Central Administrative Tribunal - Jabalpur
Amit Kumar vs M/O Defence on 17 January, 2020
1 OA No.200/00032/2018
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/00032/2018
Jabalpur, this Friday, the 17th day of January, 2020
HON'BLE SHRI NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE SHRI RAMESH SINGH THAKUR, JUDICIAL MEMBER
Amit Kumar
S/o Shanker Singh
Date of Birth 5/1/1995
R/o Tarapur
District Munger Bihar
Pin 813221
Mobile9424746755 -Applicant
(By Advocate -Shri Kabeer Paul)
Versus
1. Union of India, Through its Secretary
Ministry of Defence
South Block
New Delhi 110001
2. The Director General
Ordnance Factory Board,
10-A Saheed Khudiram Bose
Marg Kolkata 700 001 W.B.
3. The Senior General Manager
Vehicle Factory Jabalpur
Shobhapur Jabalpur
Madhya Pradesh PIN 482009 - Respondents
(By Advocate -Shri D.S. Baghel)
(Date of reserving the order:-31.12.2018)
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2 OA No.200/00032/2018
ORDER
By Ramesh Singh Thakur, JM:-
This Original Application has been filed against the validity propriety and legality of the order dated 11.12.2017 wherein the services of the applicant have been terminated by the respondent-authorities.
2. The applicant has sought for the following reliefs:-
"8(i) Summon the entire relevant records for kind perusal of this Hon. Tribunal.
8(ii) Set aside the order of removal dated 11.12.2017 while declaring the same as bad in law. Thereafter, the applicant be granted all consequential benefits arising thereto;
8(iii) Also, the respondents be directed to permit the applicant to resume his services in the respondent- department.
8(iv) Any other relief, which this Hon'ble Tribunal deems fit may also be granted."
3. The case of the applicant is that the applicant was issued a show cause notice dated 14.11.2017 (Annexure A/2) by the respondent-authorities wherein the applicant was asked to explain the findings arrived by the Superintendent of Police (Munger) upon investigation, that Page 2 of 23 3 OA No.200/00032/2018 the applicant had appeared as one Sanjeev Kumar S/o Shanker Singh in the year 2006 for matric examination. It is alleged that the applicant had mentioned his date of birth as 24.02.1989 and had cleared the said examination. In the year 2010 as well the applicant had appeared in the private matric examination while mentioning his real name as Amit Kumar S/o Shanker Singh and had mentioned his date of birth as 05.01.1995 and cleared the examination in the first division. The applicant was asked to submit a reply to the said allegations. The applicant submitted his detailed reply on 20.11.2017 (Annexure A/4) and denied all the charges/allegations against him. The investigation undertaken by the authorities is on the basis of complaint. The applicant submitted that he has obtained the present employment while supplying all the correct and necessary documents and also upon clearing the examination on merit. The respondent-authorities has issued impugned order dated 11.12.2017 whereby the services of the applicant were terminated while innocuously stating that Page 3 of 23 4 OA No.200/00032/2018 after the receipt of the report of the Superintendent of Police dated 18.03.2017 the applicant is not suitable for government service.
4. The applicant has challenged the termination order on the basis of the clauses contained in the appointment order. It has been submitted that in fact this act is a camouflage or cloak of an order of termination simplicitor. A bare perusal of the attendant circumstances which are the basis of the said order of termination shall leave iota of doubt in inferring that the order of termination had been made by way of punishment on the ground of the alleged misconduct without affording any reasonable opportunity of hearing to the applicant whose services are terminated and without complying with the mandatory procedure laid down in Article 311 (2) of the Constitution of India. It has been further submitted that the said termination is not due to any deficiency in the service rendered by the applicant or due to his unsuitability for the job but is on the basis of the alleged misconduct by the applicant. So, the detailed Page 4 of 23 5 OA No.200/00032/2018 procedure prescribed in the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as CCS rules) has not been followed and merely after calling for the reply the applicant has been removed from service on the basis of an enquiry which was conducted behind his back and the opportunity was given to dispute the same. So, the impugned order which is the termination simplicitor and is not an outcome of any disciplinary proceedings. Thus, the applicant has not preferred an appeal before the appellate authority in accordance with the Section 23 of the CCS Rules as the impugned order is an administrative order issued by the appointing authority. The applicant is working as per his own identity and has all the documents in support of the same. The copy of Aadhar Card of the applicant along with the various mark sheets is being collectively annexed as Annexure A/5. The applicant is a meritorious person and is a qualified fitter. The copy of certificate is annexed as Annexure A/6. So the termination Page 5 of 23 6 OA No.200/00032/2018 of the applicant is simpliciter, in fact it is a punishment which has been affected on the basis of the enquiry report of the Superintendent of Police Munger. Since the applicant is a probationer, the protection guaranteed under Article 311 (2) of the Constitution shall be available to him only if the applicant is removed from service on any disciplinary ground. So the action the respondent- authorities in stating that the termination of the applicant is simpliciter is only to escape from the mandate of Article 311 which provides that in case an employee is to be terminated the requirement of holding of an enquiry and giving him a reasonable opportunity cannot be dispensed with.
