Central Administrative Tribunal - Delhi
Ravinder vs Gnctd on 8 October, 2024
1
OA No. 1529/2022
Item No. 05/C-II
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1529/2022
Reserved on: - 28.08.2024
Pronounced on: - 08.10.2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Ravinder, Age- 28 years,
Group- C, Sub: Termination
S/o Sh. Rajesh,
R/o- VPO-Farmana Khas, Tehsil- Meham,
District- Rohtak-124112 ... Applicant
(By Advocate: Mr. Sachin Chauhan)
Versus
1. Govt. of NCTD
Through the Chief Secretary
Govt. of NCTD,
Nava Sachivalya IP Estate
New Delhi.-110002
2. The Commissioner of Police,
Delhi Police,
Police Headquarters, Jai Singh Road New Delhi-110001
3. The Joint Commissioner of Police,
Western Range & Hdqrs.,
Delhi Police,
Police Headquarters,
Jai Singh Road, New Delhi.- 110001
4. The Dy. Commissioner of Police,
West District, New Delhi
Through the Commissioner of Police,
Delhi Police,
Police Headquarters,
Jai Singh Road, New Delhi-110001 ... Respondents
(By Advocate: Mr. R K Jain)
2
OA No. 1529/2022
Item No. 05/C-II
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):-
By way of the present OA filed u/s 19 of the AT Act, 1985, the applicant, in Para 8 of the OA, has prayed for the following reliefs: -
"8.1 To set aside the SCN dated 23.11.2020 (Annexure- A/1) issued under rule 5 (1) of CCS (TS) Rules, order dated 29.1.2021 whereby the service of applicant to the post of SI (Exe) has been terminated under Rule 5 (1) of CCS (TS) Rules, 1965, order dated 17.6.2021 and order dated 7.7.2021 and to further direct the respondents to reinstate the applicant in service with all consequential benefits including seniority and promotion and pay and allowances.
Or/and Any other relief which this Hon'ble Court deems fit and proper may also be awarded to the applicant."
2. Pursuant to notice, the respondents have filed their counter affidavit opposing the claim of the applicant and have prayed for dismissal of the present Original Application. The applicant has also filed his rejoinder denying the contention of the counter affidavit and reiterated his claim in the OA.
3. The brief facts of the present case are that the applicant was appointed as Sub-Inspector (Exe.) in Delhi Police on 10.06.2019. The applicant was undergoing basic training (ABCD Course at PS Maya Puri) and was under probation period of 2 years. The applicant further submits that he was falsely implicated in criminal case FIR No. 616/2020 dated 23.08.2020 u/s 3 OA No. 1529/2022 Item No. 05/C-II 420/467/468/471 IPC PS HTM Hissar, Haryana. He also mentions that the present case is pending trial in the Court of Ms. Varsha Jain, CJM, Hissar, Haryana.
4. It is a matter of record that applicant was arrested on 23.08.2020 in aforesaid criminal case. The applicant came out from judicial custody after granting bail vide order dated 16.02.2021. The applicant was placed under suspension vide an order dated 16.09.2020. The applicant, however, was issued a Show Cause Notice (SCN) as to why his services should not be terminated under Rule 5 (1) of Central Civil Services (Temporary Services) Rules, 1965 vide office order dated 23.11.2020 (Annexure-A/1) for his uncalled behavior when he was in judicial custody on the following allegations: -
"Consequent upon receipt of a report from SHO/Maya Puri regarding arrest of PSI (Exe.) Ravinder Kumar, No. D/6376, (PIS No. 16190243) (under Training) under going ABCD Course at PS Maya Puri has been arrested in case FIR No.616/2020 dated 23.8.2020 u/s 420/47/468/471 IPC PS HTM Hissar, Haryana on23.8.2020. For the sake of natural justice a preliminary enquiry was ordered and entrusted to ACP/PG Cell, West District against PSI (Exe.) Ravinder Kumar, No.D/6376. During enquiry, it has been established that complainant Smt. Babli Drawing Teacher G.S.S.S., Jahajpul Hissar, Haryana during PTI Exam, at about 01.45 PM one Mandeep Singh came to her class room on the pretext of QR code