Central Administrative Tribunal - Ahmedabad
Priyanshu R vs D/O Post on 10 November, 2023
::1 :: OA No.25/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BECH
Original Application No. 25/2020
Dated the 10 day of November, 2023
Reserved on: 13.10.2023
Pronounced on: 10.11.2023
CORAM:
Hon'ble Dr. A. K. Dubey, Member (A)
Hon'ble Shri Umesh Gajankush, Member (J)
1. Shri Priyanshu Raj Rajeshwar Prasad Singh,
Son of Rajeshwar Prasad Singh,
Aged 25 Years,
Residing at: Madhurpur,
Malikpur, Goraul,
Hajipur, Bihar - 844 118.
... Applicant
(By Advocate Mr. M.S. Rao)
V/s.
1. Union of India,
Notice to be served through
The Secretary,
Ministry of Communications and
Information Technology,
Department of Posts
(Recruitment Division),
Dak Bhavan, Sansad Marg,
New Delhi - 110 001.
2. The Chief Postmaster General,
Gujarat Circle, Khanpur,
Ahmedabad - 380 001
3. The Senior Superintendent,
RMS "AM" Division
Ahemdabad - 380 002.
(By Advocate Ms. R R Patel)
... Respondents
::2 :: OA No.25/2020
ORDER
Per: Hon'ble Shri Umesh Gajankush, Member (J)
1. In the instant OA, the applicant has challenged the Memo No.B.7/1/T/2013&14/15/II dated 28.11.2019 (Annexure-A/1) issued by respondent No.3 herein whereby service of the applicant came to be terminated forthwith by paying one month's pay and allowances in pursuance of the proviso to sub-rule (1) of Rule 5 of the Central Civil Service (Temporary Service) Rules 1965.
2. Brief facts of the case are as under:
2.1 In the month of February 2014, respondent number 1 herein invited applications from eligible candidates for filling up a large number of vacancies of Postal Assistant/Sorting Assistant, in the year 2013-2014, in 22 postal circles in the country.
2.2 The Department of Post engaged the services of one M/s CMC Limited. Upon receipt of merit list prepared by the said M/s CMC Limited, respondent number 2 had announced the result of the said selection process by issuing a list of candidates provisionally selected. Thereafter, candidates were allotted units as per the merit of the candidates and availability of vacancies. The applicant was allotted - RMS "AM" division.
2.3 It appears that after declaration of results, department received some complaints of using malpractices in the examination by candidates in 5 circles including Gujarat Circle. Considering the vigilance report, the competent authority vide communication dated 21.12.2015 cancelled the entire examination in 5 circles including, Gujarat Circle. Aggrieved with the cancellation of the examination, many candidates approached this tribunal with notified OAs. While disposing the OAs, this tribunal vide its order ::3 :: OA No.25/2020 dated 16.03.2016 directed the respondents to probe into matter by thorough investigation in a fair and transparent manner and complete the whole exercise as expeditiously as possible and preferably within a period of 3 months. Being aggrieved by the aforesaid decision, the respondents approached the Hon'ble High Court of Gujarat with a batch of 83 writ petitions being SCA No. 10049/2016 (Annexure-A/7) and various others. The Hon'ble High Court of Gujarat by a common judgement dated 16.08.2016 quashed and set aside the order passed by the tribunal. Thereafter aggrieved by the judgement of the Hon'ble High Court of Gujarat, affected candidates approached Hon'ble Supreme Court of India with respective SLPs. Hon'ble Apex Court vide order dated 13.07.2017 disposed of the SLPs with following directions.
"Permission to file SLP granted.
Delay Condoned We have heard learned counsel for the appellants/Petitioners and we have also heard learned Additional Solicitor General who has been instructed by the officers of the concerned Department.
We have also perused the report of the Vigilance Committee set up by the Department.
We find from a perusal of the report of the Vigilance Committee that the entire examination was not necessarily vitiated but some persons who are suspected of having used malpractices in the examination of Postal Assistant/Sorting Assistant in five circles, viz., Uttarakhand, Rajasthan, Chattisgarh, Haryana and Gujarat have actually been identified. The respondents will proceed against them in accordance with law but since they are quite a few in numbers, a formal show cause notice is dispensed with. However, they may be personally called and explained the allegations against them and given some reasonable time of about a week or ten days to give their reply to the allegations and then a final decision may be taken.
Those persons who are not suspected of having committed any malpractices and who have undergone the prescribed courses may be reinstated with all consequential benefits and 50% back wages with liberty to the respondents to take action against them in case subsequently it is found in the investigation that they have indulged in some malpractices. We make it clear that the respondents are at liberty to take action against those persons who have violated the terms of the ::4 :: OA No.25/2020 examination such as having appeared in more than one centre. Such violations will also be treated as malpractice. We further make it clear that this order will not ensure to the benefit of those persons who have not been given appointment letters. However, we also make it clear that those candidates who have not completed the course but were in the process of completing the course until the impugned action was taken may be permitted to complete the course/training provided they are not suspected of any malpractice. The appeals and special leave petitions stand disposed of. Pending applications are also disposed of."
