Central Administrative Tribunal - Chandigarh
Avtar Singh And Ors. vs Union Of India (Uoi) And Ors. on 29 April, 2003
Equivalent citations: 2004(1)SLJ242(CAT)
ORDER
O.P. Garg, J. (Vice Chairman)
1. The short common question which arises for consideration and determination in all these 25 original applications is whether the order by which the respondent Income-Tax department has terminated the services of each one of the applicants on the ground that they, secured appointment on the basis of forged nomination letters purported to have been issued by the Staff Selection Commission, (for short Commission) is liable to be interfered with and quashed by this Tribunal primarily on the basis that the offending order has been passed without giving an opportunity of hearing to the applicants and that there was no foundation to conclude that the nomination letters were forged, fictitious, fake and bogus.
2. The above controversy has fallen for our consideration in the back-drop of the facts that at the instance of the Income-tax department, posts of Lower Division Clerks, Upper Divisions clerks, Stenographer Gr. D. and Inspectors were advertised by the Commission. After receipt of the applications, written test and type test were conducted in two spells in the year 1988 and 1990. On the basis of the nomination letter which was proof of the fact that the concerned applicant has been finally selected for appointment, each one of the applicants was initially appointed on probation for a period of two years and after under-going departmental examination and successful completion of the period of probation, they were confirmed on the post on which they were appointed. It appears that a complaint was made that the nomination letters on the basis of which the applicants were appointed were forged and fake and, therefore, the appointment of the applicants on the different posts was vitiated as being void ab-initio. The respondent department referred the matter to the Commission and after ascertaining that prima-facie the nomination letters were forged ones, it was thought proper to initiate departmental enquiry against the applicants. Each one of them was served with a memorandum of charge memo except Baljinder Singh, Kamaljit Singh and Ripan Kumar who are the applicants respectively in O.A. Nos. 1255/PB/2001, 262/PB/2001 and 1266/PB/ 2001. Rest of the applicant submitted a reply the charge memo. The departmental enquiry, it appears, was not pursued by the department and ultimately after taking the legal advice, the services of all the applicants were terminated in August, 2001. As an exemplar, the termination order Annexure P-9 in respect of Avtar Singh, applicant in O.A. No. 853/PB/2001 may be quoted for ready reference and better understanding of the controversy which is to be dealt with heretoafter:--
"ORDER Whereas Shri Avtar Singh presently working as Lower Division clerk in the office of Income Tax Officer, Sirhind, had obtained appointment in this department on the basis of nomination letter purported to be issued by Staff Selection Commission.
And Whereas the Staff Selection Commission vide letter No. 8/RD (NR) SSC dated 10.11.1998 informed that the name of Shri Avtar Singh did not figure in the result then declared by the Staff Selection Commission and they had not issued any nomination papers recommending his appointment in the department.
Now, therefore, in view of the fact that the very basis on which appointment was given does not exist. The services of Shri Avtar Singh, Lower Division Clerk, are hereby terminated with immediate effect."
Similar termination orders have been passed in respect of other applicants. By means of the present O.As. under Section 19 of the Administrative Tribunals Act, 1985, the applicants have prayed that the impugned order of termination which is stigmatic in nature and cast reflection on their integrity, honesty and well being be quashed as it has been passed without affording them any opportunity to hearing and taking into consideration their point of view. The applicants have maintained that they have not produced forged or fictitious nomination letters to secure the appointment and that they were appointed in due course of procedure prescribed by rules after having been selected by the Commission. The stand taken by the applicants is that if the applicants had been given an opportunity to put forth their respective contentions during the course of disciplinary enquiry, they would have proved that the nomination letters were genuine and not fake.
3. The respondents No. 1 to 3 have filed a joint written statement repelling the averments made by the applicants. It is maintained that each one of the applicants had secured appointment on the basis of forged and fictitious nomination letter produced by him and since the appointment was the outcome of fraud, no opportunity of hearing was required to be afforded to them before terminating their services. It is also stated that after ascertaining form the Commission that the nomination letters in respect of the applicants were never issued and were not genuine, it was considered not necessary to proceed with the departmental enquiry against the applicants and their services were straight way terminated on the ground that the appointment was the result and outcome of fraud.