scanning of Sunita's Roll No. 60230018. He was caught by the complainant (Babli) while he was handing over answer key to Sunita. As such for his illegal activity he was handed over to police with (1) Roll No. Slip of Roll No. 6023008 (2) Forged I-card (3) Answer key. Accordingly a case FIR No. 616/2020 dated 23.8.2020 u/s 420/467/468/471 IPC PS HTM, Hissar, 4 OA No. 1529/2022 Item No. 05/C-II Haryana was got registered and arrested the accused person and investigation was taken up. The disclosure statement of accused was recorded and later on 120B IPC was invoked in the instant case. On the basis of disclosure statement of Mandeep Kumar, other co-accused PSI (Exe.) Ravinder and 17 others were also arrested. During investigation accused PSI (Exe.) Ravinder Kumar, No. D/6376 had disclosed his involvement that he was a part of crime and played active role to finalize the deal and solved the paper to prepare the answer key for the applicants. The investigation of the case has been completed and final report as charge sheet u/s 420/467/468/471/120B IPC has been filed in the Hon'ble Court. The case is pending trial in the court of Ms. Varsha Jain, CJM, Hissar, Haryana. Accused PSI (Exe.) Ravinder No. D/6376".
5. The applicant submits that the present SCN for termination is being issued to him due to alleged misconduct under Rule 5(1) CCS (TS) Rules, 1965, thus the same SCN is punitive and can be issued after subjecting him to a proper departmental enquiry and thus, making the SCN dated 23.11.2020 (Annexure-A/1) as bad in law. It is being specifically mentioned within the body of SCN that preliminary enquiry was ordered and entrusted to ACP/PG Cell, West District against the applicant, but the same PE report was never supplied to the applicant and the same was supplied at the back of the applicant that too without giving an opportunity to explain the circumstances thus making the present SCN and subsequent orders are bad in law as being based on extraneous factors and is in violation of principle of natural justice. 5 OA No. 1529/2022 Item No. 05/C-II
6. The applicant contends that he submitted a reply dated 04.01.2021 through Supdt. of Jail, Hissar to the aforesaid SCN dated 23.11.2020 (Annexure-A/1). The applicant could neither setup proper defense nor took the defense assistance in preparing the reply dated 04.01.2021, as a result of which applicant was deprived of his right i.e. principle of natural justice of being heard properly. The applicant, at the outset, denied each and every allegation as being alleged in SCN for termination within the body of reply dated 04.01.2021.
7. The applicant states that the respondent authorities placed reliance on the PE report while terminating the service of the applicant. The same PE report was never supplied to applicant but relied by the respondents while issuing the SCN as well as while terminating the service of applicant. It is further submitted by the applicant in his pleadings that the order dated 17.06.2021 (Annexure-A/3) does not deal with any of the submissions raised within the body of appeal dated 26.02.2021. The order dated 17.06.2021 (Annexure-A/3) reads as the following: -
"The appeal dated 29.02.2021 filed by you, against order no. 1395-1495/Estt(I)/West dt. 29/01/2021 has been examined by Jt. C. P. /WR, Delhi and the same has been rejected as you Ex. PSI (Exe.) Ravinder Kumar, No. D/6376 were terminated from service under Rule (5) (1) of CCS (Temporary) Services Rules, 1965, which is not an authorized punishment in Rule 5 of Delhi Police (Punishment & Appeal) Rules, 1980. Hence, no appeal lie under Rule 23 (1) of Delhi Police (Punishment & Appeal) Rules, 1980."6 OA No. 1529/2022
Item No. 05/C-II
8. The applicant submits that the act of returning the representation of the applicant by the respondents authorities vide order dated 07.07.2021 (Annexure-A/4) is in absolute violation of Rule 5 (2) (a) of CCS (TS) Rules.
