Central Administrative Tribunal - Kolkata
Soumitra Dey vs M/O Defence on 13 September, 2022
ATT meee RR A CR eed cae 1 wae : 1 "4 ORE aw * 3 " ae oa i «- : . awe J : : 2 Bow a . os t a i . ; « : ma CENTRAL ADMINISTRATIVE TRIBUNAL ~ KOLKATA BENCH KOLKATA 0.A.No.350/1469/2018 Date of order : 13.09.2022 Coram : Hon'ble Mrs. Bidisha Banerjee, Judicial Member SOUMITRA DEY, son of Shri Upendra Nath Dey, aged about 37 years, . terminated from service while working to the post of Civil Motor Driver (GMD) Group-Cat Army Recruiting Office Gopalpur under Headquarters Recruiting Zone, Kolkata under Deputy Director General Recruiting (States) Mukhyalaya Bharti Karyalaya, Headquarters Recruiting Zone, Pin -- 900285, C/o 99 APO, Gokhale Road, Kolkata -- 700020. and residing at Village -- Bazra, Post Office -- Makundu, Police Station -- Bhadreswar, District - Hooghty, Pin - 712139. _gnisiaty ey o c a vo. \ veetee Applicant - Versus - 1. UNION OF INDIA service through the Secretary, Ministry of Defence, Army, Navy and Airforce, Government of India, Department of Defence, 101-A, South Bock, New Delhi--- 110011; 2. THE DIRECTOR GENERAL Recruiting/ Recruiting 5(OR) (B) (Civ), IHQ of Mod (Army), Pin-900108, - C/o. 56 APO at R.K. Puram, Sector-1, New Delhi -- 110022; 3. THE DEPUTY DIRECTOR GENERAL RECRUITING [STATES), Mukhyalaay Bharti Karyalaya, Headquarters Recruiting Zone, Pin -- $00285, C/o 99 APO, 1, Gokhale Road, Kolkata -- 700020; | 4. THE LIEUTENANT COLONEL ADMINISTRATIVE OFFICER, Mukhyalaya Bharti Karyalaya, . Headquarters Recruiting Zone, Pin-900285, C/o 99) APO, 1, Gokhale Road, Kolkata-- 700020. 5. MR. ARJUN SINGH, Nayak/Military Police, 59 Infantry Division, Pro-Unit, Panagarh, C/o. 99 APO, District -- Burdwan, Pin 713148. saeeeeens Respondents. For the applicant : Mr. P.C. Das, counsel Ms. T. Maity, counsel For the respondents : Mr. K. Prasad, counsel + ORDER
Heard Learned Counsel for the parties.
2. The applicant has preferred this O.A. to seek the following reliefs:-
"a) To quash and/or set aside the impugned notice of termination of service of the applicant dated 11" June, 2018 issued by Mr. V. Rana, Brigadier Deputy Director General Recruiting (States), Mukhyalaya Bharti Karyalaya, Headquarters Recruiting Zone, Pin -- 9000285, C/o 99 APO against the applicant without assigning any reason and by violation of Article 21 and 311(1)&(2) of the Constitution of India being Annexure A-8 of this original application.
b) To quash and/or set aside the impugned final order of termination of service at the applicant dated 13™ July, 2018 issued by the Lieutenant Colonel Officiating Administrative Officer on behalf of the Deputy Director General Recruiting (States), Mukhyalaya Bharti Karyataya, Headquarters Recruiting Zone, Pin -- 900285, C/o 99 APO, 1 Gokhale Road, Kolkata-700020 which was communicated to the applicant vide office letter dated 13°" July, 2018 by which your applicant has been terminated from service without assigning any reason and without giving an opportunity to say something and without considering the representation preferred by the applicant by violation of principle of natural justice, equity and fair play being Annexure A-10 of this original application.
