Central Administrative Tribunal - Lucknow
Surender Singh vs Union Of India on 1 July, 2022
CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH
Original Application No. 332/00494/2019
Order reserved on : 11.05.2022
Order pronounced on : 01.07.2022
CORAM
HON'BLE MR. DEVENDRA CHAUDHRY, MEMBER (A),
HON'BLE MR. SWARUP KUMAR MISHRA, MEMBER (J)
Surender Singh, aged about 35 years, son of Sri
Sumer Singh, R/o Village Tewari, Post Office Bajana
Khurd, District Sonipat (Haryana). Office of Social
Security Officer, (Through Joint Director I/c, Lucknow)
Sub Regional Office, Lucknow.
..Applicant
By Advocate: Shri Praveen Kumar
VERSUS
1. Union of India, through its Secretary, Ministry of
Human Resource Development, New Delhi.
2. Employees State Insurance Corporation, Panchdeep
Bhawan, C.I.G. Marg, New Delhi through its Additional
Commissioner (P&A).
3. Additional Commissioner (P&A), Employees State
Insurance Corporation, Panchdeep Bhawan, C.I.G.
Marg, New Delhi.
4. Joint Director (I/C), Employees State Insurance
Corporation, Lucknow.
..Respondents
By Advocate: Ms Prayagmati Gupta-1
Mr. Mayankar Singh- 2 to 4
Page 1 of 46
CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
ORDER
Per Hon'ble Mr. Devendra Chaudhry, Member (A) The present original application (O.A.) has been preferred against the order dated 23/07/2019 of termination of the applicant. The prayer sought is to quash the same on grounds of illegality of the order.
2. Facts of the case per Applicant are that the applicant applied for the recruitment to the post of Social Security Officer/ Manager Grade-II/ Superintendent in an advertisement in 2011. That the applicant was issued an appointment order dated 16.04.2012 and when he reported to Varanasi for joining as directed, he was intimated that his papers were being verified and after verification from the Headquarters, he would be permitted to join. That, subsequently after the said verification, the applicant‟s appointment was approved vide order dated 26.11.2012 and the applicant was permitted to join on 10.12.2012. It is the submission of the applicant that as per the appointment order, the applicant‟s probation period is of two years subject to clearance of department test and, the probation was Page 2 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. never extended by the respondents, and so, after the passing of the departmental examination, the applicant‟s confirmation is deemed. That, meanwhile, however, the applicant received a show cause notice dated 08.08.2018 intimating therein that some other person has appeared in written examination in place of applicant, on the basis of which the applicant was selected and therefore there was a case of impersonation and fraud. That this allegation was based on the reports of CFSL, Chandigarh and Central Finger Bureau, New Delhi. By the said show cause notice, the applicant was directed to file his reply as to why disciplinary action should not be taken against him. That, no documents were supplied alongwith the said show cause notice and therefore the applicant requested the authority to provide the related documents concerning the show cause notice vide letter dated 14/09/2018 (Annexure A-11). However, despite reminder of November, 2018, the documents were not given. The applicant thereafter filed a writ petition no. 13077 of 2019 against the order of show cause notice, wherein it was directed that the applicant should approach the CAT, hence the applicant has preferred original application before this Tribunal and prayed for quashing of the impugned order of 23.07.2019 passed by Page 3 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. Additional Commissioner (P &A), ESIC, New Delhi by which the services of the applicant have terminated with immediate effect from 22.08.2019.
3. Per contra, the respondents in their Counter reply have denied any illegality in the said order of termination and have denied the same on the following grounds:
(I) That, the order of appointment is strictly provisional and no confirmation of the applicant in the services in the ESIC has been made so far and so the applicant is still a probationer as per Employees State Insurance Corporation (Staff and Conditions of Service) Regulations, 1959 {„regulations‟ hereinafter};
(II) Therefore, the impugned order has been passed as per the provisions for termination of service of a probationer by a show cause with one month‟s notice;
It is further submitted that the applicant has no right to claim any permanency because, even while the applicant was offered an appointment vide order dated 16.04.2012 (Annexure R-5) advising him to report at Sub-Regional office, Varanasi, however, on 08.05.2012 at the time of reporting at Sub-Regional Office, Varanasi, the Page 4 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. Authorities at SRO, Varanasi observed that the signature made by the applicant on his joining report and in family particulars form, did not prima facie match with the signature available on the application form submitted by him for recruitment to the post of the Social Security Officer/ Manager Grade-II/ Superintendent. That as per the appointment letter as the appointment was subject to verification of documents, it is for this reason the applicant was not allowed to join forthwith on his reporting at Varanasi above. That following the suspicion the matter was inquired into by the Vigilance branch which advised joining of the applicant after taking an affidavit which would declare inasmuch that if any wrong doing was found in inquiry on the part of applicant, the services of the applicant will be terminated forthwith. That, on inquiry by the CFSL, Chandigarh, Punjab (Central Forensic Science Laboratory, Chandigarh) and CFPB New Delhi (Central Finger Print Bureau, New Delhi), with regards to signature and handwriting specimen taken from the candidate at different points of time during selection process and during the course of inquiry did not match as per report dated 11/09/2015 and report dated 12/03/2018 of the CFPB New Delhi. Therefore, accordingly the applicant has unfit to continue Page 5 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. with the employment in the ESIC as per Regulation 6(3) of the ESIC Regulations and Rule 11 of the CCS (CCA) Rules, 1965, (referred to hereinafter as CCS Rules). That therefore after due consultation with Ministry of Law and Justice, it was decided that the applicant who was not qualified eligible in terms of recruitment rules initially for initial recruitment in service or had furnished false information or produced false certificate in order to secure appointment could not be retained in service and that if he was a probationer or temporary government servant, he/she would be discharged on a service or terminated. Further, the applicant had not cleared the probation department examination at that time of issue of show cause notice viz: 08/08/2018 and so, the applicant was still a probationer and so as per the Government order no. 2 under CCS (CCA) Rules, (Annexure R-14), wherein it is laid down that there was no need for giving notice for the temporary employee, therefore taking into account that a. the show cause notice was issued vide date 08.08.2018 (Annexure CA-6) which was a date before the passing of the departmental examination in June 2019 and no formal Page 6 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. confirmation order has so far been passed with regards to the applicant;
b. therefore, having regard to the reports of CFSL, Chandigarh and CFPB, New Delhi established a case of cheating / impersonation making him ineligible for appointment, accordingly, his services were terminated with one month‟s notice vide order dated 23.07.2019 w.e.f. 22.08.2019 (Annexure CA-7).
Hence there is no illegality in the impugned order and therefore the O.A. is devoid of merits which accordingly should be dismissed forthwith.
4. The applicant has filed RA in which certain defects are highlighted with regards to the CFSL report etc., and is reiterated again that no regular inquiry has ever been held with regards to ascertaining the truth in the case of the applicant and therefore he has been wrongly terminated. That, inquiry should be conducted under Rule 14 of CCS (CCA) Rules, 1964 as the employee has become permanent and is no longer temporary as held by the respondents. That the applicant has cleared the probation department test vide order dated 18.06.2019 Page 7 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. and has completed the probation period of two years satisfactorily and no notice has been served upon him after two months after completion of the probationary period of two years. That, the applicant has worked for more than of six years without any complaint therefore he is6 deemed to be confirmed as per Rule 4 of the Employee State Insurance Corporation Notification, New Delhi. The applicant has placed reliance on certain citations of the Hon‟ble Apex Court - Jaswant Singh Pratap Singh Jadeja v. Rajkot Municipal Corporation (2007) 10 SCC 71: AIR 2008 SC 15, Parshotam Lal Dhingra vs. Union of India (1958 AIR 36: 1958 SCR
828), Sham Sher Singh & another vs. State of Punjab 1974 AIR 192: 1975 SCR (1) 814. It is further submitted that, after passing the examination in May, 2019, the applicant is entitled to be treated as permanent apart from the fact that APAR of the applicant have been recorded as very good. Accordingly, it is pleaded that the impugned order cannot stands scrutiny of law as it is passed in violation of Rule-14 of the CCS Rules, and hence it should be quashed.
5. Heard ld counsels for both the parties at length. The short question involved in this O.A. is as to whether the Page 8 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. impugned order of termination of the Applicant on the grounds of impersonation as per the reports of the CFSL Chandigarh and CFPB New Delhi, without an inquiry under Rule-14 of the CCS Rules is valid under law given the facts and circumstances of the case in particular.