9. The applicant further submits that the termination order is not termination simpliciter and is stigmatic in nature. It is further submitted that the applicant cannot be deprived of the protection given under Article 311 (2) (b) of the Constitution of India despite the fact that the order of termination is solely based on the alleged misconduct against the applicant, in respect of which no opportunity to defend himself has been given by the department as per law down under departmental rules & regulations. Article 311 (2) (b) of the Constitution of India is reproduced herein below:-
"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Provided that where it is proposed after such enquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such enquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed."
10. The applicant claims that his order of termination is founded on the allegation of misconduct and for that reason the order of termination is definitely punitive and by no reason the order of 7 OA No. 1529/2022 Item No. 05/C-II termination from service is not passed on the basis of the general unsuitability of the applicant for the job and i.e. apparent from the service record of the applicant which is in possession of the department and is par excellent. He further claims that the punitive action against the applicant can be taken only by holding a regular departmental enquiry and in the present case, no departmental enquiry has been conducted, thus depriving him of putting forward the defense against the allegation leveled against him. The applicant also claims that the act of the department of conducting an enquiry at the back of the applicant and on the basis of that, come on to the conclusion that his services are to be terminated then the same order is stigmatic in nature as the same will affect the future of the applicant.
11. To further strengthen his plea, learned counsel for the applicant has relied on the decisions of the Hon'ble Supreme Court in the matter of; (i) Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others; (1999) 3 SCC 60, (ii) Chander Prakash Shahi Vs. State of U.P. & Ors. 2000 Vol V SCC 152; (iii) Jaswant Singh Vs. Rajkot Municipal Corporation 2007 (12) SCALE 155; (iv) State of Uttar Pradesh Vs. Ram Bachan Tripathi, 2005 (2) SC SLJ 311; (v) Ratnesh Kumar Choudhary Vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Ors., Civil Appeal No.8662 of 2015, decided on 15.10.2015; (vi) State Bank of 8 OA No. 1529/2022 Item No. 05/C-II India & Ors. Vs. Palak Modi &Ors., Civil Appeal Nos.7841- 7843 of 2012, decided on 03.12.2012; and (vii) Anoop Jaiswal Vs. Government of India & Anr., (1984) 2 SCC 369; Andhra Pradesh State Federation of Company Operating Spinning Mills Ltd. & Anr. Vs. P. V. Swaminathan JT 2001 (3) 530; and 11.1 Decision of the Hon'ble High Court of Delhi in the matter of (i) S. S. Mota Singh Jr. Model School v. Tanjeet Kaur and Anr., W.P. (C) No.6284/2012, decided on 07.07.2015; (ii) Lalita Kumari v. Delhi Social Welfare Board & Anr., W.P. (C) No.944/2020, decided on 25.02.2021; (iii) Govt of NCT of Delhi & Ors. Vs. Virender., W.P. (C) No. 12696/2023, decided on 28.02.2024, 11.2 Decision of this Tribunal in OA No. 4020/2018 titled Mohit Kumar Chaudhary Vs. GNCTD & Ors. decided on 17.07.2023
12. Feeling aggrieved by the aforesaid act of the respondents, the applicant approached this Tribunal by way of the present OA.
13. Counter reply has been filed by the respondents on 22.08.2022 wherein, it is stated that for the sake of natural justice, a Preliminary Enquiry was ordered and entrusted to ACP/PG Cell, West District against the applicant. During enquiry, it was established that complainant Smt. Babli (Drawing Teacher) G.S.S.S, Jahajpul Hissar, Haryana, R/o C-6, Ramtal Colony near 9 OA No. 1529/2022 Item No. 05/C-II Jat College, Hissar, Haryana reported that on 23.08.2020, she was detailed for invigilator duty at Govt. Higher Sec. School, Jahajpul, Hissar, Haryana for PTI Exam. During PTI Exam, at about 01.45 PM one Mandeep Singh came in her class room on the pretext of QR code scanning of one candidate Sunita's Roll No.60230018. Mandeep Singh was caught by the complainant (Babli) while he was handing over Answer Key to Sunita. As such for his illegal activity he was handed over to the police with (1) Roll No. Slip of Roll No 60230018 (2) Forged I-card (3) Answer key. Accordingly, a case FIR No. 616/2020 dated 23.08.2020 u/s 420/467/468/471 IPC, PS HTM, Hissar, Haryana was got registered and accused person was arrested. The respondents further submit that the disclosure statement of accused was recorded and later on Section 120-B IPC was invoked in the instant case. On the basis of disclosure statement of Mandeep Singh, other co-accused persons i.e. applicant and 17 others were also arrested. During investigation accused, the applicant had disclosed his involvement that he was a part of crime and played active role to finalize the deal and even had solved the paper to prepare the answer key for the applicants. The investigation of the case was completed and final report as charge sheet u/s 420/467/468/471/120B IPC has been filed in the Hon'ble Court. The case is pending trial in the court of Ms. Varsha Jain, CJM, Hissar, Haryana.
