAY VERMA,
R/O RZ-18/19,
JANTA VIHAR COLONY JHARODA ROAD,
JHARODA KALAN, SOUTH WEST DELHI,
DELHI-110072
...Applicant
(By Advocate: Shri Avi Kalra and Shri Prateek Lakra)
VERSUS
1. GOVT. OF N.C.T. OF DELHI
(THROUGH THE CHIEF SECRETARY)
5TH FLOOR, DELHI SACHIVALAYA,
NEW DELHI 110502
2. DELHI SUBORDINATE SERVICES SELECTION BOARD
(THROUGH ITS CHAIRMAN)
GOVT. OF N.C.T. OF DELHI
F-18, KARKARDOOMA INSTITUTIONAL AREA, DELHI-
110092
3. DELHI PRISION ESTABLISHMENT
(THROUGH THE DIRECTOR GENERAL (PRISONS))
GNCT OF DELHI,
NEAR LAJWANTI GARDEN CHOWK,
JANAKPURI, NEW DELHI - 65
...Respondents
(By Advocate: Shri Sh. D.K. Singh for Ms. Purnima
Maheshwari)
14 OA Nos.3902 with 3990, 3960,
3961 , 3910, 3991, 3992 of 2023
ORDER
Hon'ble Mr. R.N. Singh, Member (J):
We have heard the learned counsels for the parties.
2. Learned counsels for the parties have admitted that the issue(s) raised in the captioned OAs are identical, facts are similar and the grounds urged in support of the claim and/or the counter claim are also identical or common. In this view of the matter, these matters have been heard together and were reserved for orders.
3.(a) For clarity, the reliefs sought vide OA No.3902/2023 and OA No.3961/2023 and OA No.3990/2023 are reproduced as under:-
"(i) To quash and set aside the impugned termination notice dated 30.11.2023 and 01.12.2023 (A-1 Colly) and accord all consequential benefits to the applicants.
(ii) To declare the action of respondents in initiating disciplinary action and terminating the services of applicants vide impugned Notices dated 30.11.2023 and 01.12.2023 (A-
1Colly) as bad in law being without jurisdiction and based on defective reports/illegal reports.
(iii) To allow the OA with cost.
(iv) Any other orders may also be passed as this Hon'ble Tribunal may deem fit and proper in the existing facts and circumstances of the case."
15 OA Nos.3902 with 3990, 3960,3961 , 3910, 3991, 3992 of 2023
(b) Similar reliefs, as quoted above, have been sought by the applicants in OA No.3960/2023, as in this case also impugned termination notice is dated 30.11.2023;
(c) Similarly similar reliefs sought vide the applicant(s) in OA No.3910/2023, OA NO.3991/2023 and OA No. 3992/2023 are also reproduced as under:-
(i) Direct the respondent No.2 & Respondent No.3 to set aside the Notice for termination of service, as per due course;
(ii) Direct the Respondent No.3 to grant the Applicant an opportunity to prove relevant record to prove his innocence;
(iii) Direct the Respondent No.2 and/or No.3 to send the necessary documents of the applicant to CFSL, for the purposes of verification, in case this Hon'ble Tribunal deems fit.
(iv) Pass any other order as this Hon'ble Tribunal may deem fit in the facts and circumstances mentioned herein above.
4. The learned counsels for the parties have referred to the pleadings in OA No.3902/2023, titled Rinku Kumar and others vs. Govt. Of NCT of Delhi.
5. With the assistance of the learned counsels for the parties, we have perused the pleadings available on record as well as the orders/judgments relied upon by the learned counsels for the parties.
6. For writing this Common Order, with the consent of learned counsels for the parties, the pleadings of OA No.3902/2023 have been taken into consideration.
16 OA Nos.3902 with 3990, 3960,3961 , 3910, 3991, 3992 of 2023
7. Pursuant to notice, the respondents have filed their reply opposing the claim of the applicants and praying for dismissal of the OA. The applicants have filed rejoinder besides refuting the averments of the counter reply filed by the respondents have reiterated their claim on the grounds as mentioned in the OA.
8. The facts leading to filing of the captioned OA No.3902/2023 are that the respondent N0.3 issued Advertisement Nos.03/17 and 01/15 for recruitment on various posts, including the posts of Warder as well as Asstt. Superintendent in Delhi Prison Department (Annexure A-2 (Colly). The applicants, who were fulfilling all the eligibility conditions, as prescribed in the said Advertisement(s), have applied for the said post(s) for participation in the said recruitment process. After examining the eligibility of the applicants, the respondents have issued Admit Cards to the applicants to appear in Physical test. While permitting for physical test, the applicants were made to hold their postcard size photo as well as Admit Card in their hand for photography as well as videography, which was done by the respondents. In addition, the applicants were made to give thumb impression, undertaking/sample hand writing and biometric was also done. After conducting aforesaid verification process, the applicants were subjected to physical test and they all were declared qualified in May 2019.
17 OA Nos.3902 with 3990, 3960,3961 , 3910, 3991, 3992 of 2023 8.1 After being declared qualified in physical test, the applicants were issued admit cards to appear in the computer based test held on various dates from 16th to 27th June 2019. In order to ensure, no candidate indulge or resort to unfair means, the Delhi Subordinate Staff Selection Board (herein after referred to as 'DSSSB') made full proof system by ensuring that mobile phone and other electronic gadgets were not permitted at the Examination Centre(s) and each candidate was subjected to manual frisking apart from identification by using different methodology. Each candidate, including the applicants, were allowed to enter in the examination premises after thorough frisking manually. The candidates were made to pass through Metal Detector after showing their Admit Card to hold his/her postcard size photo in his/her hand for taking photo. The clicking of photo by the photographer was also carried out. The candidates' movements were also recorded in the CCTV cameras installed at the Centre(s). The invigilator made each candidate including applicants to sign on the respective Admit Card and also on the Attendance Sheet. The invigilator also verified the postcard size photograph and after his satisfaction, he signed the passport size photograph. Thereafter, the applicants as well as other candidates were allowed to write their exam after verifying that the computer as allotted to them to write online exam was containing their personal details, i.e., Photograph, Name & Roll Number. The applicants appeared at the aforesaid Exam conducted by Respondent No.3 and the 18 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 same procedure was followed at each and every examination centre(s). The applicants performed well in the aforesaid examination. The respondents declared the result of the said examination on 25.9.2019.
8.2 Since the applicants were declared qualified, they were allowed to upload their e-dossiers. Thereafter, the respondents notified the final result on 12.3.2020 for the posts of Warder and on 13.2.2020 for the posts of Assistant Superintendent. All the applicants were declared selected for appointment to the post of Warder and applicant no.11 as Assistant Superintendent. After notifying the said select list, the respondent no.3 sent the dossiers of the applicants to the respondent no.4. After verifying the dossiers of selected candidates, the respondent No.4 issued offer of appointment to the applicants in August 2020 and they were posted in Delhi Prisons (Final result dated 12.3.2020 and 13.2.2020 as well as offer of appointments are at Annexures A-4 (Colly) & A-5 (Colly). As per aforesaid offer of appointments, the applicants submitted all the original documents and after receiving the said documents, the respondents no.4 again subjected the applicants to the rigorous procedure of identification and thereafter the applicants were sent for medical examination. The applicants' identify has been examined with reference to their names, signatures, date of birth, photographs etc. The applicants were found fit and accordingly, they were appointed to the posts in question during July, 2020 to July 2021, copies of such appointment letters of the applicants are annexed as 19 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 Annexure A-6 (Colly.). The concerned officer(s) allowed the applicants to join after verification of all the original documents and identification as per the available record. Meaning thereby, even after selection and offer of appointment by the competent authority, the applicants were again subjected to verification with regard to their eligibility and identity. The applicants joined and started discharging their duties from the date of joining to the satisfaction of competent authority. However, in furtherance of enquiry made on complaint(s) of unsuccessful candidates, the respondents have issued show cause notices dated 21.12.2021 (Annexure A-7 (Colly.) to the applicants on the ground that as per the preliminary enquiry report received from the DSSSB, there is mismatch in finger prints and photograph of the applicants. The respondents have also mentioned in the said show cause notices that as to why necessary action (criminal and departmental) should not be initiated against them, as the mismatch in photograph and finger prints clearly indicate IMPERSONATION. The applicants were shocked on receipt of the aforesaid show cause notices as the same were issued to them without verifying their handwriting, thumb impression, videography so far as verification of photography & fingerprints are concerned, the same was done on a biometric machine and the result as shown at the time of verification was different. Sometime, face was shown as matched 100%, fingers 80% and sometime face 90% and fingers 40%. Even the concerned verification team raised certain 20 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 doubts. However, the respondents ignored the same and issued the aforesaid notices to the applicants, which the applicants duly replied (Annexure A-8 (Colly.) in which they have clearly mentioned that they are the genuine candidates. Regarding biometric, the applicants have stated that in view of technical glitches and for want of report of experts, they should not be punished and that too without holding detailed enquiry and taking help of experts.
