Central Administrative Tribunal - Delhi
Sh. Amar Singh Parihar vs Union Of India And Others Through on 12 July, 2011
Central Administrative Tribunal Principal Bench OA No.1657/2008 New Delhi, this the 12th day of July, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Sh. Amar Singh Parihar S/o Sh. Shripal Singh Village Trilokpur, Post Office-Sikandara, Allahabad 212109. . Applicant. (By Advocate : Shri M. K. Bhardwaj) Versus Union of India and Others through : 1. The Secretary Ministry of Labour and Employment, Sharam Shakti Bhavan, New Delhi. 2. The Director General Factory Advisory Service & Labour Institutes, C.L. I. Building, N.S. Mankinkar Road, Sion, Mumbai 400022. 3. The Director-in-Charge Regional Labour Institute Ministry of Labour & Employment Govt. of India, Lake Town, Kolkata-89. . Respondents. (By Advocate : Shri Ashish Nischal for Sh. Rajinder Nischal) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
By this Original Application, Shri Amar Singh Parihar, the Applicant herein, has challenged the order dated 30.10.2007 (Annexure A-1) whereby the Applicants services were terminated under proviso to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 and challenges the Office Memorandum dated 3.01.2007 (Annexure-A3) wherein the Applicant was directed to submit his explanation to the appointing authority on deliberate misrepresentation and suppression of certain facts from the selection body, namely, Union Public Service Commission (UPSC) and his attention was drawn to explain in terms of Para 2 and 7 of the offer of appointment made to him vide OM dated 17.07.1998.
2. The factual matrix of the case in brief would reveal that the UPSC issued an advertisement in the year 1997 calling for applications for the post of Assistant Director (Safety), Ministry of Labour and Employment. The Applicant applied for the said post. After examining the eligibility, he was permitted to appear in the selection process. The UPSC found him suitable for the said post. Accordingly, he was offered appointment for the said post, which he joined on 30.08.1998 in the Office of the Respondent No.3. While he was under probation, on 14.01.1999, the Applicant was arrested for the alleged offences committed by him under Section, 232, 292, , 420, 495, 496, 498A, 504 and 506 of IPC and Under Section 3 and 4 of the Dowry Prohibition Act and continued to be in the Jail till 8.2.1999. In this circumstance, the Applicant was placed under suspension with effect from 14.01.1999 in accordance with Rule 10(1) of CCS (CCA) Rules, 1965 vide order dated 1.04.1999 (Page-37). Being aggrieved, he submitted his representations in August, 1999 and November, 1999 to release him subsistence allowance, which was released by the Respondents. It is the case of the Applicant that his suspension was neither reviewed nor allowed to get subsistence allowance at 75%. It is stated by the Respondents that the case of the Applicant was reviewed and increase of subsistence allowance was not allowed. In the meantime, the Applicant was issued OM dated 23.08.1999 (Annexure-R5) seeking his reply to five sets of questions. He did not submit reply over a long period of time. Hence, a follow up Show Cause Notice dated 3.01.2007 (Annexure A-2) was issued to him calling on the Applicant to explain why he suppressed six sets of facts from the Selection Authority (UPSC) and Appointing Authority. It is the case of the Applicant that he requested in February, 2007 and 12.04.2007 (Annexure A-4) to supply him the copy of the documents on the facts referred to in the notice to file his proper reply. The Respondents did not accept such request as those facts were well within the knowledge of the Applicant. The Applicants averment is that instead of giving him the documents, his services were terminated vide order dated 30.10.2007 (Page 10) which the Applicant has impugned in the present OA.