10OA No. 1529/2022 Item No. 05/C-II
14. The respondents also reveal that on 23.08.2020, the applicant left the police station without obtaining permission of the competent authority and also did not bring the facts about his movement in the notice of SHO/Maya Puri or other senior officers. They further submit that for the above criminal misconduct, the applicant was placed under suspension vide order dated 16.09.2020. It is a matter of record that a SCN for termination was issued to the applicant vide order dated 23.11.2020 (Annexure-A/1), which was served upon him through Superintendent of Jail, District Jail, Hisar, Haryana vide letter dated 23.11.2020 (Annexure-A/1) to reply within 15 days which was received by the applicant on 30.11.2020. He tendered his reply in response to SCN which was received in HAE Branch, West District on 05.01.2021. On considering his reply and going through all documents on file, the applicant was terminated vide order dated 29.01.2021 (Annexure-A/2) by competent authority and a copy of order was supplied to the applicant on 04.02.2021. The respondents further submit that, thereafter, the applicant filed an appeal before the Joint Commissioner of Police, Western Range, New Delhi on 29.02.2021 under Rule 23 (1) of Delhi Police (Punishment & Appeal) Rules-1980 against the termination order dated 29.01.2021 (Annexure-A/2), which was rejected by the Joint Commissioner of Police, Western Range, New Delhi with the remarks that he was terminated from service under Rule 5 (1) of CCS (Temporary Service) Rules, 1965, which is not an authorized 11 OA No. 1529/2022 Item No. 05/C-II punishment in Rule 5 of Delhi Police (Punishment & Appeal) Rules, 1980.
15. In the Original Application, the applicant has submitted that the order of termination is not termination simpliciter and is stigmatic in nature. He has also stated that he cannot be deprived of the protection given under Article 311 (2) (b) of the Constitution of India despite the fact that the order of termination is solely based on alleged misconduct against the applicant for which no opportunity to defend himself has been given by the respondents as per law laid down under departmental rules and regulations. It is important to examine the Show Cause Notice (SCN) dated 23.11.2020 (Annexure-A/1) and disciplinary order dated 29.01.2021 (Annexure-A/2) issued by respondent no. 4.
16. A close reading of Show Cause Notice (SCN) dated 23.11.2020 (Annexure-A/1) reveals that the Disciplinary Authority made up his mind without awaiting reply from the applicant that the applicant is guilty. The relevant portion of the above mentioned SCN is as follows:-
"The above act, of you PSI (Exe.) Ravinder Kumar, No. D/6376 establishes that you have no respect of law and you can go to any extent for earning money by unfair means without any temptation and provocation and which amounts to gross misconduct and unbecoming of a police officer of a disciplined force.
The involvement of you PSI (Exe.) Ravinder Kumar,,No. D/6376 in such a shameful, criminal/corrupt activity eroded the faith of common people in police force and continuous in the force is likely to came future irreparable 12 OA No. 1529/2022 Item No. 05/C-II loss to the functioning and credibility of the Delhi Police. Not only being a Govt. servant he did not inform for his involvement in Crl. Case and his arrest to the department which he violate the CCS (Conduct) Rules and Delhi Police (Punishment & Appeal) Rules-1980."