6. On examination we find that the Applicant has sought Rule-14 protection on the grounds that firstly, the Applicant is deemed confirmed in the service as more than two years have lapsed since his appointment and so as per Regulation 5(4) of ESIC, he is deemed confirmed. That secondly, he has cleared the departmental exam and so liable to be confirmed in service per conditions specified in the appointment letter dated 16/04/2012. Thirdly that the termination is not termination simpliciter as the occurrence of alleged misconduct is stated in the termination order and so the order carries a stigma to it and so violative of Article 311 of the Constitution of India. The Applicant has also placed reliance on case law stated earlier in this judgement to fortify his stand. The Respondents on the other hand assert that the termination order is lawful as it is as per Regulation 6(3) and Rule-11 of the CCS Rules as applicable to a probationer because-
Page 9 of 46
CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. i. no formal order of confirmation is issued hence it cannot be deemed that the Applicant has suo motto become permanent even if Regulation 5(1) provides that in the even of lapse of more than two years appointment shall be deemed confirmed;
ii. the benefit of the clearing of the said departmental exam by the Applicant cannot be given because even before permitting the Applicant to write the departmental exam, the Applicant signed an affidavit to the effect that should some fraudulent misconduct emerge in the on- going inquiry with regards to impersonation, then the Applicant shall loose any benefit resulting from the possible qualification through the said examination. That therefore even if the Applicant has cleared the departmental exam but since fraudulent misconduct in the form of ab initio impersonation has emerged per the Inquiry through CFSL Chandigarh and CFPB New Delhi, therefore the benefit of such exam cannot be given to the Applicant and so it cannot be held that the Applicant has fulfilled the departmental exam undisputedly.
7. At the outset it is held by this Tribunal that it is not an expert body to sit in judgement over the finding of the expert bodies of CFSL Chandigarh and CFPB New Delhi Page 10 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. with regards to impersonation evidence per se concerning the Applicant. Therefore, the report shall have to be taken as given.
8. The question however will be as to how it will have its effect qua the ESIC Regulations and the CCS Rules in the context of the applicant asserting that he is confirmed as per the ESIC regulations whereas the respondents‟ contra by stating that the applicant is still a probationer. Therefore, this point of Applicant being of a status of a probationer or not needs to be settled at the outset. For this it would be useful to examine the relevant ESIC regulations and the CCS Rules for which purpose the concerned regulations and rules are extracted below:
ESIC Regulation-5(1) "....5. Probation- (1) Every person appointed to a post of direct recruitment or by departmental promotion with a view to his eventual substantive appointment to that post shall be on probation for a period of two years.
Provided that the appointing authority may, in suitable cases, extend the period of probation for not more than one year, except for special reasons, but no employee shall, in any case, be kept on probation for a total period exceeding four years in any post.
ESIC Regulation-5(4) "...(4) An employee shall be confirmed in the post on satisfactorily completion of probation if the post against which he is appointed in permanent and substantively vacant, otherwise he will be deemed to have completed the period of probation satisfactorily and will thereafter continue in a temporary capacity until he is confirmed in a permanent post...."Page 11 of 46
CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
ESIC Regulation-5(5) (5) The decision on the question whether an employee should be confirmed or whether he should be deemed to have completed the period of probation satisfactorily or whether his probation should be extended shall ordinarily be taken within a period of two months after the expiry of the period of probation and communicated to the employee together with the reasons in case of extension. An employee who does not make satisfactory progress or shows himself to be inadequate for the post in any way shall be informed of his shot-comings sufficiently before the expiry of the initial period of probation to enable him to make special efforts for improvement..."
9. It is quite clear from above that as regards the ESIC regulations:
a. Regulation-5(1) provides for a probation period of two years unless extended per the Proviso in the said regulation b. Regulation-5(4) provides for an express provision for confirmation being notified and states very clearly that if such confirmation is not forthcoming then the employee shall continue in a temporary;
c. Regulation-5(5) provides for an express decision to be taken with regards to satisfactory completion of probation and further specifies that intimation of such decision with regards to confirmation shall be made to the employee ordinarily within a period of two months after the expiry of the satisfactory completion of probation.
Now when examined under the lens of these regulations, it is evident that the applicant has completed close to Page 12 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
seven years between appointment in 2012 and termination in 2019 and so if the regulations are read plainly then the benefit of confirmation needs to be ordinarily given to the applicant.
9.1 However, what is important to be seen under the lens is that 5(1) specifies for a two year period of probation and the Proviso specifies extension of probation by not more than one year by the appointing authority for special reasons and further specifies that the extension of probation not to extend beyond four years. Nowhere does it state that there is an automatic confirmation or there is no need to issue any order for confirming an employee after whatever extensions are imposed. Further, the Regulation 5(4) specifies an express provision for confirmation - that is an affirmative statement that - "an employee shall be confirmed on satisfactory completion of probation- ".
Here also there is no provision for automatic confirmation being deemed once the period of
probation or extended probation is completed. In fact, it, on the other hand specifies continued status of temporary capacity until employee is confirmed under the conditions specified therein which interalia Page 13 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
indicates that mere satisfactory completion of probation is no guaranteed inevitability of confirmation. What is important to understand in addition is that 5(4) on one hand states deeming of completion of probation period it does not provide for deeming of confirmed status being granted to an employee who may have completed the probation satisfactorily. it does not specify deeming of that step and obliteration of confirming an employee once probation is completed even if satisfactorily. We cannot read confirmation being deemed if only probation is being deemed. It also does not follow that there is deemed confirmation once there is deemed completion of probation. Now when we examine Regulation 5(5) we find that it provides for an express decision to be taken with regards to the confirmation albeit within a period of two months with regards to confirmation or whether there is completion of probation satisfactorily. Here also there is no deemed confirmation - in fact there is specification of an express decision to be taken per the conditions laid down in the regulation therein. That is to say, that in 5(5) also we seen that while the probation would have completed satisfactorily, still, there is express need to confirm the employee - "an employee Page 14 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. shall be confirmed.." implies that there is provision for shall be confirmed - that is an order of sorts would need to issue and there is no automatic deemed confirmation. To the contrary, there is provision for continuing in temporary capacity even if probation is completed satisfactorily as per conditions contained in the regulation 5(4). Therefore, on the whole when the regulations 5(1) with its Proviso and Regulation 5(4) and 5(5) are read together in harmony, we find that there is no automatic deemed confirmation and extinguishing of any need to issue any order for confirmation of an employee at all even after completion of specified period of probation or satisfactory completion of period of probation. More so, Regulation 5(5) uses the word - 'ordinarily' - for specifying the requirement of a decision on probation extension within two months of expiry of the probation period implying thereby that there is no automatic confirmation post probation to be assumed ipso facto ab initio - that is there has to be a specific order and the period of two months is under the category of 'ordinarily' and not say 'beyond' or some such 'Lakshman Rekha' of Ramayana. What this means is that any employee has to be confirmed by a formal order in the first place.
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CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. 9.2 We would further affirm here that all these conditions of regulations 5 in toto apply with regards to completion of probation and do not deal with a fraud as alleged with regards to impersonation right at the time of appearing for the exam for recruitment itself. That is to say that they do not expressly deal with such a condition and therefore there is, in our humble opinion little occasion to even read them in the context of the facts and issues of the case at hand which are with regards to not satisfactory completion of probation but fraud at the time of recruitment itself which is under cloud of suspicion on grounds of possible impersonation since his joining in 2012. What is important to note is that his permission for appointment was given only after the applicant submitted an affidavit dated 10/12/2012 (para-22 of CA). This crucial information has been hidden by the applicant and nowhere stated in his O.A. but only plainly stated in para 4.7 that after a verification he was approved for appointment and permitted to join on 10/12/2012. The ld applicant counsel should also have taken care not to miss on stating this factum - at least while recounting the events leading upto the disputed joining of the applicant ab initio. In fact, we find a similar omission of factum by respondents who Page 16 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. in para-22 of the CA, while asserting the provisional nature of appointment of the applicant and the affidavit signed by him before being permitted to join fail to say anything on the factum of the applicant stating in his para-4.9 of O.A. that he cleared the departmental exam. For reference both para 4.9 of O.A. and para 24 of CA are reproduced below:
Para 4.9 of O.A. "That as per the appointment order, the applicant's probation period is of two years subject to clearance of departmental test. Since the probation was never extended and applicant the passing the examination in the month of May 2019 will have necessary consequences in service......(Annexure A-8) Para-24 of CA "That the contents of para 4.9 of the Original Application are denied as they are false and misconceived. In reply thereof it is submitted that as per the reports of CFSL Chandigarh and CFPB New Delhi, the petitioner -----As the applicant never fulfilled the eligibility criteria for appointment to the post as such he cannot be granted the status of a confirmed employee"
Evidently from above, at least for the sake of being factually honest, the point of examination result of 2019 should have been specifically denied or accepted in whatever manner deemed fit by the respondents. A callous general denial speaks poorly of a well-prepared CA which makes the Court do so much more filtering and efforts to arrive at a judgement and the court is therefore Page 17 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
not satisfactorily assisted at some places at least in terms of factual matters. The point is, that to have obliterated any comment on it reflects poorly on the respondents and the counsels insofar as coming clean to the court on facts by accepting or denying them qua the O.A, particularly when in para-19 of the CA it is asserted that the applicant has not approached the court with clean hands.
