Central Administrative Tribunal - Allahabad
Om Prakash vs M/O Finance on 14 March, 2019
1
OPEN COURT
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
ALLAHABAD THIS THE 14th DAY OF MARCH, 2019
PRESENT:
HON'BLE MR. JUSTICE BHARAT BHUSHAN, MEMBER (J)
HON'BLE MS. AJANTA DAYALAN, MEMBER (A)
ORIGINAL APPLICATION NO. 330/00399 OF 2014
Om Prakash, aged about 30 years, Son of Late Pati Ram Pal,
Resident of, care of, Sri Dinesh Kumar Srivastava,
273-D/2M/1, Nyaya Vihar, Sulem Sarai, Allahabad.
Presently working on the post of Inspector, Central Excise,
Office of the Commissioner of Central Excise, Andheri Division,
Mumbai-V.
. . . . . . . . . . . .....Applicant
By Adv. : Sri S. Narain, Advocate for the applicant.
Versus
1. The Union of India, through the Secretary, Ministry of Finance,
Department of Revenue, Central Excise and Customs, North
Block, New Delhi.
2. The Commissioner, Central Excise, Mumbai-V, Andheri
Division (Appointing Authority).
3. The Director, Staff Selection Commission, (Central Region),
21-23, Lowther Road, Allahabad.
. . . . . . . . ......Respondents
By Adv:- Shri L.P. Tiwari, Advocate for the respondents.
ORDER
DELIVERED BY HON'BLE MR. JUSTICE BHARAT BHUSHAN, MEMBER (J) Shri S. Narain, Advocate for the applicant and Shri L.P. Tiwari, Advocate for the respondents are present. 2
2. The applicant has filed this original application under section 19 of Administrative Tribunal Act, 1985 seeking the following reliefs:-
"a) That this Hon'ble Tribunal be pleased to quash and set aside the impugned Notice of termination of the applicant's services dated
20.03.2014 (Annexure Nos. A-1 and A-2 to Compilation No.I).
b) That this Hon'ble Tribunal be pleased to call for the records and quash and set aside the order of debarment passed against the applicant by the Staff Selection Commission (Central Region), Allahabad.
c) That this Hon'ble Tribunal be pleased to issue such other order and/or direction, and grant such other relief to the applicant as might be considered just and proper in the facts and circumstances of the case.
d) That this Hon'ble Tribunal be pleased to award the costs of this Original Application in favour of the applicant, throughout."
3. The facts borne out of the original application is that the applicant, Om Prakash appeared in the examination conducted by Staff Selection Commission (SSC) described as Combined Graduate Level Examination, 2011 (in short CGLE-2011). This CGLE-2011 was held on 19.06.2011. The applicant was declared successful at the Tier-I examination and thereby qualified to participate in the Tier- II examination which was held on 03.09.2011 and 04.09.2011. The applicant failed to clear the Tier-II examination. Therefore, could not make further progress in the CGLE-2011.
4. The applicant again appeared in C.G.L.E.-12 conducted by S.S.C. This time applicant was able to successfully clear both, Tier-I and Tier-II examinations. He also appeared in Computer Proficiency Test and Data Entry Skill Test. After being successful in the 3 aforesaid examinations, the applicant was nominated in June, 2013 for the post of Inspector, Central Excise, Maharashtra, Dadar and Nagar Haveli. By means of letter dated 08.10.2013 he was called to Mumbai for a Physical test on 30.10.2013. The applicant was called for interview on 19.12.2012 vide interview call letter dated 23.11.2012.
5. Finally the applicant was offered appointment on 06.11.2013. That applicant was selected for the post of Inspector of Central Excise in the Pay Band of Rs.9300-34800 + Grade Pay-4600. Subsequently, the applicant accepted the offer of appointment and joined duties on the aforesaid post in the afternoon on 11.12.2013 vide joining report dated 11.12.2013 submitted before the Additional Commissioner (P&V), Central Excise, Mumbai-I.
6. Suddenly the applicant received a show cause notice dated 28.01.2013 informing him that the Commission, following a post examination analysis of the Combined Graduate Level Examination- 2011, prima-facie, had reasons to believe that the applicant had resorted to malpractices in the said examination. A show cause notice was issued asking him to explain as to why his candidature for the above mentioned examination should not be cancelled and he be debarred from all examinations conducted or likely to be conducted by the Commission for a period of 5 years.