17. Order dated 29.01.2021 (Annexure-A/2) issued by Disciplinary Authority reads as follows:-
"The above act on the part of PSI (Exe.) Ravinder Kumar. No. D/6376 establishes that he has no respect of law and he can go to any extent for earning money by unfair means without any temptation and provocation which amounts to gross misconduct and unbecoming of a police officer of a disciplined force like Delhi Police The involvement of PSI (Exe.) Ravinder Kumar, No D/6376 in such a shameful, criminal/corrupt activity eroded the faith of common people in police force and continuous in the force is likely to came future irreparable loss to the functioning and credibility of the Delhi Police. Not only being a Govt. servant he did not inform about his involvement in Crl. Case and his arrest to the department which he violated the CCS (Conduct) Rules and Delhi Police (Punishment & Appeal) Rules- 1980 As per Rule 5 (1) of the Central Civil Service (Temporary Service) Rules, 1965 *The services of a temporary government servant shall be liable lo termination at any time by a notice in writing given either by the government servant to the appointing authority or by the appointing authority to the government servant * A Show Cause notice for termination under Rule 5(1) of the Central Civil Service (Temporary Service) Rules, 1955 was issued to the PS/ vide this office order No 23238-39/Estt)West dt 23.11 2020 with the direction to submit his reply within 15 days from the date of receipt of the notice. The notice was served upon PSI (Exe.) Ravinder Kumar, No D/5376 which was received on 30 11 2020 by him. A reminder vide No. 25118/Estt (I)/West dt 24.12.2020 was also issued to him for submitting his reply in response to the Show Cause Notice The reply of PSI (Exe) Ravinder 13 OA No. 1529/2022 Item No. 05/C-II Kumar, No D/6376 was received on 02.01.2021 in this office.
The reply of PSI Ravinder Kumar, No. D/6376 presently under suspension and lodged in Central Jail-l, Hissar, Haryana has been considered in details and found not satisfactory. The plea taken by the PSI is not tenable as he has falsely implicated in the criminal case and more than four months have been elapsed but the Hon'ble Court has not granted bail to him. During PE the allegations leveled against the PSI have been substantiated. The involvement of PSI in such a shameful criminal/corrupt activities eroded the faith of common people in police force and his continuance in the force is likely to came future irreparable loss to the functioning and credibility of the Delhi Police. The PSI has not even completed his training in the department and he met such a shameful act. Therefore, considering all the aspects, I reached on the conclusion and services of PSI Ravinder Kumar, No D/6376, PIS No 16190243 are terminated with immediate effect under Rule 5 (1) of the Central Civil Service (Temporary Service) Rules, 1965 and also his suspension period from 16.09.2020 to the date of issue of this order is decided as Not Spent on Duty for all intents and purpose."
18. We have perused the pleadings available on record and considered the submissions made by the learned counsels for the parties and have also gone through the Orders/Judgments referred to and relied upon by the learned counsels for the respective parties carefully.
19. The issue raised by the applicant herein is no more res integra and is settled by the recent decision of a coordinate Division Bench of this Tribunal, comprising [Mr. R.N. Singh, Member (J) & Mr. Sanjeeva Kumar, Member (A)) which has considered a similar controversy in Virender v. Govt. of NCTD & Ors., OA No. 1879/2017, decided on 02.06.2023 and Satyender v. Govt. 14 OA No. 1529/2022 Item No. 05/C-II of NCTD & Ors., decided on 02.06.2023. After considering the various decisions of the Hon'ble Supreme Court, Hon'ble High Courts and this Tribunal, the Tribunal in Satyender (supra) held as follows:
"6. Reliance placed by Mr. Luthra on the decision of the Hon'ble Supreme Court in Ratnesh Kumar Choudhary (supra) has been considered by a Coordinate Bench of this Tribunal, along with few other cases, titled Capt. Yashraj Tongia v. Union of India & Anr., OA No.2470/2015, in its order dated 08.02.2013. In para-10, the Coordinate Bench has ruled as under:
"10. The Apex Court in Mathew P. Thomas v Kerala State Civil Supply Corpn. Ltd. & others [(2003) 3 SCC 263], in para 11 held as follows:
"....From a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. If the form and language of the so-called order of termination simpliciter of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. In cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simpliciter, but the real face behind it is to 15 OA No. 1529/2022 Item No. 05/C-II get rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct."
