Central Administrative Tribunal - Delhi
Vikas Thakran vs Govt. Of Nct Of Delhi on 19 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
1)OA No.807 of 2013
with
2)OA No. 808 of 2013
3)OA No.809of 2013
New Delhi this the 19th day of February, 2014
Honble Mr. Ashok Kumar, Member (A)
Honble Mr. Raj Vir Sharma, Member (J)
1)OA No.807 of 2013
Vikas
Fire Operator No.300/63
S/o Sh. Ram Kanwar,
R/o 1214, Sector-9,
Bahadurgarh,
Distt. Jhajjar,
Haryana-124507
2)OA No.808 of 2013
Mohan Lal
Fire P[eratpr Mp/91/63
S/o Sh. Om Praskh
R/o Vill. & P.O. Nigana
Tehsil Kalanaur, Distt. Rohtak,
Haryana-124115
3)OA No.809 of 2013
Vikas Thakran
Fire Operator No.166/63
S/o Sh. Karamveer Singh
R/o Vill. Bajitpur, P.O.Nangal
Thakran, Delhi-110039
. Applicants
VERSUS
Govt. of NCT of Delhi
Through Chief Secretary
Players Building,
I.P.Estate, New Delhi
Principal Secretary (Home)
Govt. of NCT of Delhi
Players Building,
I.P.Estate, New Delhi
Delhi Fire Service,
Throufh its Director,
Sh. A.K.Sharma,
Connaught Circus,
New Delhi-110001
..Respondents
(By Advocate: Shri S.C. Sagar for the applicants and
Mrs. Harvomder Oberoi for the respondents in all the aforesaid three OAs.
O R D E R
Ashok Kumar, Member (A) The present OAs bearing Nos.807 of 2013, 808 of 2013 and 809 of 2013 have been heard together on the request of counsel of both sides since the impugned action terminating the services of the applicants, non-disposal of their appeals and the reliefs sought are the same. We are, therefore, disposing of these three OAs by a common order. For the purposes of facts, grounds and pleading of both parties, we have relied on OA No.807of 2013 as the leading case.
2. Briefly stated, the facts of this OA are that the applicant was appointed as Fire Operator on 24.6.2008 (Annexure-L) and put on probation for a period of two years. After appointment, the respondent forwarded a letter for verification of the driving license of the applicant to the Licensing Authority, Transport Department, Agra, UP. On 21.1.2009, the concerned Licensing Authority informed that the driving license of the applicant was duly verified from the office record and was found to be true and correct and this was fortified by police verification report. The applicant was inducted for training course in the Fire Fighting on 15.03.2009 and thereafter the DGP (Agra) submitted a report on 13.08.2009 stating authenticity of 40 driving licenses. The respondent constituted Two-Member Team on 3.9.2009 to verify the driving licenses of 81 Fire Operators as there was controversial report of verification of driving licenses from the Office of Agra Transport Authority. Subsequently, on 15.11.2010, the Agra Transport Authority gave contradictory report to its earlier report dated 21.01.2009 that the driving license issued in the name of applicant is fake and that it had not been issued by that authority. A show cause notice was issued by the Respondents on 4.5.2011 as to why his services may not be terminated with immediate effect because his driving license has been found fake, and asked him to submit his reply in his defence, failing which his services shall stand terminated immediately under Rule 11 of the CCS (CCA) Rules, 1965. The applicant on 10.05.2011 made an application with regard to endorsement of his driving license made by other transport authorities in continuity. He also filed reply to show cause notice after which the respondents again issued another show cause notice on 30.8.2011 (AnnexureE) under Rule 5(1) of CCS (Temporary Service) Rules, 1965 with regard to termination of his service after expiry of a period of one month from the date of service of notice. The applicant filed OA No.3345/11 before this Tribunal. The Tribunal set aside the show cause notice dated 30.08.2011 with direction to reinstate the applicant vide its order dated 17.11.2011. The applicant was accordingly reinstated. Later on, on 4.4.2012, the respondents issued another show cause notice on the similar issue. The applicant submitted his reply and ultimately, the respondents passed impugned order dated 16.01.2013 terminating the services of the applicant on the basis of report dated 15.11.2010 on the ground that the applicants driving license was not found genuine and valid. The applicant filed statutory appeal which remains pending for disposal.