5. The respondents have filed their reply. It has been stated by the replying respondents that the applicant has submitted an online application for appointment to the post of Exam Engg. (S/Sk) in which he had declared his name as Amit Kumar. The written test was held on 06.09.2015 in which he was selected. Before appointment the identity, Page 6 of 23 7 OA No.200/00032/2018 character and antecedents of the candidates selected has to be verified. Hence the applicant submitted attestation forms in which he declared his name as Amit Kumar and his date of birth as 05.01.1995. A copy of attestation form is annexed as Annexure R/1. The attestation forms were sent to District Magistrate Munger for verification. Collectorate Officer vide letter dated 23.02.2016 submitted its report in which it was stated that SP/Munger had verified the name, address of the applicant which is found to be correct. Copy of the report is annexed as Annexure R/2. Based on the report of SP, the applicant was issued offer of appointment and was appointed on 08.10.2016. However, based on an anonymous complaint regarding the misleading identity of the applicant a letter was issued to the SP Munger for investigation. SP Munger vide letter dated 18.03.2017 forwarded the investigation report. In the investigation, it is found that Shri Amit (Sanjeev Kumar) had appeared in Matric Exam twice in the name of Sanjeev and Amit. In the investigation report, it is further revealed Page 7 of 23 8 OA No.200/00032/2018 that the applicant had appeared in Matric Exam as Sanjeev Kumar in 2006 Session in which his date of birth was 24.02.1989 and passed in Second Division from Mahaveer Choudhary High Court Shantinagar, Thana Taraour. In this regard investigation report is annexed as Annexure R/3. It has been further submitted that the applicant had appeared as a private candidate from Lal Bahadur Shastri Kisan Uchcha Vidyapeeth Mannai Thana A Sarganj District Munger in which he had declared his date of birth as 05.01.1995 and he passed in 1st Division and also his name as per the voter list is Sanjeev. The applicant had concealed his real identity and misled the factory and obtained employment in this factory with a different name and date of birth. Since the very identity of the applicant cannot be established and therefore he cannot be retained in service. Further the applicant was under probation and therefore CCS (CCA) Rules 1965 cannot be invoked for his termination. However, the applicant was issued a show cause notice dated 14.11.2017, whereby an opportunity Page 8 of 23 9 OA No.200/00032/2018 was afforded to him to show cause. The applicant submitted his reply dated 20.11.2017. The reply submitted by the applicant was carefully considered by the competent authority but was not found satisfactory. Since the applicant was initially appointed on the basis of recommendation of SP(Munger) and after submission of another report which is contrary to the earlier recommendation the applicant cannot be considered suitable for government employment and in terms of Para 2(a) and (c) of the appointment letter, the applicant was terminated w.e.f.09.12.2017. The applicant had concealed his original identity and violated "warning" clearly mentioned in the attestation form filled by the applicant during his appointment. As the identity of the applicant is not established he cannot be retained in service. The applicant was issued offer of appointment dated 08.09.2016. In para 2(C) of appointment letter, it is clearly stated that his services may be terminated at any time during the probationary period by either side without Page 9 of 23 10 OA No.200/00032/2018 notice and without assigning any reason. Since the initial appointment is offered to a candidate based on the establishment of identity and verification of character and antecedents done by the Civil Authorities in the present case the identity of the applicant could not be established as the applicant had appeared for the matric exam by supplying different names and date of birth. Further in the voter list the applicant's name has been enrolled as Sanjeev Kumar. The applicant has tried to conceal his real identity and obtained appointment in a defence installation under Ministry of Defence which might have jeopardized the security of the establishment. It has been further stated that the temporary government servant can also be terminated forthwith or without notice under Central Civil Services (Temporary Services/Rules, 1965).So according to Government instruction MHA memo dated 26.08.1967 CCS (TS) Rules, 1965 do not specifically exclude probationers or persons on probation as such. It is also made clear in these instructions that in cases where such a Page 10 of 23 11 OA No.200/00032/2018 provision has been specifically made in the letter of appointment it would be desirable to terminate the services of the probationer/person on probation in terms of the letter of appointment. Thus provisions of CCS (CCA) Rules, 1965 cannot be invoked in the case of termination of a probationer.
