Central Administrative Tribunal - Allahabad
Bal Mukund Singh Son Of Late Raj Bahadur ... vs Union Of India Through Secretary ... on 21 October, 2010
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD
BENCH ALLAHABAD
Dated: This the 21 day of October, 2010
TRANSFER APPLICATION NO. 09 OF 2010
Honble Dr. K.B.S. Rajan, Member (J)
Honble Mr. S. N. Shukla, Member (A)
Bal Mukund Singh Son of Late Raj bahadur Singh, Resident of Village Basaria, Post Karchhana, District Allahabad.
.. Applicant
Present for Applicant : Shri S. K. Om
V E R S U S
1. Union of India through Secretary Ministry of Telecommunication, Sanchar Bhawan, New Delhi.
2. District Telecommunication Manager, Department of Telecommunication (Telecom) Allahabad.
3. Divisional Engineer, Telecom (Rural), Bharat Sanchar Nigam Ltd., Allahabad.
............ Respondents
Present for Respondents : Shri D. S. Shukla
O R D E R
(Delivered by Honble Dr. K.B.S. Rajan, Member (J)) The Grievance of the applicant arises from the order of termination dated 39-11-1999 passed by the respondents on the ground of having secured employment on the basis of bogus documents, vide Annexure A-24 to this OA.
The brief facts of the case are as under:-
(a). The applicant was appointed as Casual Labourer in the office of Asst. Engineer, telephones, in the Railway Electrification Project, Jhansi, on 01 01 1985; later, in March, 1992 he was accommodated at Allahabad; further he was granted temporary status w.e.f. 01-10-1989 vide order dated 02-11-1993.
(b). Sometimes in 1997, the applicant was asked to furnish details of his entire service which were furnished by him. Certain additional details, as to the authority under whom the applicant worked from January, 1992 was asked, which were also furnished by him. In 1996, the respondents terminate the services of the applicant under the Temporary Services Rules and on the intervention of the Tribunal, such a termination was cancelled and the applicant reinstated. Liberty was given to the respondents to take due disciplinary action if considered appropriate. It was stated that some information in this regard was also asked from one Shri A.K. Saxena, Asst. general Manager (HRD) who had disowned a signature as his of certain documents which related to the details of service of the applicant and again the applicant was asked to elucidate as to his working under the Assistant engineer Telephones, Jhansi which were furnished in February, 1999. Lastly, after obtaining further details in April, 1999, the applicants services were terminated on the ground that he had obtained employment by forged documents.
(c). The applicant filed OA No. 860 of 2000, challenging the order of termination, which came up for consideration in 2003, by which time BSNL, as a Corporation having come into existence, due to non-maintainability on account lack of jurisdiction, the OA was dismissed.
(d). The applicant took up the matter with the Honble High Court and with the notification bringing BSNL within the fold of C.A.T., as a Transferred Application, this petition landed again before the Tribunal.
2. Respondents have contested the O.A. Explanations were called for from the applicant in respect of certain documents containing the service particulars, vide Annexure CA-3 to 5 and on the applicants furnishing the information and on close examination, it was found that the applicant submitted false and fabricated documents, as informed by the Asst. General Manager of the G.M.T Telecom Circle Bhopal, vide his letter dated 10-12-1998 (Annexure CA 7) and it was thereafter, that the services of the applicant were terminated under the provisions contained in Rule 5(1) of CCS (TS) Rules, 1965 (Annexure CA-8) and in lieu of one month notice he had been paid one month wages, vide Annexure CA 6..
3. The applicant has filed his rejoinder emphasizing that no inquiry in the nature known to law has been conducted before termination and as such the order of termination is illegal.
4. Pleadings having been completed, the case came up for final hearing.
5. Counsel for the applicant submitted that the applicant having been granted temporary status, an inquiry was a must before his services are terminated. In other words, the provisions of Art. 311 of the Constitution applies in his case. In this regard, he has relied upon the following decisions:-
(a) 1999 AIR SCW 605 Dipti Prakash Banerjee vs Satvendra nath Bose national Centre for Basic Sciences & Others;
(b) 2006 (1) ESC 69 (All) (DB) Vijay Shankar Tripethi vs StatePublic Services Tribunal and others
(c)2006(2) ESC 1408 (All) Sadan Lal vs State of U.P. and others.
6. Counsel for the respondents submitted that letter from A.K. Saxena vide annexure CA-7 would reveal that he was at Jhansi only upto 1988 whereas the details furnished by the applicant included letter from Jhansi dated 15-01-1992 under the signature of the said Saxena, which evidently proves that the said letter is false and fabricated. Again, Shri Saxena has intimated that he did not remember whether the applicant had been in the muster role at the time when Shri Saxena was at Jhansi.
