Central Administrative Tribunal - Gauhati
Ashok Kumar Sarial vs Union Of India (Uoi) And Ors. on 9 April, 2002
Equivalent citations: 2003(2)SLJ29(CAT)
JUDGMENT
D.N. Chowdhury, Vice Chairman (J.)
1. This is an application under Section 19 of the Administrative Tribunals Act, 1985, wherein the applicant has prayed for the following reliefs:
(i) An Order setting aside and quashing the impugned order under Memo No. 22(5)/98-Per. III dated 28.11.2001 issued by the Director (P), Indian Council of Agricultural Research, New Delhi, terminating the tenure of the applicant as Officer-in-Charge, Regional Rainfed Low Land Rice Research Station, Gerua, under ICAR.
(ii) An Order setting aside and quashing the impugned Order under Memo No. 27-5/98-Per. III dated 28.11.2001 issued by the Deputy Director (P), Indian Council of Agricultural Research, New Delhi giving Acting charge of Officer-in Charge, Regional Rainfed Low Land Rice Research Station, Gerua under ICAR to Shri U.D. Singh, consequent upon termination of tenure of the applicant.
(iii) An Order setting aside and quashing the impugned Office Order under Memo No. 18-2/2001 -PR-ADM. I dated 29.11.2001 issued by the Director, Central Rice Research Institute, Cuttack relieving the applicant from the duties of Officer-in-Charge, Regional Rainfed Low Land Rice Research Station, Gerua under ICAR and entrusting the same to Shri U.D. Singh.
2. The facts relevant for the purpose of adjudication of the proceeding are summed up below:
The applicant holds the substantive post of Associate Professor (Plant Breeding) in CCS Haryana Agricultural University. The Agricultural Scientists Recruitment Board invited applications against a number of Scientific and Technical posts under different Institutes and Headquarters of the Indian Council of Agricultural Research (ICAR for short). The applicant submitted his application for the post of Office-in-Charge, Regional Rainfed Low Land Rice Research Station, Gerua under Central Rice Research Institute, Cuttack. The advertisement indicated that the posts appearing at serial Nos. 274 to 310, which also included the post of Officer-in-Charge, Regional Rainfed Low Land Rice Research Station (RRLRRS for short), Gerua under Central Rice Research Institute (CRRI for short), Cuttack would be filled up on tenurial basis for a period of five years. On the recommendation of the Agricultural Scientists Recruitment Board the President, ICAR Society, the applicant was appointed to the post of Officer-in-Charge, RRLRRS, Gerua under CRRI in the pay scale of Rs. 16400-450-20900-500-22400 on terms and conditions specified therein with effect from 10.4.2001 for a period of five years or until further orders whichever is earlier. The applicant accordingly joined in the post April 2001. While the applicant was so serving he was arrested by the police in connection with Hajo Police Station Case No. 195/2001 under Section 448/354 IPC and after he spent some time in the police custody he was released on bail. The aforementioned police case was registered on receipt of an FIR from the wife of one of the Scientists of RRLRRS, Gerua on 10.9.2001. By the impugned order dated 28.11.2001 the tenure of the applicant was determined. By another order dated 28.11.2001, the Deputy Director (P), ICAR put the Principal Scientists, RRLRRS, Gerua as the acting Officer-in-Charge of the Station till the post is filled up on regular basis or until further orders. By another order 29.11.2001 the applicant was relieved from the duties of Officer-in-Charge, RRLRRS, Gerua. The legitimacy of the aforementioned action of the respondents are thus under challenge as arbitrary and discriminatory.
3. The respondents seriously contested the claim of the applicant and submitted their written statement as well as additional written statement in support of their stand. In the written statement the respondents referred to the FIR lodged by the wife of one of the Scientists against the applicant which resulted in the registration of Hajo Police Station Case No. 195/2001. A three member fact finding Enquiry Committee was sent to the Gerua Station by the Headquarters. The Committee consisted of the Joint Director of the Institute as Chairman and two other Senior Heads oi Department as Members. The Committee after carefully considering all the materials placed before it, the evidence adduced and after interaction with all the officers, staff and their family members including the applicant, found a prima facie case against the applicant. In the written statement the respondents stated that considering all the aspects of the matter the impugned order dated 28.11.2001 was issued in exercise of powers conferred under Rule 14 of the Service Rules for ARS of ICAR. The respondents stated that the impugned decision was taken in accordance with law.
