Central Administrative Tribunal - Delhi
Amit Kumar vs Comm. Of Police on 23 August, 2023
1
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 2449/2019
Reserved on: 31.07.2023
Pronounced on: 23.08.2023
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Amit Kumar, Group-C
PIS No.28181990
Constable (Ex.) in Delhi Police,
Aged about 23 years,
S/o Sh. Dharamjeet Singh,
R/o VPO Kailana, PS Gannaur,
Distt. Sonepat, Haryana.
...Applicant
(By Advocate: Ms. Esha Mazumdar)
Versus
1. Delhi Police through
Commissioner of Police,
PHQ, IP Estate,
New Delhi.
2. DCP/Principal (PTS),
Jharoda Kalan,
New Delhi.
...Respondents
(By Advocate: Mr. H. A. Khan)
2
ORDER
By Hon'ble Mr. Manish Garg, Member (J):
Learned counsel for the applicant stated as under:-
1.1 The applicant was appointed as Constable (Exe.) in Delhi Police on 07.05.2018 and was put on probation for two years. He was placed under respondent no.2 for training.
1.2 A case FIR No.8/18 dated 03.12.2018 u/s 25/54/59 Arms Act, Metro PS Azadpur, Delhi was registered against the applicant.
1.3 The respondents issued order dated 11.12.2018 (Annexure A-1) amounting to dismissal in the garb of termination under Rule 5 of CCS (Temporary Service) Rules, 1965 treating the allegations contained in FIR No.8/18 dated 03.12.2018 as true.
1.4 The services of the applicant cannot be terminated under Rule 5 of the Rules ibid since the order dated 11.12.2018 prima facie seems to be an order of termination simplicitor. On being treated to be allegedly involved in case FIR No.8/18 on the basis of enquiries made by the respondents, the applicant has been dismissed under the garb of Rule 5 of CCS (TS) Rules, 1965, which is against the rules, 3 principles of natural justice as also against the mandate of Article 311 of the Constitution of India.
1.5 Aggrieved of the inaction on part of the respondents, the applicant filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
"1. To quash and set aside the impugned Order dated 11.12.2018 and direct the respondents to reinstate the applicant into service with all consequential benefits including promotion/seniority and arrears of pay since the applicant is not able to get job despite his best efforts and is unemployed;
2. To award costs in favour of the applicant; and
3. To pass any order or orders, which this Hon'ble Tribunal may deem just & equitable in the facts & circumstances of the case."
1.6 In support of her contention, learned counsel for the applicant relied upon the following judgments: -
i) Virender vs. Govt. of NCT of Delhi & Ors.
[OA No.1879/2017 decided on 02.06.2023].
ii) Chandra Prakash Shahi vs. State of U.P. & Ors. [Civil Appeal No.2930 of 2000 decided on 25.04.2000]
2. Per contra, the respondents filed a counter affidavit opposing the claim of the applicant and stated that during the course of training, the applicant desired to appear in the written examination for the post of Sub-Inspector in Haryana Police at Faridabad 4 Centre on 02.12.2018. He was permitted vide order dated 30.11.2018 with a direction to make his departure on 01.12.2018 after evening training programme and to join back the training on 02.12.2018 upto 11.00 pm. When the applicant did not turn up on the scheduled date and time, he was marked absent vide DD No.31/PTS/JK dated 02/03.12.2018.
2.1 On 03.12.2018, ASI Krishan Kumar (No.1006/ Metro Duty Officer), Police Station, Azadpur Metro Station telephonically informed that the applicant had been apprehended in case FIR No.8/2018 dated 02.12.2018 u/s25/54/59 Arms Act. The said information was lodged at PTS/JK vide DD No.04 dated 03.12.2018.
2.2 After absenting himself for 01 day 09 hours 25 minutes, the applicant made his arrival on 04.12.2018 at 08.25 am vide DD No.3. It was revealed by him as well as Duty Officer/P.S. Azadpur Metro Station that a country made Pistol (Katta) was recovered from his bag on 02.12.2018 at about 07.20 p.m. while coming back to PTS/JK through Metro and, hence, the above case was registered against him.
