Central Administrative Tribunal - Kolkata
P Selva Kumar vs M/O Shipping on 22 November, 2024
1 O.A. 351/01278/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
(CIRCUIT AT PORT BLAIR)
No. O.A. 351/01278/2018 Heard on: 20.11.2024
Date of order: 22.11.2024
Present : Hon'ble Mr. Justice K. Haripal, Judicial Member
Hon'ble Mr. AnindoMajumdar, Administrative Member
Shri P. Selva Kumar,
Aged about 42 years,
S/o late P. Pethureddiar,
R/o Hutbay, Little Andaman,
Working as Watchman,
Presently posted at Andaman,
LakshdweepHarbour Works,
Hutbay,
Little Andaman - 744 207.
..... Applicant
- VERSUS-
1. The Union of India,
Through the Ministry of Shipping,
Transport Bhavan,
Government of India - 1,
Sansad Marg,
New Delhi - 110 001.
2. The Secretary Shipping,
Ministry of Shipping,
Government of India,
Office of the Chief Controller of Accounts,
IDA BuidlingJama Nagar House,
Shahjahan Road,
2 O.A. 351/01278/2018
New Delhi - 110 011.
3. The Chief Engineer & Administrator,
Andaman Lakshadweep Harbour Works,
Port Blair - 744 101.
4. The Administrative Officer,
Andaman Lakshadweep Harbour Works,
Port Blair - 744 101.
5. The Deputy Chief Engineer (Andaman),
Andaman Lakshadweep Harbour Works,
Hutbay,
Little Andaman - 744 207.
6. The Executive Engineer (Civil),
Office of the Deputy Chief Engineer - III,
Andaman Harbour Works,
Campbell Bay - 744 302.
.... Respondents
For the Applicant : Advocate Smt. Anjili Nag
For the Respondents : Advocate Shri V.D.S. Balan, Standing Counsel
ORDER
Justice K. Haripal, Judicial Member:
The applicant was appointed as Watchman in the Office of the Andaman & Nicobar Lakshadweep Harbour Works Department by Annexure A-3 Order dated 01.05.2001. He was on probation for a period of two years. The grievance of the applicant is that while continuing on probation, without conducting any inquiry or giving any notice, he was terminated from service by order at Annexure A-4 dated 20.10.2003.
3 O.A. 351/01278/2018
2. Aggrieved by the same, the applicant has approached this Tribunal seeking to quash Annexure A-4 and to reinstate him in service immediately with all back wages.
3. According to the applicant, the respondents had notified 10 vacancies of Watchman, out of which 7 were for General Category and 3 for OBCs. The applicant was 3rd in the merit list and was considered against General Category. The termination was an utter shock to him. He being a native of Tamilnadu, immediately he approached the Hon'ble High Court of Tamilnadu at Madras and obtained an order of interim stay and thus he was reinstated in service. Thereafter, in Annexure A-11 order dated 27.07.2018, the Writ Petition was dismissed and then he approached this Tribunal with the instant Original Application for quashing the termination proceedings and to grant him all benefits. According to him, action should have been initiated only following the procedures established by law, that he has been terminated without even giving any notice, which is illegal. He also filed a petition for condoning the delay.
4. The respondents have filed reply objecting the long delay in instituting the O.A. and said that the applicant is not entitled to get any relief. According to them, the applicant had claimed himself as a member of the OBC community and produced Annexure R-1 Community certificate, along with his application. In the order of appointment itself it was said that the appointment is provisional, subject to verification of the documents produced by him. The caste certificate was sent for verification and ultimately it was found that he does not belong to OBC 4 O.A. 351/01278/2018 community. Thus after obtaining leave of the Deputy Chief Engineer, he has been terminated which cannot be challenged by him and the O.A. is sure to be dismissed. Thereafter, the applicant filed a rejoinder reiterating the earlier contentions.
5. We heard the Ld. Counsel for the applicant, Smt. Anjili Nag, who very emphatically submitted that, whatever may be the status of the applicant, whether a contract employee or an un-discharged probationer, he should have been terminated only after following the procedures established by law. In support of the contention, the learned Counsel has relied on the decision reported in V.P. Ahuja v. State of Punjab [(2000) 3 SCC 239]. Regarding the contention that a probationer's service can be terminated only by following the rules prescribed, even if the date of probation was extended, the Annexure A/4 order, on the face of it is illegal and liable to be quashed and the applicant is entitled to continue in service. The learned Counsel also relied on the decision in Karnataka State Road Transport Corporation and another v. S. Manjunath [(2000) 5 SCC 250].