4. The controversy now revolves round the legitimacy of the order of cessation of the tenure of service of the applicant. Admittedly, the applicant was holding a tenurial post. There is no dispute that the tenure of the applicant was determined in view of the criminal case under Section 448/354 of the IPC against the applicant and also on the basis of the finding of the Enquiry Committee which found aprimafacie case against the applicant. The order dated 28.11.2001 recited his term of appointment, the factum of lodging of FIR by the spouse of another Scientist of the Research Station. The finding of the Enquiry Committee, the registration of the criminal case by the police and after recording the events the authority terminated the tenure of the applicant. The full text of the impugned order dated 28.11.2001 is reproduced below:
"Whereas Dr Ashok Sarial, Assistant Professor (Sr. Scale) (Plant Breeding) CCS HAU, Hisar was appointed to the post of Officer-in-Charge of the Regional Rainfed Low Land Rice Research Station, Gerua, Assam under the Central Rice Research Institute (CRRI), Cuttack vide office order No. 22 (5) 98-Per. III dated 8.6.2001 w.e.f. 10.04.2001 for a period of five years or until further orders whichever is earlier.
2. Whereas a complaint dated 10th September, 2001 was received from the spouse of another scientist of the Research Station that Dr. Sarial criminally trespassed and physically molested her on 9th September 2001 while her husband was on tour to Bangalore.
3. Whereas the Director, CRRI, Cuttack had also sent a fact finding inquiry committee to CRRI Station at Gerua and the Committee after careful consideration of the evidences and after interaction with all other officers and staff of the station has found that a prima facie case has been made out against Dr. Sarial.
4. Whereas an FIR has also been lodged at the Hajo Police Station bearing No. 195/01 and based on the FIR Dr. Sarial was arrested and enlarged on bail.
5. Whereas a criminal case has been registered and is under investigation by the police under Sections 448/334 of the Indian Penal Code against Dr. Sarial.
6. Whereas the said act of Dr. Sarial involving moral turpitude is highly unbecoming of an officer of the status and rank being held by Dr. Sarial under the ICAR.
7. Now, therefore, the Competent Authority after taking into consideration the fact and circumstances of this case in its totality has found that there is sufficient justification to terminate/curtail the tenure of Dr. Sarial as per provisions under Rule 14 of the ARS rules.
8. Accordingly, the tenure of Dr. Sarial is hereby terminated with immediate effect and he is repatriated back to his parent department i.e. CCS HAU, Hisar."
5. It was pleaded on behalf of the applicant that the impugned order of termination of his tenurial post is arbitrary and unlawful. It was also contended that as per the terms of the advertisement as well as the term of appointment, the tenure of service of the applicant was for five years. The adjunct 'or until further orders, whichever is earlier' is intimately associated with the period of five years. The respondents could not have terminated the tenure of five years in an arbitrary fashion. The power of determine the tenure is not of arbitrary nature. It can only be done on good and sufficient cause on conducting a fair and just enquiry in consonance with the principles of natural justice. It was submitted that the purported preliminary enquiry was conducted behind his back by recording statements in his absence.
6. Countering the submissions of the applicant, Mr. K.N. Choudhury, learned Sr. Counsel for the respondents, submitted that the applicant's tenure was like that of probation and in terms of Rule 14 of the ARS Rules his tenure was terminated and reverted to his substantive post. It was contended by the learned Sr. Counsel that, no doubt, some kind of preliminary enquiry was conducted against the applicant and following that the tenure of the applicant was determined. That would not ipso facto lead to the interference that the tenure of the applicant was cut short as a measure of punishment. Even on receipt of an adverse report or of misconduct, upon a preliminary enquiry the authority may not like to punish the officer and holding a full-fledged departmental enquiry. Instead it may dispense with the service and revert the officer to substantive post. The tenure was determined in terms of the rules and therefore, question of providing reasonable opportunity to the applicant did not arise. In support of his contention, the learned Sr. Counsel for the respondent, referred to the decisions rendered by the Supreme Court in Champaklal Chimanlal Shah v. The Union of India, AIR 1964 SC 1854 and Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and Anr., (1999) 2 SCC 212=1999(3) SLJ 100 (SC).
7. We have gone through Rules 11, 14, 16 and 21 of the Agricultural Research Service Rules, 1975 which came into force with effect from 1.10.1975. Admittedly, on survey of the fact situation, it is found that the applicant was holding a tenurial post. The advertisement mentioned that his tenure was for a period of five years. At any rate it was a tenure post, namely a permanent post which the incumbant may not hold for more than a limited period as indicated in FR-9 (30). The advertisement clearly indicated that the post of Officer-in-Charge, RRLRRS, Gerua under CRRI, Cuttack was a post on tenurial basis for a period of five years. The Memo dated 28.2.2001 mentioned the terms of appointment of the applicant. Item 1 of the terms mentioned that the appointment of the applicant to the post of Officer-in-Charge, RRLRRS, Gerua under CRRI, Cuttack was on tenure basis "for a period of five years or until further orders". It further mentioned that the appointment was on usual foreign service terms without deputation allowance. Even the conditions of service did not indicate that the applicant was appointed on probation basis. A tenurial post has its own meaning in the service jurisprudence. It means a term during which an office is held. It is a condition of holding the office - "Once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to an end on the completion of the tenure unless curtailed on justifiable ground." [Ref. Dr. L.P. Agarwal v. Union of India and Ors., (1992) 3 SCC 526=1992(3) SLJ 137 (SC)].