6. The applicant has filed the rejoinder and had reiterated its earlier stand taken in the Original Application. It has been specifically submitted by the applicant filled up the attestation form and declared his name as Amit Kumar and date of birth as 05.01.1995 the same were sent for verification to the District Magistrate Munger. Subsequently as per the unequivocal submission by the respondents the same was verified by the Superintendent of Police Munger and the details submitted by the applicant were found to be correct. Afterwards the applicant was appointed on 08.10.2016. Thus, there is no question of any suppression of fact or submitted any false information. Anonymous complaint is not believable as it Page 11 of 23 12 OA No.200/00032/2018 is difficult to understand as to how the Superintendent of Police Munger submit a complete enquiry report saying that details submitted by the applicant were false or that he has appeared in any examination on two occasions. So the inquiry done behind his back is illegal and in complete violation of the service rules and the principles of natural justice. The applicant has denied the averments made by the respondents to the fact that the applicant was on probation and CCS(CCA) Rules, 1965 are not applicable. It has been specifically submitted by the applicant that if an order is based on alleged misconduct or any other disciplinary ground then Article 311 as well as the CCS(CCA) Rules is applicable on even on probation. The said position has been clarified by the Hon'ble Supreme Court in a number of judgments. It has been submitted that the applicant was asked to submit a reply on show cause notice dated 14.11.2017 however it proved to be an empty formality for the applicant as the respondents had already made up their mind to punish him on the basis of the Page 12 of 23 13 OA No.200/00032/2018 perverse illegal and arbitrary investigation report. It has been further submitted by the applicant although the respondents have stated that the applicant has been removed as he is unsuitable in terms of the conditions of the appointment letter but the reason is to deprive him from the protection of Article 311 and CCS (CCA) Rules, which clearly state that if the removal of an employee is based on alleged act of misconduct, he shall be given an opportunity of hearing and the detailed procedure in the CCS (CCA) Rules has to be followed. It is submitted by the applicant that he neither violated any conditions of the appointment letter nor has he committed any misconduct. The identity of the applicant was clearly verified by the police authorities and by the respondents before his appointment. The removal/termination of the applicant is contrary to the provisions and principles of natural justice.
7. The respondents have filed additional reply to the rejoinder filed by the applicant. It has been submitted that the applicant has been terminated after giving him Page 13 of 23 14 OA No.200/00032/2018 opportunity of hearing since an employee is granted employment in the factory based on the verification of character and antecedent carried out by SP of the concerned District. The S.P. Munger had submitted its review report in which it is found that the applicant had appeared in the matriculation exam twice by supplying two different names and date of birth. The applicant has willfully furnished his details as Amit Kuma with ulterior motive to get the benefit of extra government service period of approx 6 years. The applicant has not disclosed his real identity as the identity of every individual is not verified. Therefore he is not suitable for the government service.
8. We have heard the learned counsel for both the parties and have also gone through documents annexed with the pleadings.