6. On the other hand, Shri V.D.S. Balan, learned Standing Counsel submitted that the appointment was made since he had claimed himself a member of the OBC community which was found to be false, so that Ahuja's case (quoted supra) is not applicable in the facts of the case. The appointment of the applicant was provisional, subject to verification of the caste certificate produced by him which was sent to the Virudhunagar District of Tamil Nadu State where the applicant claimed a native and the District Collector in Annexure R-3 communication dated 5 O.A. 351/01278/2018 18.08.2003 had reported that the applicant does not belong to OBC community. On that basis, the matter was taken up with the Deputy Chief Engineer and after getting sanction of the Deputy Chief Engineer he has been terminated, which is quite justifiable.
7. At the outset, we may state that even though there is huge delay in approaching the Tribunal, having regard to the fact that he had been trying his luck in a wrong forum, we do not intend to go into that aspect of the case. We will straight away consider the merits of the contentions.
8. We shall now proceed to state the sequences of events which are not in dispute. Pursuant to the Employment Notification issued by the respondents for filling up vacancies of Watchman, the applicant had applied. It is not disputed that about 10 vacancies were reported and the applicant had applied claiming himself a member of the OBC community. The order of appointment has been produced by both sides as Annexure A-3/R-2. Paragraph 2 of the Office Memorandum dated 01.05.2001 appointing the applicant as Watchman reads thus:-
"2. The appointment is provisional and is subject to the caste certificate being verified through the proper channels. If the verification reveals that the claim of the candidate belonging to OBC is false, the services of Shri P. Selva Kumar will be terminated forthwith without assigning any further reasons and without prejudice to such further action as may be taken under the provisions of IPC for production of false certificate."
It is also stated in paragraph 6 of the OM that:
"6. If any declaration given or information furnished by him proves to be false or if he is found to have willfully suppressed any material information, he will be liable to removal from service and to such other action as Govt. may deem necessary."
6 O.A. 351/01278/2018
9. The probation of the applicant was for two years which was liable to be extended at the discretion of the competent authority. During the period of probation his services were liable to be terminated without notice and without assigning any reason thereof. Thereafter it is stated that the appointment at any time can be terminated at any time by a month notice from either side. It further states:
"The Appointing Authority, however, reserves the right to terminate the services of Shri Selvakumar, forthwith or before the expiry of the stipulated period of notice by making payment to him of a sum equivalent to the pay and allowances for the period of notice of the un- expired portion thereof."
10. On these conditions, the applicant was appointed and then was posted on 21.05.2001. There also it has been reiterated that his appointment is on adhoc basis and is subject to verification of documents.
11. Thereafter, the Caste Certificate produced by him was sent to Virudhunagar District of Tamil Nadu and by R-3 communication dated 18.08.2003, the District Collector informed the Deputy Chief Engineer -III that the applicant belongs to 'Hindu ReddyGanjam"
community which is not included in the Central Government list of OBC. Therefore, the individual does not belong to OBC community. Acting on this, the applicant was terminated from 7 O.A. 351/01278/2018 service through Annexure A/4 order dated 20.10.2003 which reads thus:-
"In accordance with the terms and conditions of the offer of appointment issued vide this Office Memorandum No. DCE.III/CB/Estt.1/819 dt. 1.5.2001, and after having established that the caste claimed by him as OBC is found, false, the services of Shri Selvakumar, S/o. P. PothuReddiar, who has been appointed provisionally to the post of Watchman on adhoc basis pending verification of caste certificate of OBC, vide Office Order No. 202/2001-dated 21.3.2001, has been terminated vide immediate effect.
Sd/-
Dy. Chief Engineer - III"
This is the subject matter of dispute.
12. It has also come out that immediately after issuing Annexure A/4 order, the applicant rushed to Hon'ble High Court of Judicature at Madras and obtained an order of stay of operation of the order. That order of stay was passed in February, 2004. On the strength of the order, he was reinstated in service and posted as Watchman. Annexure A-10 order dated 05.7.2006 of Madras High Court indicated that even after two years of passing the exparte order of stay, the respondents/officials did not raise any objection nor moved for vacating the same. The order was thus made absolute. It is very disturbing to note that such an order of stay continued for over 14 years until it was vacated by the Hon'ble High Court noticing thus in Annexure A-11/R-4:-
"2. When the Writ Petition was taken up for hearing before this Court, the learned Counsel for the Petitioner was required to explain as to how the Petitioner could challenge the order of the Second Respondent before this Court as neither 'the seat of authority' of the Respondents nor any part of 'the cause of action' has arisen within the territorial limits of jurisdiction of this 8 O.A. 351/01278/2018 Court, having regard to the mandate of clauses (1) and (2) of Article 226 of the Constitution and the binding judicial decision governing that aspect."