_¢) To pass an appropriate order directing upon the respondent authority to reinstate the applicant in service after setting aside and/or quashing the impugned notice of termination dated 11" June, 2018 as well as the impugned final order of termination dated 13" July, 2018 being Annexure A- 8 and A-10 of this original application and to reinstate the applicant in service with full back wages;
d) To declare that the impugned notice of termination dated 11" June, 2018 as well as the impugned final order of termination, dated 13" duly, 2018 being Annexure A-8 and A-10 of this original application has been issued without assigning any reason and without giving any opportunity te the applicant to say something before issuing such impugned orders which is otherwise bad in law and illegal and liable to be quashed and/or set aside ir in the eye of law. '-
e) To declare that as per the Rule 5(1) of the Central Civil Services (Temporary Service) Rules 1965 your applicant is entitled for giving an. opportunity of hearing before issuing of the final order of termination and also the said Rules of 1965 demands for preliminary enquiry which has not been done before issuing of final order of termination dated 13" July, 2018 and on that ground itself, the impugned notice of termination dated 11"
June, 2018 as well as the impugned final order of terminction dated 13" July, 2018 being Annexure A-8 and A-10 of this original application may be liable to quashed and/or set aside.
f) Costs;
g) Any other relief or reliefs as Your Lordships may dear fit and proper."
3. The grievance of the applicant in a nutshell is that :-
(a) | He is an excellent Motor Driver who joined the Indian Army after crossing all hurdles including the top training on 05.07.2000 and from 5" July, 2000 to 31° July, 2017 he has completed more than 17 years of service as a Civil Motor Driver(CMD) Group-C in the Indian Army honestly, sincerely and without any adverse remarks. On the basis of good performance of works in the Indian Army, the concerned department of Indian Army issued a certificate in favour of the applicant for Civil Employment which has been issued by the Colonel Commandant, ESD Kankinara on 30" June, 2017, which will prove that he was eligible for civil employment after completion of army service in all respect. The Bengal Engineer Group & Centre Roorkee had issued Certificate of Driving in favour of the applicant.
(b) On the basis of such certificate, the applicant responded toa notification for employment published by the Headquarters Recruiting Zone C/o 99 APO, Mukhyalaya Bharti Karyalaya, Pin -900285, 1, Gokhale Road, Kolkata-700020 for employment to the post of Civil Motor Driver(CMS) Group-C in Defence Department on June 2017. He appeared in the written examination as well as Test of Physical Fitness and Motor Driving i.e. practical on 04.07.2017. He has also appeared in the physical fitness test and he successfully completed all the hurdles.
He was declared eligible for appointment to the post of Civil Motor Driver (CMD) Grcup-C for Indian Army.
(c) An appointment order was issued by the Lieutenant Colonel Administrative Officer for Deputy Director General Recruiting (States), Mukhyalaya Bharti Karyalaya, Headquarters Recruiting Zone, Pin- 900285, C/o 99 APO in favour of the applicant vide appointment order dated 27" November, 2017 to the post of Civil Motor Driver (CMD) Group-C at Army Recruiting Office Gopalpur under Headquarters Recruiting Zone, Kolkata after being declared successful in the written examination, practical training as well as interview with effect from 30"
December, 2017. He duly joined the said post at Army Recruiting Office, Gopalpur, as a Civil Motor Driver(CMD) Group-C on 1* December, 2017. An identity Card was also issued to him on 6° C3 December, 2017 specifying his designation as Civil Motor Driver (CMD) Group-C.
(d) The applicant initially joined in the office of Mukhyalaya Bharti Karyalaya , Headquarters Recruiting Zone, Pin-900285, C/o 99 APO at 1, Gokhale Road, Kolkata-700020. Thereafter a movement order was issued on 6" December, 2017 by the Lieutenant Colonel Administrative Officer, Mukhyalaya Bharati Karyalaya, Headquarters Recruiting Zone, Kolkata-700020 by which he was permanently posted at Army Recruiting Office, Gopalpur. The applicant was getting salary after joining service as a Civil Motor Driver (CMD) Group-C with effect from December 2017 to June 2018.