8.3 The applicants were not even provided biometric verification report and when they requested to provide the same, the respondents have issued Memo dated 9.9.2022 (Annexure A-9 (Colly.) wherein the respondents have virtually recorded finding against the applicants regarding impersonation and that too without any evidence and by ignoring the rigorous verification process as followed by the DSSSB during the time of conducting the said examination. However, the applicants have submitted their replies to the same in September 2022 (Annexure A- 10 (Colly.)) by pleading innocence and requested to verify their identity from CCTV, Videography, thumb impression and writing taken by Invigilator(s). In addition, the applicants were also made to give specimen handwriting and impression of all fingers was also taken, which were done on single page. The applicants followed the instructions of the concerned officials. The respondents have not taken the help of CFSL being expert body, instead of relying on the technicians serving on contract basis and the non-technical persons. There was possibility 21 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 of not having even the original thumb impression of the applicants with the concerned team, but the said team tried to cover up their fault and finally, the applicants have been made to suffer for no fault on their part. After completion of the aforesaid exercise, the applicants were never called by the respondents. The respondents did not even inform about the object of said re-verification and the outcome of the process as carried out after two years.
8.4 In similar cases, the respondents constituted a Committee consisting of three Members, i.e., Ajay Kumar Sinandi, Assistant Commissioner, Suresh Chand & Amrita Bera, FCO to verify the details available in the dossier vis- à-vis Physical Bio-metric and Photographic Data of the officials, who appeared for Bio-metric verification and submit report within 15 days. It is asserted by the applicants that the said Committee stated that, only technical experts can ascertain the genuineness of the candidature of the applicants. The probation period of the applicants was extended vide order dated 18.8.2023 (Annexure A-11) by relying on such material, which was never put to the notice of the applicants and even the opportunity to submit reply for the notice was not given as none of the applicants was ever called by the said Committee and all of a sudden, the impugned termination notices dated 30.11.2023 and 1.12.2023 (Annexure A-1 (Colly.)) have been issued. Feeling aggrieved by the aforesaid termination notices, the applicants have filed the captioned OA for redressal of their grievances.
22 OA Nos.3902 with 3990, 3960,3961 , 3910, 3991, 3992 of 2023
9. During the course of hearing, learned counsel for the applicants has argued that on a plain reading of the impugned termination notices, it is apparent that the same are not termination simplicitor, rather the same are stigmatic and punitive. Learned counsel has further argued that the same could have been issued only after conducting an inquiry as prescribed under Rule 14 of the CCS (CCA) Rules, 1965 (thereinafter referred to as 'the Rules'). However, an inquiry referred to in the impugned termination notices were conducted without affording an opportunity to the applicants, therefore, the impugned termination notices are violative of principles of natural justice. Learned counsel for the applicants has emphasised that the respondents have recorded a finding regarding unfair means/impersonation against the applicants on presumption and assumption, as when the applicants identity was checked/verified with reference to the photographs/videography/specimen handwriting/ signature taken at the time of examination in the presence of Invigilator(s) before giving joining, how could on the basis of defective biometric, finding regarding unfair means/impersonation by the applicants be recorded and that it is very strange that the respondents did not even send the case of the applicants for verification through CFSL to find out the authenticity of handwriting/specimen signature/postcard photograph and still issued the impugned termination notices.
9.1 Learned counsel for the applicants has further argued that the respondents have acted with pre-
23 OA Nos.3902 with 3990, 3960,3961 , 3910, 3991, 3992 of 2023 determined notion inasmuch as they did not take resort to scientific method to ascertain the identity of the applicants nor they called the applicants to submit their explanation and even the probation of the applicant(s) was extended not on account of his/their performance, but just to take resort to Rule 5 (1) of CCS (Temporary) Service Rules, 1965 (hereinafter referred to as 'the Rules') for terminating the services of the applicants. However, the provisions of the said Rule could not have been invoked in the case of the applicants inasmuch as the terms and conditions of appointment were set out in the offer of appointment and the notice of termination is/are not simplicitor. Learned counsel has further emphasised that as is evident that impugned termination notices the same are not termination simplicitor and the respondents were required to proceed in terms of the provisions of Rule 14 of the Rules ibid, as ruled by the Hon'ble Supreme Court, Hon'ble High Court and this Tribunal in a catena of cases.
9.2 Learned counsel for the applicants has further argued that the action of the respondents is most arbitrary and unjustified, as neither the details of the reports, the CD as well as that of the photography done at the time of examination have been made available to the applicants and in the absence of the aforesaid material and any report of CFSL, what reply the applicants could have given except pleading innocence. Learned counsel has also submitted that the main object of issuing notice is to give an opportunity to give explanation in reference to certain allegations mentioned in the show cause notice with 24 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 specific instances and when no material/documents on the basis of which the aforesaid impugned termination notices have been issued, have been provided to the applicants as the said impugned termination notices are based on the report of the Committee and therefore, the applicants were not in a position to give reply to the said impugned termination notices.
9.3 Learned counsel for the applicants has also argued that from the impugned termination notices and show cause notices issued prior to that, it is apparent that the respondents concluded that the applicants had used unfair means, nothing was left to be explained by the applicants except pleadings their innocence. Learned counsel has also submitted that the Hon'ble Supreme Court in the case of D.B. Goel vs. Union of India and others, reported in (2010) 12 SCC 410, has held that once the outcome is known, the Tribunal is competent to decide the OA on merits that too where statutory remedy is available to be exhausted. Learned counsel has further submitted that the applicants do not have even any statutory remedy to exhaust inasmuch as the respondents had already decided to terminate the services of the applicants vide the impugned termination notices.
9.4 Learned counsel for the applicants has also submitted that the respondents have failed to consider that their unjustified action would spoil the future of young person(s), who have yet to start their life and that the respondents cannot take advantage of their position of 25 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 being recruiting agency and being the State, the respondents are required to act fairly and not in an arbitrary manner.
9.5 Learned counsel for the applicants has also urged that the respondents have issued impugned termination notices without application of mind and in violation of their own order dated 14.9.2022 wherein, it has been provided that the authenticity of the candidates should be verified with reference to photograph in the dossier and signature appended by the candidate(s) in the application form/admit card. No such exercise was carried out in the case of the applicants.