9.3 The point is that care needs to be taken when approaching the court not to miss on facts whatever they maybe. How they are interpreted or construed is the choice of the concerned parties. It should be known to all that in a court all is revealed - "in atrio omnia revelantur"
9.4 Going forward, relevant para -22 of the CA is reproduced below:
"..22. That the contents of para 4.7 of the original application are denied as they are false and misconceived. In reply thereto, it is submitted that in response to Memorandum dated 16.04.2012 (offer of appointment), Sh. Surender Singh reported at Sub Regional Office, Varanasi on 08.05.12, the Authorities at SRO, Varanasi observed that the signature made by Sh. Surender Singh on his joining report and in Family particulars form, prima-facie did not match with the signature available on the application form submitted by him for recruitment to the post of Social Security Officer/Manager Gr.II/ Superintendent. On this suspicion, Sh. Surender Singh was not allowed to join. The petitioner was, at a later stage, allowed to join the post of Social Security Officer/ Mangar Gr. II/ Supdt subject to submission of an Affidavit, which provided that, if any mischief is proved on his part, his services will be terminated immediately. The petitioner submitted the said affidavit dated 10.12.2012 declaring that Page 18 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
¼5½ "kiFkdrkZ ;g ?kks'k.kk djrk gS fd vxj Hkfo'; esa ;fn dksbZ u;k rF; vkrk gS ;k esjs }kjk dksbZ rF; fNik;k x;k gks rks fuxe dks ;g vf/kdkj gksxk fd og esjh lsok;s rRdky izHkko ls lekIr dj vko";d dk;Zokgh djs^.
Further, to investigate the matter, the case was referred to Central Forensic Science Laboratory (CFSL) and Central Finger Print Bureau (CFPB) for veracity of signature and thumb impression taken from the petitioner as available on other records.
The CFSL, Chandigarh vide its report letter No. CFSL- C/DOC/966/15/CX-128/2015 dated 11.09.2015 opined that the person who wrote the signatures on 01.05.2015 did not write the signatures on attendance sheet of written exam held on 03.07.2011.
The Central Finger Print Bureau (CFPB), New Delhi was requested to examine/identify the thumb impression of Sh. Surender Singh. In response, the CFPB, New Delhi vide its letter No. CFPB (105)DOC/03/2018-NCRB dated 12.03.2018 opined that questioned finger impression on attendance sheet of written examination dated 03.07.11 is different from specimen left thumb impression obtained on 17.10.2012.
The reports received from Central Forensic Science Laboratory and Central Finger Print Bureau established that Sh. Surender Singh did not appear in the written examination held on 03.07.2011 for the post of Social Security Officer/ Manager Gr.II/ Supdt. was different from the person who reported for joining at ESIC, Sub Regional Office, Varanasi.
Accordingly, an SCN dated 08.08.2018 was issued. Followed by order 23.07.2019 giving one month's notice of termination from the services of ESI Corporation w.e.f. 22.08.2019 (FN). ...." In this connection, this Tribunal is at pains to point out that the respondents and the ld respondents counsel have been so callous in their presentation that they have not bothered to enclose / append the full concerned affidavit and only one page of the same is enclosed which unfortunately does not contain the wordings stated in the para-22 of the counter. The affidavit document as filed as Annexure CA-10 is also reproduced hereinbelow for reference:
Annexure CA-10:Page 19 of 46
CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
^^le{k] Jheku la;qDr funs"kd ¼izHkkjh½ deZpkjh jkT; chek fuxe mi{ks=h; dk;kZy; okjk.klhA "kiFk i= ¼1½ eSa] lqjsUnz flag iq= lqejs flag fuoklh xzke rsokjh iksLV ctkuk [kqnZ] tuin lksuhir] gfj;k.kk] "kiFkiwoZd fuEufyf[kr ?kks'k.kk djrk gwWa% ¼2½ ;g fd "kiFkdrkZ lqjsUnz flag iq= lqejs flag fuoklh xzke rsokjh iksLV ctkuk [kqnZ] tuin lksuhir] gfj;k.kk] deZpkjh jkT; chek fuxe ds vfHkys[kksa esa tks esjs gLrk{kj gS] og "kiFkdrkZ ds gSa blesa tks =qfV gS og ekuoh; Hkwy ds dkj.k gqbZ gSA lkFk gh ;g Hkh ?kks'k.kk djuk gS fd tks Lukrd dh fMxzh esas vaxzsth esa uke dh orZuh SURENDRA SINGH ,oa izek.k i=ksa esa uke dh orZuh SURENDRA SINGH "kiFkdrkZ dh gh gSA^^
10. Quite clearly the wordings as mentioned in the para-22 of the counter are nowhere to be seen and would surely be in the next page of the affidavit hopefully which unfortunately is not attached as part of the Annexure.
This speaks volumes on the careless way they have handled presentation of crucial evidence. For this purpose, a copy of this order be sent by Registry to the Secretary Labour, Government of India by name who shall see as to how such careless handling of cases is being done. Any post thought out excuse before the Tribunal, that the pages were submitted but are not on file would be too poor an excuse for the purpose. Notwithstanding since the affidavit is filed per swearing before the Notary, we take it that the full affidavit would contain the wordings as stated in the counter para-22. We take leave of this point here with the finding that the Page 20 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. appointment of the applicant was from the initial stages itself under cloud and so the provisions of satisfactory service etc would not be applicable as stated because they pertain to satisfactory service while in service which is not the prime concern here. Therefore, while the applicant may have obtained satisfactory APARs, they are not of relevance in the extant issue of impersonation which is under surgical analysis here in the case at hand.
11. Even otherwise as stated already earlier, a close reading of the regulation 5 in toto would reveal that the satisfactory service specified is with regards to performance during the probation period and does not specify anything whatsoever with regards to ab intio possibility of a fraud-based appointment such as the one alleged to have been secured by the applicant in the case at hand per the reports of the expert bodies - CFSL Chandigarh and CFPB New Delhi as already discussed above. In the event therefore the applicant cannot straight away lay claim to the deeming provision of being confirmed and so advancing from the probationer status to that of a confirmed employee merely on the basis of the said provisions.
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12. In this context, it is relevant to highlight the observations of the Hon Delhi High Court in the matter of Alok Kumar vs Pawan Hans Ltd. And Anr. on 3 February, 2015 in a judgement authored by Hon Valmiki J. Mehta, W.P.(C) No. 5049/2014, 3rd February, 2015, in which reliance is placed on the law laid down by the Hon Apex Court in a number of cases. The Hon Delhi Court has been held as under -
"...6. To appreciate the second argument urged on behalf of the petitioner that whether the petitioner is deemed to be confirmed after the completion of the initial period of probation with further extension of one year, the relevant rules will have to be referred to, and which Rules 9.1.1, 9.1.4, 9.1.5 and 9.1.6 read as under:
"9.1.1 All employees first appointment in the service of the Company including employees appointed to a higher grade on the basis of an open selection shall be placed on probation for a period of one year during which period their performance will be watched with a view to determining their suitability for confirmation against the regular post.
xxxxx 9.1.4 The period of probation may be extended at the discretion of the Competent authority, but will not be extended by more than one year for exceptional reasons to be recorded in writing.
9.1.5 Unless exempted under these rules, every employee appointed in the Company's service will be issued a formal order of confirmation on satisfactory completion of probationary period of the extended period of probation may be applicable the employee will be deemed to be on probation until so confirmed in writing.
9.1.6 An order relating to confirmation of extension of probation will normally be communicated within one month from the date of completion or the probationary period or extended period of probation, non-compliance of this stipulation will not, however, result in automatic confirmation of the employee." (underlining added)
7. On behalf of the petitioner, reliance is placed upon Rule 9.1.4 alongwith the judgment of the Supreme Court in the case of Rajinder Singh Chauhan and Ors. Vs. State of Haryana and Ors. (2005) 13 SCC Page 22 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
179 whereas on behalf of respondent no.1 reliance is placed upon Rules 9.1.5 and 9.1.6 which require a specific order to be passed for confirmation of services of a probationary employee and that there is no automatic confirmation and the judgment of the Supreme Court in the case of Head Master, Lawrence School, Lovedale Vs. Jayanthi Raghu and Anr. (2012) 4 SCC 793.