7. As stated earlier the applicant admittedly joined on the post of Inspector, Central Excise, Maharashtra, Dadar and Nagar Haveli, Mumbai on the basis of success obtained in Combined Graduate 4 Level Examination-2012. However, the applicant submitted an explanation to the show cause notice dated 28.1.2013 and 01.02.2013. The applicant denied that he had committed any misconduct and malpractice in the examination in question. Incidentally, the explanation was received in the office of Staff Selection Commission at Allahabad on 01.02.2013 (Copy of which has been annexed as Annexure A-19). The applicant also explained that he had failed in the CGLE-2011.
8. It appears that Staff Selection Commission communicated the debarment order directly to the employer of the applicant who, therefore, issued a notice of termination of service under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965. This notice of termination is available on record as Annexure A-1 and A-2. This order was stayed by this Tribunal vide order dated 15.04.2014 which reads as under:-
"Shri S. Narain counsel for the applicant and Shri Udai Chandani counsel for the respondents present. On 2nd April 2014, a categorical direction was given to the respondents to produce some documents whether the cause of action of this case that the applicant herein has been terminated is an offshoot of debarment by the Staff Selection Commission, Allahabad for the examination of Combined Graduate level Examination, 2011. On the basis of the order, learned counsel for the respondents had produced letter dated 09.04.2014 before us by the Staff Selection Commission (Central Region) which reflects that the termination of the applicant herein is the outcome of the debarment of the applicant which took place in the Combined Graduate Level Examination 2011 conducted by the Staff Selection Commission, Allahabad. On the first date, learned counsel for the respondents vehemently argued that the applicant should have filed this Original Application before Mumbai Bench as the termination order will be effected on 20.04.2014 as the order has been passed on 20.03.2014 as the order will be effective after 5 completion of one month. Learned counsel for the applicant on that date took the issue that as he apprehended that his termination is a result of the debarment from S.S.C. in the exam conducted in 2011, hence, partial cause of action is already present at Allahabad. By today's documents, it is undoubtedly proved that the termination of the applicant has resulted only due to the debarment of the applicant in the exam held by the S.S.C. in 2011. The learned counsel for the applicant took a very categorical plea in his pleadings that if his termination is not the result of the debarment then he is out of the court and not having any jurisdiction at Allahabad. Today by this document of 9.4.2014, the jurisdiction of the Tribunal is established under Rule 6(ii) of Central Administrative Tribunal (Procedure) Rules 1987 which reads as under:-
"the cause of action wholly or in part has arisen."
The cause of action is the debarment, which has resulted ultimately in the termination of the applicant. Hence in our considered view that the case is covered under Rule 6 (ii) and we feel the jurisdiction lies under this Bench.
As the debarment is already being stayed in numerous cases not only by this Bench but other outlying Benches also, hence any offshoot/order based upon this debarment is having no validity in the eyes of law. As the debarment in all the cases has already been stayed by this Tribunal and other Benches, the debarment in respect of applicant is also stayed.
We are of the considered view that the impugned notice of termination is also stayed and four weeks time is given to the counsel for the respondents to file detailed reply.
Shri Udai Chandani, Senior Central Government Standing Counsel has produced letter dated 9.4.2013 issued by the Staff Selection Commission (Central Region) and letter dated 10.4.2014 issued by the office of the Commissioner of Central Excise Mumbai- V are taken on record.
Copy of the order be given Dasti to the counsel for the respondents.
List on 8.7.2014."
6On account of this interim order applicant continued to serve as Inspector, Central Excise, Maharashtra, Dadar and Nagar Haveli, Mumbai.
9. Respondents have filed two short counter replies dated 24.08.2016 and 13.12.2018.
10. Heard Shri S. Narain, Advocate for the applicant and Shri L.P. Tiwari, Advocate for the respondents.
11. Learned counsel for the applicant has submitted that the similar process was adopted by Staff Selection Commission on the CGLE, 2011 and 2012. Hundreds of candidates had approached the various Benches of this Tribunal. Central Administrative Tribunal, Principal Bench, New Delhi had passed a combined judgment on 30.07.2014 in cases, where leading case was OA No.930/2014. By this judgment the debarment order of Staff Selection Commission was set side. Show cause notices were found illegal and unsustainable.
12. This Tribunal has also passed a judgment in OA No.231/2013 "Sunil Kumar and Ors. Vs. Union of India and Ors.", which was decided on 06.05.2014. This OA was decided alongwith several other OAs. Ultimately the Tribunal set aside the order of Staff Selection Commission. This order was subsequently modified on 20.05.2016. Relevant portion of the order reads as under:-
"16. For the forgoing reasons, the O.As are allowed. The Memorandum dated 16.04.2012 is set aside. Consequently the order dated 22/01.2013, which has been passed on the basis of Memorandum dated 16.04.2012 is also set aside. However, this order does 7 not preclude respondents for taking action in the matter following the ground rules, which have since been well settled on this issue. No costs."