9.6 Learned counsel for the applicants has further argued that most of the applicants have participated in many competitive exams conducted by DSSSB/other recruiting agency(ies) and they were declared qualified in aforesaid exams. While conducting exam for warder, the DSSSB did not take bio-metric and only click photograph. Meaning thereby the photograph itself was treated as sufficient to identify the genuineness of the candidate(s) at later stage. In the recruitment under reference, photograph was also taken and videography was also done, however, the same was not made basis to ascertain the genuineness of candidature of the applicants and that the respondents have not treated the fingerprints/impression as taken at the time of attempting the said exam as the only basis to ascertain the identity of the candidate(s) and therefore the respondents had no 26 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 authority to make the impression of fingers as the sole basis to terminate the services of the applicants and the respondents were duty bound to verify the genuineness of the candidature of the applicants on the basis of thumb impression, handwriting, photograph, videography etc. as well as by taking the expert opining, i.e., CFSL in the matter. Learned counsel for the applicants has vehemently argued that the three members Committee had no expertise to comment on the genuineness of the reports which are to be examined by the experts.
9.7 Learned counsel for the applicants has invited our attention to show cause notice(s) (Annexure A-7) and has argued that on a plain reading thereof, it is evident that the respondents undertook the biometric and finger verification in Police Headquarters and on the basis of such preliminary report they recorded a finding of clear cut mismatch of photograph and finger prints of the applicant(s) and, therefore, they directed the applicant(s) to explain as to why necessary action (criminal/disciplinary) should not be initiated against them. The applicant(s) submitted reply in response to the show cause notice(s) (Annexure A/8) issued to them. Thereafter, the respondents have issued Memorandum dated 9.9.2022 (Annexure A/9 (Colly.)) wherein they have recorded that :
'Whereas Sh. Rajendra Kumar Yadav, Warder-2431, posted at CJ-03 undertook the Bio-metric and Photograph verification on dated 23/11/2021 to 03/12/2021 & 28/04/2022, carried out by DSSSB at DSSSB Office, Karkardooma.27 OA Nos.3902 with 3990, 3960,
3961 , 3910, 3991, 3992 of 2023 And whereas, as per the report received from DSSSB, the Photograph and finger prints of Sh. Rajendra Kumar Yadav, Warder-2431 has been found to be "Not Verified" during the said verification exercise which is prima facie indicative of impersonation. The relevant details of Biometric/Photograph Verification report dated 28/4/2022 provided by DSSSB are reproduced below."
As per the relevant report received from the DSSSB, photograph and finger prints have been found to be not 'verified' during the said verification exercised which is prima facie indicative of 'impersonation'.
9.8 Learned counsel for the applicant has argued that in view of trite law, the Courts/Tribunals are having the jurisdiction to lift the veil to determine as to whether the order(s) passed by invoking the provisions of Rule 5 (1) of the Rules ibid are stigmatic and/or order(s) simplicitor.
However, in the case in hand, not only the impugned termination notice(s)/order(s) but also the show cause notice(s) (Annexure A-7 (Colly.)) and Memorandum(s) Annexure A-9 (Colly)) issued prior to that are clearly stigmatic and, therefore, the impugned notice(s)/order(s) are not sustainable in the eyes of law.
9.9 Lastly in support of his arguments and that of the claim of the applicants, learned counsel for the applicants has placed reliance on the following decisions:-
(i) Dipti Prakash Banerjee vs. S.N. Bose, reported in (1999) 3 SCC 60;28 OA Nos.3902 with 3990, 3960,
3961 , 3910, 3991, 3992 of 2023
(ii) Common Order/judgment dated 4.3.2011 in OA No.612/2009 and connected OAs, titled Sanjeev Kumar Jaiswal vs. Union of India;
(iii) Marwani Balika Vidyalaya vs. Asha Srivastava and others, reported in (2020) 14 SCC 449;
(iv) Captain Yashraj Togia vs. Union of India and others, reported in AISLJ 2023 (2) 34;
(v) Order/judgment dated 2.6.2023 of this Tribunal in OA No.1879/2017, titled Virender Vs. Govt. of NCT of Delhi;
(vi) Order/Judgment dated 19.8.2023 of this Tribunal in OA No.2303/2023, titled Ashish Siwach vs. Union of India and others; and
(vii) Order/Judgment dated 28.2.2024 of the Hon'ble Delhi High Court in WP (C) No.12696/2023, titled Govt. of NCT of Delhi vs. Virender.
10. Facts are though not disputed, however, by referring to the counter replies filed on behalf of DSSSB and Govt. of NCT of Delhi, learned counsel for the respondents has submitted that so far as the DSSSB is concerned, on the basis of performance in PET, the applicants were shortlisted for the online CBT exam, which were conducted for the post Code 84/17 on 16.6.2019, for the post code 86/17 on 18.6.2019 and for the post code 62/15 on 27.6.2019 and on the basis of online CBT exams, the applicants were nominated for their respective posts in Prison Deptt. Before joining the respective posts, respondent no.4 has checked their authenticity on the basis of the photograph pasted in their application form and the signature appended in the application form/admit 29 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 card. The DSSSB has undertaken several reforms to ensure transparent, merit based selection and to enhance integrity of examination & eliminate impersonation in recruitment process and in this direction, DSSSB has started sharing the copy of the admit card, signature, photograph and the hand-writing sample (in English and Hindi) of the candidate(s) with the user department along with the e-dossier and further in this direction, the Board has facilitated in collecting the biometric data (finger prints and/or facial recognition) and photograph of the candidates when they appeared for DSSSB examinations on the request of User Department (Administrative Department). Standing Operating Procedure (SOP) for facilitating User Department(s) in performing Biometric and photograph verification of nominated candidates were issued vide Office Memoranda dated 30.7.2021 and 14.9.2022 and that in this biometric process, the role of DSSSB is limited to that of a facilitator only, while the authority and responsibility of actual identity verification, scrutiny and final decision on appointment lies with the user department by virtue of being the employer in terms of instructions of DOP&T. In view of the SOPs, the biometric verification of the said candidates with their biometric details taken during online CBT exams, were conducted last on 28.4.2022. The biometric verification was conducted by exam conducting agency/biometric taking agency. The report of the biometric verification as received from exam conducting agency/biometric taking agency were forwarded to the respondent no.4 vide letter 30 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 dated 13.7.2022 for taking further necessary action. As per the said biometric report, the image match % is 90.39 % to 94.5 and finger match % is 0 qua the applicants as stated by the DSSSB in their counter reply by way of a chart.
10.1 So far as Govt. of NCT of Delhi is concerned, learned counsel for the respondents by referring to the reply of the Govt. of NCT of Delhi, has submitted that on the basis of nomination letter and result issued by the DSSSB, thereafter completing appointment formalities completed by the respondent no.4 in respect of the posts under reference, the candidates were allowed to join their duties under the respondent no.4. Meanwhile, a meeting was convened by the DSSSB, chaired by Secretary, DSSSB on 8.1.2021 to discuss the issue regarding biometric and photograph verification of selected and thereafter joined candidates during 2018, 2019 and 2020 of various posts under the Education Department and respondent no.4, as mentioned in the minutes of meeting dated 8.1.2021 (Annexure R-1) circulated vide letter dated 14.1.2021. Further in the meeting it was decided that the DSSSB and EdCIL shall provide the schedule of biometric and photographic verification. Vide office letter dated 16.3.2021 (Annexure R-2), the details of venue and number of selected and joined candidates were sent to the DSSSB and further the DSSSB requested to respondent no.4 (via letter dated 19.8.2021 (Annexure R-3) to share the information on following points:-
31 OA Nos.3902 with 3990, 3960,3961 , 3910, 3991, 3992 of 2023
(i) Venue details where biometric verification is to be conducted;
(ii) Post wise candidate count for each venue;
(iii) Details of Nodal Officer for each venue.