8(i). In my opinion, the arguments urged on behalf of the petitioner do not merit acceptance because no doubt it is written that the maximum period of probation will be two years in terms of Rule 9.1.4, however the categorical language of Rules 9.1.5 and 9.1.6 leave no manner of doubt that there is no automatic confirmation of services of a probationary employee and in fact the employee is deemed to be on probation unless it is confirmed in writing that the probationary services have come to an end and the employee has been confirmed. Merely because there is no specific order passed by the respondent no.1 of exceptional reasons which have to exist in terms of Rule 9.1.4, cannot in law make any difference, because, Rule 9.1.4 does not provide the consequence that if the exceptional reasons are not recorded in writing, then, the probationary employee is deemed to be confirmed in services, and in fact on the contrary Rules 9.1.5 and 9.1.6 specifically talk of there not being an automatic confirmation in services of a probationary employee merely because of completion of the probationary term and these rules require a specific confirmation in writing of end of the period of probation and of confirmation in services. Therefore, the argument urged on behalf of the petitioner being deemed to be confirmed in services by placing reliance upon the language of Rule 9.1.4 is misconceived. [EMPHASIS ADDED]
(ii) Reliance placed on behalf of the petitioner on the judgment of the Supreme Court in the case of Rajinder Singh Chauhan and Ors.(supra) will not help the petitioner because in the facts in the said case of Rajinder Singh Chauhan and Ors. (supra) it was found that the probationary period could not exceed two years under any circumstances whereas in the present case by virtue of Rule 9.1.4 it is not as if the probationary services cannot extend beyond two years and all that is required is that there exist exceptional reasons to be record in writing. This aspect of probationary services of being of more than two years taken with the fact that there is no specific rule existing of automatic confirmation merely on account of there not being an order passed of existence of exceptional circumstances, and further in view of the specific language of Rules 9.1.5 and 9.1.6 which state that there is no automatic confirmation but there has to be a specific confirmation order in writing for confirming [EMPHASIS SUPPLIED ] the services of the petitioner, the judgment in the case of Rajinder Singh Chauhan and Ors. (supra) relied upon by the petitioner will not apply and what will actually apply is the ratio of the recent judgment of the Supreme Court in the case of Head Master, Lawrence School (supra) relied upon by the respondent no.1 and the relevant paras of which judgment read as under:- [EMPHASIS SUPPLIED] "25. It is apt to note here that the Learned Counsel for both the sides have heavily relied on the decision in High Court of M.P. v. Satya Narayan Jhavar:(2001) 7 SCC 161. In the said case, the three-Judge Page 23 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
Bench was considering the effect and impact of Rule 24 of the Madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of Services) Rules, 1955.
26. It may be mentioned that the decision rendered in Dayaram Dayal v. State of M.P.:AIR 1997 SC 3269, which was also a case under Rule 24 of the said Rules, was referred to the larger Bench. In Dayaram Dayal (supra), it had been held that if no order for confirmation was passed within the maximum period of probation, the probationer judicial officer could be deemed to have been confirmed after expiry of four years' period of probation.
xxxxx
27. After referring to the decisions in Dharam Singh:AIR 1968 SC 1210, Sukhbans Singh:AIR 1962 SC 1711 and Shamsher Singh:(1974)2 SCC 831 and other authorities, the three-Judge Bench expressed thus:
(Satya Narayan Jhavar case (supra), SCC p. 169, para 11) "11. The question of deemed confirmation in service Jurisprudence, which is upon language of the relevant service rules, has been subject matter of consideration before this Court times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. Other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry order of termination has not been passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same require a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor the person concerned has passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired."(emphasis supplied)
28. After so stating, it was further clarified as follows: (Satya Narayan Jhavar case (supra), SCC p. 187, para 37) "37. Ordinarily a deemed confirmation of a probationer arises when the letter of appointment so stipulates or the Rules governing service condition so indicate. In the absence of such term in the letter of appointment or in the relevant Rules, it can be inferred on the basis of the relevant Rules by implication, as was the case in Dharam Singh (supra). But it cannot be said that merely because a maximum period of probation has been provided in Service Rules, continuance of the probationer thereafter would ipso facto must be held to be a deemed confirmation which would certainly run contrary to Seven Judge Bench judgment of this Page 24 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. Court in the case of Shamsher Singh (supra) and Constitution Bench decisions in the cases of Sukhbans Singh (supra), G.S. Ramaswamy:AIR 1966 SC 175 and Akbar Ali Khan:AIR 1966 SC 1842."
29. Regard being had to the aforesaid principles, the present Rule has to be scanned and interpreted. The submission of Mr. Viswanathan, learned senior Counsel for the appellant, is that the case at hand comes within the third category of cases as enumerated in para 11 of Satya Narayan Jhavar (supra). That apart, it is urged, the concept of deemed confirmation, ipso facto, would not get attracted as there is neither any restriction nor any prohibition in extending the period of probation. On the contrary, the words "if confirmed" require further action to be taken by the employer in the matter of confirmation.
30. On a perusal of Rule 4.9 of the Rules, it is absolutely plain that there is no prohibition as was the rule position in Dharam Singh (supra). Similarly, in Om Prakash Maurya:1986 Supp SCC 95, there was a restriction under the Regulations to extend the period of probation. That apart, in the rules under consideration, the said cases did not stipulate that something else was required to be done by the employer and, therefore, it was held that the concept of deemed confirmation got attracted.
31. Having so observed, we are only required to analyse what the words "if confirmed" in their contextual use would convey. The Division Bench of the High Court has associated the said words with the entitlement of the age of superannuation. In our considered opinion, the interpretation placed by the High Court is unacceptable. The words have to be understood in the context they are used. Rule 4.9 has to be read as a whole to understand the purport and what the Rule conveys and means.
xxxxx xxxxx
37. Bearing in mind the aforesaid conceptual meaning, when the language employed under Rule 4.9 is scrutinised, it can safely be concluded that the entitlement to continue till the age of superannuation i.e. 55 years, is not absolute. The power and right to remove is not obliterated. The status of confirmation has to be earned and conferred.
38. Had the rule making authority intended that there would be automatic confirmation, Rule 4.9 would have been couched in a different language. That being not so, the wider interpretation cannot be placed on the Rule to infer that the probationer gets the status of a deemed confirmed employee after expiry of three years of probationary period as - that would defeat the basic purpose and intent of the Rule which clearly postulates "if confirmed". A confirmation, as is demonstrable from the language employed in the Rule, does not occur with efflux of time. As it is hedged by a condition, an affirmative or positive act is the requisite by the employer. In our considered opinion, an order of confirmation is required to be passed. Page 25 of 46
CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
39. The Division Bench has clearly flawed by associating the words "if confirmed" with the entitlement of the age of superannuation without appreciating that the use of the said words as a fundamental qualifier negatives deemed confirmation. Thus, the irresistible conclusion is that the present case would squarely fall in the last line of cases as has been enumerated in paragraph 11 of Satya Narayan Jhavar (supra) and, therefore, the principle of deemed confirmation is not attracted." (underlining added)
(iii) The facts of the present case and the relevant rules in the present case are similar to the facts and rules of the judgment in the case of Head Master, Lawrence School (supra) and therefore the ratio of the same squarely applies and it has to be held that there is no deemed or automatic confirmation of the petitioner on completion of the probation period of one year plus one year and therefore the argument of the petitioner deemed to have been confirmed in services is rejected.
13. This judgement has not been struck down or remarked upon by the Hon Apex Court at any stage per the knowledge of the Tribunal. In the event therefore it has attained finality. That being the case we see that we have a case quite similar to that examined in the citation above. The wordings of the ESIC Regulation are also similar. Therefore, we cannot convince ourselves that there is automatic confirmation without an express order to that effect by the competent authority. Thus, it can be safely concluded that the Applicant is only of a status of a probationer and so as such he would enjoy the benefits of a probationer only with respect to his rights of appointment and termination of services in the ESIC.
