Central Administrative Tribunal - Delhi
Rahul Kumar vs Union Of India on 23 February, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH:NEW DELH O.A. NO.717/2008 New Delhi, this the 23rd day of February, 2009 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Dr. Veena Chhotray, Member (A) Rahul Kumar, S/o Shri Kedar Prasad Meena, R/o Vill. Tajpura, Post Daber, Tehsil Bamanwas, Distt. Sawai Madhopur-322 214 Rajasthan Applicant (By Advocate: Shri Arun Dhiman) Versus 1. Union of India, Through The Secretary, M/o Home, North Block, New Delhi 2. Principal, Police Training College, Jharoda Kalan, New Delhi 3. The Commissioner of Police, Police Headquarters, New Delhi 4. Dy. Commissioner of Police, Police Headquarters, New Delhi Respondents (By Advocate: Shri Ram Kanwar) O R D E R By Dr. Veena Chhotray, Member (A):
The applicant, an ex-Recruit Constable in Delhi Police, is aggrieved at the termination of his services by the Principal, Police Training College, Jharoda Kalan, New Delhi (Respondent No.2). Vide impugned order dated 15.2.2007, the services of the applicant have been terminated under provisions to Sub rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 (Annexure A/1). Further, the representation to the Commissioner of Police (Respondent No.3) against the order of termination has been rejected vide letter dated 20.2.2008 (Annexure A/2). It states that the applicant along with two other persons was involved in case FIR No.16/07 under Sections 376 (g), 371 IPC P.S. Bhamanwas, Rajasthan and was acquitted by giving the benefit of doubt. In view of this his representation dated 29.8.2007 was considered and rejected as being devoid of merits. The OA seeks by way of relief quashing of the impugned termination order dated 15.2.2007 declaring the same as illegal and arbitrary and against the principles of natural justice. It also seeks a direction to the Respondents for reinstatement of the applicant with all consequential benefits including the arrears of pay and allowances for the period of absence from duty till the date of his reinstatement.
2. Briefly, the facts of the case are that the applicant selected through the Direct Recruitment Examination for the year 2005 joined the Police Training College, Jharoda Kalan, New Delhi on 28.3.2006. As he had gone home for his marriage on casual leave from 15.1.2007, an FIR No.16/2007 pertaining to an alleged gang rape was lodged on 23.1.2007 against the applicant and two other co-accused under Section 376 (2) (G) and under Section 371 of IPC at Police Station Bhamanwas, Rajasthan. This was followed by the Respondents terminating the services of the applicant by the impugned order. The subsequent representation against this order was rejected.
3.1 With protestation of innocence, the OA avers that the aforesaid criminal complaint against the applicant was false and baseless. It is stated that the complainant and her parents had admitted during their examination before the Court that the incriminating statements before the Magistrate had been made under Police pressure. It is further stated that the complainant had, in fact, gone to the Police Station with her parents to make a complaint of an accident between the complaints bicycle and a motor bike of the applicants cousin, but the concerned Police personnel by keeping the complainant in dark and with an intention to extort money from the applicant and his cousin, had lodged the false criminal complaint under such serious charges (Para 4.6 of the OA). The fact of acquittal by the Criminal Court has also been cited.
3.2 The learned counsel for the applicant would contend that the order of termination in this case was not termination simpliciter and was stigmatic and punitive passed without giving an opportunity to the applicant to be heard. Dubbing the termination order as unreasoned and penal, the learned counsel would raise the plea of violation of principles of natural justice in the given case. The impugned order dated 29.8.2007 rejecting the representation of the applicant against the aforesaid termination would also be assailed as arbitrary and suffering from non-application of mind. The reasons given therein would also be cited to support the contention that the termination of service in this case was not innocuous as made out by the Respondents (Para 4.8 of the OA).
3.3 The OA also submits regarding one of the co-accused in the aforesaid criminal case i.e Shri Vinod Kumar Meena having been reinstated by his Department CRPF which averment has not been denied for want of knowledge by the Respondents (Para 4.9 of the OA and the counter reply). In support, the learned counsel would rely upon the judgment of the Delhi High Court in Raj Kumar Sharma v. Union of India & Ors, 1984 (2) SLR 401. Para-5 (a) of the OA avers as under:
The Honble Supreme Court of India in a number of judgments held that the court, if necessary for the ends of fair play and justice can lift the veil and find out the real nature of the order and if it is found that the impugned order is penal in nature even though it is couched with the order of termination in accordance with the terms and conditions of the orders of appointment, the said impugned order will be sent aside.