52.3 DCP/Railway and Metro, Delhi supplied a report of SHO, Azadpur Metro Station in which it was mentioned that the applicant was apprehended by CISF staff deployed for duty in GTB Nagar Metro Station on having one unauthorized Desi Katta (which is quite old one) without cartridges in the Pitthu Bag which was detected by X-BIS machine. Accordingly, on the complaint of SI (Exe.) C.S. Surendran, CISF, a case FIR No.08/2018 dated 03.12.2018 u/s 25/54/59 Arms Act was registered at P.S. Azadpur Metro Station. Subsequently, he was released as per ruling in the case of Arnesh Kumar vs. State of Bihar after interrogation. 2.4 As the applicant was appointed temporarily and as per para 2 of his offer of appointment, his services were to be governed by CCS (Temporary Services) Rules, 1965 and CCS (Conduct) Rules, 1964. Hence, his case was examined by the respondents under the said rules. Keeping in view the aforesaid rules and involvement of the applicant in a criminal case, the respondents were well within their right to terminate the services of the applicant vide order date 11.12.2018 holding that he would be entitled to claim a sum equivalent to the amount of his pay 6 plus allowances for the period of notice of one month at the same rate at which he was drawing them immediately before termination of his services. 2.5 It is pertinent to mention here that involvement of the applicant in a criminal case and recovery of unauthorized Arm from his bag make him unsuitable for retention in service of Delhi Police in accordance with condition nos. (iv) & (vi) of para 11 of the offer of appointment.
2.6 In view of the above submissions, learned counsel pleaded for dismissal of the OA. In support of his arguments, he relied upon the following decisions: -
1) Shamsher Singh vs. State of Punjab & Anr.
[1974 (2) SCC 831].
2) Moti Ram Dek & Ors. vs. The General Manager, North East Frontier Railway & Ors. [1964 (5) SCR 683].
3) State of U.P. & Ors. vs. Rajendra Kumar Singh & Another [1997 (10) SCC 682].
3. The applicant filed a rejoinder opposing the contentions of the respondents and reiterated the averments made in the OA.
4. Heard Ms. Esha Mazumdar, learned counsel for the applicant and Mr. H.A. Khan, learned counsel for 7 the respondents and perused the material available on record.
5. During the course of arguments, learned counsel for the applicant contended that services of the applicant cannot be terminated applying CCS (Temporary Services) Rules, 1965 as it amounts to dismissal from service under the garb of termination.
6. On the other hand, learned counsel for the respondents vehemently argued that as the applicant had been appointed temporarily, CCS (Temporary Services) Rules, 1965 clearly provide for termination. He drew attention to Rule 5 of the said Rules, 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.
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."
86.1 Learned counsel for the respondents argued that in view of the above rule position, the respondents were well within their right to terminate the services of the applicant keeping in view his conduct. In support of his arguments, he relied upon the judgment of Hon'ble Supreme Court in Shamsher Singh vs. State of Punjab & Anr. [1974 (2) SCC 831] wherein it has been observed as under:-
"64. Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved, in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2) he can claim protection. In Gopi Kishore Prasad v. Union of India A.I.R. 1960 S.C. 689 it was said that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment. Instead of taking the easy course the Government chose the more difficult one of starting proceedings against him and branding him as a dishonest and incompetent officer.
65. The fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of punishment. (See State of Orissa v. Ramnarain Das [1961] 1 S.C.R. 606). If there is an enquiry the facts and circumstances of the case will be looked into in order to find out whether the order is one 9 of dismissal in substance, (See Madan Gopal v. State of Punjab [1963] 3 S.C.R. 716). In R. C. Lacy v. State of Bihar & Ors. (Civil Appeal No. 590 of 1962 decided on 23 October, 1963) it was held that an order of reversion passed following an enquiry into the conduct of the probationer in the circumstances of that case was in the nature of preliminary inquiry to enable the Government to decide whether disciplinary action should be taken. A probationer whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311 (2). (See R. C. Banerjee v. Union of India [1964] 2 S.C.R. 135.) A preliminary inquiry to satisfy that there was reason to dispense with the services of a temporary employee has been held not to attract Artiele 311 (See Champaklal G. Shah v. Union of India [1964] 5 S.C.R. 190). On the other hand, a statement in the order of termination that the temporary servant is undesirable has been held to import an element of punishment (See Jagdish Mitter v. Union of India A.I.R. 1964 S.C. 449).