14. That held, we may now advert to the impugned order and examine as to its legality. For this purpose, the order is reproduced below:
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CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
Annexure No. A-1
Headquarters
Employees' State Insurance Corporation
Panchdeep Bhawan, CIG Marg, New Delhi-110002
No. A-20/11/10/2012-E.I. Dated : 23.07.2019
ORDER
Whereas, an advertisement was issued for recruitment for the post of Social Security Officer/Manager Gr.II/ Superintendent and Sh. Surender Singh applied for the post Social Security Officer/Manager Gr.II/ Superintendent in ESIC vide application form dated
15.02.2011. On the basis of the written examination held on 03.07.2011, Computer Skill test was held on 11.12.2011 and interviews conducted from 27.02.2012 to 05.03.2012, Shri Surender Singh was declared provisionally selected for the post of SSO/ Mgr Gr.II/ Supdt. The signature & thumb impression of Shri Surender Singh were obtained on the Attendance Sheet, Computer Skill Test and Admit Card during the recruitment process. Whereas, Sh. Surender Singh was issued an offer of appointment vide Memorandan No. A-33/16/1/2012-E.I. dated 16.04.2012 advising him to report at Sub Regional Office, Varanasi. However, on 08.05.12 at the time of reporting for joining at Sub Regional Office, Varanasi, the Authorities at SRO, Varanasi observed that the signature made by Sh. Surender Singh on his joining report and in Family particulars form, prima-facie did not match with the signature available on the application form submitted by him for recruitment to the post of Social Security Officer/Manager Gr.II/ Superintendent. Resultantly, Sh. Surender Singh was not allowed to join and the matter was referred to Hqrs. for further investigation. Whereas, on the basis of communication received from Vigilance Branch, Hqrs. Sh. Surender Singh was allowed to join the post of Social Security Officer/Manager Gr.II/ Supdt. after taking an affidavit that in case if any discrepancy proved on the part of him, his services would be liable to be terminated immediately. The thumb impressions and signature of Shri Surender Singh, SSO were again obtained on 17.10.2012 and on 01.05.2015 by Sub Regional Office, Varanasi.
Whereas, the specimen signatures and hand writing obtained from Shri Surender Singh at different point of time were sent to the CFSL, Chandigarh, Punjab for comparison with the signature and handwriting specimen taken from the candidate at different point of time during the selection process. The CSFL, Chandigarh, Punjab vide its opinion/Report dated 22.08.2013 requested for other documents containing the signature of Sh. Surender Singh for further examination. The documents having the signatures and thumb impression of Shri Surender Singh, taken during the selection process were forwarded to the CFSL, Chandigarh alongwith the specimen signatures and thumb impressions obtained on 17.10.12 and 01.05.2015 for verification/examination. Whereas, in response to this, the CFSL, Chandigarh vide its report letter No. CFSL-C/DOC/966/15/CX-128/2015 dated 11.09.2015 opined that the person who wrote the signatures on 01.05.2015 did not write the signatures on attendance sheet of written exam held on 03.07.2011.
Page 27 of 46
CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. Whereas, the Central Finger Print Bureau, New Delhi was requested to examine/identify the thumb impression of Sh Surender Singh. In response, the CFPB, New Delhi vide its letter No. CFPB (105)DOC/03/2018-NCRB dated 12.03.2018 opined that questioned finger impression on attendance sheet of written examination dated 03.07.11 is different from specimen left thumb impression obtained on 17.10.12.
The reports received from CFSL, Chandigarh and CFPB, New Delhi establishes that Sh. Surender Singh has not appeared in the written examination held on 03.07.2011 for the post of Social Security Officer/Manager Gr.II/ Superintendent making it a case of impersonation. In other words the person who wrote the examination for selection to the post of SSO/Manager Gr. II/ Supdt. is different from the person who reported for joining at ESIC, Sub Regional Office, Varanasi.
In view of aforesaid, Sh. Surender Singh, Social Security Officer has rendered himself unfit to continue in ESIC services as Social Security Officer/Manager Gr.II/ Superintendent. And, therefore, Sh. Surender Singh, Social Security Officer was issued a notice through his Controlling Officer. i.e. Joint Director I/c, SRO, Varanasi.
Sh. Surender Singh, in response to the notice, submitted 03 page list of documents including the reports of CFSL, CFPB, copy of noting sheet of Vigilance File, certified copies of samples, investigation reports etc. to be provided.
However, taking the reports of CFPB, New Delhi and CFSL, Chandigarh into consideration, it is an established case of impersonation.
And, therefore, in accordance to Government of India given below Rule 11 of CCS CCA Rules and as per regulation 6(iii) of ESIC (Staff and Conditions of Service), Regulation, 1959, one month's notice is being served to Sh. Surender Singh and on expiry of the notice period, he will be deemed to have been terminated from the services of ESI Corporation w.e.f. 22.08.2019 afternoon.
Sd/-
(P.B. Mani) Additional Commissioner..."
As is evident, the order states the factum of impersonation based on reports of CFSL Chandigarh and CFPB New Delhi. It also states period of one month notice being given to the Applicant and consequent to which, the termination itself becoming effective as from 22/08/2019, i.e. thirty days after issue of the order Page 28 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. dated 23/07/2019 of termination. The key question now to be answered is as to whether the termination order is lawful even if the Applicant is a probationer.
15. On this score, Hon Apex Court has laid down in the case of Union Of India & Ors vs M. Bhaskaran on 30 October, 1995, Equivalent citations: 1996 AIR 686, 1995 SCC Supl. (4) 100. Relevant portions are extracted below:
"....Therefore, even independently of Rule 3(1)(i) and (iii) of the Rules, such fraudulently obtained appointment orders could be legitimately treated as voidable at the option of the employer and could be recalled by the employer and in such cases merely because the respondent- employees have continued in service for number of years on the basic of such fraudulently obtained employment orders cannot create any equity in their favour or any estoppel against the employer.In this connection we may usefully refer to a decision of this Court in District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram & Anr. V. M. Tripura Sundari Devi (1990) 3 SCC
655. In that case Sawant, J. speaking for this Court held that when an advertisement mentions a particular qualification and an appointment is made in disrgard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. It is of course true as noted by the Tribunal that the facts of the case in the aforesaid decision were different from the facts of the present case. And it is also true that in that case pending the service which was continued pursuant to the order of the Tribunal the concerned candidate acquired the requisite qualification and hence his appointment was not disturbed by this Court. But that is neither here nor there. As laid down in the aforesaid decision if by committing fraud any employment is obtained such a fraudulent practice cannot be permitted to be countenanced by a court of law. Consequently, it must be held that the Tribunal had committed a patent error of law in directing reinstatement of the respondent- workmen with all consequential benefits. The removal orders could not have been faulted by the Tribunal as they were the result of a sharp and Page 29 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
fraudulent practice on the part of the respondents. Learned counsel for respondents, However, submitted that these illiterate respondents were employed as casual labourers years back in 1983 and subsequently they have been given temporary status and, therefore, after passage of such a long time they should not be thrown out of employment. It is difficult to agree with this contention. By mere passage of time a fraudulent practice would not get any sanctity. The appellant authorities having come to know about the fraud of the respondents in obtaining employment as casual Labourers,, started departmental proceeding years back in 1987 and these proceedings have dragged on for number of years. Earlier removal orders of the respondents were set aside by the Central Administrative Tribunal, Madras Bench and proceedings were remanded and after remand fresh removal orders were passed by the appellant which have been set aside by the Central Administrative Tribunal, Ernakulam Bench and which are the subject matter of the present proceedings. Therefore, it cannot be said that the appellants are estopped from recalling such fraudulently obtained employment orders of the respondents subject of course to following due procedure of law and in due compliance with the principles of natural justice, on which aspect there is no dispute between the parties. If any lenient view is taken on the facts of the present case in favour of the respondents then it would amount to putting premium on dishonesty and sharp practice which on the facts of the present case in favour of the respondents then it would amount to putting premium on dishonesty and sharp practice which on the facts of the present cases cannot be permitted..."
It has been further held in the matter of Avtar Singh vs Union Of India & Ors on 21 July, 2016 in a Bench comprising Hon': Ranjan Gogoi, Arun Mishra, Prafulla C. Pant, J wherein it is laid down as under:
1. The cases have been referred to for resolving the conflict of opinion in the various decisions of Division Benches of this Court as noticed by this Court in Jainendra Singh v. State of U.P. through Principal Secretary, Home & Ors. (2012) 8 SCC 748. The Court has considered the cleavage of opinion in various decisions on the question of suppression of information or submitting false information in the verification form as to the question of having been criminally prosecuted, arrested or as to pendency of a criminal case. A Division Bench of this Court has expressed the opinion on merits while referring the matter as to the various principles to be borne in mind before granting relief to an aggrieved party. Following is the relevant observation made by a Division Bench of this Court :
"29. As noted by us, all the above decisions were rendered by a Division Bench of this Court consisting of two Judges and having bestowed our serious consideration to the issue, we consider that while Page 30 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
dealing with such an issue, the Court will have to bear in mind the various cardinal principles before granting any relief to the aggrieved party, namely: 29.1. Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.