4. The respondent No. 4 Staff Selection Commission has filed a separate written statement in each one of the cases. The stand taken by the Commission is that the names of the applicants did not figure in the final result for the concerned post and that they have obtained employment on the basis of forged, fake and fabricated nomination letters which fact was determined after due enquiry based on records. The applicants have filed rejoinder to the replies filed by the respondents.
5. We have heard Mr. P.S. Patwalia, learned Counsel for some of the applicants who took the lead to make the arguments besides hearing Mr. A.S. Jattana, Mr. C.L. Gupta and Mr. D.D. Sharma for the applicants as well as Mr. H.C. Arora, Mr. Sanjay Goyat, Mr. Mukesh Kaushik and Mr. K.K. Thakur, learned Counsel appearing on behalf of the respondents.
6. Since the averments made by the applicants to challenge the impugned order of termination and the defence taken by the respondents in all the above mentioned O.As. are almost identical and common arguments were advanced, we would, with a view to avoid unnecessary repetition and for the sake of clarity, decide all the O.As., together by this common judgment. In the discussion which is to follow, the documents/ annexures which have been filed in O.A. No. 853/PB/2001 - Avtar Singh v. Union of India and Ors. shall be referred.
7. Before sifting the rival contentions of the parties, we find it necessary and proper to detail the relevant information with regard to each one of the applicants as follows:
From the above details, it would appear that each one of the applicants came to be appointed on the post specified against his name in the years 1991 or 1992. There is no dispute about the fact that the applicants who was initially appointed on probation for a period of two years were confirmed after successful completion of probation period and clearing the departmental test. Their services were terminated in August. 2001 i.e. after they had served for a period of about 9/10 years. It is common case of the parties that the termination order was founded on the fact that the applicants secured appointment on the basis of forged nomination letters purported to have been issued by the Commission. Initially, the respondent department in its wisdom considered it necessary to hold a departmental enquiry and with this as object in view, a memorandum (Annexure A-1) of charge for enquiry and imposing penalty was served. The statement of imputation of mis-conduct contained two Articles which read as follows:--
"Article I That Sh. Avtar Singh, obtained employment in this department as LDC on the basis of information received form the office of Staff Selection Commission regarding the veracity of nomination letter pertaining to Sh. Avtar Singh, an enquiry was made from the office of Staff Selection Commission. New Delhi, by Sh. K.M. Bali, Assistant Commissioner of Income Tax (HQ) office of Chief Commissioner of Income Tax. N.W. Region, Sector 17-E, Chandigarh vide letter No. Con/CB/CC/CHD/98-88/920 dated 18.2.1999. In response to that letter Regional Director (NR) of Staff Selection Commission, vide his letter dated 10.11.1998 informed that the purported nomination letter, on the basis of which Sh. Avtar Singh, had obtained the employment was not issued by the office of Staff Selection Commission, and that the name of Sh. Avtar Singh, does not figure 8 in the result than declared by the Staff Selection Commission.
Thus, Sh. Avtar Singh is alleged to have secured employment in this department on the basis of forged documents, which is a criminal offence, and which, therefore, automatically amounts to misconduct. Besides, the appointment secured by Sh. Avtar Singh, in the above said manner is void ab initio, being based on forged documents.
Article II That Sh. Avtar Singh, while knowing fully well that he was not entitled to the appointment as LDC in this department because he had secured employment on the basis of forged document, still continued to enjoy the benefit and privileges of the employment, and thereby he failed to maintain absolute integrity at all times as a Government servant, which amounts to misconduct under Rule 3(1)(i) of the Central Civil Services (Conduct) Rules, 1964."