66. If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to attract Article 311. The substance of the order and not the form would be decisive. (See K. H. Phadnis v. State of Maharashtra [1971] Supp. S.C.R. 118).
67. An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article
311. Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct. (See State of Bihar v. Shiva Bhikshik [1971] 2 S.C.R. 191).
6.2 He relied upon yet another judgment of the Hon'ble Supreme Court in Moti Ram Dek & Ors. vs. The General Manager, North East Frontier Railway & Ors. [1964 (5) SCR 683] and drew attention to para 13, which reads as under:-
"13...It is significant that the provisions contained in Art. 311 are not subject to any other provision of the Constitution. Within the field covered by them they are absolute and 10 paramount. What then is the effect of the provisions contained in Art. 311(2)? Art. 311(2) reads thus:-
"No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him."
We are not concerned with the cases covered by the proviso to this article in the present appeals. It may be taken to be settled by the decisions of this Court that since Art. 311 makes no distinction between permanent and temporary posts, its protection must be held to extend to all government servants holding permanent or temporary posts or officiating in any of them. The protection afforded by Art. 311(2) is limited to the imposition of three major penalties contemplated by the service Rules, viz., dismissal, removal or reduction in rank. It is true that the consequences of dismissal are more serious than those of removal and in that sense, there is a technical distinction between the two; but in the context, dismissal, removal and reduction in rank which are specified by Art. 311 (2) represent actions taken by way of penalty. In regard to temporary servants, or servants on probation, every case of termination of service may not amount to removal. In cases falling under these categories, the terms of contract or service rules may provide for the termination of the services on notice of a specified period, or on payment of salary for the said period, and if in exercise of the power thus conferred on the employer, the services of a temporary or probationary servant are terminated, it may not necessarily amount to removal. In every such case, courts examine the substance of the matter, and if it is shown that the termination of services is no more than discharge simpliciter effected by virtue of the contract or the relevant rules, Art. 311(2) may not be applicable to such a case. If, however, the termination of a temporary servant's services in substance represents a penalty imposed on him or punitive action taken against him, then such termination would amount to removal and Art. 311(2) would be attracted. Similar would be the position in regard to the reduction in rank of an officiating servant. This aspect of the matter has been considered by this Court in several recent decisions, vide Jagdish Mitter v. Union of India(1) State of Bihar v. Gopi Kishore' Prasad(2) State of Orissa & Anr. v. Ram Narayan Das(3) S. Sukhbans Singh v. The State of Punjab(4) and Madan Gopal v. The State of Punjab & Qrs. (5) (1) A. 1. R. 1964 S. C. 449. This branch of the law must, therefore, be taken to be well- settled." 6.3 Learned counsel also relied upon the judgment of Hon'ble Supreme Court in State of U.P. & Ors. vs. Rajendra Kumar Singh & Another [1997 (10) 11 SCC 682] and drew attention to para nos. 4 & 6 which read as under:-
"4. It is the case of the appellants that the respondent was given a temporary appointment but although he continued to remain in such temporary service for a few years, the continuance in service was not found suitable. As a matter of fact, there was a complaint from the Officer-in-Charge, P.S Kotwali Farrukhabad alleging that the respondent had been keeping company with anti-social elements and he was demanding money from them. Considering the overall performance made by the respondent it was decided that he was not a suitable person to be retained in service by making him permanent. Therefore, his temporary service was terminated on 4-11-1987. It has been contended on behalf of the appellants that since the decision of termination of service was not taken for the purpose of imposing penalty but on overall appreciation of the service records and on the basis of the objective assessment of such record, the decision to terminate temporary service was taken and the order of termination was also passed in unexceptional form without attaching any stigma, no exception can be taken against the order of termination. The Tribunal and the High Court erroneously proceeded on the footing that the order of termination was passed essentially to penalise the respondent without following the procedure for imposing major punishment in a disciplinary proceeding.