3. We heard Shri M. K. Bhardwaj, learned Counsel for the Applicant who contended that the Applicants termination order is stigmatic and punitive as the same is based on allegations referred to in the letter dated 3.01.2007. Placing his reliance on the judgment of Honble Supreme Court in Dipti Prakash Banerjee Versus Satendra Nath Bose National Centre for Basic Science (1999 SCC (L&S) 596), he submits that the termination containing stigma cannot be passed without holding inquiry but by lifting the veil behind the order, the Tribunal would find the termination order as stigmatic? He further submits that the termination order is not sustainable in the eyes of law as the Applicant was not granted adequate opportunity to defend himself. He also contended that the Respondents conducted enquiry behind the Applicants back and directed him to give reply to certain allegations referred to in the OM dated 3.01.2007. The Respondents instead of giving copies of the documents relied upon, the services of the Applicant were terminated. He, therefore, submits that the termination is illegal as the same is based on misconduct for which no opportunity has been granted to the Applicant. Further, he, relying on the judgment of Honble Supreme Court in the case of Nehru Yuva Kendra Sangathan Versus Mehboob Alam Laskar [2008 IIIAD (SC) 126] would contend that the Applicants termination of temporary service was issued even without extending his probation period. He urges that the Applicant having successfully completed his one year of probation, should be construed to have been confirmed by the Respondents. As such, the Applicant was not a temporary employee of the Respondents. He, therefore, submits that the probation period having not been extended would amount to confirmation of the service on completion of the required period of probation. He relied on the judgment of Honble Apex Court in the case of Jaswant Singh Pratap Singh Jadeja versus Rajkot Municipal Corporation [2007 (12) SCALE 115]. He, therefore, submits that the impugned orders should be quashed and the Applicant should be reinstated in service.
4. Opposing the above grounds raised by the Applicant, the Respondents have submitted their reply affidavit. Shri Ashish Nischal, learned Counsel for the Respondents, would contend that the Applicant did not disclose certain information to the UPSC in his Application form. The most important information not disclosed was about the Applicants previous employment with the Nuclear Power Corporation (NPC) at Narora Atomic Power Plant during 1989 to 1997 wherefrom he was removed from service consequent to a disciplinary case. The Applicant has given particulars about his earlier employments but he deliberately concealed the above information. It is further informed that the Applicant was placed under suspension due to his arrest on 14.01.1999 in connection with a criminal case and he was detained in custody for a period exceeding 48 hours. As he was under suspension, his confirmation could not be considered by the Respondents and he automatically continued on probation. Shri Nischal informs that at the time of character and antecedent verification of the Applicant those informations could be obtained and the Respondents vide their Memo dated 23.08.1999 asked the Applicant to explain on five specific points, and no documents were required to be furnished to the Applicant as information in those points were well within his knowledge. The Applicant did not submit any reply though he was well aware of the implications. Shri Nischal would submit that the cases relied upon by the Counsel for the Applicant are not applicable in the present case as the Respondents have passed a simple order of termination under Rule 5 of the CCS (Temporary Service) Rules, 1965 and the Applicant was provided with a sum equivalent to the amount of his pay plus allowances for the period of notice at the same rates at which he was drawing before the termination. Therefore, the Respondents have complied with the provisions of the said Rules in their order dated 30.10.2007. In the above circumstances, Shri Nischal pleads that the OA is a fit case to be dismissed.
5. Having heard the rival contentions, we perused the pleadings and the judgment relied on by the Applicant. The simple issue that comes before us for our determination is : whether the termination of the Applicant vide order dated 30.10.2007 under Rule 5 of CCS (Temporary Service) Rules is legally sustainable or not?
6. At this stage, we may refer to the termination order passed by the Respondents vide order dated 30.10.2007, which reads as follows:
ORDER In pursuance of the Proviso to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, the President hereby terminates forthwith the services of Shri Amar Singh Parihar, Assistant Director (Safety) in Regional Labour Instittue (RLI), Kolkata under Directorate General of Factory Advice Service and Labour Institutes (DGFASLI) Mumbai and directs 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 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.
By order and in the name of the President.