29.2. Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if finds it not desirable to appoint a person to a disciplined force can it be said to be unwarranted.
29.3. When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.
29.4. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services. 29.5. The purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have a clear bearing on the character and antecedents of the candidate in relation to his continuity in service. 29.6. The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.
29.7. The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.
29.8. An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.
29.9. An employee in the uniformed service presupposes a higher level of integrity as such a person is expected to uphold the law and on the Page 31 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
contrary such a service born in deceit and subterfuge cannot be tolerated. 29.10. The authorities entrusted with the responsibility of appointing constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of constable.
30. When we consider the above principles laid down in the majority of the decisions, the question that looms large before us is when considering such claim by the candidates who deliberately suppressed information at the time of recruitment, can there be different yardsticks applied in the matter of grant of relief.
31. Though there are very many decisions in support of the various points culled out in the above paragraphs, inasmuch as we have noted certain other decisions taking different view of coordinate Benches, we feel it appropriate to refer the abovementioned issues to a larger Bench of this Court for an authoritative pronouncement so that there will be no conflict of views and which will enable the courts to apply the law uniformly while dealing with such issues."
2. This Court while referring the matter had expressed the opinion that in case an appointment order has been secured fraudulently, the appointment is voidable at the option of the employer and the employee cannot get any equity in his favour and no estoppel is created against the employer only by the fact that the employee has continued in service for a number of years. It has been further observed that if appointment is secured on forged documents, it would amount to misrepresentation and fraud. The employer has a right to terminate the services on suppression of important information or giving false information, having regard to nature of employment. Verification of character and antecedents is important if the employer has found an incumbent to be undesirable for appointment to a disciplined force. It cannot be said to be unwarranted. The Court thus further opined that suppression of material information necessary for verification of character/antecedents will have a clear bearing on character and antecedents of a candidate in relation to his continuity in service and such a person cannot claim a right for appointment or continuity in service....
-------------------------------
25. The fraud and misrepresentation vitiates a transaction and in case employment has been obtained on the basis of forged documents, as observed in M. Bhaskaran's case (supra), it has also been observed in the reference order that if an appointment was procured fraudulently, the incumbent may be terminated without holding any inquiry, however we add a rider that in case employee is confirmed, holding a Page 32 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. civil post and has protection of Article 311(2), due inquiry has to be held before terminating the services. The case of obtaining appointment on the basis of forged documents has the effect on very eligibility of incumbent for the job in question, however, verification of antecedents is different aspect as to his fitness otherwise for the post in question. The fraudulently obtained appointment orders are voidable at the option of employer, however, question has to be determined in the light of the discussion made in this order on impact of suppression or submission of false information.
26. No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects.
27. Suppression of 'material' information presupposes that what is suppressed that 'matters' not every technical or trivial matter. The employer has to act on due consideration of rules/instructions if any in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases.
28. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by concerned authorities considering post/nature of duties/services and power has to be exercised on due consideration of various aspects.
29. The 'McCarthyism' is antithesis to constitutional goal, chance of reformation has to be afforded to young offenders in suitable cases, interplay of reformative theory cannot be ruled out in toto nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for cancelling candidature or discharging an employee from service.
30. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or Page 33 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
after entering into service must be true and there should be no suppression or false mention of required information.
While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision. [EMPHASIS SUPPLIED] In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted..."
The RA also recounts verdicts of Hon Apex Court in matter of Jaswant Pratap Singh Jadeja v/s Rajkot Muncipal Corporation (2007) 10 SCC 71 and certain other citations in para-13 of the RA. What is important is that in the present case we notice that the termination order has indeed taken notice of the information from the expert bodies qua the mis-representation / impersonation done by the applicant and so the order is lawful in its place.
However, there is a small weakness. While the order mentions the reports, it does not state in itself or in the „show cause notice‟ dated 08/08/2018 that copies of the reports were supplied to the applicant. This non-supply is hit by the principle of audi alteram partum. If it was a simple case of non-satisfactory performance then the conditions would be different. This is also evident from the observations of the Hon High Court of Delhi in the matter of Pawan Hans (supra) wherein it is held that the Page 34 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
termination order is not stigmatic insofar as it speaks of the non-satisfactory performance of the petitioner in that case. Relevant portions as under would make this point clear:
"...9. Let us now examine the argument that whether the impugned order dated 16.7.2014 is an order which is stigmatic in nature. The impugned order is preceded by the show cause notice dated 1.4.2014 which reads as under:-
"Air Cmde Alok Kumar General Manager (Ops) Pawan Hans Limited C- 14, Sector -1, NOIDA-201301 (UP) Show Cause This has reference to the letter No. Pawan Hans/CO/PERS/1499-I dated 02.08.2011 vide which you were appointed as General Manager (Ops) and you were on Probation vide Clause (B) of the said letter.
Your Probation was extended till 31.03.2014 subject to review of your performance from time to time by the Competent Authority. While assessing your performance during the above period, the Competent Authority observed and recorded that the performance of the Operation Department for which you are directly responsible has not been upto the desired level. There have been revenue losses attributable mainly due to improper rostering of Pilots, lack of your administrative control over the functioning of Operations Department.
During your tenure there has been series of disruption of flying and other act of indiscipline by the pilots as mentioned below :
-----
Besides, the financial loss to the company on account of AOG and LD thereon during the last financial year was about Rs. 4 crores to Rs.5 crores which is mainly due to the operational dislocation and inefficiency/indiscipline The above incidents are indicative of your lack of Planning Coordination and Administrative control in the Operations Department which has caused not only the indiscipline and financial loss but also brought disrepute to the Company. Thus the Competent Authority found your performance to be below the desired level.
You are therefore hereby advised to explain within a period of 15 days of receipt of this letter to the CMD as to why you services should not be terminated under Clause-B of your terms and conditions of appointment dated 02.08.2011 and Clause No. 9.1.7 of Service Rule of Pawan Hans as applicable to you, failing which it will be presumed that you have no explanation of offer action as deemed proper will be taken as per rules of the company without any further reference to you.
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11. I have had an occasion to examine the aspect of when can the termination order of services be said to be stigmatic in the judgment in the case of The Managing Committee of Shiksha Bharti Senior Secondary Public School Vs. Director of Education and Anr. in W.P.(C) No.10573/2009 decided on 3.9.2013 and the relevant paras of the said judgment read as under:-
"4. Law with respect to termination of services of a probationer is now well-settled. Termination has to be by a non-stigmatic order.
However, it has been held that stating that the performance is not satisfactory or giving of facts in the termination order will not amount to the termination order being a stigmatic one. [EMPHASIS SUPPLIED ]. Also the principles of natural justice have not to be followed before termination of services of a probationer. If an enquiry is held and the enquiry report forms the foundation of termination of services of a probationer, only then, principles of natural justice are required to be followed, however, where the enquiry against a probationer is only for determining employee's suitability for continuing in service and the enquiry report only forms the motive for removal (as differentiated from a foundation for removal) then, a detailed enquiry in terms of the service rules is not necessary. In the recent judgment in the case of Muir Mills Unit of NTC (U.P.) Ltd. Vs. Swayam Prakash Srivastava & Anr. (2007) 1 SCC 491 Supreme Court has observed that even if the termination order states that services of a probationer has been terminated on account of the work being not satisfactory, the order cannot be said to be stigmatic. It is also held in this judgment that the principles of natural justice need not be followed for termination of services of the probationer. Paras 44 to 46 of the said judgment are relevant and the same read as under:-
"44. Also in the case of Registrar, High Court of Gujarat and Anr. v. C.G. Sharma it was observed that an employee who is on probation can be terminated from services due to unsatisfactory work.
45. This Court's decision in the case of P.N. Verma v. Sanjay Gandhi PGI of Medical Sciences can be referred to in this context, where it was held by this Court that, the services of a probationer can be terminated at any time before confirmation, provided that such termination is not stigmatic. This Court in State of Madhya Pradesh v. Virendera Kumar Chourasiya also has held that in the event of a non-stigmatic termination of the services of a probationer, principles of audi alteram partem are not applicable.
46 We are also of the view that the award of the Labour Court is perverse as it had directed grant of back wages without giving any finding on the gainful employment of respondent No.1 and held that the discontinuance of the services of a probationer was illegal without giving any finding to the effect that the disengagement of respondent No.1 was in any manner stigmatic. The decision in the case of MP State Electricity Board v. Jarina Bee (Smt) (supra), this Court held that payment of full back wages was not the natural consequence of setting aside an order of removal. In the instant case, though the termination was as far back as in 1983, the Industrial Adjudicator has not given any finding on unemployment. This Court in a recent case of State of Page 36 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
Punjab v. Bhagwan Singh (2002)9SCC636 has held that even if the termination order of the probationer refers to the performance being "not satisfactory", such an order cannot be said to be stigmatic and the termination would be valid."