13. In response thereto, the Counsel for the petitioner before the Hon'ble High Court sought permission of the Court to withdraw the Writ Petition with liberty to pursue appropriate remedy before the Court of competent jurisdiction and he had made an endorsement to that effect. That means, when the Hon'ble High Court noticed that the Writ Petition was filed before a wrong forum, the applicant chose to withdraw the same and thus the Writ Petition was dismissed, thereafter approached this Tribunal with the instant Original Application.
14. After evaluating the materials produced by both the parties and hearing the learned Counsel as well as the learned Standing counsel, we are of the opinion that the applicant has failed to make out a case in his favour. Firstly, as indicated earlier, the order of appointment, Annexure A-3, was issued on a provisional basis subject to incorporation of conditions. It was very much made clear that the confirmation of the appointment depended upon the verification of the Caste Certificate produced by him. This has been reiterated by the respondents, as the applicant had claimed that he is a member of OBC, it is very important to get the caste certificate verified, but ultimately when verification was done it became absolutely clear that he does not belong to OBC 9 O.A. 351/01278/2018 community and thus was usurping the seat of an eligible OBC and denying the benefit to an eligible candidate.
15. Even though the learned counsel for the applicant submitted that the order of termination is stigmatic, in such a case, he cannot be unceremoniously eased out etc., we cannot appreciate that contention. The order of termination though stated that his claim was false, having regard to circumstances it cannot be branded as stigmatic.
16. Annexure A-3/R-2 had made abundantly clear that if any declaration given or information furnished by him proved to be false or if he is found to have willfully suppressed any material/information, he will be liable to be removed. Similarly, in paragraph 2 of the OM quoted supra, it has been said that if the OBC Certificate produced by him is found false, his services will be terminated. That means, the term 'false' appearing in the document cannot attract stigma because it only reiterated the conditional order Annexure A-3/R-2 by which he was appointed in service. Therefore, in our opinion, such an order cannot be deemed stigmatic.
17. Moreover, we are of the view that the decision relied on by the learned counsel for the applicant has turned up on its own facts. We could notice authorities which are more analogous to the facts 10 O.A. 351/01278/2018 of the case. In an identical situation, in R. Viswanatha Pillai vs. State of Kerala [(2004) 2 SCC 105], the Full Bench of the Hon'ble Apex Court has considered an analogous position and held that a person who obtained appointment in service on the basis of wrong information that he belongs to Scheduled Caste community and later found to be wrong, then there is justification in removing him from service without affording any protection. In that case, the appellant i.e. Viswnathan Pillai was appointed as a Deputy Superintendent of Police in Kerala Service. Later he became Superintendent of Police and then was inducted into the Indian Police Service. He had obtained employment on production of a Scheduled Caste community certificate as if he belongs to SC community. After his induction into Indian Police Service, some complaints were raised and the appropriate authority had gone into the complaints and found that he belongs to forward Nair Community and thus his appointment was sought to be cancelled. He approached the Central Administrative Tribunal and obtained an order, that order was reversed by the Hon'ble High Court. In appeal, the Hon'ble Supreme Court confirmed the order of the Hon'ble High Court and said that such a person cannot claim the benefits of service.
18. In that case, a contention was raised before the Hon'ble Apex Court that he could not have been terminated from the service 11 O.A. 351/01278/2018 without following the procedures. The Hon'ble Supreme Court did not agree. Paragraph 13 of the judgment reads:
"We do not find any substance in the submission. The misconduct alleged against the appellant is that he rendered service against a reserved post meant for the Schedule Castes/Scheduled Tribe of a false caste certificate. While appointing the appellant as Deputy Superintendent of Police in 1977, he was considered as belonging to Scheduled Castes. This was found to be wrong and appointment to be treated as cancelled. This action has been taken not for any misconduct of the appellant during his tenure as Civil Servant but on the finding that he does not belong to Scheduled Caste as claimed by him before his appointment to the post. As to whether the certificate produced by him was genuine or not was examined in details by the KIRTADS and the Scrutiny Committee constituted under the order of this Court the appellant was given due opportunity to defend himself. The order passed by the Scrutiny Committee was upheld by the High Court and later by this Court. On closed scrutiny of facts, we find that the said cause provided under Article 311 of the Constitution that the government servant should not be dismissed or removed or reduced in rank without holding an enquiry in which he has been given an opportunity to defend himself stands complied with.........."