7. Arguments were heard and documents perused. The only question to be considered is whether the action of the respondents in terminating the services of the applicant is illegal due to non following of the regular inquiry as contended by the counsel for the applicant.
8. Admittedly, the applicant was granted temporary service only and he was not made regular. Rule 5 of the Temporary Services Rules stipulate as under:-
5. Termination of temporary service.(1)(a) The services of a temporary government servant who is not in quasi-permanent service shall be liable to termination at any time by a notice in writing given either by the government servant to the authority or by the appointing authority to the government servant.
(b) The period of such notice shall be one month:
Provided that the services of any such government servant may be terminated forthwith and on such termination the government servant shall be entitled to claim a sum equivalent to the amount of pay plus allowance for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services or, as the case may be, terminated forthwith and on such termination the government servant shall be entitled to claim a sum, equivalent to the period of the notice at the same rates at which he was drawing them immediately before the termination of his services or, as the case may be, for the period by which such notice falls short of one month. Prior to the above Rules, the 1949 Rules were holding the fort and the rule corresponding to the above mentioned Rule 5 was Rule 5 of that Rule. The said Rule reads as under:-
(a) the service of a temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant.
(b) The period of such notice shall be one month, unless otherwise agreed to by the Government any by the Government servant:
Provided that the service of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances, at the same rates at which he was drawing them, immediately before the termination of his services, for the period of the notice or, as the case may be, for the period by which such notice falls short of one month or any agreed longer period. Law has been crystallized as early as in 1958 about temporary service rules in Parshotam Lal Dhingra v. Union of India,1958 SCR 828 the by the Apex Court. They are -
(a) Any and every termination of service is not a dismissal, removal or reduction in rank. (e.g. termination by exercise of contractual right) Satish Chander Anand v. Union of India (1953 SCR 655) or termination by compulsory retirement in terms of specific rule (Shyam Lal v. State of Uttar Pradesh) While exercising the rights under the specific rules as above, i.e. contractual right or rule for compulsory retirement, the motive may be negligence, inefficiency or even misconduct.(Shrinivas Ganesh vs Union of India) (AIR 1956 Bombay 455) If, however, in such cases, the Government chooses to punish an individual by termination of services, then provisions of Art. 311 are attracted as it puts an indelible stigma on the officer affecting his future career.
(b) The use of the expression terminate or discharge is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank, or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant The above decision had been referred to in the case of Champaklal Chimanlal Shah v. Union of India,(1964) 5 SCR 190 the Apex Court has held expressing inter alia the following:-
(a) In short Rule 5 gives power to the Government to terminate the services of the temporary government servant by giving him one months notice or on payment of one months pay in lieu of notice or such shorter or longer notice or payment in lieu thereof as may be agreed to between the Government and the employee concerned
(b) These Rules show that there are two classes of employees, namely, (i) permanent employees, and (ii) temporary employees;
(c) ..a provision like that in Rule 5 in respect of termination of service is a reasonable provision which cannot be said to deny equality of opportunity provided in Article 16.
(d) It is well settled that temporay servants are also entited to the protection of Article 311(2) in the same manner as permanent government servants, if the government takes action against them by mating out one of the three punishments ie. dismissal, removal or reduction in rank: (see Parshotam Lal Dhingra v. Union of India. But this protection is only available where discharge removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise.
(e) the mere use of expressions like terminate or discharge is not conclusive and in spite of the use of such innocuous, expressions the court has to apply the two tests mentioned in Parshotam Lal Dhingra case1 namely (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the servant had been punished. In the above case, the following aspects could be culled out from para 13 of the judgment in Champaklal (supra): under:-
(a) A preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out.
(b) Even where government does not intend to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually held to satisfy government that there is reason to dispense with the services of a temporary employee. Therefore when a preliminary enquiry of this nature is held in the case of a temporary employee it must not be confused with the regular departmental enquiry and there is no question of its being governed by Article 311(2) for that enquiry is really for the satisfaction of government to decide whether punitive action should be taken or action should be taken under the rules in the case of a temporary government servant In short a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under Article 311 for inflicting one of the three major punishments mentioned therein. Such a preliminary enquiry may even be held ex parte, for it is merely for the satisfaction of government, though usually for the sake of fairness, explanation is taken from the servant concerned even as such an enquiry.
(c). Whether such termination would amount to dismissal or removal within the meaning of Article 311(2) would depend upon facts of each case and the action taken by government which finally leads to the termination of service.
9. The main provisions of the 1949 Rules and 1965 Rules are comparable and as such, the above decisions are fully applicable in a case related to the 1965 Rules.