8. The very word 'tenure' indicates period or term of holding something. It is a right, term or mode of holding or occupying an office. A tenure post cannot be equated to a post held by a member of the service. The rule of probation is applicable to persons appointed to the Service. The applicant was on foreign service holding a substantive post in the University. He was not appointed to the service as such in the RRLRRS, Gerua. Such appointee thus cannot be equated with that of a probationer. At least the conditions of service did not indicate so. Therefore, in the set of circumstances, invoking the provisions of Rule 14 did not arise. The preliminary enquiry as mentioned in Champaklal's case (supra), to dispense with the service of a temporary servant in terms of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949 is to be read in the context of the fact situation. The termination of service of temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory by itself will not be punitive. In such cases assessment is not done with the object of finding out any misconduct on the part of the officer. Such exercise is resorted to find out whether the temporary servant or the person on probation is to be retained or continued in service. The purpose of such preliminary enquiry is not to find out misconduct on the part of the officer and such termination is possible without even giving any opportunity. In the case in hand, the report of the Enquiry Committee including its finding are the foundation of the order terminating the tenure of the applicant without providing any reasonable opportunity. The authority treated the conduct of the applicant involving moral turpitude without giving him any opportunity. The motive and foundation of termination is clearly explained in Radhey Shyam Gupta's case (supra) as was referred to by Mr K.N. Chodhury.
9. It is, no doubt, true that tenurial service can also be terminated. The authority is not to wait for completion of the full tenure in a given case. The power in inplicit, but, such power is to be exercised justly, lawfully and reasonably; it is not to be exercised arbitrarily as was held by the Supreme Court in Dr Bool Chand v. Chancellor, Kurukshetra University, AIR 1968 SC 292. It can only be exercised for good cause and only when it is found after due enquiry held in a manner consistent with the rules of natural justice that the holder of the office is unfit to continue. In the instant case, the preliminary enquiry as was relied upon by the authority was not a proper enquiry consistent with the rules of natural justice. The preliminary enquiry was just a fact finding enquiry where the applicant was not given a reasonable opportunity to contest the claim of the respondents and defend his case.
10. The duty of afford procedural fairness is where the exercise of power adversely affects individual rights. It also applies where the livelihood of a person or personal reputation is affected. We have already recited the impugned order terminating the tenure of the applicant. The impugned order itself put a stain on the reputation of the applicant. The order is stigmatic in content. The term stigma is a mark disgrace or infamy; a stain or reproach, as on one's reputation. A characteristic mark or sign of defect, degeneration. Stigmatise is a verb, which indicates a mark with stigma. It sets a mark of disgrace or infamy upon the individual (Webster's Encyclopedic Unabridged Dictionary of the English Language (New Revised Edition)). Burton in his Legal Thesaurus described it as "to be blemish, defect, disgrace, disrepute, imputation mark of disgrace. In Kamal Kishor Lakshman v. Pan American World Airways, (1987) 1 LLJ 107, the Supreme Court observed that "a stigma is something that detracts from the character or reputation of a person. It is a blemish, a disgrace, an imputation, a mark or label indicating a deviation from a norm.
11. The impugned order is, undoubtedly, stigmatic in nature. In the instant case by the impugned order, not only the tenure of the applicant was brought to an abrupt end, but, it also cast a slur or mark of disgrace on the applicant. The applicant was not treated fairly and in our view was entitled for opportunity to defend his reputation and to provide an opportunity to avoid damage to his reputation. The respondents also did not plead her relied upon any urgency or administrative necessity to justify not telling the applicant what was being complained of and providing him an opportunity to reply and rebut the charges. The object of providing natural justice is to secure justice and also to prevent miscarriage of justice.
12. There is one more facet. The applicant in the instant case at all relevant times was functioning public functions entrusted with public duty. In the absence of express requirement to the contrary it was incumbent on the respondents to discharge its duties justly, fairly and reasonably and in conformity with Article 14 of the Constitution. The duty to act fairly is more imperative in the case of any decision which not only affects the person's right or interest, but also reputation stigmatising the reputation of the individual. There is no justifiable reason for denying procedural fairness to the applicant.
13. For all the reasons stated above the impugned action of the respondents cannot be sustained. Consequently, the orders dated 28.11.2001 and 29.11.2001 are set aside and quashed.
14. The application is accordingly allowed. There shall however, be no order as to costs.