19. That means, since the original applicant had obtained appointment after apprising the respondents that he belonged to OBC community but ultimately it was found to be incorrect then the very order of appointment should be treated as cancelled. In other words, when the very offer of appointment is non est, there is no justification in saying that the respondents should have conducted enquiry etc.
20. In this connection, even though here no inquiry at all was conducted, it is apposite to quote paragraph 15 of the judgment of the Hon'ble Apex Court as well:
"This apart, the appellant obtained appointment in the service on the basis that he belong to a Scheduled Caste Community. When it was found by the Scrutiny Committee that he did not belong to Scheduled Caste Community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had reserved the post meant for a reserved candidate by playing a fraud and 12 O.A. 351/01278/2018 producing a false Caste Certificate. Unless, the appellant can lay a claim to the post on the basis of his appointment, he cannot claim the Constitutional guarantee given under Article 311 of the Constitution. As he had obtained appointment on the basis of a false Caste Certificate, he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has reserved the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld up to this Court, he has disqualified himself to hold the post.Appointment was void from its inception. It cannot be said that the said appointment would enable the appellant to claim that he was holding a Civil post within the meaning of Article 311 of the Constitution of India........"
21. Here it requires to be stated that the applicant has no case that the Annexure R/3 certificate of the District Collector is illegal or not binding on him. He has not challenged the vires of this document.
22. The above extracts are aptly applicable to the facts of the case. Here the applicant had got appointment on the basis of a false Caste Certificate and, therefore, such an appointment is not an appointment in the eyes of law and he cannot claim the benefits of the Guarantees under Article 311 of the Constitution of India.
23. Even otherwise, we are of the definite opinion that the appointment was obtained fraudulently. Fraud vitiates everything. It goes to the very root of the matter. It was within the exclusive knowledge of the applicant that he belongs to a community other than OBC, still he misrepresented before the respondents that he belongs to OBC, produced a certificate which was found to be false 13 O.A. 351/01278/2018 and, therefore, there is no justification in claiming any benefits on that basis. We reiterate that Annexure A-4 does not exhibit any stigmatic expression. It is only a reiteration of the conditions given in Annexure A-3.
24. Moreover, the respondents have no case that his post appointment behavior or conduct was in any manner reprehensible. Stigma can be attached only if the discharge of functions were not satisfactory. There is no such allegation, the appointment was cancelled solely because he had obtained the same on false pretexts. Such an order cannot be treated as stigmatic or punitive in nature. Annexure A-4 only follows the terms of appointment in Annexure A-3.
25. During the course of argument, learned Counsel submitted that the period of probation was two years which had completed on 01.05.2003. However, the termination was done on 28.10.2003 beyond the period of probation which is illegal since procedures were not complied with but it came out that period of probation of the applicant was not satisfactorily declared. Unless such an order is communicated or he is confirmed in the category of Watchman, for the reason that he had completed the said period of two years in probation, there is no question of automatic or deemed confirmation. Order of termination simpliciter in such a situation cannot be considered as violative of Article 14 and 16 and 311 of 14 O.A. 351/01278/2018 the Constitution (Registrar of High Court, Gujarat v. Sharma [(2005) 1 SCC132].
26. We also do not understand how the applicant could rush to the Hon'ble High Court of Madras merely for being a native of Tamilnadu and obtained an order of stay. It is pertinent to note that in all these proceedings he is shown as a resident in Andaman & Nicobar Islands. Because of the apathy and lethargy of the respondents only, he could cling to in service for more than 14 years, which is a bad reflection on the respondents. This is also the part of the mischief played by the applicant to continue in service apart from the earlier fraudulent act of producing false OBC certificate before the authority. Whatever it may be, the entire conduct of the applicant is reprehensible and in our opinion he is not entitled to get any relief.
27. To sum up, after obtaining false OBC certificate and committing fraud on the respondents, he obtained appointment and then continued in service, after realizing the falsity of the claim, when he was terminated he rushed to the Hon'ble Madras High Court which does not have jurisdiction to entertain the same, obtained an interim order and because of the lack of diligence shown by the respondents, continued on the strength of the interim order for over 14 years. When the Court pointed out the 15 O.A. 351/01278/2018 absence of jurisdiction, he withdrew from the Writ Petition and approached this Tribunal.
28. In our opinion, the termination is a termination simpliciter, it is not stigmatic. Since the very order of appointment is illegal, he does not get the statutory benefits under Article 311 of the Constitution of India.
29. We dismiss the O.A. No costs.
(Anindo Majumdar) (Justice K. Haripal) Administrative Member Judicial Member sp