10.2 In response to the said letter of DSSSB dated 19.8.2021, the respondent no.4 provided the details of venue and number of candidates for post-wise along with the details of Nodal Officer to the DSSSB via letter dated 14.10.2021 (Annexure R-4). Thereafter the DSSSB sent a letter to respondent No.4 on 11.11.2021 vide which the detail scheduled was provided by the DSSSB regarding biometric and photograph verification in respect of selected and joined candidates of various posts under respondent no.4 i.e. from 23.11.2021 to 3.12.2021 (Annexure R-5). Further vide circular dated 17.11.2021, the Nodal Officers were appointed for Biometric verification process smoothly of all the officials/candidates (Annexure R-6) and the biometric and photograph verification was held from 23.11.2021 to 3.12.2021 and as per preliminary report of biometric and photograph verification, the status of all the eleven applicants is mentioned in a chart form, which shows that the image match % is 90.39 % to 94.5 and finger match % is 0 in respect to the applicants. On the basis of the aforesaid preliminary report, the show cause notices were given to the applicants. On their representations, a final opportunity was given to the mismatched and absentees candidates on 28.4.2022 at the DSSSB office, 32 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 Karkardooma, Delhi and as per the final report received from DSSSB on 13.7.2022, all the applicants were found mismatched as per the status of biometric and photograph verification as mentioned at page 12 of the counter reply, which shows that such candidates have availed as many changes as they wanted for giving biometric as per their will and despite availing multiple chances, the applicants biometric verification could not be verified. Therefore, the action has been taken as per the provisions of Rule 5 (1) of CCS (Temporary Service) Rules, 1965, as they are under the probation period and the termination notices were issued to the applicants by the competent authority after considering the replies submitted by the applicants.
10.3 Learned counsel for the respondents has submitted that provisions of Rule 14 of CCS (CCA) Rules, 1965 are applicable to only those officials whose probation has been completed and their services have been regularised which is not the case in hand.
10.4 Shri Anand, learned counsel for the respondents, has submitted that the applicants were selected by the respondent no.3 and were appointed under the respondent nos.1, 2 and 4 by virtue of their position and are working in a great sensitive department, i.e., Prison and particularly, in this background, the respondents were well within their rights to verify their genuineness and satisfy themselves in this regard. He has argued that in furtherance of conscious decision taken by the respondents, biometric and photograph verification 33 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 exercise was undertaken and on such verification, the image mate % is 90.39 to 94.5 and finger match is 0% in respect of the applicants and in this view of the matter and such evidence clearly indicates impersonation while securing the appointment(s). He has further argued that impugned notice(s) of termination wherein it is recorded that mismatch of biometric and photograph verification on both occasions, i.e., 24.11.2021 and 24.8.2022 gravitizes towards using of unfair means/malafide intention of the applicant(s) in examination conducted could not be construed as stigmatic. The applicants have been under probation and the respondents were well within their right to issue the impugned notice(s) of termination.
10.5 Shri Anand, learned counsel for the respondents, has further argued that even at this stage, the respondents are willing and ready to make arrangement for conducting the biometric test even before this Tribunal, if the applicants are willing to undergo such test and the fate of the applicants' employment may be considered on the basis of such test.
10.6 Learned counsel for the respondents has invited our attention to Office Memorandum dated 14.9.2022 (Annexure MA-3) on the subject : Standing Operating Procedure for facilitating User Department(s) in performing Biometric and Photograph Verification of nominated candidate(s).
34 OA Nos.3902 with 3990, 3960,3961 , 3910, 3991, 3992 of 2023 10.7 In support of the claim of the respondents, learned counsel for the respondents has placed reliance on the following decisions:-
(i) Order/Judgment dated 25.2.2013 of the Hon'ble High Court of Karnataka at Bangalore in WP Nos.49971-49972/2012 and other connected cases, titled Nilesh Kumar and another vs. State of Karnataka and others...;
(ii) Order/Judgment dated 4.3.2020 of the Hon'ble High Court of Judicature at Allahabad in Writ - A No. 3254 of 2019, titled Shiv Yadav vs. State of U.P. and others;
(iii) Order/Judgment dated 21.4.2023 of Jabalpur Bench of this Tribunal in OA No.359/2021, titled Shivanshu Rai vs. Union of India and others;
(iv) Order/Judgment dated 11.4.2023 of Jaipur Bench of this Tribunal in OA No.333/2021, titled Virendra Kumar Meena vs. Union of India and others;
(v) Order/Judgment dated 5.9.2023 of the Hon'ble High Court of Punjab and Haryana at Chandigarh in CWP No.11962 of 2020, titled Sohan Lal vs. The Chairman, Life Insurance Corporation of India and others;
(vi) Order/Judgment dated 17.9.2019 of the Hon'ble
High Court of Bombay in Writ Petition
No.1063/2018, titled Akshay P. Sapkal vs.
Reserve Bank of India;
(vii) Order/Judgment dated 17.3.2023 of the Hon'ble High Court of Punjab and Haryana at Chandigarh in LPA-296/2023 (O&M), titled Parul vs. Uttar 35 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 Haryana Bijli Vitran Nigam Limited and another; and
(viii) Order/Judgment dated 6.9.2023 of the Hon'ble High Court of Delhi in WP(C) No.6596/2023, titled Government of NCT of Delhi and Anr. Vs. Dalbir Singh.
11. Other learned counsels appearing for the respondents have adopted the arguments advanced by Shri Anand, learned counsel.
12. There is no dispute that after declaring the applicants as successful in the said examination, the dossiers of the applicants were forwarded by the respondent no.3 to the respondent no.4 for appointing them and the respondent no.4 after considering the relevant material, issued offer of appointments to the applicants in the years 2020 and 2021 and thereafter after completion of joining formalities, the applicants were allowed to join the posts from July 2020 to July 2021 by the respondent no.4. However, thereafter, the respondent no.4 has issued show cause notice dated 21.12.2021 to the applicants on the ground that biometric and photograph verification was done in PHQ by the DSSSB and as per the preliminary report received from the DSSSB, there is clear cut mismatch of the photograph and finger prints of the applicants and hence they were directed to explain as to why necessary action (criminal and departmental) should not be initiated against them, as the mismatch in photograph and 36 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 finger prints clearly indicates impersonation and the applicants were directed to submit their reply within five days of receipt of the said show cause notices to which the applicants have given their replies. Thereafter the respondent n.4 has issued Memorandum dated 9.9.2022 wherein it has been stated that despite affording multiple opportunities for giving biometric and photograph verification report, finger print matched percentage is 0 and image matched percentage is from 90.39 % to 94.5 qua the applicants and the applicants were accorded a final opportunity for providing his explanation on the same along with any additional evidence to corroborate his reply within 07 days of receipt of the said Memorandum to which the applicants have replied vide replies at Annexure A-10 (Colly). Period of probation of as many as 50 candidates, including the applicants, has been extended by the respondent no.4 vide office order dated 18.8.2023 (Annexure A-11). Thereafter the respondents have issued the impugned termination notices dated 30.11.2023 and 1.12.2023 and one of such termination notice is reproduced as under:-
"CONFIDENTIAL GOVT. OF N.C. T. OF DELHI OFFICE OF THE DIRECTOR GENERAL OF PRISONS PRISON HEADQUARTERS: CENTRAL JAIL: TIHAR JANAKPURI: NEW DELHI-110064 F.No.18/16/Estt./CJ/PHQ/2022/7698-7710 Dated: 01/12/2023 Notice of termination of service issued under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965.
1. Whereas, Sh. Rinku Kumar (D.0.B-11.08.1992), Warder-2179 in Prison Department, Roll no. 11130400108 was nominated by Delhi Subordinate Services Selection Board, herein after referred as DSSSB, for the post of Warder against post code 86/17, After completing all the codal formalities, the appointment order was issued to Sh. Rinku Kumar and he joined the Prison Department 37 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 on 28.12.2020. Sh Rinku Kumar is presently physically posted in CJ-03 and for pay purpose in the CJ-03.
2. Whereas, DSSSB vide letter no: F.55 (208)/Exam/DSSSB/ 2020/10319 dated 19/08/2021, requested to prepare schedule for bio-metric and photograph verification of selected and joined candidates for the post code 85/17, 86/17, 84/17, 63/15 and 62/15. Accordingly, the bio-metric and photograph verification of the candidates was carried out by DSSSB from 23.11.2021 to 03.12.2021 and 09.02.2022.