4. The Respondents plea, on the other hand, is that the applicant in this case was only a recruit in the Delhi Police and had no right as such and his services could be terminated under the Temporary Service Rules. The learned counsel for the Respondents would further submit that the involvement in the criminal case on the part of the applicant had not been denied. The seriousness of the offence gang rape and the fact that the acquittal was not honourable but only by giving the benefit of doubt would also be pleaded. The learned counsel would aver that under the Temporary Service Rules, conduct of an employee was material particularly so in the Police which is meant to be a disciplined Force.
5.1 In Raj Kumar Sharmas case (supra) relied upon by the learned counsel for the applicant, the Honble Delhi High Court had occasion to recapitulate the milestones of development of the law of the land on this subject. In Union of India & Ors v. Raj Kumar Gujaral, 1973 S.L.C. 82, it was observed by the Delhi High Court that it is settled law that the form of the order under which employment of a servant is determined is not conclusive of the true nature of the order as it may be merely to camouflage an order of dismissal for misconduct. Further it was open to the Court to go behind the form and ascertain the true character of the order considering the entirety of circumstances preceding or attendant. In State of Bihar & Ors v. Shiva Bhikshuk Mishra, 1978 S.L.R. 863 (S.C), the Honble Supreme Court observed that the determining test in such cases was whether the misconduct or negligence was a mere motive or the very foundation of the impugned order. In S.R. Tewari v. Distt. Board Agra and Anr, (1964) 3 SCR 555, the Honble Court reiterating the necessity for examining the entirety of circumstances observed that the impugned order itself may be a circumstance or a piece of evidence in such considerations. In Shamsher Singh v. State of Punjab and Anr, A.I.R. 1974 SC 2192, decided by seven Judges it was opined that the simplicity of the form of order would not keep any sanctity.
5.2 In R.K. Sharmas case (supra) a temporarily appointed Head Constable (Clerical) had been terminated from service because of a criminal case regarding his alleged involvement in a case of kidnapping and abduction. As a sequel to the FIR and his arrest, the applicant had been suspended to be followed by termination of services the following day. The Honble High Court had rejected the plea of the Respondents about the termination in this case not being based on any misconduct or about the impugned order casting any stigma. Upholding that the FIR in the criminal case was the foundation of the order of termination, the Honble Court had quashed it on grounds of violation of Article 311 and Articles 14 and 16 of the Constitution of India and directed his reinstatement in service with consequential benefit of arrears of salary and allowances.
5.3 While arriving at the aforesaid finding in R.K. Sharmas case (supra), the Honble High Court had taken notice of the preceding as well as subsequent circumstances including the notings in the file. In this case, on 1st June, 1974, the day when the services of the delinquent official were terminated, a Press note had been released by the Public Relations Officer of the Delhi Police Crime Beat regarding his arrest on the charge of kidnapping, the recovery of the girl by the Police and the enquiries revealing an alleged illicit relationship between the delinquent and the victim. Further, a note had been put up by the Deputy Superintendent of Police (HQrs) to the effect that as a case had been registered against Shri R.K. Sharma, Head Constable kfor kidnapping and abduction as per a Note dated 31st May, 1975 by the concerned SHO, it was for orders whether his services should be terminated or departmentally proceeded against as the case involved moral turpitude. However, the S.P. in this case had ordered for termination of his services. This averment on the part of the petitioner was not denied by the Respondents. Further the Honble High Court also took note of the subsequent notings by the S.P. (Crime & Railways) in the file on the subject. In his note dated 30th July, 1974 and subsequent notes it had been specifically mentioned that the Petitioner involved in the abduction case and had not been found fit for Police job.
The Honble High Court while considering these averments relied upon the view taken by the Honble Apex Court in some earlier cases. In Madan Mohan Prasad v. State of Bihar and Ors, 1973 (1) SLR 630, The Chief Ministers statement in the assembly about the services of the concerned employee not being satisfactory and the Government considering serving a show cause notice was taken to be the determining circumstances for holding that the termination order cast a stigma and since it had not been preceded by any enquiry, the order was hit by Article 311 (2) of the Constitution of India. In State of Uttar Pradesh & Ors v. Sughar Singh, 1974 (1) SLR 435, the Honble Apex Court had taken into account the statement by the Counsel for the State in writ proceedings that the foundation for reversion was adverse entry in character roll of the Officer. This had weighed with the Apex Court to declare the impugned reversion order, which though in simple form, as penal in consequences. Following these judicial rulings by the Apex Court in the earlier decisions, the Honble High Court of Delhi in R.K. Sharmas case (supra) had arrived at the definite findings as extracted below:
9. I am therefore of the opinion that the order dated 1st June, 1974 was by way of punishment. It was founded on the FIR under Section 363/366 IPC. His services were terminated on account of the alleged involvement of the Petitioner. It is not disputed that the petitioner was acquitted by the Additional sessions Judge, Delhi. It is also not disputed that no enquiry into the conduct of the petitioner was ever held by anybody. As the foundation of the termination order was the alleged misconduct of the petitioner he was not afforded any reasonable opportunity of showing cause against his alleged misconduct. The order of termination is hit by Article 311(2) of the Constitution. As mentioned above, the termination order in this case was struck down with direction for reinstatement and payment of consequential benefits.