8. Avtar Singh filed O.A. No. 1027/PB/2000 before this Tribunal with the prayer that the charge sheet (Annexure P-7) issued to him be quashed and in the alternative the departmental proceedings be stayed till the decision of the criminal trial. This Tribunal found that in view of the decision of the Apex Court in the case of Union of India and Anr. v. Ashok Kacker, 1995 S.C.C. (L & S) Page 374, the charge sheet cannot be quashed and the departmental proceedings cannot be stayed. Accordingly, the O.A. was disposed of with liberty to the applicant to file reply to the charge sheet and to claim relief, if, at the appropriate stage. The applicant thereafter filed a reply a copy of which is Annexure P-8.
9. The letter written by Shri K.M. Bali, Deputy Commissioner of Income-tax (Hqrs.) Chandigarh, dated 18.9.1998 to the Regional Director of the Commission is on record. It pointed out certain discrepancies in the nomination letters of the applicants and a doubt was raised with regard to genuineness of the signatures of Shri H.P. Kain, on the nomination letter dated 7.3.1991. The reply of the Commission dated 10.11.98 (Annexure R-2) discloses certain startling facts. In this letter, it is mentioned that S/Shri Naveen Kumar Sharma, Sanjeev Kumar, Dapinder Singh, Avtar Singh and Harish Chandra were not the applicants in the clerks grade examination of 1988 and as such, there was no question of their qualifying the examination. The two other applicants namely Bhupinder Singh and Veer Singh were not the applicants for the post of Inspector of Income Tax. The copies of the nomination letters sent by the department to the Commission were scrutinised and it was found that no nomination in their favour of the said applicants was made. The Commission also sent a separate letter dated 24.5.99 in respect of the other applicants -- a copy of which is annexed as Annexure R-2 in O.A. No. 926/PB/2001. After verification of the nomination letters which were received in the office of the Income-tax Department, Chandigarh, form 1998 onwards, the Commission informed that the said letters were not issued by the Commission. It was further clarified that since the applicants mentioned in the letter dated May 24, 1999, were not qualified candidates of the competitive examination and they have not been nominated by the Commission, appropriate action to terminate their services be initiated. On receipt of the communications dated 10.11.1998 and 24.5.1999, the competent authority of the Income-tax department terminated the services of the applicants in the manner as stated above.
10. Mr. Patwalia, who was joined by other learned Counsel for the applicants urged that the respondent department has presumed fraud on the part of the applicants on the mere basis of letters issued by the Commission. According to the learned Counsel, the letters sent by the Commission could not be made the basis by the department to take unilateral decision to annul and appointments of the applicants and since the department did not make any enquiry of its own and did not afford an opportunity of hearing to the applicants, the order of termination which otherwise is stigmatic suffers form the vice of arbitrariness. Shri Patwalia maintained that the enquiry, if any, conducted by the Commission was merely an eye wash and farcical and if the applicants had been given an opportunity to canvass their point of view, they would have certainly demonstrated that the nomination letters were in-fact issued by the Commission and in any case they were not a party to the fraud.
11. Mr. H.C. Arora, learned Counsel for the respondents, has placed emphatic reliance on the two decisions of the Tribunal one of the Chandigarh Bench and other of the Principal Bench, copies of which have been brought on record as Annexures R-3 and R-4 to lend strength to his submission that in the case of fraud, no opportunity of hearing is required to be given to the employee concerned. In Brij Mohan and Ors. v. Union of India and Ors., 1995(1) A.T.J. Page 1=1995(1) SLJ 109 (CAT), adivision Bench of this Tribunal has held that in a case where the selection/appointment to a public service was based on forged and fabricated selection panels, such selection or appointment can be terminated without affording an opportunity of hearing to the aggrieved individual. After taking into consideration the relevant contentions of the parties and the authorities cited by them in support of their view, this Bench came to the conclusion that the circumstances in which the applicants in that O.A. had derived benefit of selection/ appointment do not justify attraction of the rules of natural justice and, therefore, no opportunity to be heard was required.