3. Whereas, the bio-metric and photograph verification in r/o Sh.
Rinku Kumar, Warder was held on 24.11.2021 and as per biometric verification mismatch report, he was found mis- matched.
4. Whereas, based on the above biometric verification mismatch report, a Show Cause Notice bearing no. F. No. 16(02/Estt/ PHQ/2021/003632272/15134-36 dated 21.12.2021 was given to Sh. Rinku Kumar, Warder.
5. Whereas, in response of Show Cause Notice no.F. No.16(02)/ EsttUPHQ2021/003632272/15134-36 dated 21.12.2021 Sh. Rinku Kumar, Warder vide letter dated 27.12.2021, stated that the biometric and photograph verification mismatch due to some technical fault and therefore requested to give another chance for bio-metric and photograph verification.
6. Whereas, vide letter no. F.16(02)/ESTT/PHQ/2021/ 003632272/3649-94 dated 25.04.2022 a final opportunity for Bio-metric and photograph verification was granted by Director General (Prisons) to all the candidates who were absent or whose biometric and photograph verification were found mis-matched on 23.11.2021 to 03.12.2021 and 09.02.2022. The same was conducted on 28.04.2022 at DSSSB Office, Karkardooma, Delhi- 110092.
7. Whereas, the DSSSB vide letter no. F.55(208)/Exam/DSSSB/ 2020/890 dated 13.07.2022 provided the status of final report of Bio-metric and photograph verification of candidates nominated/joined against post code-85/17, 86/17, 84/17 & 62/15 . wherein it was informed by DSSSB that report of biometric and photograph verification of Sh. Rinku Kumar, Warder was again found mismatched.
8. Whereâs, based on the above final report of bio metric and photograph verification, another Memorandum bearing no. F.No. 16(02)/Estt/PHQ/2021/003632272/Pt-I/17397-404 dated 09.09.2022 was given to Sh. Rinku Kumar, Warder.
9. Whereas, in response of Memorandum dated 09.09.2022, Sh.
Rinku Kumar, Warder submitted his reply, which was considered and not found satisfactory.
10. Whereas, the said Sh. Rinku Kumar, Warder is presently on probation on the post of Warder and as such, his service in Government are regulated under CCS (Temporary Service) Rules, 1965.
11. Whereas, while taking into consideration the reply received on 27.12.2021 in r/o bearing Show Cause Notice given on 21.12.2021 and reply received on 21.09.2022 in r/o 38 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 Memorandum issued on 09.09.2022 by Sh. Rinku Kumar, Warder and the report of biometric and photograph verification sent by DSSSB the mismatch of biometric and photograph verification on the both occasions i.e. 24.11.2021 and 28.04.2022 gravitates towards using of unfair means/ malafide intention by him in the examination conducted by the DSSSB for the post code 86/17 and hence his retention in service of the Government is not considered desirable.
12. Now, therefore after considering the facts & circumstances of the case, the undersigned being Appointing Authority for the post of Warder in pursuance of the Proviso to Sub-Rue (1) of Rule 5 of the Central Civil Services (Temporary Services) Rules, 1965, hereby give notice to Sh. Rinku Kumar (D.O.B. 11.08.1992) Warder-2179 Roll No. 11130400108 that his services "shall stand terminated with effect from the date of expiry of a period of one month from the date on which this notice is served upon him."
13. On perusal of the aforesaid impugned termination, it is apparent that the inquiry was conducted by the respondents for biometric and photograph verification in respect of the applicant(s) and in view of the report of biometric and photograph verification, the respondents have reached to the conclusion of mismatch of biometric and photograph and in view thereof, they have concluded using of unfair means/malafide intention of the applicant(s) in the relevant examination. Similarly, in the show cause notice dated 21.12.2021 (Annexure A-7 (Colly)), the respondents have recorded that as per the preliminary report received from DSSSB, they have found clear cut mismatch of photograph and finger prints of applicant(s) and in this view of the matter, the respondents have put the applicant(s) to notice(s) as to why necessary action (criminal/disciplinary) should not be initiated against them. Similar is the position in Memorandums dated 9.9.2022 (Annexure A-9 (Colly.)) wherein it is recorded by the respondents that photographs and finger prints of 39 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 the applicants have been found to be "not verified" and the same is prima facie indicative of "impersonation". In the counter reply also, it is asserted by the respondents that in view of the report about mismatch of biometric and photograph verification indicating use of unfair means as malafide intention of the applicant(s) in the relevant examination conducted by the DSSSB. The applicants' retention in service of the respondents was not considered desirable.
14. After having heard the learned counsels for the parties and perusing the pleadings and the Orders/Judgments relied upon by the learned counsels for the parties, the issue involved in this case for adjudication by this Tribunal is as to whether the impugned termination notices are termination simplicitor or the same are punitive and stigmatic?
15. Before we consider the orders/judgments referred to and relied upon on behalf of the applicant(s), we have gone through the orders/judgments referred to and relied upon by the learned counsel for the respondents.
15.1 In the case of Nilesh Kumar and others (supra), the issued was dismissal of the petitioners from MBBS courts and issue was not with regard to legality of order/notice issued in view of the provision of Rule 5 (1) of the Rules ibid. Moreover, in the facts and circumstances of the case, the Hon'ble High Court of Karnataka was satisfied that the petitioners were given full and fair opportunity to meet the allegations at the stage of inquiry or also by the Hon'ble 40 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 High Court in the course of hearing of the said writ petitions.
15.2 In the case of Shiv Yadav (supra), the challenge was made before the Hon'ble High Court of Allahabad to final seniority list of Constable PAC prepared and issued by the respondents therein as well as the final result declared by the respondents therein in the process of direct recruitment to the post of Constable Civil Police and Constable PAC-2018. In the case of Shivanshu Rai (supra), the challenge before the Tribunal was to the order vide which the candidature of the applicant has been rejected on the ground of mismatch of biometric. In the case of Virendra Kumar Meena (supra), the challenge before the Tribunal was to the reply given under Right to Information Act and final panels prepared by the respondents therein for the post of Sr. Commercial Cum Ticket Clerk and Commercial Cum Ticket Clerk. Again in the case of Sohan Lal (supra), the grievance of the petitioner was that he was not permitted to join on the ground of verification of biometric data, it was found that his biometric impression does not match with the biometric impression obtained at the time of main examination. In the case of Hoshiyar Singh (supra) again the challenge was to the rejection of the candidature of the petitioner on the ground of mismatch of biometric. Similarly, in the case of Akshay P. Sapkal (supra), the petitioner was not offered employment on the ground of his finger prints captured through biometric do not match.
41 OA Nos.3902 with 3990, 3960,3961 , 3910, 3991, 3992 of 2023 15.3 In none of the aforesaid cases, relied upon by the learned counsel for the respondents, the issue in any was involved to the case in hand and, therefore, these cases do not support the defence of the respondents.
15.4 Further in the case of Parul (supra) on which reliance has been placed by the learned counsel for the respondents, the services of the petitioner rendered to the post of Lower Division Clerk was terminated for producing a fraudulent certificate and the learned Single Bench of the Hon'ble High Court of Punjab and Haryana at Chandigarh has dismissed the said writ petition filed by the petitioner and in the LPA, the Hon'ble High Court did not find any illegality keeping in view the fact that the respondent - authorities got the authenticity and veracity of 'O' Level certificate produced by the appellant verified from the concerned authority and found that the same was not genuine as the Controller of Examination, NIELIT, New Delhi certified that the said certificate produced by the appellant has been issued to some other candidate and the certificate relied upon by the appellant for the purposes of claiming eligibility and appointment had never been issued to her by the NIELIT. Therefore, the Hon'ble High Court of Punjab and Haryana had observed that 'as undisputedly the appellant sought to obtain appointment by producing a fraudulent document. In such circumstances, as fraud renders the appointment itself void ab initio and non est, and the act of the appellant renders her ineligible for being considered for appointment'.