2.4 Thereafter, the office of respondent No-2 issued a communication dated 30.05.2018 to the applicant calling upon him to remain present on 19.06.2018 for verification process along with all original documents (Annexure-A/19) and thereafter, by communication dated 26.08.2018 (Annexure- A/10), it was notified to the applicant that he has been selected for appointment in Sorting Assistant Cadre against the vacancies for the year 2013-14 and unfilled departmental quota for the year 2010,2011 and 2013. Applicant was directed to undergo in-house training for two weeks at divisional level training center with effect from 02.07.2018 to 15.07.2018. The name of applicant finds place at serial number 3. After completion of requisite formality, respondent No-3 issued appointment order dated 06.07.2018 (Annexure A-11) mentioning the fact that competent authority pleased to appoint the applicant on the post of Sorting Assistant in SRO/RMS Division Palanpur. Further, applicant was sent on induction training at Postal Training Center Vadodra with effect from 04.09.2018 to 20.10.2018 by communication dated 31.08.2018 (Annexure A-12).
2.5 After the successful completion of training, the applicant started working as Sorting Assistant under the respondent No-3. During the period 02.07.2018 to 22.10.2018, the respondent department prepared the APAR and awarded numerical grading of 7.0 to the applicant. Thereafter, APAR was prepared for the period from ::5 :: OA No.25/2020 05.11.2018 to 31.03.2019. In this APAR the applicant was awarded an overall grading of 8.0. It was stated that nowhere in the appointment letter, it was mentioned that the applicant was appointed on temporary service. There is a clear term in the appointment order that if the conduct/performance of the applicant is found unsatisfactory during the probation period the probation period will be extended for 6 months. The applicant was never served with any notice during his service. However respondent department terminated his services in clear violation of Article 311 of Constitution of India. Therefore, on the basis of facts and grounds mentioned in the original application, the applicant sought quashment and setting aside of the impugned Memo No.B.7/1/T/2013&14/15/II dated 28.11.2019 (Annexure A-1) with relief of reinstatement in service with all consequential benefits including the arrears of pay, seniority etc. with 12% interest.
2.6 Official respondents, after notice, filed their reply justifying the impugned order. It was stated that applicant was appointed provisionally subject to the condition that the respondent Department would be at liberty to take action against him in case it was subsequently, found in the investigation that he had indulged in malpractice in the exam conducted for PA/SA recruitment 2013-14.
2.7 It has been contended by the respondents that on the basis of the report of CFSL, Pune, the applicant was alleged to have been involved in the malpractice and therefore his services were terminated. It was further submitted that Department had terminated services of the applicant after following all procedures as prescribed in the proviso to sub rule (1) of Rule 5 of Central Civil Service (Temporary Service) Rules 1965. Since his termination of service is in consonance with all the said rules, question of violation of Article 311 of the Constitution of India does not arise. It was further stated that the order dated 06.07.2018 the applicant was appointed provisionally i.e. temporary. As per the, terms and conditions ::6 :: OA No.25/2020 mentioned at serial number 2 in the said memo his appointment was purely provisional which would not bestowed upon him any title for permanent appointment. It was further stated that the Hon'ble Supreme Court while rendering its decision had given liberty to the department in clear terms to take action against those candidates who have violated the terms of examination. As such the opinion of handwriting expert was absolutely required in this case with a view to find out the violation, if any committed by candidates during the examination. As per report of CFSL, Pune the applicant is held as having indulged in malpractice.
2.8 Thereafter, applicant has submitted rejoinder reiterating and elaborating his stand.
3. We have heard Mr. M.S. Rao learned counsel for the applicant and Ms. R.R. Patel, learned counsel for the respondents.
4. Learned counsel for the applicant vehemently argued that impugned order of termination is stigmatic and prior to passing of the said order no opportunity of hearing was provided, which is violation of principle of natural justice. It was contended that in pursuance of order passed by the Hon'ble Supreme Court (Annexure A-8) respondent department called the applicant for verification of documents. Thereafter, he was sent on training and after its successful completion, appointment order dated 06.07.2018 was issued. It is contended that in the appointment order, nowhere it was mentioned that he was appointed in temporary service as per the provisions of Central Civil Service (Temporary Service) Rules 1965. He was appointed on permanent post subject to completion of his probation period. It was also contended that in case the applicant's conduct/performance was found unsatisfactory during the probation period, the probation period will have to be extended for a period of six months. The applicant was never served with a show cause notice or warning by the department during this period. It was further contended that though the impugned order does not ::7 :: OA No.25/2020 show any stigma, effect of the same was a stigmatic. In support of his contention, learned counsel for the applicant placed reliance upon judgement reported in (2010) 8 Supreme Court Cases 220 (Union of India & Ors. Vs. Mahaveer C. Singhvi). Further a copy of order dated 04.05.2023 passed by this Tribunal in original application number 79/2022 Abhishek Sharma Vs Union of India & Ors. per contra is also relied upon.