3. The following main grounds have been urged namely, that the appeal filed by the applicant has not been disposed of and that the impugned order dated 16.01.2013 suffers from vice of non-consideration of the relevant factors. The Two- Member Committee constituted by the Respondents which gave its report on 15.11.2010 never summoned the applicant to put up his defence. The finding of the Two-Member Committee was not supplied to him and he was thus unable to defend himself properly. Due procedure for holding the disciplinary proceeding has not been followed. The applicant had been appointed vide letter dated 24.06.2008 as Fire Operator according to which the probation period of two years came to an end on 26.6.2010 and, therefore, the respondents did not take any action during this period of probation. The respondents after the judgment of the Tribunal were not justified in reopening the entire issue. The report of the Agra Transport Authority dated 15.11.2010 only stated that due procedure was not adopted by the concerned Licensing Authority while issuing the 81driving licenses. There is no such evidence that the applicant had procured the driving license fraudulently. Malice has also been attributed to the respondents.
4. The applicant has sought the following reliefs:-
(i) set aside the impugned order dated 16.1.2013 passed by the respondents;
(ii) direct the Respondents to reinstate the Applicant with all consequential and terminal benefits arising out of his continuity of service till final disposal of this OA;
direct the Respondents to grant the other benefits relating to salary, draw up appropriate seniority etc. in accordance with Rules of Delhi Fire Services;
pass any order/relief/direction (s) may deem fit and proper in the interest of justice in favour of the Applicant with regard to the pending Appeal dated14.2.2013.
5. Counter reply has been filed by the respondents. The respondents have stated that according to the Memorandum of Appointment dated 24.6.2008, the probation period was to be started only after completion of six months pre- service training period. The applicants probation started only after that and it was incorrect to state that he was appointed vide letter dated 21.01.2009 as Fire Operator. He was actually appointed to the said post on 29.09.2009 vide letter dated 10.12.2009 (Annexure R-2). The second main contention is that vide the alleged letter dated 15.4.2009 (Annexure-1), the verification of the driving license of the applicant was never sent to this department by the police authority. The verification of applicants driving license was not fortified by police verification report dated 13.8.2009.Only the residential address of the applicant in Agra had been verified vide letter dated 13.8.2009 and his driving license was not verified by Agra Transport Authority. The Two-Member Committee had been deputed on 03.09.2010 in which the driving license of the applicant along with 80 other candidates was stated to be found fake. It is also stated that the original license of the applicant was never verified by the concerned Transport Authority and its subsequent endorsement by different authorities carries no meaning and could not convert a fake license into a valid one. The fact mentioned in the report dated 15.11.2010 showed that the applicants driving license was fake. As per the order dated 17.11.2011 passed in OA NO.3545/2011, a fresh show cause notice was issued enclosing all relevant copies of the documents in compliance of the Tribunals direction. Thereafter, the matter was duly considered and after receipt of the reply to the said show cause notice, order of termination under Rule 5(1) of the CCS(Temporary Service) Rules,1965 was issued on 16.01.2013. All the relevant copies have thus been provided to the applicant before issue of the termination order. There is no violation of principles of natural justice.
6. Rejoinder has also been filed on behalf of the applicant.
7. We have heard learned counsel for both the parties, Shri S.C.Sagar, learned counsel for the applicants and Mrs. Harvinder Oberoi for the respondents.
8. Learned counsel for the applicants reiterated the contentions and grounds made in the OA. He also produced judgments in support of his contention that since the applicant was confirmed, his services could not be terminated as has been done by the respondents because he has protection of Article 311 of Constitution. He has referred to the judgment in Kamal Nayan Mishra Vs. State of M.P. & Ors. (2010 II AD (SC) 52) and specific attention has been drawn to paragraphs 8, 9 and 10 of the judgment. The other judgment relied on was AIR 2001 Supreme Court 3234 (High Court of Madhya Pradesh thru. Registrar and others Vs. Satya Narayan Jhavar). Drawing specific attention to paragraphs 15-16, it was argued that it has been held by the Honble Apex Court that at the end of probation, the applicant gets automatic confirmation even if no order has been passed in that behalf.