xxx xxx xxx
6. We have taken into consideration the respective contentions of the parties and we have also considered the materials on record. It appears to us that simply by completing the period of probation an employee cannot claim to be made permanent until and unless his service record is taken into consideration and a positive decision is taken by the appointing authority for making him permanent. In the instant case, it appears that the records of service of the respondent are not good and if on consideration of such adverse records, a decision to terminate the temporary service of the respondent was taken and the order was passed without attaching any stigma, we do not think that such order would be held as illegal and a punishment in disguise. Accordingly, the appeal is allowed and the impugned order of the High Court is set aside. No costs."
7. Having gone through the decisions relied upon by the learned counsel for the respondents, we find 12 that the same are distinguishable in view the facts and circumstances of the present case, hence not applicable.
7.1 We find that a co-ordinate Bench of this Tribunal, while deciding the case of Virender (supra) referred to the decision of Hon'ble High Court of Allahabad in the matter of Vijay Raj v. Union of India [Writ A. No.63968 of 2005 decided on 05.03.2020] wherein the Hon'ble High Court considered the law laid down by the Hon'ble Apex Court in a catena of decisions, including in a few Constitution Bench judgments and ruled in paras 61 and 62 as follows:-
"61. From the above discussions, the principles discernible to find out whether a simple order of termination/discharge of a temporary employee or probationer is punitive or not, broadly, may be stated as under :
(a) The termination of services of a temporary servant or probationer under the rules of his employment or in exercise of contractual right is neither per se dismissal nor removal and does not attract the provisions of Article 311 of the Constitution.
(b) An order of termination simplicitor prima facie is not a punishment and carries no evil consequences.
(c) Where termination simplicitor is challenged on the ground of casting stigma or penal in nature, the Court initially would glance the order itself to find out whether it cast any stigma and can be said to be penal or not. If it does not, no further enquiry shall be held unless there is some material to show certain circumstances, preceding or attending, shadowing the simplicitorness of the said order.13
(d) The Court is not precluded from going beyond the order to find out as to whether circumstances, preceding or attending, makes it punitive or not. If the circumstances, preceding or attending, show only the motive of the employer to terminate, it being immaterial would not vitiate the order unless it is found that order is founded on such act or omission constituting misconduct.
(e) If the order visits the public servant with evil consequences or casts aspersions against his character or integrity, it would be an order by way of punishment irrespective of whether the employee was a mere probationer or temporary.
(f) "Motive" and "foundation" are distinct, though the distinction is either very thin or overlapping.
"Motive" is the moving power, which impels action for a definite result, or to put it differently. "Motive" is that which incites or stimulates a person to do an act. "Foundation", however, is the basis, i.e., the conduct of the employee, When his acts and omissions treated to be misconduct, proved or founded, it becomes a case of foundation.
(g) If an order has a punitive flavour in cause or consequence, it is dismissal, but if it falls short of it, it would not.
(h) Where the employer is satisfied of the misconduct and the consequent desirability of termination, it is dismissal even though the order is worded innocuously. However, where there is mere suspicion of misconduct and the employer does not wish to bother about it, and, instead of going into the correctness of guilt, feel like not to keep the employee and thus terminate him, it is simpliciter termination and not punitive.
(i) Where the termination simplicitor is preceded by an enquiry, preliminary or regular, the Court would see the purpose, object of such enquiry as also the stage at which, the order of termination has been passed.
(j) Every enquiry preceding the order of termination/discharge, would not make it punitive. Where an enquiry contemplated in the rules before terminating an probationer or temporary employee is held, it would not make the order punitive.
(k) If the enquiry is to find out whether the employee is fit to be confirmed or retained in service or to continue, such an enquiry would not render termination punitive.14
(l) Where the employer hold a formal enquiry to find out the correctness of the alleged misconduct of the employee and proceed on the finding thereof, such an order would be punitive, and, cannot be passed without giving an opportunity to the concerned employee.