(e) On 25" January, 2018 a Serving certificate was issued by the authority of Army Recruiting Office, Gopalpur in respect of admission of his daughter in the Central Government School by Serving Certificate dated 25" January, 2018. His daughter is studying in the Central Government School at Army School at Barrackpore. But all on a sudden, without assigning any reason on 11" June, 2018 one Mr. V.S. Rana, Brigadier Deputy Director General Recruiting (States) Mukhyalaya Bharti Karyalaya, Headquarters Recruiting Zone, Pin-900285, C/o 99 APO issued one month notice of termination of service of the applicant.
However, no reason has been assigned therein.
(f) Against such notice of termination, applicant made a representation on 43" June, 2018. before the Director General . Recruiting/Recruiting 5(OR)(B)(Civ), IHQ of MoD (Army) with a copy to Deputy Director General Recruiting (States), Mukhyalaya Bharti Karyalaya, Headquarters Recruiting Zone.
(g) The applicant has urged that he was serving his duty after joining in the Army Recruiting Office at Gopalpur honestly, sincerely and without any adverse remarks. He did not commit any misconduct neither did he violate any statutory rules for which the impugned notice of termination could have been issued by the respondent authority. He is a family man and after enduring long services a certificate for Civil Employment was issued by the Colonel Commandant, ESD Kankinara on 30° June, 2017 and after crossing all the hurdles, he got the said post in the respondent office. That, he was working w.e.f. 1* December, 2017
-and the probationary period was of two years from the date of appointment. Despite being on probation he has a right to know the reason of his termination. That, the notice of termination clearly affects his right to livelihood which is guaranteéd under the provisions of Article 21 of the Constitution of India, and the right to live with a dignity is a fundamental right as guaranteed in the Constitution of India. Such right cannot be snatched away by the respondents by issuing the impugned notice of termination dated 11™ June, 2018 without any due process of law and without assigning any reason. An attempt as such clearly violates the principle of natural justice, equity and fair play.
_(h) = The applicant laments that the so-called officers of the Indian Defence ill treat the soldiers of the Border Security Force deprive them of food while they sincerely discharge duties for the interest of our country at the border. Being as such highly aggrieved against such final order of termination dated 13™ July, 2018, he preferred an appeal on 17" July, 2018 before the Director General Recruiting/Recruiting 5(OR)(B)(Civ), IHQ of MoD (Army) but his prayers have gone futile.
(i) Aggrieved and/or dissatisfied with the notice of termination dated 11" June, 2018 as well as the final order of termination dated 13°" July, 2018 (Annexure A-8 and A-10) the applicant has moved this original application.
4. The respondents per contra allege that on 12th February, 2018, information received from Colonel BB Bhatt, Director Recruiting, Army Recruiting Office, Berhampore, Mr Soumitra Dey of Army Recruiting Office, Gopalpur while on temporary duty with Army Recruiting Office, Berhampore was caught illegally influencing candidates in the recruitment rally by Captain Avinash of 18 Engineer Regiment and ~ Havildar P.K. Dwivedi of 417 Engineer Brigade Signal Section, while registration on 12th February, 2018. That, Mr. Soumitra Dey has purposely hidden the facts from his own lawyer that :-
(a) Havildar PK Dwivedi noticed some unwarranted interaction between Soumitra Dey with candidates. Later he reported this suspicious activity to Capt Avinash of 18 Engineer Regiment. Capt Avinash tasked him to keep discreet watch of Mr. Soumitra Dey. Havildar PK Dwivedi saw Mr. Soumitra Dey passing chits to' candidates and reported the matter to Capt Avinash. Capt Avinash ordered the search after taking permission for searching the bags of candidates and the chits were recovered from the candidates. After recovery of chits containing cell number of Mr. Soumitra Dey, the candidates confessed that Mr. Soumitra Dey himself has put the paper slip containing his cell phone number in their bags.
The confession of the candidates were done in the presence of Director Recruiting Army Recruiting Office and representative of Military Police. Also Mr Soumitra Dey confessed and pleaded guilty in presence of above mentioned audience/ eye-witnesses. Both the candidates submitted their written complaint in form of statement to Military Police in presence of Director Army Recruiting Office etc. Candidates were instructed and left from Recruiting Process so that they can lodge an F.I.R against Mr. Soumitra Dey and it was assured to them that a Departmental inquiry will be conducted against Mr Soumitra Dey.