The above observation of the Apex Court makes it clear that while deciding whether the termination of a probationer is a termination simpliciter or punitive, the Tribunal can travel beyond the order of termination to find out what in reality is the background and what weighed with the employer to terminate the services of the probationer."
20. Judgment of this Tribunal passed in OA No. 1879/2017, in the matter of Virender Vs. Govt. of NCTD & Ors., decided on 02.06.2023, was challenged by the respondents in the Hon'ble High Court of Delhi in W.P. (C) No. 12696/2023 titled Govt. of NCT of Delhi & Ors. Vs. Virender, which was decided on 28.02.2024. For facility of reference the relevant portion of the judgment is reproduced as under:-
"36. The Supreme Court in the case of State of Punjab and Ors. v. Constable Avtar Singh, (2008) 7 SCC 405 has in paragraph 11 held as under:
"11. We have heard learned counsel for the parties. We are in total agreement with the submission of the learned counsel for the State of Punjab that the controversy involved in this case is no longer res integra. Learned counsel appearing for the respondent had drawn our attention to a two-Judge Bench decision of this Court in Prithipal Singh v. State of Punjab [(2002) 10 SCC 133 : 2003 SCC (L&S) 103] . The Court held that once there is stigma, the principle is well settled, an opportunity has to 16 OA No. 1529/2022 Item No. 05/C-II be given before passing any order. Even where an order of discharge looks innocuous, but on a close scrutiny, by looking behind the curtain if any material exists of misconduct and which is the foundation of passing of the order of discharge, or such could be reasonably inferred, then it leaves no room for doubt that any consequential order, even of discharge, would be construed as stigmatic. The decision in Sukhwinder Singh [(2005) 5 SCC 569 : 2005 SCC (L&S) 705] was given by a three-Judge Bench and in view of that decision in 2005, there is no scope for this Court to take a different view. We are squarely bound by the said decision."
(emphasis supplied)
37. In the case of State of Punjab and Ors. v.
Sukhwinder Singh, (2005) 5 SCC 569, the Supreme Court has in paragraph 20, has held as under:
"20. In the present case neither any formal departmental inquiry nor any preliminary fact-finding inquiry had been held and a simple order of discharge had been passed. The High Court has built an edifice on the basis of a statement made in the written statement that the respondent was a habitual absentee during his short period of service and has concluded therefrom that it was his absence from duty that weighed in the mind of the Senior Superintendent of Police as absence from duty is a misconduct. The High Court has further gone on to hold that there is direct nexus between the order of discharge of the respondent from service and his absence from duty and, therefore, the order discharging him from service will be viewed as punitive in nature calling for a regular inquiry under Rule 16.24 of the Rules. We are of the opinion that the High Court has gone completely wrong in drawing the inference that the order of discharge dated 16-3-1990 was, in fact, based upon misconduct and was, therefore, punitive in nature, which should have been preceded by a regular departmental inquiry. There cannot be any doubt that the respondent was on probation having been appointed about eight months back. As observed in Ajit Singh v. State of Punjab [(1983) 2 SCC 217 :17 OA No. 1529/2022
Item No. 05/C-II 1983 SCC (L&S) 303: AIR 1983 SC 494] the period of probation gives time and opportunity to the employer to watch the work, ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserves a right to dispense with his service without anything more during or at the end of the prescribed period, which is styled as period of probation. The mere holding of preliminary inquiry where explanation is called from an employee would not make an otherwise innocuous order of discharge or termination of service punitive in nature. Therefore, the High Court was clearly in error in holding that the respondent's absence from duty was the foundation of the order, which necessitated an inquiry as envisaged under Rule 16.24(ix) of the Rules."