42 OA Nos.3902 with 3990, 3960,3961 , 3910, 3991, 3992 of 2023 15.5 However, such is not the position in the instant case and therefore, reliance placed on the decision in the case of Parul (supra) is misplaced as the facts and circumstances are entirely different to the facts in the instant case.
15.6 In the case of Dalbir Singh (supra), the Hon'ble High Court of Delhi after considering the catena of case law ruled in paras 15 and 16 as under:-
"15. Reverting back to the facts of present case, it may be noticed that a report was placed for consideration of the Competent Authority informing the factual position, whereby the respondent during frisking was found smuggling 15 grams of a narcotic drug hidden in his undergarment in presence of Jail Official by the TNSPP on October 13, 2017. It was further informed that an FIR No.0440/2017 under Section 21/61/85 NDPS Act was registered against the respondent at Police Station Hari Nagar and he had been arrested.
In the facts and circumstances, Competent Authority did not proceed to hold any preliminary inquiry, to find out the truth of allegations against the respondent but decided to terminate the services of respondent on the basis of aforesaid report, since the respondent was under probation and the appointment was governed by CCS (Temporary Services) Rules, 1965. It is pertinent to note that entry points in Jail are generally under the CCTV surveillance and the recovery had been effected from the undergarment of the respondent, by the police personnel of TNSPP, which is an independent police force deputed to guard the jail premises. Accordingly FIR was registered under Section 21/61/85 NDPS Act and the recovered substance on examination was further found to be „smack‟. Apparently, no further preliminary inquiry in the facts and circumstances was even required by the Competent Authority in view of registration of FIR against the respondent. The exercise of powers under Rule 5(1) of CCS (Temporary Services) Rules, 1965, in the facts and circumstances appears to have been rightly undertaken since the respondent allegedly 43 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 indulged in smuggling of narcotic drugs within the Jail premises wherein he was posted as Warder.
It may be noticed that in order of termination of services of the respondent, no further reference has been made to the "misconduct/misdemeanour" of involvement of respondent in offences under Section 21/61/85 NDPS Act and as such it cannot be said that the order is stigmatic. The termination on face of record is not "founded" on any inquiry and the "involvement" of the respondent in the aforesaid FIR, can only be termed as a "motive" for terminating the services. The termination order as such is not "punitive" in character but "termination simpliciter"
without casting any evil consequences on the respondent.
16. We are of the considered view that the Tribunal missed the fine distinction between "motive" and "foundation" as brought out in several judgments and wrongly reached the conclusion that the termination order was punitive by simply relying upon Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Ors.(supra)."
15.7 In the aforesaid case, the Hon'ble High Court of Delhi has recorded that the termination on face of record is not "founded" on any inquiry and the "involvement" of the respondent in the aforesaid FIR, can only be termed as a "motive" for terminating the services. The termination order as such is not "punitive" in character but "termination simpliciter" without casting any evil consequences on the respondent. However, the facts of the case in hand are entirely different and, therefore, this judgment of the Hon'ble High Court is also not of any assistance to the respondents. Further, in this regard, it is relevant to mentioned that the Hon'ble High Court of Delhi had an occasion to consider the case of Dalbir Singh (supra) in the case of Virender (supra) and the Hon'ble High Court observed as under:-
44 OA Nos.3902 with 3990, 3960,3961 , 3910, 3991, 3992 of 2023 "42. We may also refer to the latest opinion of this Court in Government of NCT of Delhi and Anr. v.
Dalbir Singh, W.P.(C) 6596/2023, wherein this Court by referring to various judgments and on the basis of the termination order issued in the following manner has held that the order being non-stigmatic, the Tribunal could not have set aside the order of termination. The said termination order is reproduced as under:
"In pursuance of the Proviso to Sub-rule (1) of Rule 5 of the Central Civil Service (Temporary Services) Rules, 1965, I, Ajay Kashyap, Director General, Prisons, hereby terminate forthwith the services of Sh. Dalbir Singh, Warder - 1663 and direct that he shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of notice at the same rates at which he was drawing them immediately before the termination of his service or, as the case may be, for the period by which such notice falls short of one month."
43. Having noted the judgments of the Supreme Court and this Court on the issue, it is clear that, if the order of termination is simpliciter as permitted by the terms of appointment or as permitted by rules so that the employee would not suffer any stigma attached to rest of his career then such an order is permissible as the employer was not interested in finding the truth of the allegations against the government servant. But in cases as held by the Supreme Court in Ratnesh Kumar Chaudhary (supra), where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definite nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order was issued, such an order would be violative of principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegation with a view to punish him and not merely gather evidence for a future regular departmental enquiry."
45 OA Nos.3902 with 3990, 3960,3961 , 3910, 3991, 3992 of 2023
16. The Hon'ble Apex Court in the case of Ratnesh Kumar Chaudhary v. Indira Gandhi Institute of Medical Sciences, Patna, Bihar & Ors., (2015) 15 SCC 151, in paragraph 33 and 34 thereof, held as under:
"33. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer, as stated by Shah, J. (as he then was) in Ram Narayan Das case [State of Orissa v.
Ram Narayan Das, AIR 1961 SC 177] . It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. It has been so decided in Champaklal case [Champaklal Chimanlal Shah v. Union of India, AIR 1964 SC1854]. The purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed -- if at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur case [State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089] and in Benjamin case [A.G. Benjamin v. Union of India, (1967) 15 FLR 347 (SC)] . In the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the 46 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case [Gujarat Steel Tubes Ltd. v. Mazdoor Sabha, (1980) 2 SCC 593 :
1980 SCC (L&S) 197] the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.
34. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employee's conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee -- even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases."
(emphasis supplied) 16.1 Further in Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd. & others, reported in (2003) 3 47 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 SCC 263, the Hon'ble Supreme Court in para 11 thereof held as under:-
"11. From long line of decisions it appears to us whether an order of termination is simplicitor or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simplicitor falling in one or the other category, based on misconduct as foundation for passing the order of termination simplicitor or on motive on the ground of unsuitability to continue in service. If the form and language of the order of termination simplicitor of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simplicitor or punitive. In cases where the services of a probationer are terminated by an order of termination simplicitor and the language and form of it do not show that either it is punitive or stigmatic on the face of it but there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simplicitor but the real face behind it is to get rid of services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simplicitor to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct."48 OA Nos.3902 with 3990, 3960,
3961 , 3910, 3991, 3992 of 2023 16.2 The High Court of Allahabad in the case of Vijay Raj vs. Union of India in Writ A No.63968/2005 decided on 5.3.2020 has held as follows:
"61. From the above discussions, the principles discernible to find out whether a simple order of termination/discharge of a temporary employee or probationer is punitive or not, broadly, may be stated as under :
(a) The termination of services of a temporary servant or probationer under the rules of his employment or in exercise of contractual right is neither per se dismissal nor removal and does not attract the provisions of Article 311 of the Constitution.
(b) An order of termination simplicitor prima facie is not a punishment and carries no evil consequences.
(c) Where termination simplicitor is challenged on the ground of casting stigma or penal in nature, the Court initially would glance the order itself to find out whether it cast any stigma and can be said to be penal or not. If it does not, no further enquiry shall be held unless there is some material to show certain circumstances, preceding or attending, shadowing the simplicitorness of the said order.
(d) The Court is not precluded from going beyond the order to find out as to whether circumstances, preceding or attending, makes it punitive or not. If the circumstances, preceding or attending, show only the motive of the employer to terminate, it being immaterial would not vitiate the order unless it is found that order is founded on such act or omission constituting misconduct.
(e) If the order visits the public servant with evil consequences or casts aspersions against his character or integrity, it would be an order by way of punishment irrespective of whether the employee was a mere probationer or temporary.