9. From the pleadings it is admitted fact that the applicant was issued the show cause notice dated 14.11.2017 (Annexure A/2) and the applicant was asked to Page 14 of 23 15 OA No.200/00032/2018 explain the findings arrived by the Superintendent of Police (Munger) to the fact that the applicant had appeared as one Sanjeev Kumar S/o Shanker Singh in the year 2006 for matric examination. It is also came in the pleadings that in the year 2010 the applicant had appeared in the private matric examination while mentioning his real name as Amit Kumar S/o Shanker Singh. The applicant submitted his detailed reply on 20.11.2017 (Annexure A/4) and denied all the charges/allegations against him. The main ground for challenging the termination order passed by the respondents that the order of termination is simplicitor and the services have been terminated without affording any reasonable opportunity of hearing and without complying with the mandatory procedure laid down in Article 311 (2) of the Constitution of India for that misconduct there should have been detailed inquiry as prescribed in the CCS(CCA) Rules, 1965. Since the applicant is a probationer the protection granted under Article 311 (2) of the Constitution is available to him. Page 15 of 23 16 OA No.200/00032/2018
10. On the other side the respondents have submitted that the applicant has submitted online application in which he has declared his name as Amit Kumar. Different tests were held and the applicant was selected. Before appointment the identity, character and antecedents of the candidates selected has to be verified. In the attestation forms the applicant has declared his name as Amit Kumar (Annexure R/1). The attestation forms were sent to District Magistrate Munger for verification and report was submitted as Annexure R/2. On that basis, the applicant was issued offer of appointment. On the basis of an anonymous complaint the matter was further forwarded to the SP Munger for investigation and it was revealed that the applicant had appeared in Matric Examination as Sanjeev Kumar in 2006 (Annexure R/3). As the applicant had concealed his real identity and misled the factory and obtained employment in this factory with a different name and date of birth. Further the applicant was under
probation so CCS (CCA) Rules 1965 cannot be invoked Page 16 of 23 17 OA No.200/00032/2018 for his termination and show cause notice was issued to the applicant.
11. The applicant has filed the rejoinder to the reply filed by the respondents wherein specific averments have been made by the applicant that the action has been taken by the respondents on the basis of anonymous complaint. The applicant has been appointed after due verification earlier, which was accepted by the respondent-department. It has been reiterated by the applicant that order is based on alleged misconduct and the detailed inquiry should have been conducted by the respondent-department. The termination amounts to stigma as per verdict of the Hon'ble Apex Court. As the applicant has been terminated and has been removed as he is unsuitable in the terms of appointment as the applicant has not been given the opportunity of hearing/inquiry under the CCS (CCA) Rules, 1965.
12. The main controversy in the instant case is that whether the impugned order of termination has been issued Page 17 of 23 18 OA No.200/00032/2018 on the basis of misconduct. The learned counsel for the applicant has relied upon the judgment passed by Hon'ble Apex Court in the case of Pradip Kumar vs. Union of India and Others, (2012) 13 SCC 182, whereby the Hon'ble Apex Court has held that if the order of discharge is stigmatic and punitive in nature, based on enquiry conducted into the allegation and the same is found to be foundation of order of discharge and if no enquiry was held, such order cannot be sustained in law. The relevant paragraphs of the judgment read as under:
"14. Nonetheless the order of discharge cannot be upheld, as it is stigmatic and punitive in nature. It is a matter of record that during three years of service no order was issued extending the period of probation of the respondent. He completed the mandatory period of probation on 21-11-2007, therefore, it was expected of the department to take a decision about the performance of the respondent within a reasonable period from the expiry of one year. It is also a matter of record that the respondent continued in service without receiving any formal or informal notice about the defects in his work or any deficiency in his performance. This Court, in Sumati P. Shere v. Union of India4, emphasised the importance of timely communication of defects and deficiencies in performance to a probationer, so that he could make the necessary efforts to improve his work. Non-communication of his deficiencies in work Page 18 of 23 19 OA No.200/00032/2018 would render any movement order of such an employee on the ground of unsuitability, arbitrary. In para 5 of the judgment, it is observed:
"5. We must emphasise that in the relationship of master and servant there is a moral obligation to act fairly. An informal, if not formal, give and take, on the assessment of work of the employee should be there. The employee should be made aware of the defect in his work and deficiency in his performance. Defects or deficiencies; indifference or indiscretion may be with the employee by inadvertence and not by incapacity to work. Timely communication of the assessment of work in such cases may put the employee on the right track. Without any such communication, in our opinion, it would be arbitrary to give a movement order to the employee on the ground of unsuitability."