13. The judgment of Principal Bench was thereafter challenged before the Hon'ble Delhi High Court in W.P.(C)9055/2014 and C.M. Nos.20669-670/2014, Staff Selection Commission & Anr. Vs. Sudesh. This writ petition was decided on 19.12.2014 wherein the judgment of Principal Bench of this Tribunal was upheld. The relevant portion of the judgment reads as under:-
"14. Though the same makes a mention in paragraph 6 of the list of candidates-in collusion with whom the applicant allegedly resorted to malpractice, once again, the petitioner failed to provide the basis for the allegation of malpractice/copying.
15. In our view, therefore, the Tribunal was justified in quashing the second show-cause notice which suffered from the same lacunae of being vague and devoid of any relevant particulars, and there was no purpose in permitting the petitioner to deal with the replies and pass any further order on the basis of such a vague show-cause notice. The said show-cause notice did not fulfill the basic requirements of principles of natural justice inasmuch, as the respondent- applicant could not effectively have met the allegations made against him-except to deny the same (which he did), in view of the show-cause notice itself being completely vague and devoid of particulars.
16. Consequently, we find no merit in the present petition and dismiss the same."
14. This judgment of Delhi High Court was subsequently challenged before Hon'ble Apex Court by filing Civil Appeal Nos.2836-2838 of 2017, Staff Selection Commission Vs. Suresh. These civil appeals were dismissed on 19.07.2017. Subsequently review petition was also filed which was dismissed on 31.10.2017.
15. The factual position of this OA is not under dispute as the short counter reply dated 13.12.2018 concedes the factual contentions of the applicant. Shri L.P. Tiwari, Advocate for the applicant has conceded that the stand of Staff Selection Commission 8 had been rejected by Allahabad Bench of this Tribunal as well as by Principal Bench of this Tribunal. He has also conceded that the Hon'ble Delhi High Court has also affirmed the judgment of the Principal Bench, New Delhi. The fact that Hon'ble Apex Court has dismissed the civil appeal as well as review petition, has also been mentioned by Shri L.P. Tiwari, Advocate for the respondents.
16. We believe that it would be appropriate to delineate paragraph 10 of the short counter reply dated 13.12.2018. Para 10 of the same reads as under:-
"10. That, in the same type of matter on O.A. No.930/2014 was filed by Ms. Sudesh Kumari before CAT, PB, New Delhi. Hon'ble CAT allowed the said OA by quashing the SCN issued by Commission and directed the respondents to allocate the service for which they have been found eligible on the basis of pure merit. The Commission filed writ petition No.9055/2014 before Delhi High Court and Hon'ble Court dismissed the same vide order dated 19.12.2014. The Commission, thereafter, filed the SLP No.2836-2838/2017 against the judgment of the High Court of Delhi. The Hon'ble Apex Court dismissed the SLP vide its order dated 19.07.2017. Thereafter, the Commission filed a Review Petition against the order of the Apex Court which was also dismissed vide its order dated 31.10.2017. Thus after dismissal of the Review Petition, Commission decided to implement of the order dated 30.07.2014 of the Hon'ble CAT, PB, New Delhi. Accordingly, as per direction of the Hqrs. Vide letter No.9/54/2018-C.I(1) dated 16th November, 2018, the documents of the applicant has been re-forwarded to the excise department for issuing offer of appointment. The copy of nomination letter dated 04.12.2018 is annexed herewith as Annexure No.1."
17. Considering all the facts and circumstances of the case, it is now apparent that the matter has already been settled by the Allahabad Bench of this Tribunal, Principal Bench of this Tribunal, Hon'ble Delhi High Court and subsequently affirmed by Hon'ble Apex Court. In any case, the applicant did not succeeded in the CGLE 2011 regarding which he is stated to have been adopted the alleged malpractices. He has succeeded in the CGLE 2012 about which no 9 allegations have been leveled. He has already worked for more than five years in the department in the Central Excise, Mumbai. It is pertinent to point out that the stated show cause notice issued to applicant is on the basis of examination conducted in the year 2011. The order dated 20.03.2014 of Commissioner, Central Excise, Mumbai-V, therefore cannot be sustained.
18. In view of the above observations, original application is allowed. We hereby quash and set aside the notice of termination dated 20.03.2014 (Annexure A-1 & 2). Respondents are directed to permit the applicant to continue in service on the post of Inspector of Central Excise, Mumbai. No Costs.
(MS. AJANTA DAYALAN) (JUSTICE BHARAT BHUSHAN)
Member-A Member-J
/Neelam/