(f) "Motive" and "foundation" are distinct, though the distinction is either very thin or overlapping.49 OA Nos.3902 with 3990, 3960,
3961 , 3910, 3991, 3992 of 2023 "Motive" is the moving power, which impels action for a definite result, or to put it differently. "Motive" is that which incites or stimulates a person to do an act. "Foundation", however, is the basis, i.e., the conduct of the employee, When his acts and omissions treated to be misconduct, proved or founded, it becomes a case of foundation.
(g) If an order has a punitive flavour in cause or consequence, it is dismissal, but if it falls short of it, it would not.
(h) Where the employer is satisfied of the misconduct and the consequent desirability of termination, it is dismissal even though the order is worded innocuously. However, where there is mere suspicion of misconduct and the employer does not wish to bother about it, and, instead of going into the correctness of guilt, feel like not to keep the employee and thus terminate him, it is simpliciter termination and not punitive.
(i) Where the termination simplicitor is preceded by an enquiry, preliminary or regular, the Court would see the purpose, object of such enquiry as also the stage at which, the order of termination has been passed.
(j) Every enquiry preceding the order of termination/discharge, would not make it punitive. Where an enquiry contemplated in the rules before terminating an probationer or temporary employee is held, it would not make the order punitive.
(k) If the enquiry is to find out whether the employee is fit to be confirmed or retained in service or to continue, such an enquiry would not render termination punitive.
(l) Where the employer hold a formal enquiry to find out the correctness of the alleged misconduct of the employee and proceed on the finding thereof, such an order would be punitive, and, cannot be passed without giving an opportunity to the concerned employee.
(m) If some formal departmental enquiry commenced but not pursued to the end. Instead a simple order of termination is passed, the motive operating in the mind of the authority would be 50 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 immaterial and such an order would be non punitive
(n) When an order of termination is assailed on the ground of mala fide or arbitrariness, while defending the plea of mala fide, if the authority has referred certain facts justifying the order of discharge relating to misconduct, negligence or inefficiency of the employee in the appeal or in the affidavit filed before the Court, that would not make the order founded on any misconduct.
(o) Sometimes when some reason is mentioned in the order, that by itself would not make the order punitive or stigmatic. The following words mentioned in the order have not been held to be punitive.
i. "want of application", ii. "lack of potential", iii.
"found not dependable", iv. "under suspension", v. "work is unsatisfactory", vi. "unlikely to prove an efficient officer".
(p) Description of background facts also have not been held to be stigmatic.
(q) However, the words "undesirable to be retained in Government service", have been held stigmatic.
(r) If there is (i) a full scale formal enquiry, (ii) in the allegations involving moral turpitude or misconduct, (iii) which culminated in a finding of guilt; where all these three factors are present, the order of termination would be punitive irrespective of the form. However, if any one of three factors is missing, then it would not be punitive.
62. The aforesaid are not exhaustive, but lay down some of the principles to find out whether termination of an employee is simplicitor or punitive. Each and every case has to be considered in the light of the facts and circumstances of the case, but broadly the aforesaid are the factors to find out whether termination of an employee is punitive or not."
51 OA Nos.3902 with 3990, 3960,3961 , 3910, 3991, 3992 of 2023 16.3 The Hon'ble High Court of Delhi in the case of Nina Lath Gupta vs. Union of India, reported in 2023:DHC:2944 held as under:-
"27. Therefore, what emerges from the conspectus of the aforesaid judgments is that if an order is founded on allegations, the order is stigmatic and punitive and services of an employee cannot be dispensed with without affording him an opportunity of defending the accusations/allegations made against him in a full- fledged inquiry. Since this case relates to a tenure appointment, it will be pertinent to look at the law with respect to stigmatic orders in the context of tenure appointments. In Dr. L.P. Agarwal v. Union of India and Others, (1992) 3 SCC 526, Petitioner was Director, AIIMS, who had been appointed for a period of 5 years or till he attained the age of 62 years, whichever was earlier, the Supreme Court examined the meaning and connotation of the term 'tenure' and observed that tenure is a term during which an office is held. It is a condition of holding office and once a person is appointed to a tenure post, his appointment begins when he joins and comes to an end on completion of the tenure, unless curtailed on 'justifiable' grounds. Such a person does not superannuate, he only goes out of office on completion of his tenure Neutral Citation Number: 2023:DHC:2944 and thus, the question of prematurely retiring him does not arise. In A.P. State Federation of Coop. Spinning Mills Ltd (supra), Respondent was appointed as General Manager (Finance) for a period of 3 years and prior to the said period coming to an end, his services were terminated. Respondent approached the High Court in a writ petition seeking quashing of the order and the learned Single Judge dismissed the writ petition after coming to a conclusion that the termination order was innocuous and not penal in nature and termination being in accordance with the contract of service, after giving three months' salary in lieu of the notice, required no interference.
The Division Bench, allowing the appeal held that though the order on the face of it appeared to be innocuous, however, if the attendant circumstances were examined, more particularly, the stand in the 52 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 counter affidavit, the conclusion was irresistible that the order was penal in nature and since penalty was imposed without affording opportunity to meet the charge, the order was unsustainable. This order of the Division Bench was challenged before the Supreme Court and the contention of the Appellant was that the reasons indicated in the order were the motive for termination and not the foundation, requiring an inquiry, prior to termination. The Supreme Court upheld the order of the Division Bench, to the extent that the order of termination was vitiated and ruled as follows:-
"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 Neutral Citation Number:
2023:DHC:2944 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 53 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 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 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.
4. In fact, the letter of the Commissioner for Handlooms and Director of Handlooms and Textiles dated 19-5-1993 was the foundation for the employer to terminate the services and as such the Division Bench of the Andhra Pradesh High Court was justified in holding that the order of termination is based upon a misconduct, though on the face of it, it is innocuous in nature. We therefore do not find any infirmity with the said conclusion of the Division Bench of the Andhra Pradesh High Court requiring our interference."
28. In the aforesaid case, the letter of the Commissioner for Handlooms and Director of Handlooms and Textiles was the foundation for the termination order and hence found to be stigmatic. It is thus trite that in a tenure employment, if the termination order of the employee is an order simplicitor and casts no stigma, it warrants no interference by the Court, however, if the attendant circumstances lead to a conclusion that termination is founded on allegations, then being penal in nature, the order would be untenable in law, if issued without affording an opportunity to the employee to defend the accusations.
29. Another judgment, which needs a mention and is close on facts, is in the case of Dr. Vijayakumaran C.P.V. v. Central University of Kerala and Others, (2020) 12 SCC 426, wherein the Supreme Court observed that the termination order 54 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 was issued in the backdrop of Internal Complaints Committee Report and going by the terms and Neutral Citation Number: 2023:DHC:2944 tenor of the order, it was incomprehensible to construe such an order to be an order simplicitor when the report of the Inquiry Committee was the foundation. The Supreme Court also reiterated the position of law that the material which amounts to stigma need not be contained in the termination order and may be in any document referred to therein, which reference will inevitably effect the future prospects of the incumbent and if so, the order must be construed as an ex facie stigmatic order of termination."
17. Keeping in view the aforesaid observations of the Hon'ble Supreme Court in the cases of Ratnesh Kumar Chaudhary (supra) & Mathew P. Thomas (supra) and Hon'ble High Courts in Vijay Raj (supra) and Nina Lath Gupta (supra), if one perused the aforesaid termination notice(s), it is evidently clear that the impugned termination notices are not termination simplicitor. Rather the same are based on allegations of offence/misconduct and an enquiry where the applicants were not allowed to participate and which was not regular enquiry. Therefore, in view of the settled law, full fledge inquiry is required to be conducted in the matter, as the impugned termination notices are found to be punitive and stigmatic. Similar view has been taken by the coordinate Bench of this Tribunal in the case of Captain Yashraj Tongia vs. Union of India, reported in AISLJ 2023 (2) 34. Further the similar issue has earlier been considered by this Tribunal in Order/Judgment dated 2.6.2023 in OA No.1879/2017, titled Virender vs. Govt. of NCT of Delhi 55 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 and others, the relevant paras of the same are reproduced as under:-
"9. From the aforesaid judgment it stands settled that each and every case has to be considered in the light of the facts and circumstances of case, of course, broadly keeping in view the factors as recorded in the said judgment to find out whether the termination of an employee is punitive or not? It also stands settled that while deciding whether the termination of a probationer is a termination simpliciter or punitive, the Tribunal can travel beyond the order of termination to find out what in reality weighed with the employer to terminate the services of the probationer.