12. Another decision of the Principal Bench in the case of Sanjiv Kumar Agarwal and 3 Ors. v. Union of India and Ors., 1987(3) SLJ (CAT) 333, was relied upon by the learned Counsel for the respondents, which according to him furnishes a complete answer to all the submissions made on behalf of the applicants. In the said decision, it was concluded that an appointment obtained by fraud can be terminated by a simple order; an order of termination not casting stigma is not invalid; and (iii) a contract formed by fraud is no contract and cannot confer a status. The gist of this decision is that a part to a fraud cannot seek to reap the fruits and advantage of fraudulent act and in the circumstances it is immaterial as who has committed the fraud. Since the appointment having been vitiated by fraud is void ab initio, it is no appointment in the eye of law. In Sanjiv Kumar's decision, it was further held that where there is no valid contract of service, the employer is not obliged to initiate or to proceed with a departmental enquiry in case of CCS (CCA) Rules. A reference was also made to the decision of the Apex Court in the case of Prabhu Lal Sharma v. Union of India and Ors., J.T. 2001 (Suppl. 1) S.C. 584, in which order of termination on the ground of filing forged certificate of Matriculation was up-held. In that case, it transpired form the statement of the Headmaster of the school from where the appellant (Prabhu Lal Sharma) seems to have appeared in the school examination and no such person called. Prabhu Lal son of Ram Prasad bearing Roll No. 455718 appeared as a candidate form High School Centre in the High school examination of 1976 year. The Apex Court observed as follows:--
"In these circumstances, even if we agree with the contention of the learned Counsel appearing for the appellant that there was a failure on the part of the authority concerned in exercise of power under Rule 19(ii) of the CCA Rules as the order does not contain reasons in writing, it would not be appropriate for this Court to interfere with the impugned order in exercise of its jurisdiction under Article 136 of the Constitution of India. We therefore, dismiss this appeal."
Shri Arora further placed reliance on a Division Bench decision of Punjab and Haryana High Court in the case of S.K. Jain v. The State of Punjab, 1996(2) R.S.J. Page 900 to support his contention that a usurper of a public office is not entitled to any opportunity of hearing. In that case, it was observed that where it is prima facie proved that the person is usurper of public office and has been removed by the government action even in-violation of the principles of natural justice, he cannot be rehabilitated or permitted to function and perform duties of such office, which is permitted would not only defeat the ends of justice, but would negate the rule of law prevalent and established in a democratic polity as in India.
13. Mr. Patwalia, learned Counsel for the applicants urged that he does not dispute the legal position that a person who has obtained appointment on some public post as a result of fraud having been perpetuated is not entitled to any opportunity of hearing as the fraud vitiates everything and in such circumstances the contract of service does not come into existence. He frankly conceded that if this Tribunal finds that the applicants have in-fact committed fraud by producing fraudulent nomination papers to secure appointment, they have certainly no case (sic) however, maintained that fraud cannot be presumed mainly on the basis of the letter written by the Commission and in the circumstances of the case it was necessary that a full-fledged enquiry as was originally proposed should have been continued and if on enquiry it was established that the applicants were guilty of fraud, appropriate action against them could have been taken according to law. Mr. Patwalia made a reference to the oft quoted decisions of the Apex Court in which it was held that no opportunity of hearing was required to be given to the persons who have been selected or appointed as a result of fraud or serious lapses in the procedure adopted for selection. Union Territory of Chandigarh v. Dilbagh Singh and Ors., 1993(1) S.C.C. 154; Union of India v. M. Bhaskaran, 1996(1) S.C.T. page 469)= 1996(2) SLJ 25 (SC); Krishan Yadav and Anr. v. State of Haryana and Ors., AIR 1994 SC 2166=1994(2) SLJ 192 (SC), are the decisions which were cited by Mr. Patwalia to support his contention that an opportunity of hearing is not required to be given in all those cases where after enquiry it has been established that there have been serious lapses, irregularities in making the selection or where fraud of corrupt practices have been adopted. It was pointed out that in all the above cases, it was established to the satisfaction of the Court by the material on record in the shape of enquiry reports or otherwise that the selection/appointment was tainted and thus vitiated.