38. In Ratnesh Kumar Chaudhary (supra), the Supreme Court has in paragraph 33 and 34, held as under:
"33. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer, as stated by Shah, J. (as he then was) in Ram Narayan Das case [State of Orissa v. Ram Narayan Das, AIR 1961 SC 177] . It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. It has been so decided in Champaklal case [Champaklal Chimanlal Shah v. Union of India, AIR 1964 SC1854]. The purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed -- if at that point of time, the enquiry is 18 OA No. 1529/2022 Item No. 05/C-II dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur case [State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089] and in Benjamin case [A.G. Benjamin v. Union of India, (1967) 15 FLR 347 (SC)] . In the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case [Gujarat Steel Tubes Ltd. v. Mazdoor Sabha, (1980) 2 SCC 593 : 1980 SCC (L&S) 197] the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.
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 employee's 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 19 OA No. 1529/2022 Item No. 05/C-II the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases." (emphasis supplied)
39. Ms. Mazumdar has also relied upon the judgment in the case of Chandra Prakash Shahi (supra) wherein the order of termination of the appellant/Constable, who was on probation was set aside by the Tribunal. The Supreme Court upheld the same, noticing that the appellant had completed his training and probationary period of two years without any blemish and had been terminated on account of quarrel between two constables in which to begin with he was not involved. The termination was observed to be founded on the report of the preliminary enquiry conducted to find out the involvement of the appellant, but did not find out whether the appellant was further suitable for retention in service or confirmation as he has already completed the period of probation few years ago.
40. She has also referred to the judgment in the case of Palak Modi (supra) wherein the Supreme Court in paragraph 14 (2) held that the foundation of the action taken by the General Manager terminating the services of the respondent No.1 on the accusation that while appearing in the objective test, the private respondents had resorted to copying and the respondents were condemned unheard which was legally impermissible. It was further held if the misconduct misdemeanor constitutes the basis of the final decision taken by the competent authority to dispense with the service of the probationer by a non- stigmatic order, the Court can lift the veil and declare that in the garb of termination simpliciter the employer punished the employee for an act of misconduct.
41. The Supreme Court, in its latest opinion in the case of State of Punjab and Ors. v. Jaswant Singh, 2023 (9) SCC 150, has in paragraph 18, held as under:
"18. In view of the principles as reiterated in various judgments by this Court, if we examine the facts of the case in hand leading to the order of discharge, then it is 20 OA No. 1529/2022 Item No. 05/C-II crystal clear that respondent-plaintiff was appointed as a constable and joined the duties on 12.11.1989 on probation. During probation, while he was on training, he along with other trainee constables was deputed for law and order duty in Amritsar District on 24.11.1990. Respondent- plaintiff and other recruits were relieved from the said duty and reported back at the Training Centre, except respondent-plaintiff, who remained on prolonged absence without any intimation to the Training Centre. The S.P., Training Centre, vide memorandum dated 21.02.1991, made a recommendation to S.S.P. that the respondent- plaintiff had not shown any interest in the training and lacks sense of responsibility, further recommending that he is unlikely to prove himself as a good and efficient police officer, hence, he may be discharged under Rule 12.21 of PPR. From perusal of the said Rule, it is apparent that in case a probationary constable is found unlikely to prove an efficient police officer, he may be discharged by the Senior Superintendent of Police at any time within three years from the date of enrolment. The S.S.P. relying upon the recommendation of the supervising officer (S.P., Training Centre) formed an opinion that the probationary constable is found unlikely to prove an efficient police officer owing to his demeanour as reported and discussed herein above.
(emphasis supplied)
42. We may also refer to the latest opinion of this Court in Government of NCT of Delhi and Anr. v. Dalbir Singh, W.P.(C) 6596/2023, wherein this Court by referring to various judgments and on the basis of the termination order issued in the following manner has held that the order being non-stigmatic, the Tribunal could not have set aside the order of termination. The said termination order is reproduced as under:
"In pursuance of the Proviso to Sub-rule (1) of Rule 5 of the Central Civil Service (Temporary Services) Rules, 1965, I, Ajay Kashyap, Director General, Prisons, hereby terminate forthwith the services of Sh. Dalbir Singh, Warder - 1663 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 at the same rates at which he was 21 OA No. 1529/2022 Item No. 05/C-II drawing them immediately before the termination of his service or, as the case may be, for the period by which such notice falls short of one month."