9. Counsel for the respondents was also heard. She argued that the applicant had never been confirmed and was still on probation and termination of his service was in consonance with rules and required no interference. Giving the chronology of events, she argued that there was sufficient material on record to justify the termination of the applicant and such termination was legally sustainable because the very basis of seeking appointment was the concerned driving license which itself was found to be fake. She further argued that the post of Fire Operator is a sensitive post since it deals with the public lives and property and, therefore, no leniency could be shown when once it came on record that the applicant had no genuine and valid license. In so far as compliance of the directions of the Honble Tribunal in OA No.3545/2011 dated 17.11.2011 was concerned, the learned counsel argued that there has been full compliance and two letters dated 21.01.2009 and 15.11.2010 specifically mentioned in the order of the Tribunal have been supplied to the applicant when the second show cause notice dated 04.04.2012 was issued.
10. We have perused the pleadings and documents and have also considered the arguments made by both the counsel.
11. First of all, we have perused the orders of this Tribunal dated 17.11.2011 in OA No.3545/2011 and OA No.3546/2011. The Tribunal specifically directed that all documents referred to in show cause notice and confidential report dated 15.11.10 and letter dated 21.01.2009 should be provided to the applicant and after getting the reply from the applicants, the competent authority should pass a speaking and reasoned order. From the impugned show cause notice dated 04.04.2012 (Annexure-C), it is noticed that the confidential report dated 15.11.10 as also letter dated 21.01.2009 along with other letters were provided to the applicant for filing his reply to show cause within stipulated period. The applicant had replied to show cause and it was duly considered by the respondents as appeared from the impugned order of termination dated 16.01.2013 (Annexure-A).
12. We have also perused the Office Order dated 03.09.2010 (Annexure-J) by which two Officers were deputed to visit the office of Regional Transport Officer, Motor Vehicle Department, Transport Nagar, Agra in connection with the verification of driving license of 81 Fire Operators. This Two Member Committee gave its report on 15.11.2010, a copy of which is placed at Annexure J-I. The report states that all the 81 Driving Licenses should be treated as fake and that further action should be taken in the matter. This conclusion is based on reasons that the requisite fee had not been deposited, there was no approval of the competent authority to issue the license, the address of the license holder was incomplete because of which proper verification of the address was not possible and that the fee for issuing the license for its endorsement had not been deposited. Moreover, the findings of the Two-Member Committee were such that it could not be ignored in as much as they were based on facts detected during verification.
13. The other aspect relates to the confirmation in service being claimed by the applicant on the basis of probation period limited to two years. On record at Annexure-L, there is copy of Memorandum dated 24.6.2008 by which the applicant was offered the post of Fire Operator on specified terms and condition. Four conditions relevant for the present OA are reproduced below:-
1. The appointment of the candidate will be purely temporary for all purposes and liable be terminated at any time without assigning any reason during probation period.
2. The candidate will be appointed on probation for a period of two years as provided in the Recruitment Rules after successful completion of training. In case, your work conduct & behavior is not satisfactory, your probation is liable to be extended/terminated at any time without assigning any reason.
3. The appointment may be terminated at any time by one month Notice given by either side viz. the appointee or the Appointing Authority, without assigning any reason.
4. The appointment will be subject to clearing the physical endurance test and fulfilling the physical standards as required for the post, medical fitness and verification of the character and antecedent, Driving License from concerned Authority, Verification of educational, Technical qualification & experience certificate including caste certificate (SC/ST/OBC etc.) if any.