5.4 The trend illustrated in the aforesaid Judgments has been continued even in the recent pronouncements by the Apex Court in Prithipal Singh vs. State of Punjab, 2003 SCC (L&S) 103 it was held Once there is stigma, the principle is well settled, an opportunity has to be given before passing any order. Even where order of discharge looks innocuous, but on a close scrutiny, by looking behind the curtain if any material exists of misconduct and which is the foundation of passing of the order of discharge or such could be reasonably inferred, then it leaves no room for doubt that any consequential order, even of discharge, would be construed as stigmatic.
Similarly, in Nehru Yuva Kendra Sangathan vs. Mehbub Alam Laskar, 2008 1 SCC (L&S) 457, it was held that .only in the event of unsatisfactory performance by the employee, the termination of probation would have been held to be justified. It is, however, well known that when the foundation for such an order is not an unsatisfactory performance on the part of the employee but overt acts amounting to misconduct, an opportunity of hearing to the employee concerned is imperative. In other words, if the employee is found to have committed a misconduct, although an order terminating probation would appear to be innocuous on its face, the same will be vitiated, if in effect and substance it is found to be stigmatic in nature.
6. Before we proceed to consider the present case in the context of the aforesaid judicial pronouncements, a word about the fate of the criminal case in question seems in order. A copy of the judgment dated 6.8.2007 passed by the Court of Additional Sessions Judge, Gangapur City, Sawai Madhopur, in the instant criminal case has been annexed with the OA along with its English translation as Annexure A/5. A cursory perusal of this order proves that on the basis of the medical report, the statements of the complainant about giving her statement of alleged rape against the accused under Section 164 Cr.P.C before the Magistrate as having been made under Police pressure and the statements of the parents of the complaint, the Court came to the view that the prosecution had been unable to prove the charge against the applicant and other two co-accused. With these observations, the accused had been acquitted of the charges giving them the benefit of doubt.
7. Even though the respondents stand is that the criminal case was not exactly the foundation of the decision of termination but only the conduct of the applicant that could be inferred from filing of the FIR, which has not been denied, we are not inclined to accept this averment. Following the direction set by the Honble Delhi High Court in R.K. Sharmas case (supra) and by the Honble Apex Court in the aforesaid cases, this contention of the Respondents does not cut much ice. The reason adduced by the Respondents while rejecting the representation of the applicant clearly mentioned this fact. Even at the cost of repetition it is being quoted once again:
Subject:- Recruitment for the post of Const. (Exe.) Male in Delhi Police 2005 - Representation submitted by Ex.R/Constable Rahul Kumar Meena No.2097/PTC against the order of termination.
Sir, Please refer to your representation dated NIL on the subject cited above. I am to inform you that your representation has been examined in this Hdqrs. at length and it has been decided that you alongwith two other persons were involved in case FIR No.16/97 u/s376(g), 341 IPC P.S. Bhamanwas, Rajasthan and were acquitted by giving benefit of doubt.
In view of the above, your representation dated 29.08.2007 has been considered and rejected being devoid of merits. (emphasis supplied) This clear mention by the Respondents clinches the issue and does not leave any doubt that the order of termination in this case was on account of a misconduct alleged in the FIR against which the applicant was not given any opportunity to explain his alleged misconduct. The order is clearly stigmatic. The fact that subsequently this case was not proved even before the criminal court lends force to this view.
8. For the foregoing reasons, the OA is allowed partly quashing the impugned order of termination and directing the respondents to reinstate the applicant. However, as there has been no malafide alleged, as no work was done by the applicant during this period, we do not consider it appropriate to direct for payment of arrears. This is to be complied with within a period of one month from the date of receipt of a copy of this order.
There shall be no order as to costs.
(Veena Chhotray) (M. Ramachandran) Member (A) Vice Chairman (J) /pkr/