43. Having noted the judgments of the Supreme Court and this Court on the issue, it is clear that, if the order of termination is simpliciter as permitted by the terms of appointment or as permitted by rules so that the employee would not suffer any stigma attached to rest of his career then such an order is permissible as the employer was not interested in finding the truth of the allegations against the government servant. But in cases as held by the Supreme Court in Ratnesh Kumar Chaudhary (supra), where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definite nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order was issued, such an order would be violative of principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegation with a view to punish him and not merely gather evidence for a future regular departmental enquiry.
44. In the case in hand, we have already reproduced the order of termination in paragraph 5 above. The said order of termination unlike an order of termination in the case of Dalbir Singh (supra) concludes that, having found the "unsatisfactory and not conducive" nature of the respondent's working; his services are required to be terminated. The termination on the ground of "unsatisfactory and not conducive" working is not contemplated in the terms of appointment or for that matter under Rule 5 of the CCS (Temporary Service) Rules, 1965 which reads as under:
"5. Termination of temporary service.
(1) (a) The services of a temporary Government servant shall be liable to termination at any time by a 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.22 OA No. 1529/2022
Item No. 05/C-II 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 his pay plus allowances 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, for the period by which such notice falls short of one month."
45. The stand of the petitioners before the Tribunal and before us is by relying upon the fact that the petitioner was absent between the period April 11, 2017 to April 21, 2017 for which a memorandum was issued to the respondent. A reference is also made to the FIR registered against respondent under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 („NDPS Act‟, for short). So it follows that the absence / the FIR were the „foundation‟ for terminating the services of the respondent and as such the same could not have been done without following the principles of natural justice. The said order of termination is stigmatic and punitive in nature. We may also state that, had the rules permitted, a government servant who is „found unlikely to prove himself an efficient police officer‟ may be discharged by the employer within three years of enrollment, as was the rule in the case of Jaswant Singh (supra) would justify the termination, but no such rule has been shown to us. In any case, the termination being under Rule 5, the same has to be an order simpliciter.
46. In the present case, we have already held that the impugned order is stigmatic and that the Tribunal was justified to the extent of holding that the termination order of the respondent was bad. But, what we do not agree is the conclusion arrived by the Tribunal, that is, the Tribunal while setting aside the order of termination had granted liberty to the petitioners to initiate disciplinary enquiry and /or take action in accordance with the relevant rules depending upon the final outcome of the FIR, which according to us shall mean that the employer needs to wait for the final decision on the FIR, which will take its own time.
23OA No. 1529/2022 Item No. 05/C-II
47. We would state here that, mere pendency of an FIR shall not restrain/preclude the employer to initiate disciplinary proceedings under the relevant rules, as it is a settled law that, a Criminal Case & Departmental Enquiry are two different proceedings and for holding the charge against a government servant in a departmental enquiry, the same needs to be proved on the principles of preponderance of probability.
48. We dispose of the petition by directing the petitioners to reinstate the respondent in service within six weeks of the receipt of the copy of this order with all consequential benefits in accordance with the relevant rules and instructions but with liberty to the petitioners to initiate action against the respondent in accordance with the conduct rules and proceed accordingly. No costs."
21. In view of the law laid down by the Hon'ble Supreme Court, it is held that the impugned order dated 29.01.2021 (Annexure-A/2) issued after issuance of Show Cause Notice (SCN) dated 23.11.2020 (annexure-A/1) is stigmatic and needs to be set aside.
22. In view of the aforesaid facts and circumstances in the present case, we are of the considered view that the instant OA deserves to be partly allowed and the same is partly allowed with the following directions:-
i. Impugned order dated 29.01.2021 (Annexure-A/2) is set aside;
ii. The respondents are directed to reinstate the applicant in service with all consequential benefits in accordance with the relevant rules and instructions on the subject;
iii. The respondents shall implement the aforesaid directions within eight weeks of receipt of a copy of this order; and 24 OA No. 1529/2022 Item No. 05/C-II iv. However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
v. No order to cost. Pending MAs, if any, stand closed.
(Rajinder Kashyap) (R.N. Singh)
Member (A) Member (J)
/neetu/