14. The thrust of the argument on behalf of the applicants is that since the applicants were the confirmed employees and have put in more than about 9 or 10 years of service to the full satisfaction of the departmental authorities, they could not be discharged abruptly form service particularly when earlier a decision was taken to subject them to the disciplinary proceeding for the alleged mis-conduct. The disciplinary enquiry proceedings initiated against the applicants according to Mr. Patwalia were given a complete go-bye and instead a termination order was passed on the bald suggestion of the Commission that the nomination letters on the basis of which the applicants were appointed were not issued by the Commission and that their names did not find place in the result of the concerned examination. Mr. Patwalia made a reference to the decision the Apex Court in the case of Director General of Police and Ors. v. Mrityunjoy Sarkar and Ors., 1996(2) R.S.J. 506. In that case, the order of discharge was passed on the ground that list provided by the Employment Exchange was fake and the names of the discharged employees were fabricated as they did not correspond to the entries in the Employment Exchange. The Apex Court found that it was thus a clear case where the foundation for discharge was production of fake list of persons from Employment Exchange for recruitment as armed reserve constables. If that is accepted, that it would cast stgma on the respondents for future recruitment as they have produced fictitious record to secure employment. The Apex Court held that principles of natural justice require that they should be given a reasonable opportunity of representation in the enquiry to be conducted and appropriate orders with reasons in support thereof need to be passed. Besides the said decision, a reference was also made by Mr. Patwalia to the decision of a Division Bench of the Punjab and Haryana High Court dated 24.12.1999 in L.P.A. No. 433 of 1997 arising out of Writ Petition No. 13929 of 1996 - Haryana State Cooperative Land Development Bank and Ors. v. Naresh Kumar and 97 Ors., It was a case where recruitment for certain posts of Field Officers, Junior Accountants, Typists, Clerks, and Land Valuation officers was made certain complaints were made that the selections had been manipulated and on the basis of such complaints, a series of steps were taken. The matter was ultimately referred to the Advocate General for his opinion who after going through the record found that no criteria was adopted by the Selection Committee for awarding the marks at the time of interview, the marks have been awarded purely on pick and choose method by the Selection Committee as it appears that neither the qualification nor experience has been taken into consideration. It was further revealed that the Selection Committee has not given marks independently and the merit list prepared by the Selection Committee indicated that only one member has awarded the mark is to the candidates. The enquiry conducted into the matter indicated illegalities and irregularities committed by the Selection Committee. The matter was referred to the Board of Directors of the concerned Bank which also found fault with the selection. The orders for terminating the services of the concerned employees were passed. They were made the subject matter of challenge in the writ petition. The defence taken by the employer was that the services were terminated because of the selection and appointment of the petitioners were tainted by several irregularities and fraud. It was further averred that the Staff Selection Committee was not empowered to make selection for the post of Manager and the Managing Director did not have authority to appoint the selectees. The learned Single Judge allowed the writ petition primarily on the ground that no opportunity of hearing was given to the petitioners whose services were terminated and since order of termination was in flagrant violation of the principles of natural justice, they were quashed. The order passed by the learned Single Judge was considered in the Letters Patent Appeal filed by the appellant Bank. The appeal was dismissed and the order of the learned Single Judge was up-held with a liberty to the Bank to initiate action in the matter relating to irregularities/illegalities, if any, committed by the selection and appointment of the particular candidate and pass appropriate orders after affording an opportunity of hearing to such candidates. Besides the aforesaid decision, emphatic reliance was placed on the recent decision of the Apex Court dated 20.12.2002 in the case of Onkar Lal Bajaj etc.v. Union of India and Ors. popularly known as Petrol pump case. The Apex Court held that roll model for goverence and decision taken thereof should manifest equity, fair play and justice. The order of cancelling the licences to run the petrol-pumps passed by the Prime Minister by one stroke of pen was set aside primarily on the ground that the principles of natural justice have been violated.