5. Ms. R.R. Patel learned counsel for the official respondents supported the impugned order of termination and contended that same was passed as per the provisions of sub-Rule (1) Rule 5 of CCS (Temporary Service) Rule 1965, since his appointment was conditional. As per report of CFSL, Pune, the applicant is held as having indulged in malpractice and therefore, the service of the applicant has been terminated.
6. After having heard submissions made by the learned counsel for the parties, the undisputed facts emerge from record that in respect of selection process of Postal Assistant/Sorting Assistant for the year 2013-2014 in 22 Postal Circles in the country the examination was conducted through M/s CMC limited. It appears that after declaration of results, department received some complaints of using malpractices in the examination by candidates in five circles including Gujarat Circle. And considering the vigilance report, the competent authority vide communication dated 21.12.2015 cancelled the entire examination in five circles including Gujarat Circle. Said cancellation was subject matter of various original applications at the instance of the candidates before this tribunal and vide its order dated 13.08.2016, this tribunal directed the respondents to probe into the matter by thorough investigation in fair and transparent manner. Said decision was subjected to challenge at the instance of Union of India before the Hon'ble High Court of Gujarat in various special civil applications in which order dated 06.08.2016 was passed by the Hon'ble Gujarat High Court ::8 :: OA No.25/2020 and the same was challenged by some candidates before the Hon'ble Supreme Court of India in which vide order dated 13.07.2017 the Hon'ble Supreme Court was pleased to dispose of all the civil appeals with observations. Thereafter, the applicant was called upon for verification of original documents in the year 2018. Thereafter, department sent the applicant on training after his successful completion of training, appointment order dated 06.07.2018 (Annexure-A/11) was issued. Although, the said appointment order was subject to conditions that the department was at liberty to take action in case subsequently if it was found in the investigation that the applicant had indulged in malpractice in the exam conducted for PA/SA recruitment 2013-14. Said appointment order also contains clause number 5 which provides that in case conduct/performance of the applicant is found unsatisfactory during the probation period, the probation period will be extended for six month and in case his conduct/performance does not improve to a satisfactory level during the extended probation period, his service will be terminated. After joining in pursuance of appointment order dated 06.07.2018, there is no material available on record at the instance of the respondents that the conduct/ performance of the applicant was found unsatisfactory or any memo or showcase notice was issued to the applicant prior to issuance of impugned termination order dated 28.11.2019 (Annexure A-1). In fact, applicant has placed on record his APAR during his period on service (Annexure A15 & A16) which is also not disputed by the official respondents through their reply. In reply a stand has been taken that the appointment of the applicant was provisionally subject to the conditions and on the basis of the report of CFSL, Pune the applicant is held as having indulged in malpractice and therefore, the service of the applicant has been terminated. Along with reply neither the copy of said CFSL report is placed on record nor prior to issuance of impugned order dated 28.11.2019 same was made available to the applicant. In fact, ::9 :: OA No.25/2020 although the impugned order at first look does not appear to be stigmatic but looking to the stand taken by the respondents in their reply when said impugned order is considered then it is apparent that the impugned order is a stigmatic one which was passed without providing any opportunity of hearing, thereby violating the principles of natural justice. Nor have the respondents placed any material or record which could establish the involvement of the applicant in malpractice in the examination.
7. At this stage, it is relevant here to take note of the judgment cited by the learned counsel for the petitioner reported in (2010) 8 Supreme Court Cases 220 (Union of India & Ors. Vs. Mahaveer C. Singhvi) of which paragraph No. 45 & 46 are relevant which are reproduced herein below:-
45. "Furthermore, the petitioners have themselves admitted that the Order of 13.06.2002, had been issued on account of the respondent's misconduct and that misconduct was the very basis of the said order.
That being so, having regard to the consistent view taken by the Supreme Court that if an order of discharge of a probationer is passed as a punitive measure, without giving him an opportunity of defending himself, the same would be invalid and liable to be quashed, would also apply to the respondent's case. There is no reason to interfere with the judgment and order of the High Court impugned in the special leave petition."
46. "If a finding against a probationer is arrived at behind his back on the basis of the enquiry conducted into the allegations made against him/her and if the same formed the foundation of the order of discharge, the same would be bad and liable to be set aside. On the other hand, if no enquiry was held or contemplated and the allegations were merely a motive for the passing of an order of discharge of a probationer without giving him a hearing, the same would be valid. However, the latter view is not attracted to the facts of this case."
In view of the aforesaid proposition of law laid down by the Hon'ble Supreme Court in case of Mahaveer C. Singhvi (Supra) ::10 :: OA No.25/2020 impugned order dated 28.11.2019 (Annexure- A/I) is liable to be quashed and is hereby quashed. Respondents are directed to reinstate the applicant within a period of 30 days from the receipt of copy of the order. Needless to observe that in case any material is available against the petitioner, then department is free to take appropriate action in accordance with law, after providing due opportunity of hearing. However, since admittedly applicant has not worked after termination of service, in peculiar facts and circumstances of the case he is not entitled for any back wages on the principle of "No Work No Pay".
With the aforesaid observations and directions, present Original Application is allowed to the extend indicated above. No order as to costs.
(Umesh Gajankush) (A K Dubey)
Member(J) Member(A)
PV