14. It is clear from the above that the period of probation of two years started only after successful completion of training and further in the event the work, conduct and behavior was not satisfactory, the probation could be extended or terminated at any time. It is thus apparent that the period of probation of two years could not be counted from 24.06.2008 ( i.e. the date of issue of memorandum) but only from the date of successful completion of training appointment could be terminated at any time by one month notice given by either side without assigning any reason as per the aforenoted terms and conditions of appointment. According to para 4 of the condition of appointment, the appointment was conditional subject to verification of driving license from the concerned authority. It, therefore, flows that having regard to the facts in the OA and the pleadings, the action of the respondents in terms of this Memorandum cannot be treated as having been done without authority, or being unjustified. Moreover, there being no evidence on record that the applicant had been confirmed in service or in the absence of any such provision in the appointment letter of the applicant, it would be difficult to agree with the contention of the applicant that immediately after completion of the period of probation, he stood automatically confirmed in service. The judgment of the Honble Supreme Court in Kamal Nayan Mishras case (Supra) does not accord protection to the applicant under Article 311 of the Constitution because according to paragraph 8 which is being reproduced below, he was not confirmed and therefore, a show cause notice was sufficient to take action against the applicant in the present case:
8. Ram Ratan Yadav (supra) held that the services of a probationer who gave wrong information in regard to material particulars having a bearing on his fitness or suitability for appointment, can be terminated without giving any opportunity to show cause against the proposed termination. But once a probationer is confirmed in the post, his position and status become different as he gets the protection of Article 311. If it is found that the government servant who is holder of a civil post, has given any false information during the course of employment that will have to be treated as a misconduct, and punishment can be imposed only after subjecting him to an appropriate disciplinary proceedings as per the relevant service Rules. The applicants case does not appear to be covered by the aforenoted judgment of the Honble Supreme Court.
15. We have perused 15-16 paragraph of the Satya Narayan Jhavars case (supra). Referring to the case of Kedar Nath Bahl Vs. State of Punjab (1974 (3) SCC 21, the Honble Supreme Court have laid down as follows:
15-16. In the case of Kedar Nath Bahl v. State of Punjab, (1974) 3 SCC 21, a person applied for the post and he was appointed on a post which belonged to Punjab Provincial Service Class 1 and the post was temporarily sanctioned upto February 28, 1955 and was likely to continue thereafter. The post was extended from time to time upto November 4, 1958 when the same was discontinued and on the discontinuance, the appellant was reverted to his original post. When a writ application was filed before the High Court challenging the order of reversion, the same was dismissed and dismissal was upheld by Division Bench of the High Court in appeal as well as this Court on further appeal being brought to this Court. While dismissing the appeal, this Court laid down the law thus at Page 26 (of SCC) :- (AIR 1972 SC 873: 1972 Lab IC 433) "The law on the point is now well settled. Where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if no order is passed in that behalf. Unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period, or there is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. At the end of the period of probation an order confirming the officer is required to be passed and if no such order is passed and he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer. ..........The terms of appointment do not show that the appellant would be automatically confirmed on the expiry of the first six months of probation nor is any rule brought to our notice which has the effect of confirming him in the post after six months of probation. The position of the appellant, therefore, till the abolition of the post on November 4, 1958, was that he continued to be a probationer and has no right to the post. It, therefore, follows that when the tenure of the post came to an end, he was automatically reverted to his original post as an Inspector on which he had the lien."
(Emphasis added) The above makes it abundantly clear that in the case of the applicant it could not be presumed that at the end of the specified period of probation, the applicant automatically became confirmed. In this way, the applicant cannot claim that he was entitled to due process of law for removal from service as he was still on probation and had not been confirmed.
16. The terms and conditions of appointment contained the modalities for termination of appointment. This appears to have been duly followed. A second show-cause notice was issued to him in terms of directions contained in order dated 17.11.2 011 in OA No.3545/2011. His reply was duly considered and only thereafter was the order of termination issued.
17. In view of above, we feel that the applicants have not been able to make out a case in their favour and to justify our intervention in the impugned order dated 16.01.2013 (Annexure-A). No costs.
16. For the reasons stated above, we are unable to allow these three OAs and accordingly dismiss the three OAs, namely OA No.807/2013, 808/2013 and 809/2013. There shall be no order as to costs.
17. Let a copy of this order be placed in each of the case files.
(Raj Vir Sharma) (Ashok Kumar) Member (J) Member (A) /usha/