15. After taking into consideration the rival contentions of the parties and the material brought on record, we find that normally an employee who has snatched an employment by resorting to fraudulent means is not entitled to an opportunity of hearing. Where fraud is established, no contract of service comes into being an consequently a simple order of discharge would be sufficient. This is the law of the land with which there can be no quarrel. The point which has been made out in the present case is whether the applicants, have infact, perpetuated fraud by producing fake and bogus nomination letters on the basis of which they were appointed. The respondent department has not come to its own independent conclusion that the nomination letters produced by the applicants were forged and fictitious merely on the basis of the letter written by the Commission. The department itself did not hold any enquiry into the matter and has based the termination order on the letter of the Commission. As to what enquiries were made by the Commission and what was the mode of the enquiry remains hidden in the penumbral zone far away form judicial scrutiny. Admittedly, the applicants were not associated in any enquiry and were not called upon at any stage to explain their point of view by the Commission. The enquiry pertains to the examination which was conducted in the years 1988 and 1990. The applicants in their capacity of confirmed employees have served the department for the last about 9 or 10 years. Now their services are sought to be terminated by labelling them with a stigma that they have committed fraud in securing the employment in the years 1991 and 1992. In our view, it was an eminently suited case where a full dressed enquiry was required in which the active participation of the applicants should have been sought.
16 Mr. Patwalia, learned Counsel for the applicants urged that after quashing the orders of termination of the services of the applicants, the respondent department be directed to continue the departmental enquiry which was initiated against the applicants by serving the charge-sheets to which reply has already been filed by the applicants. Mr. H.C. Arora, learned Counsel for the respondents urged that the termination orders are not required to be quashed and a direction may be issued to the respondent Income-tax department to hold an enquiry into the matter after due participation of the applicants. While Mr. Patwalia placed reliance on the decision of the Apex Court in the case of B. Ramanjini and Ors. v. State of Andhra Pradesh and Ors., AIR 2002 SC 2023=2002(3) SLJ 28 (SC). Mr. H.C. Arora, made a reference to the decision of the Apex Court in the case of Canara Bank and Ors. v. Shri Debasis Das and Ors., J.T. 2003(3) SC 183= 2003(2) SLJ 345 (SC), to fortify the submission whether the termination orders need or need not be quashed.
17. After taking into consideration the decisions aforesaid and with a view to balance the right of the parties, we dispose of all the Original applications filed by the applicants with the following directions:--
"The Chief Commissioner of Income Tax, N.W. Region, Chandigarh, Shall himself held an enquiry with regard to the genuineness or otherwise of the nomination letters produced by applicants purported to have been issued by the Commission on the basis of which the applicants were appointed, after issuing notice to all the applicants, requiring them to submit, inter-alia, the following information an affidavit within the period to be specified by him:
(i) Whether they had applied for recruitment / selection / appointment to the post of LDC/UDC/Stenographer Gr. D/Inspector pursuant to the advertisement/notification made by the Staff Selection Commission, New Delhi;
(ii) Whether they had appeared for the examination conducted by the Staff Selection Commission in the year 1988-1990 and if so, their application No. / Roll Number allotted to them or the admission card issued to them and date of examination and place of centre where the examination was given by the concerned applicants;
(iii) What was their residential address given in the application form; (iv) What was their actual date of birth and the date of birth given by them in the applications submitted to the Staff Selection Commission; (v) Copy of the nomination letter delivered to them by the Commission, if any, retained by them; or (vi) Any other material information which may be relevant and germane to the enquiry in hand.
After taking into consideration the objections and the information submitted by the individual applicant and scrutinising the record available with the Staff Selection Commission, which shall be made available by the Secretary of the Commission, Respondent No. 4, appropriate speaking orders shall be passed. Needless to say, that each one of the applicants shall also be given an opportunity of hearing before passing the orders. This exercise must be concluded within a period of six months from the date of certified copy of order is produced before the Chief Commissioner of Income tax N.W. Region, Chandigarh.
18. If ultimately after the enquiry, it is established that the nomination letters produced by the applicants and received by the department directly on the basis of which the applicants were issued the appointment letters were not forged, fictitious or bogus, but were genuine documents, in that even the impugned orders of termination of the applicants shall stand set aside and the applicants shall be reinstated in service ignoring the termination orders with all consequential benefits. If the outcome of the enquiry is otherwise i.e. it is found that the nomination papers produced by the applicants were forged and fictitious, the impugned termination orders shall hold good and the O.As. filed by the applicants shall stand dismissed.