7. As per the extant rules, an employee who is on probation would continue as such on probation until the competent authority declares the employees successful completion of probation. On our careful examination of the facts of the case, we notice that the Applicant was on probation having been appointed on 30.08.1998 and continued as such when he was placed under deemed suspension in January, 1999 due to his involvement in a criminal case. His probation has not been completed and his service has not been made permanent by the Respondents. As such, on the date of his termination, he was in the temporary service of the Respondents.
8. Further, it is noticed that the criminal case was registered in the year 1999 but the Applicants temporary service was terminated under Rule 5 of the CCS (Temporary Services) Rules in the year 2007 by an innocuous order. We find that the criminal case is not the reason for the said termination order.
9. The grounds for termination of Applicants service can be traced to the Office Memorandum dated 23.08.1999 (page 38) whereon the Applicant was directed to furnish his specific replies to five questions. The Applicant did not submit his reply. On those queries, the Respondents issued the OM dated 03.01.2007 which was in the form of a Show Cause Notice and six points raised therein are as follows :-
3. However, this Ministry came to know that Shri Amar Singh Parihar, Asstt. Director (Safety) under suspension in RLI Kolkata, in DGF ASLI, Mumbai had deliberately suppressed/misrepresented the following facts from the selection body i.e. UPSC and also from the appointing authority i.e. Ministry of Labour & Employment :-
The details of his previous employment from 9.1.89 to 27.4.97.
That his services had been terminated by the Nuclear Power Corporation vide Order No.BBA/31044-B/207 dated 27.4.97.
That Shri Amar Singh Parihar did not mention his permanent address where he lived i.e. Shri Amar Singh Parihar (Mr. A.S. Parihar) S/o Shri Sripal Singh Village Trilokpur P.O. Sikandara Distt. Allahabad (U.P.)
(iv) That he did not mention his actual marital status (i.e. he has married thrice earlier)., That he has not mentioned/informed that a criminal case is pending against him under Section 292, 293, 294, 420, 292, 495A and 496 of Indian Penal Code and Section 3 and 4 of Dowry Prohibition Act.
(vi) That he had changed his religion from Hindu to Islam
on 1.2.95.
10. On receipt of the OM, the Applicant sought copy of all documents necessary to send his reply. His request was not accepted by the competent authority, as those facts were well within his knowledge. He did not give any reply to the queries. The Respondents were, therefore, constrained to terminate his temporary service. It is found that the Applicant had been evasive right from April, 1999 and even after 7 years he did not respond to the OM of 1999. The OM dated 3.1.2007 also remained unanswered.
11. The termination order passed by the Respondents under the Proviso to sub rule (1) of Rule 5 of CCS (Temporary Service) Rules, 1965 is not based on the misconduct committed by the Applicant during his service with the Respondents. On the other hand, non disclosure of certain information at the time of submitting Application and Attestation Forms has been found to be relevant for the purpose of suitability or otherwise of the Applicants selection for the post. The informations which were called for by the Respondents relate to his pre employment details and had those been otherwise disclosed, he would have been otherwise found unsuitable for the job. Therefore, we are of the considered opinion that the contention of stigmatic nature of the termination order does not stand to reason as the termination order has been issued not on any misconduct committed by the Applicant during his service period with the Respondents. As the termination order is based on his pre-employment information not disclosed before selection, the question of lifting the veil behind the termination order does not arise.
12. The Applicant has been given two opportunities (once in 1999 and again in 2007) to submit his point of view. He did not reply. The Respondents had no other option but to terminate Applicants temporary service.
13. Though Applicant has submitted a Revision Petition to President but the CCS (Temporary Service) Rules do not have any provision of appeal or review or revision on the orders passed under Rule 5 of the said Rules. We cannot consider on the Applicants such request as the same will be de hors the Rules.
14. In view of the totality of the facts and circumstances of the case, and our above discussions, we are of the considered view that the temporary services of the Applicant has properly been terminated. Thus, the termination order dated 30.10.2007, in our considered view, is legally sustainable and procedurally maintainable.
15. Resultantly, the OA being devoid of merits is dismissed. No costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/