(b) A departmental inquiry was ordered to investigate the illegal involvement of Mr. Soumitra Dey, temporary at Army Recruiting Office, Gopalpur during recruitment rally being conducted at:
Krishnanagar(West Bengal).
The composition of the departmental inquiry team was as under:-
Col SC Joshi, Director Recruiting - Inquiry Officer (Army Recruiting Office, Sambalpur) Col BB Bhatt, Director Recruiting - Presenting Officer (Army Recruiting Office, Berhampore) Maj Ramesh Kumar - independent Member Medical Officer (Army Recruiting Office, Gopalpur) The departmental inquiry duly completed with findings and opinion of the inquiry team was forwarded on 15th February, 2018 to Headquarters Recruiting Zone, Kolkata by. Army Recruiting Office, Sambalpur (Attached as Exhibit 3). Thereafter the same was forwarded by Headquarters Recruiting Zone, Kolkata to the 'Integrated Headquarters of Ministry of Defence (Army) and advice sought. The Integrated Headquarters of Ministry of Defence (Army) directed that on availability of sufficient evidence in the course of investigation conducted departmentally, necessary action should be taken as per Para 3 of Appointment letter (Para 3 of Appointment letter states "SERVICES ARE LIABLE FOR TERMINATION ON RENDITION OF ONE MONTH NOTICE EITHER BY EMPLOYEE TO THE APPOINTING AUTHORITY OR BY THE APPOINTING AUTHORITY TO THE EMPLOYEE EVEN WITHOUT COMMUNICATING REASONS FOR TERMINATION"). Based on the above, Notice of Termination of Service under Rule 5(1) of the Central Civil Service (Temporary Service Rules; 1965 was issued to Mr. Soumitra Dey on 11th June, 2018. There was no response to the Notice of Termination of Service by Mr. Soumitra Dey. Thereafter Order of Termination of Service in respect of Mr. Soumitra Dey was issued by the © appointing authority on behalf of the Government of India on 13th July, 2018 as per para 3 of the Appointment Letter No 0347/civi Rtg/E2(i) dated 27th November, 2017 issued by Headquarters Recruiting Zone, Kolkata.10
Further, | neither Director General Recruiting, Integrated Headquarters of Ministry of Defence (Army) nor Deputy Director General, Recruiting (States), Headquarters Recruiting Zone, Kolkata received any such representation. Mr. Soumitra Dey could have handed over his representation/application through registered post or to Army Recruiting Office, Gopalpur itself or by hand to Headquarters Recruiting Zone, Kolkata. Same was received only as an enclosure with the petition dated 28th September, 2018 on 03 October 2018.
That, " termination of service in respect of Mr. Soumitra Dey was ordered by appointing authority on behalf of the Government of India in the light of findings and opinion of the departmental inquiry which investigated the involvement of Soumitra Dey in influencing candidates during the recruitment rally and involvement in act of moral turpitude and legal advices received from higher competent authority."
That, the appointing authority on behalf of the Government of India is empowered to terminate the service of civilians who are on probationary period if found involved in moral _turpitude/discipline case/drop in performance without communicating reasons for termination, thus the powers empowered with appointing authority on behalf of the Government of India has not been misused. In support some statements recorded on 14.02.2018 have been used.
5. Learned Counsels were heard and records carefully perused.
116. None of the statements indicate that other than a slip containing chit bearing the applicant's cell no. nothing else was recovered from the candidates whom the applicant allegedly helped, No evidence is recorded of any receiving.money etc. for personal gain.
As such, the allegation that his termination was due to "moral turpitude/discipline case/drop in performance" is not substantiated.
7. For the ends of Justice the termination order is quashed with all consequential benefits with liberty to the respondents to initiate proceedings, against the applicant if found necessary. 8, O.A. is thus disposed of. No costs.
-
. I (Bidisha Banerjee) Judicial Member sb Ree ae