Central Administrative Tribunal - Delhi
Ex. Ct. (Exe.) Prem Kumar S/O Late Ranbir ... vs Government Of Nct Of Delhi Through Chief ... on 1 May, 2008
ORDER
V.K. Bali, J. (Chairman)
1. The services of Prem Kumar, applicant herein, appointed as Constable (Exe.) in Delhi Police w.e.f. 27.3.2006, have been terminated when he had not even put in one year of service, vide order dated 1.2.2007 (Annexure-1) under rule 5(1) of Central Civil Services (Temporary Service) Rules, 1965. Aggrieved, the applicant made representation dated 13.2.2007, which was rejected vide order dated 24.5.2007 (Annexure-2). It is against these two orders that the present Application under Section 19 of the Administrative Tribunals Act, 1985 has been filed.
2. Brief facts of the case as set out in the Application reveal that the applicant applied for the post of Constable (Exe.) in Delhi Police in the year 2005. He successfully cleared the written and physical tests and was selected for the post. It is the case of the applicant that in the month of September, 2005 he received summons issued by the Court of Shri S.K. Aggarwal, MM, Patiala House Courts, New Delhi. Copy of the summoning order dated 25.6.2005 has been annexed with the Application as Annexure A-3. The applicant was summoned to appear in Court on 29.9.2005 (Annexure A-4). In obedience of the summons, he appeared before the Court on 29.9.2005 and came to know on the said date only that Ms. Sunita, his neighbour, had filed a criminal complaint against him, his brother Gopal Singh and others. It is the case of the applicant that at the time of filling up application form in June/July, 2005, he was not aware nor had any knowledge that a criminal complaint had been filed against him. He came to know of this fact only in September, 2005, and there was no occasion for him to disclose about his involvement in the criminal complaint in the application form, as he himself was not aware of the same. At the time, however, he filled in his attestation form on 26.12.2005, he disclosed every relevant fact with regard to the criminal complaint filed by Ms. Sunita. In short, the case of the applicant is that when he had filled his application form on 29.6.2005, he was not aware of any criminal complaint pending against him and, therefore, there was no occasion for him to have made a mention of the same in the relevant columns of the application form. He came to know about the complaint only in September, 2005 when he appeared in Court pursuant to summons issued to him and others on 11.8.2005, and, therefore, when he filled in the attestation form and by which time he had complete knowledge of the criminal case pending against him, he disclosed the same in all its minute details. He was appointed on the post of Constable (Exe.). Without any notice his services were terminated vide order dated 1.2.2007. The short order vide which he was asked to quit, reads as follows:
In pursuance of the provisions to Sub rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, I, Virender Singh, Principal, Police Training College, Jharoda Kalan, New Delhi hereby terminate forthwith the services of Recruit Constable (Exe.) Prem Kumar No. 443/PTC (PIS No. 28060087) S/o Sh. Ranbir Singh and direct that he shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of notice of one month at the same rates at which he was drawing them immediately before the termination of his service.
Aggrieved, the applicant made representation dated 13.2.2007, which has since been rejected vide order dated 24.5.2007 (Annexure-2). The reason given in the order aforesaid for dispensing with the services of the applicant is that he had concealed the fact of his involvement in case No. 766/2003 Sunita v. Gopal and Ors. pending in the Court of Shri S.K. Aggarwal, MM, New Delhi, in the relevant column of application form despite clear instructions given at the top of the form that any kind of false information or concealing any facts would be treated as disqualification. It has also been mentioned that the applicant had furnished false undertaking mentioning therein that he had "neither been involved in any criminal case nor been arrested/ prosecuted/convicted/bound over/interned/externed as well as not dealt with under any law in force in any criminal case". Relevant part of the order passed on representation of the applicant, dated 24.5.2007, reads as follows:
With reference to your representation dated 13.2.2007, on the subject cited above, I am to state that your representation has been examined in this Hdqrs. at length and it has been found that you had concealed the facts of your involvement in a complaint case No. 766/2003 " Subita v. Gopal and Ors."....
In view of the above facts, your representation has been considered and rejected.