In our opinion, the aforesaid observations are fully applicable in the facts and circumstances of this case.
16. In our opinion the controversy herein is squarely covered by a number of earlier judgments of this Court, which have been considered and reaffirmed in Union of India v. Mahaveer C. Singhvi. Considering the similar circumstances this Court observed as follows: (SCC p. 228, para 25) "25. In the facts of the case the High Court came to the conclusion that a one-sided inquiry had been conducted at different levels.
Opinions were expressed and definite conclusions relating to the respondent's culpability were reached at by key officials who had convinced themselves in that regard. The impugned decision to discharge the respondent from service was not based on mere suspicion Page 19 of 23 20 OA No.200/00032/2018 alone. However, it was all done behind the back of the respondent and accordingly the alleged misconduct for which the services of the respondent were brought to an end was not merely the motive for the said decision but was clearly the foundation of the same."
13. Learned counsel for the applicant has also relied upon the judgment of Hon'ble Apex Court in the matters of V.P. Ahuja vs. State of Punjab and others, (2000) 3 SCC 239 in which the Hon'ble Apex Court has held that when a probational or a person on temporary basis is sought to be removed due to unsatisfactory work, regular enquiry must be held and opportunity must be given to the delinquent probationer and their services cannot be terminated arbitrarily, nor can those services be terminated in punitive manner without complying with the principles of natural justice.
14. He has further placed reliance on a judgment of Hon'ble Apex Court in the matters of Dipti Prakash Banerjee vs. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta and others, (1999) 2 SCC 34, wherein by referring the case of Bishan Lal Gupta vs. Page 20 of 23 21 OA No.200/00032/2018 State of Haryana, (1978) 1 SCC 202, the Hon'ble Apex Court has observed that an ordinary inquiry by a show cause might be sufficient for the purpose of deciding whether the probationer could be continued. But where the findings regarding misconduct are arrived at without conducting a regular departmental inquiry, then the termination order will be vitiated.
15. In the present case, the show cause notice was issued to the applicant on the basis of second report submitted by S.P. Munger vide Annexure A/3. Though the applicant has replied to the show cause notice issued by the respondent- department on 14.11.2017, but the respondent-authority was not satisfied and the services of the applicant has been terminated as not suitable in terms of Para 2(a)(c) of the appointment letter and ultimately order of termination was issued on 09.12.2017. In the impugned order dated 11.12.2017 (Annexure A/1) the ground is that the applicant is not suitable for government services. From the pleadings itself it is clear that this is a stigma in the service Page 21 of 23 22 OA No.200/00032/2018 career of the applicant. Although while offering appointment to the applicant, necessary formalities and attestation of character has been done. The impugned order has been passed only on the basis of anonymous complaint. It is clear from the law settled by Hon'ble Apex Court as indicated in earlier paras that termination of service of employee/probationers if amounts to stigma and punitive in nature then a regular inquiry ought to have been conducted. From the facts in the case itself shows that the action taken by the respondent-department amounts to stigma and punitive in nature and as per the law settled by Hon'ble Apex Court as discussed above, the detail enquiry was required to be conducted as per Rule which has not been done in the instant case. So the termination of the applicant is simplicitor, is not warranted and being a civilian employee, the CCS(CCA) Rules, 1965 are applicable to the applicant and compliance of such ought to have been done.
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16. In view of the above, we are of the view that the impugned order is punitive in nature and has been passed in simplicitor without going through the detailed inquiry as per CCS(CCA) Rules, 1965. Resultantly, the Annexure A/1 order is quashed and set aside. The respondents are directed to reinstate the applicant forthwith. Needless to say that the impugned order (Annexure A/1) is itself bad in law and the applicant is not permitted to work by the respondent-department, therefore, in view of the law settled by the Hon'ble Apex Court in the case of Union of India vs. K.V. Jankiraman (AIR 1991 SC 2010), the applicant is entitled for all the consequential benefits. However, the respondents are at liberty to take appropriate action, if any, as per rules.
17. This Original Application is allowed accordingly. No costs.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
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