10. In the instant case, admittedly, as to the genuineness of those documents which were the basis for conferring upon the applicant the temporary status, the department contacted one Shri Saxena whose signature was found in the documents referred to above. And on the basis of his communication, the respondents have proceeded and issued the order of termination. This order of termination is not an order of termination in simpliciter. It gives the reasons for termination. As such, the question is whether the termination order is punitive. If answer to this question is in affirmative, then the respondents action is vitiated due to non compliance with the provisions of Art. 311 of the Constitution.
In Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd., (1999) 2 SCC 21, : the Apex Court has held as under:-
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 employees 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. The bottom-line in all the cases relating to termination of services under the temporary service rules is if the termination is innocuous and does not stigmatize the temporary servant, the constitutional shield of Article 311 is unavailable. (see Samsher Singh v. State of Punjab, (1974) 2 SCC 831) In Samsher Singh v. State of Punjab, (1974) 2 SCC 831, a seven Judges Bench of the Apex Court, this point is further elucidated in the foll In Gopi Kishore (AIR 1969 SC 689) this Court ruled that where the State holds an enquiry on the basis of complaints of misconduct against a probationer or temporary servant, the employer must be presumed to have abandoned his right to terminate simipliciter and to have undertaken disciplinary proceedings bringing in its wake the protective operation of Article 311. At first flush, the distinguishing mark would therefore appear to be the holding of an inquiry into the complaints of misconduct. Sinha, C.J. observed:
It is true that, if the Government came to the conclusion that the respondent was not a fit and proper person to hold a post in the public service of the State, it could discharge him without holding any enquiry into his alleged misconduct.... Instead of taking that easy course, the Government chose the more difficult one of starting proceedings against him and of branding him as a dishonest and an incompetent officer. He had the right, in those circumstances, to insist upon the protection of Article 311(2) of the Constitution. The learned Chief Justice summarised the legal position thus:
1. Appointment to a post on probation gives the person so appointed no right to the post and his services may be terminated, without taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant, or removing him from service.
2. The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, therefore, no punishment.
3. But if instead of terminating such a persons service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Article 311(2) of the Constitution.
4. . . . .
5. But, if the employer simply terminates the services of a probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service, the probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct, or inefficiency, or some such case.
159. The fifth proposition states that the real motive behind the removal is irrelevant and the holding of an enquiry leaving an indelible stain as a consequence alone attracts Article 311(2). Ram Narayan Das dealt with a case where the rules under the proviso to Article 309 provided some sort of an enquiry before termination of probation. In such a case, the enquiry test would necessarily break down and so the Court had to devise a different test. Mr Justice Shah (as he then was) stated the rule thus:
The enquiry against the respondent was for ascertaining whether he was fit to be confirmed .... The third proposition in ... (the Gopi Kishore) case refers to an enquiry into allegations of misconduct or inefficiency with a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed. Therefore, the fact of holding of an enquiry is not decisive of the question. What is decisive is whether the order is by way of punishment, in the light of the tests laid down in Purshottam Lal Dhingra Case.
11. Keeping in view all the above decisions if the case of the applicant is analyzed, it is evident that the order of termination is not an order in simpliciter. It gives the reasons that the very employment has been secured by producing false and bogus documents. The applicant has not been given an opportunity to defend his case by way of a proper inquiry. In fact, he has, in his letter dated 15th February, 1999 specifically requested for an inquiry vide the last sentence of the said letter. In their further communication, the respondents have asked for further explanation and had stated that if the applicant did not furnish his explanation it would be presumed that he has no further information to furnish and necessary action would be taken. Annexure A-20 refers. In response, the applicant did ask for some more documents/details, vide Annexure A-21 dated 15-04-1999. This was followed by another communication vide annexure A-22. In response, the respondents had made available copy of the letter dated 10-12-1998 of shri Saxena without any other documents. Thus the applicant had no means to defend his case. Ultimately, the impugned order of termination was issued. Appeal filed by the applicant stating that he would be able to prove his statement that he had served at Jhansi, vide Annexure A-25 appeal dated 25-04-1999 does not seem to have been considered. The order of termination would, by any man of common prudence, be viewed only as an order with stigma (obtaining appointment by producing false or bogus certificate). As such, failure to provide adequate opportunity to the applicant has resulted in complete violation of principles of natural justice.
12. In view of the above, the OA succeeds. The order of termination, vide Annexure A-23 is quashed and set aside. The applicant is entitled to be reinstated in service in the same capacity as he was serving earlier prior to order of termination vide Annexure A-24. Respondents are at their liberty to initiate proceedings against the applicant in which event, the period of absence shall be treated as period of suspension and the applicant would be entitled to the subsistence allowance admissible during that period i.e. from 01-12-1999 till date of reinstatement. In case the respondents decide not to hold the inquiry, the period of absence would be treated as duty for all purposed, but wages would be restricted to that extent as may be decided by the appointing authority.
13. This order shall be complied with, within a period of four months from the date of communication of this order. No cost.
Member-A Member-J
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