3. The respondents in response to notice issued by this Tribunal have entered appearance and by filing their counter reply, contested the cause of the applicant. There is no dispute on the facts whatsoever. It is not denied that the applicant had indeed made a mention of all the details of the criminal complaint in his attestation form. It is, however, pleaded that at the time of appointment the applicant had given an undertaking wherein he had not made a mention of the criminal case pending against him.
4. Shri Saurabh Ahuja, learned Counsel representing the applicant, contends that even though the order terminating services of the applicant dated 1.2.2007 may be innocuous and the applicant may have been asked to quit during the period of probation, but it is proved on admission in the pleadings as also the impugned order rejecting the representation of the applicant, that termination of employment of the applicant is not motivated by his general unsuitability, and that in fact, he has been shown the exit door on a definite allegation of misconduct, and, therefore, the same is punitive. Shri Rishi Prakash, learned Counsel representing the respondents, per contra, contends that employment of the applicant was temporary under CCS (Temporary Service) Rules, 1965 and he could be asked to quit during the period of probation, and that once, it is admitted position that the applicant was indeed involved in a criminal case, even though instituted on a complaint, there was no need whatsoever to issue him show cause or hold enquiry as a prelude to termination of his services. For his contention as noted above, the learned Counsel relies upon decision of a Single Bench of the Delhi High Court in WP (C) No. 1621/1996 in the matter of Shankar Singh v. Municipal Corporation of Delhi.
5. We have heard the learned Counsel representing the parties and with their assistance examined the records of the case. It is by now a settled proposition of law that even a temporary government employee or probationer is entitled to protection of Article 311(2) of the Constitution of India, and, further that court can lift the veil to determine the real fact of termination. Reference in this connection be made to the judgment of the Hon'ble Supreme Court in Chandra Prakash Shahi v. State of U.P. and Ors. . It would be unnecessary to burden the present judgment over the case law. Suffice it to mention that the proposition of law as mentioned above, culled out by the Hon'ble Supreme Court in Chandra Prakash Shahi (supra) came about after taking into consideration the entire case law as available at the time of the decision. In the present case, there would be no need to look into records with a view to find the real reason leading to termination of services of the applicant. In other words, there would be no need to lift the veil as concededly services of the applicant were terminated because of an allegation made against him that he had not disclosed the factum of his involvement in a criminal case pending in a court of law. It is once again a settled proposition of law that if for determination of suitability of a probationer for a post in question or for his further retention in service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his services, the order would not be punitive in nature, but if there are allegations of misconduct and an order terminating his services is passed on the basis of that enquiry, the order would be punitive in nature. This is what precisely has been held by the Hon'ble Supreme Court in Chandra Prakash Shahi (supra). In our considered view, whether enquiry to find out the misconduct of the employee is conducted or not, but if the order of termination is because of misconduct alleged to have been indulged in by the employee, the same would be punitive, and, therefore, the employee would be entitled to protection of Article 311(2) of the Constitution. Facts of the case aforesaid reveal that Chandra Prakash Shahi was recruited as Constable on 1.10.1985. He successfully completed training on 6.9.1986 and was thereafter placed on probation for two years which he completed on 5.9.1988 without any blemish. On 19.7.1989 his services were terminated by a simple notice issued in terms of rule 3 of U.P. Temporary Government Servants (Termination of Service) Rules, 1975. The U.P. Public Services Tribunal before which the termination was challenged, came to the conclusion that the termination order, though innocuously worded, was punitive in nature. Services of Shahi were terminated on the basis of a preliminary enquiry which was instituted as a result of quarrel between two other constables. Shahi and some other constables were also found involved in the case indulging in acts of indiscipline and misbehaviour. The order of termination was set aside by the Tribunal, and on appeal the Hon'ble Supreme Court affirmed the order aforesaid.
6. The learned Counsel representing the respondents would, however, endeavour us to hold that that no enquiry was required to be held in the case and the applicant did not have the protection of Article 311(2), relying upon the Single Bench decision of the Delhi High court in Shankar Singh (supra). The facts of the case aforesaid reveal that Shankar Singh, a workman, had challenged an award of the labour court dated 10.2.1995 before the High Court. The question referred by the government to the labour court was as follows:
Whether the termination of services of Shri Shankar Singh is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?