10. From the judgment of the Hon'ble High Court of Delhi in Nina Lath Gupta (supra) it is settled that even if the order of termination of the probationer, on the face of it, appears to be innocuous and or order simpliciter, however, if the attending circumstances, more particularly the stand taken in the counter-affidavit, the conclusion was irresistible that the order was penal in nature and since the penalty was imposed without affording an opportunity to meet the charge, the order was not sustainable in the eyes of law.
11. In the aforesaid background, even if it is assumed that the impugned order dated 24.04.2017 is presumed to be an order simpliciter, however, in view of the specific stand taken by the respondents in the Memorandum dated 21.04.2017 and in the counter-reply, precisely recorded hereinabove, we are of the considered view that the impugned order of termination is founded on an act of misbehaviour and indiscipline by the applicant and, therefore, the impugned order is found to be punitive and stigmatic. The same being passed without holding an enquiry and without following the principles of natural justice is not sustainable in the eyes of law.
12. Accordingly, the impugned order dated 24.04.2017 is set aside. The respondents are directed to reinstate the applicant in service, as 56 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 expeditiously as possible, and preferably within six weeks of receipt of a certified copy of this order. The applicant shall be entitled to consequential benefits in accordance with the relevant rules and instructions on the subject. However, the respondents shall be at liberty to initiate disciplinary enquiry and or to take action in accordance with the relevant rules, depending upon the final outcome of the case FIR, referred to hereinabove, if they so decide.
13. The OA stands partly allowed in the aforesaid terms. However, in the facts and circumstances of the case, there shall be no order as to costs."
17.1 The aforesaid Order/Judgment of this Tribunal was challenged by the respondents therein before the Hon'ble High Court of Delhi by way of Writ Petition (Civil) No.12696/2023, titled Govt. of NCT of Delhi and others vs. Virender and the Hon'ble High Court of Delhi vide Order/Judgment dated 28.2.2024 had disposed of the said case with the following observations:-
"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 respondent. A reference is also made to the FIR registered against respondent under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act‟, 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 oder 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 57 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 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."
17.2 Similar issue has also been considered by the coordinate Bench of this Tribunal in OA No.2303/2023, titled Ashish Siwach vs. Union of India and others, in which one of us, namely, Shri R.N. Singh, Member (J), is one of the Members, and this Tribunal vide 58 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 Order/judgment dated 18.9.2023 allowed the said OA with the following observations:-
"6. A bare reading of the said order indicates that the so called alleged misconduct of the applicant is a pointer towards suspected adoption of unfair means and this pointer, by the admission of the respondents is on account of "fake and forged examination report".
7. Now it is beyond our comprehension that once a report is stated to be fake and forged how could the same report be relied upon to impose the penalty of termination of service?
8. It may be an order simplicitor but we have no doubt in our mind that the order is stigmatic and harshly penal in nature. Neither is there any hint or even a whisper of unsatisfactory performance of the applicant nor is there any allegation of misconduct. We reiterate, if there is any allegation of misconduct, that allegation is on the basis of "fake and forged" documents. Further, the matter is also a subject of an FIR which is under investigation. In our view, the respondents have jumped the gun by not awaiting the outcome of the FIR and resorted to the extreme step of termination of services of the applicant without even an iota of evidence.
9. To say the least, the order is perverse.
10. In view of what has been detailed and discussed above, the OA is allowed and the impugned order dated 28.07.2023 is quashed and set aside. Pursuant to this, the applicant's position shall be restored by reinstating him with effect from the date his services were terminated. Needless to say that the applicant shall be entitled to all consequential benefits in accordance with relevant rules and instructions on the subject."
59 OA Nos.3902 with 3990, 3960,3961 , 3910, 3991, 3992 of 2023 17.3 The aforesaid Order/Judgment of this Tribunal was challenged before the Hon'ble High Court of Delhi by the respondents therein by way of Writ Petition No.151/2024, titled Union of India and others vs. Ashish Siwach and the Hon'ble High Court of Delhi vide Order/Judgment dated 5.1.2024 dismissed the said writ petition along with misc. petitions with certain clarification, the relevant paras of the same are reproduced below:-
"2. The primary ground on which the termination order has been quashed by the learned Tribunal is that even though the said order was stigmatic, the same had been passed without holding any inquiry against the respondent.
3. Having perused the impugned order, this Court is of the considered view that the approach adopted by the learned Tribunal was absolutely correct in law and, therefore, no interference is called for with the impugned order.
4. At this stage, learned counsel for the petitioner submits that even if the termination of the respondent was found to be faulty on account of non-compliance with the principles of natural justice, the learned Tribunal ought to have at least granted an opportunity to the petitioner to take action against the respondent as per law. Learned counsel for the respondent who appears on advance notice fairly admits that the petitioners are entitled to initiate departmental action against the respondent as per law.
5. In the light of this stand taken by the parties, the writ petition, alongwith all pending applications, stands dismissed by clarifying that despite the termination order dated 28.07.2023 60 OA Nos.3902 with 3990, 3960, 3961 , 3910, 3991, 3992 of 2023 having been set aside, it will be open for the petitioners to initiate departmental action against the respondent as per law."
18. There is no denial of the fact that the respondents in the instant case have conducted inquiry in the matter pursuant to OMs dated 30.07.2021 and 14.09.2022, i.e., issued subsequent to the applicant's selection/ appointment and based on stigmatic report and show cause notices, they have issued the impugned termination orders and that too without affording an opportunity to the applicants by providing a copy of the relevant materials on the basis of which the preliminary inquiry report came into existence. Moreover, the impugned termination notices and show cause notices issued, before that are apparently stigmatic. We may further record that though the learned counsel for the respondents has submitted willingness of the respondents to make arrangements for biometric tests of the applicant(s), however, this cannot be allowed in the facts and circumstances of the case.
19. Therefore, keeping in view the law laid down by the Hon'ble Supreme Court Hon'ble Supreme Court in the cases of Ratnesh Kumar Chaudhary (supra) & Mathew P. Thomas (supra) and Hon'ble High Courts in Vijay Raj (supra), Nina Lath Gupta (supra), Virender (supra) and Ashish Siwach (supra), the captioned OAs are partly allowed with the following directions:-
61 OA Nos.3902 with 3990, 3960,3961 , 3910, 3991, 3992 of 2023
(i) the impugned termination notices dated 30.11.2023 and 01.12.2023 are quashed and set aside qua the applicants in the captioned OAs;
(ii) the interim order(s) passed in the maters are made absolute;
(iii) The applicants shall be entitled to consequential benefits in accordance with the relevant rules and instructions on the subject; and
(iv) The respondents are directed to comply the above directions, as expeditiously as possible and preferably within four weeks of receipt of a copy of this Order; and
(v) However, the respondents shall be at liberty to initiate the disciplinary proceedings and/or to take action in accordance with the relevant rules, if they so decide.
20. The captioned OAs are partly allowed in the aforesaid terms. However, in the facts and circumstances of the cases, there shall be no order as to costs.
21. Associated MA(s), if any pending, shall also stand disposed of accordingly.
22. Registry is directed to place a copy of this Order in each and every connected aforesaid OAs.
(Sanjeeva Kumar) (R.N. Singh) Member (A) Member (J) /ravi/