(m) If some formal departmental enquiry commenced but not pursued to the end. Instead a simple order of termination is passed, the motive operating in the mind of the authority would be immaterial and such an order would be non punitive
(n) When an order of termination is assailed on the ground of mala fide or arbitrariness, while defending the plea of mala fide, if the authority has referred certain facts justifying the order of discharge relating to misconduct, negligence or inefficiency of the employee in the appeal or in the affidavit filed before the Court, that would not make the order founded on any misconduct.
(o) Sometimes when some reason is mentioned in the order, that by itself would not make the order punitive or stigmatic. The following words mentioned in the order have not been held to be punitive.
i. "want of application", ii. "lack of potential", iii. "found not dependable", iv.
"under suspension", v. "work is unsatisfactory", vi. "unlikely to prove an efficient officer".
(p) Description of background facts also have not been held to be stigmatic.
(q) However, the words "undesirable to be retained in Government service", have been held stigmatic.
(r) If there is (i) a full scale formal enquiry, (ii) in the allegations involving moral turpitude or misconduct, (iii) which culminated in a finding of guilt; where all these three factors are present, the order of termination would be punitive irrespective of the form. However, if any one of three factors is missing, then it would not be punitive.
62. The aforesaid are not exhaustive, but lay down some of the principles to find out whether termination of an employee is simplicitor or punitive. Each and every case has to be considered in the light of the facts and circumstances of the case, but broadly the aforesaid are the factors to find out whether termination of an employee is punitive or not."
157.2 The co-ordinate Bench, taking reference of the aforesaid decision, observed as under:-
"9. From the aforesaid judgment it stands settled that each and every case has to be considered in the light of the facts and circumstances of case, of course, broadly keeping in view the factors as recorded in the said judgment to find out whether the termination of an employee is punitive or not? It also stands settled 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 weighed with the employer to terminate the services of the probationer.
10. From the judgment of the Hon'ble High Court of Delhi in Nina Lath Gupta (supra) it is settled that even if the order of termination of the probationer, on the face of it, appears to be innocuous and or order simpliciter, however, if the attending circumstances, more particularly the stand taken in the counter-affidavit, the conclusion was irresistible that the order was penal in nature and since the penalty was imposed without affording an opportunity to meet the charge, the order was not sustainable in the eyes of law." [Emphasis supplied].
7.3 The Hon'ble Apex Court in Chandra Prakash Shahi vs. State of U.P. & Ors. [Civil Appeal No.2930 of 2000 decided on 25.04.2000] wherein decision in Shamsher Singh (supra) relied upon by the learned counsel for the respondents has been dealt with, observed as under:-
"The important principles which are deducible on the concept of "motive" and "foundation", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an enquiry is held and it is 16 on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive". [Emphasis supplied].
7.4 It is true that services of a temporary government servant or probationer can be terminated at any time by giving him/her a month's notice without assigning any reason either in terms of the contract of service or under the relevant statutory rules regulating the terms and conditions of such service.
But, if there are allegations of misconduct and an enquiry is held even to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the said order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive".17
7.5 In the instant case, even if it is assumed that the impugned order of termination dated 11.12.2018 is an order simplicitor, however, in view of the specific stand taken by the respondents in their reply, quoted in the foregoing paragraphs, we find that the impugned order of termination is founded on the basis of an FIR and the enquiry conducted by the respondents to ascertain the truth of the allegations without affording an opportunity to the applicant to defend. Therefore, we are of the considered opinion that the impugned order of termination is punitive and stigmatic being passed without holding an enquiry and without following the principles of natural justice and the same is not sustainable in the eyes of law.
7.6 In the conspectus of the facts and circumstances brought out above, the impugned order dated 11.12.2018 is quashed and set aside. The respondents are hereby directed to reinstate the applicant in service, as expeditiously as possible, and preferably within a period of six weeks from the date of receipt of a certified copy of this order. However, the respondents shall be at liberty to initiate disciplinary inquiry and/or to take action in 18 accordance with the relevant rules, depending upon the final outcome of the case FIR 08/2018, referred to hereinabove, if they so desire.
8. The instant OA stands allowed of in the aforesaid terms.
9. No order as to costs.
(Manish Garg) (Anand Mathur) Member (J) Member (A) /na/