Shankar Singh, the petitioner before the High Court, was appointed as daily wager Beldar on 15.3.1984 and was regularised a few days thereafter. At the time of his appointment on regular basis, he had given a declaration that he had never been arrested/convicted and no case was pending against him in a court of law, and that if his declaration was found to be incorrect, his services could be terminated without assigning any reason. On verification, it was found that the petitioner had made a false declaration at the time of taking regular service and his services were terminated on 15.10.1984. The declaration was found to be false inasmuch as he was arrested by police in a case under the Excise Act, alleging recovery of charas from him. He faced criminal trial and was acquitted by the court by giving him benefit of doubt on 21.9.1982. This fact came to the knowledge of the respondent when his character verification was sent to police and the police gave report about the fact that he was involved in the above mentioned case. After receiving this information, his services were terminated under rule 5(1) of the CCS (Temporary Service) Rules, 1965. He challenged the order aforesaid before the labour court, with the result already mentioned above, and the question referred by the government was answered against him. Aggrieved, he filed writ petition before the High Court. It was urged on behalf of the petitioner that he was acquitted by the court, and, therefore, the criminal case at one time pending against him had no implication on his service. His contention was repelled by observing that he had concealed information at the time of acceptance of government service, and that no fault could be found in terminating his services during the period of probation because of concealment of information. It was further held that no enquiry was necessary in the case because there was no dispute about the facts, and moreover the petitioner was only a temporary employee on probation, and, therefore, his services could be terminated without assigning any reason during the probation period if his work and conduct was not satisfactory or he was not suitable for the organisation. The judgment relied upon by the counsel representing the respondents does appear to support the plea raised, as noticed above. On facts, however, we find that whereas in the present case the applicant appears to have a plausible explanation, the petitioner in Shankar Singh (supra) had no such explanation to offer. It may be recalled that in the present case the pendency of criminal case was not known to the applicant at the time he filled his application form; it was a complaint case instituted in the court straightway, in which the accused would normally have no knowledge till such time he receives the summons. As per the procedure prescribed in CrPC, on receipt of a complaint, the concerned criminal court has to record preliminary evidence, and it is only if sufficient evidence is led that may prima facie show commission of an offence, that the Magistrate takes cognizance and issues summons. Admittedly, the applicant, when came to know about pendency of the criminal complaint, mentioned every detail of the same in the attestation form. This was done by him before his employment. Having informed the department about his involvement in the criminal case, non-mentioning of the same in the declaration form may be an innocent mistake, or could well be for the reason that there was no requirement to do so, having been done earlier. The observations of the learned Single Judge that "If he gives a false declaration that he has never been arrested or involved in a criminal case, department/management has a right to terminate his service on the ground of concealment of facts and not disclosing information as required from him", and that "No enquiry was necessary in this case because there was no dispute about the facts", may be correct in the facts and circumstances of that case, but may not be correct when there is a genuine dispute with regard to facts. We may only mention that the law declared by the Hon'ble Supreme Court is binding on all courts within the territory of India in view of the provisions contained in Article 141 of the Constitution. The settled law on the issue is that be it a case of an employee who is employed temporarily or on probation, if the order terminating his services is punitive, he would have the protection of Article 311(2), and that being so, he cannot be asked to quit before an enquiry is held in the matter and he is found guilty of the allegations subject matter of the misconduct. The law laid down by the Hon'ble Supreme Court squarely applies to the facts of the present case and has necessarily to be followed.
7. For the reasons mentioned above, we set aside orders dated 1.2.2007 (Annexure-1) and dated 24.5.2007 (Annexure-2), and consequently allow the present Application. It may, however, be open to the respondents to deal with the applicant in accordance with law. There shall, however, be no order as to costs.
8. Before we may part with this order, we would like to mention that as per summoning order placed on record as Annexure-3, the allegations against the applicant and his co-accused were that they had forcibly encroached upon 20 sq yards of the land of complainant by demolishing boundary wall and thrashed the complainant and her family members on being resisted. It is mentioned in the summoning order that the documents placed on record revealed that parties relations were also strained on account of a drain flowing in between their houses. It further appears that with regard to accused Jagdish only, a separate case in respect of the same incident came to be registered, and with regard to others a criminal complaint was filed. With regard to some other accused, it has been observed by the learned Magistrate that their role had either not been specified or the depositions were vague and general in nature. Only accused 1, 2, 5 and 12 were summoned under Sections 451/323/506/34 IPC.