5. The Supreme Court in the judgment in the case of State of W.B. and Others Vs. Tapas Roy (2006) 6 SCC 453 has held that where the discharge order mentions other instances of unauthorized absence of the probationer and concluding that he was not interested in training and had no respect for discipline, then making of such remarks in the termination order cannot be said to make the termination order a stigmatic one. Paras 4,5 7 and 8 of the judgment in the case of Tapas Roy (supra) read as under:-
"4. The High Court allowed the writ petition holding that Rule 10 of the Rules did not apply in the facts of the case. It was also of the view that the statement, quoted below; in the order of discharge casts a stigma on the respondent. Since no opportunity of hearing had been granted to the respondent, therefore, the order could not be sustained. The decision of the Tribunal was, accordingly, set aside and the appellants were given liberty to take appropriate action against the respondent on the same grounds in accordance with law.
5. The particular passage from the order of discharge which the High Court found to be stigmatic reads as follows:
"I am convinced that he is not likely to make an efficient constable and is unsuitable for the Police Department. His frequent unauthorised absence from training centre also indicates his lack of interest in training and his scant respect for discipline."
7. The order of discharge has, as we have already indicated, set out several instances of the respondent absenting himself unauthorisedly from the training centre. These facts have been relied upon for the purpose of concluding that the respondent was not interested in the training and had no respect for discipline. This conclusion was a ground for holding that the respondent was unsuitable for the Police Department.
8. The High Court was of the view that Rule 10 of the Rules did not apply to orders which were stigmatic. As has already been held by this Court in Pavanendra Narayan Verma v. Sanjay Gandhi Post Graduate Institute Medical Sciences 2002(92)FLR349(SC) that in order to constitute a stigmatic order necessitating a formal inquiry, it would have to be seen whether prior to the passing of the order, there was an inquiry into the allegations involving moral turpitude or misconduct so that the order of discharge was really a finding of guilt. If any of these three factors are absent, the order would not be punitive. We have also held that a stigma in the wider sense of the word is implicit in every order of termination during probation. It is only when there is something more than imputing unsuitability for the post in question, that the order may be considered to be stigmatic. In our view, the language quoted earlier in the discharge order, cannot be said to be stigmatic as it neither alleges any moral turpitude or misconduct on the part of the respondent nor was there an inquiry as such preceding the Page 37 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. order of discharge. The order has been passed strictly in terms of Rule 10 of the Rules. We are, accordingly, of the view that the appeal must be allowed. It is, accordingly, allowed and the impugned order is set aside."
(emphasis added)
6. Also, the Supreme Court in the judgment reported as Chaitanya Prakash and Anr. Vs. H. Omkarappa (2010) 2 SCC 623 has again held that there is no need for following the principles of natural justice while terminating the services of a probationer and even if the termination order refers to the unsatisfactory services of the probationer, the order is not stigmatic. Paras 18 and 21 of this judgment read as under:-
"18. It is no longer res integra that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. In this connection, we make a reference to the decision of the decision of the Supreme Court in Abhijit Gupta v. S.N.B. National Centre, Basic Sciences (supra), wherein also a similar letter was issued to the concerned employee intimating him that his performance was unsatisfactory and, therefore, he is not suitable for confirmation. We have considered the ratio in light of the facts of the said case and we are of the considered opinion that the basic facts of the said case are almost similar to the one in hand. There also, letters were issued to the concerned employee to improve his performance in the areas of his duties and that despite such communications the service was found to be unsatisfactory. In the result, a letter was issued to him pointing out that his service was found to be unsatisfactory and that he was not suitable for confirmation, and, therefore, his probation period was not extended and his service was terminated, which was challenged on the ground that the same was stigmatic for alleged misconduct. The Supreme Court negatived the said contention and upheld the order of termination.
21. In Abhijit Gupta (Supra.), this Court considered as to what will be the real test to be applied in a situation where an employee is removed by an innocuous order of termination i.e whether he is discharged as unsuitable or he is punished for his misconduct. In order to answer the said question, the Court relied and referred to the decision of this Court in Allahabad Bank Officers Assn. v. Allahabad Bank (1996) 4 SCC 504; where it is stated thus:
"14. ...As pointed out in this judgment, expressions like "want of application", "lack of potential" and "found not dependable" when made in relation to the work of the employee would not be sufficient to attract the charge that they are stigmatic and intended to dismiss the employee from service."
7. In the case of Rajesh Kumar Srivastava Vs. State of Jharkhand and Ors. (2011) 4 SCC 447 Supreme Court has held that while taking a decision to terminate the services of the probationer, no notice is required to be given to the probationer nor is the probationer required Page 38 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. to be given any opportunity of hearing. Para 10 of the said judgment reads as under:-
"10. The aforesaid decision to release him from service was taken by the Respondents considering his overall performance, conduct and suitability for the job. While taking a decision in this regard neither any notice is required to be given to the Appellant nor he is required to be given any opportunity of hearing. Strictly speaking, it is not a case of removal as sought to be made out by the Appellant, but was a case of simple discharge from service. It is, therefore, only a termination simpliciter and not removal from service on the grounds of indiscipline or misconduct. While adjudging his performance, conduct and overall suitability, his performance record as also the report from the higher authorities were called for and they were looked into before any decision was taken as to whether the officer concerned should be continued in service or not."
8. In the case of Abhijit Gupta Vs. S.N.B.National Centre, Basic Sciences & Ors. (2006) 4 SCC 469 Supreme Court has held that even when a termination order of a probationer referred to earlier letters which called the probationer a person of "perverted mind" and "dishonest, duffer having no capacity to learn" yet, the order would not be stigmatic one, and merely that if such an order was read by a prospective employer would prejudice the probationer's future employment, the same is not a correct test to determine the termination order as stigmatic. Paras 4,5,8,10,13, 15,16 and 17 are relevant which read as under:-
"4. On 20th November 1995 the appellant was served with a letter informing him that his performance during the probationary period was "far from satisfactory" and that it had been observed that he lacked drive, imagination and initiative 'in the performance of his duties'. He was informed that, despite being told time and again to improve performance in the said areas, but with no effect. He was advised to improve "in order to enable us to consider your case for confirmation favourably". He was issued several such letters drawing his attention to the fact that his services left much to be desired. His probationary service came to be extended from time to time, the last such extension being granted till 9 th April 1998. Finally, by the letter dated 7.4.1998 the petitioner was informed that his service was "unsatisfactory in the areas of drive, initiative, promptness and leadership" and that despite advised verbally and through letter, what were deficiencies in his work he had shown no improvement. His attendance, office work and attention to the academic work and the affairs of the guest house were also unsatisfactory. The first respondent, therefore, said "your performance, ability and capability during the period of probation has been examined and your service during the period of probation is found to be unsatisfactory and hence you are considered unsuitable for the post you have to. The governing body is of the view that your performance was unsatisfactory and you are not suitable for confirmation". For these reasons the appellant's probationary period was not extended on the expiration of his probation period on 9th April 1999.Page 39 of 46
CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
5. The appellant challenged the order of termination of his service on the ground that it was a stigmatic termination by way of punishment for alleged misconducts. The learned single Judge of the High Court allowed the writ petition and quashed the order of termination and directed re-instatement of the appellant with full back- wages. The Division Bench of the High Court, however, allowed the letters patent appeal and held that the letter dated 7th April 1998 was not stigmatic and that it was a legitimate exercise of assessment of probationer's service by the employer, and, therefore, there was no scope for judicial interference therewith. In this view of the matter, the Division Bench allowed the appeal, set aside the judgment of the learned single Judge and dismissed the writ petition. Hence, this appeal.
8. Heavy reliance was placed on Dipti Prakash Banerjee v. Satyendra Nath Bose National center for Basic Sciences, Calcutta and Ors. [1999]1SCR532 ,where this Court held that the termination of service of the employee in similar circumstances amounted to misconduct. We may mention here that it is common ground that while the matter was pending before the learned single Judge, sometime in the year 2005, the appellant attained the age of superannuation. The learned Counsel for the appellant contended that in the letter dated 7.4.1998 there is reference to certain earlier letters in which the appellant had been called a person of "perverted mind" and "dishonest, duffer having no capacity to learn". A reading of all the letters referred to in the letter of 7.4.1998 would clearly make out a case of allegations of misconduct against the appellant, in the submission of the learned Counsel.
10. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr. (2002)ILLJ690SC this Court considered what should be the best to determine whether a letter of termination of service was termination simpliciter or stigmatic termination. After referring to a number of authorities including the judgment in Parshotam Lal Dhingra v. Union of India (1958)ILLJ544SC and Dipti Prakash Banerjee (supra) the Court observed (vide para 19):
"Courts continue to struggle with semantically indistinguishable concepts like motive" and "foundation"; and terminations founded on a probationer's misconduct have been held to be illegal while terminations motivated by the probationer's misconduct have been upheld. The decisions are legion and it is an impossible task to find a clear path through the jungle of precedents."
13. In the case of the appellant before us, the record in uncertain terms makes it clear that every time the appellants attention was drawn to his deficiencies and he was repeatedly advised to improve his behavior, conduct and discharge of work. True, that in some of the letters there was intemperate language used (the appellant was also equally guilty of doing that). Notwithstanding the intemperate language, we are unable to accept the contention of the appellant's counsel that the letter dated 7.4.1998 indicates that the appellant was being charged with the misconduct and, therefore, being removed from service. Read as a whole, the letter gives the impression that the removal of the appellant from service was only because the respondents, after giving a long rope Page 40 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. to the appellant, had come to the conclusion that the appellant's service was unsatisfactory and there was no hope of his improvement.
15. The learned Counsel for the appellant, however, strongly contends that the "stigma" cast on the employee may not be confined to his personal character but may also affect his capacity to work. The test, learned Counsel for the appellant submitted, is that, if what is stated in the order of termination is read by a future employer, it prejudices the future employment of the employee. In the face of the law laid down in the judgment just referred, we are unable to accept this as the correct test.
16. In Ravindra Kumar Misra v. U.P. State Handloom Corporation Ltd. and Anr.(1988)ILLJ73SC this Court pointed out that in a large corporation administration is bound to be impersonal and in regard to public officers assessment of service has got to be in writing for purposes of record, though it cannot be assumed that such an assessment recorded and the order of termination made with reference to that record would automatically take a punitive character.
17. The High Court has carefully considered all the circumstances placed before it and arrived at the conclusion that the respondent's work was under observation during the probationary period and that he was given repeated opportunities to improve his performance for which purpose his probation was extended from time to time. The fact that the authority did not find him fit for confirmation was also brought to his notice several times and yet he was given opportunities of improving by extending his probationary service. The High Court has correctly found that the letter dated 7.4.1998 was not punitive in nature and stated, albeit in prolix fashion, that the service of the appellant were unsatisfactory. The High Court points out, and we agree, that detailed reference to all other correspondence was not necessary, but it did not reflect any malice or bias. Finally, as this Court pointed out in P.N. Verma's case (supra) "a termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, does not ipso facto become stigmatic"
(underlining added)
9. It is therefore clear that an honest assessment of the nature of service performed by an employee when so stated in the order of termination does not make the termination order stigmatic. The case of Abhijit Gupta (supra) is a stark example on the point that even if the termination order makes reference to earlier letters which call the employee of "perverted mind" and "dishonest, duffer having no capacity to learn" cannot make the termination order a stigmatic one. The Supreme Court has also observed that while taking a decision with respect to termination of services of a probationer no notice is necessary to be given to the probationer."
12(i). A reading of the aforesaid paras and the ratios of the Supreme Court judgment which are stated therein shows that the reason given of unsatisfactory performance in the termination of service letter cannot be said to be stigmatic in nature. In fact, the observations of the Supreme Court in the case of Tapas Roy (supra) referred to in the Page 41 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. judgment in W.P.(C) No.10573/2009 makes it abundantly clear that once the facts stated in the termination are only the reasons and the conclusions for holding that the employee was unsuitable for his services, then the order cannot be said to be stigmatic because only if the order imputes something more than unsuitability for the post in question only then the order would be considered to be stigmatic.
(ii) A reference to the impugned order of termination of services dated 16.7.2014 shows that the same only contains the reasons with respect to unsuitability of the petitioner to the post in question and therefore the impugned order cannot be said to be stigmatic in nature.
13. In view of the above, I do not find any merit in the petition and the same is therefore dismissed. No costs...."
16. It is evident from above citation that any mention of non-performance in a termination order is essentially non-stigmatic. But in the present case we find that there is no issue of non-performance during probation period but what we have in hand is an issue prior to the appointment itself viz that of alleged impersonation so as to secure appointment. Mention of evidence on which reliance is placed by the respondents is nothing to do with non-performance during probationary period. So, while we hold that the applicant continues to be of a status of a probationer, his termination cannot be by a stigmatic order and if so done then the least that was required to be done was to simply supply the evidence relied upon by the respondents in issuing the termination order. That is not done as is evident by the para-14 of the CA also - relevant portion of which is reproduced below:
"...14. That in response to SCN, Sh. Surender Singh asked for all documents on the basis of which SCN was issued. However, taking Page 42 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
the reports of CFSL, Chandigarh and CFPB, New Delhi into consideration, it is an established case of impersonation. The candidature of Sh. Surender Singh is clearly a case of cheating and impersonation in examination making him ineligible for the post of SSO and his services should be terminated and as such, one month's notice dated 23.07.2019 was served to Sh. Surender Singh for termination of service w.e.f. 22/08/2019...."
As seen earlier - in the extract concerning the termination order - there is clear mention of the reports of the expert bodies which makes it tantamount to a stigma. Further that a formal inquiry was held and the expert body reports are a result of that. The Applicant was also issued a show cause notice but it is noticed that the expert body reports of CFSL Chandigarh and CFPB New Delhi were not supplied and then in the impugned order the reports are the basis for termination. This unfortunately is a clear case of half-baked inquiry process being followed inasmuch that while a show cause notice was given, but the document relief upon in the inquiry was not made available to the charged officer. In fact, the respondents are under a misplaced perception of charity when they assert in para-13 of the CA that they gave the SCN as an act of overreach in enabling opportunity of hearing, fully well failing to understand that once the ball is rolled in that direction then it has to be followed up inasmuch that copies of documents relied upon in the SCN also then need to be provided. The respondents have said nothing on that count in their Page 43 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors.
para-14 wherein while on one hand it is stated that the applicant asked for documents but conveniently so it has been missed out that whether the asked for documents were expressly given or denied. The paras-
13 and 14 are extracted below for reference:
Para 13 and 14 of CA "...13 That Shri Surender Sing had not cleared all the probation clearance exam at that time as per Govt. of India Order No. 2 under the CCS (CCA) Rules (Annexure R-14) there is no provision for giving show cause notice to the temporary employee. However, to follow rule of natural justice, a show cause notice dated 08.08.2018 as issued to him.
14. That in response to SCN, Sh. Surender Singh asked for all documents on the basis of which SCN was issued. However, taking the reports of CFSL, Chandigarh and CFPB, New Delhi into consideration, it is an established case of impersonation. The candidature of Sh. Surender Singh is clearly a case of cheating and impersonation in examination making him ineligible for the post of SSO and his services should be terminated and as such, one month's notice dated 23.07.2019 was served to Sh. Surender Singh for termination of service w.e.f. 22/08/2019..."
What this implies is that there is a clear case of denial of opportunity of hearing and therefore the whole process of inquiry is consequently hit by the principle of audi alteram partum. The least the Respondents could have done was supplied the reports of CFSL Chandigarh and CFPB New Delhi relied upon by them for passing the order of termination otherwise the whole purpose of the enquiry is lost even if in the case of a probationer.
17. Therefore, there can be no way that we hold that the order is not casting a stigma on the Applicant. Therefore, Page 44 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. we have to hold the impugned order as not being within the four corners of law and so liable to be set aside.
However, it cannot be held that the issue of impersonation is extinguished also. Fact is that the said allegation of impersonation through the reports of the expert bodies - CFSL, Chandigarh and CFPB, New Delhi will hold their field unless struck down by higher empowered executive authority or law. Further that the show cause notice of 08/08/2018 clearly states support of the said reports and the impugned order places reliance on them, therefore, the reports of the expert bodies shall have to be supplied to the Applicant formally should afresh inquiry proceedings be taken forward subsequent to this order.
18. In the event therefore, we direct that -
i. the termination order dated 23/07/2019 is set aside;
ii. the Respondents have liberty to take up fresh disciplinary action against the applicant but subject to enabling supply of reports of the expert bodies/related documents relied upon by them against the Applicant qua the alleged grounds of impersonation; and Page 45 of 46 CAT, Lucknow Bench- OA No. 494/2019- Surender Singh vs. ESIC & Ors. iii. should disciplinary proceedings be taken up as per sl-ii above, it shall be completed not later than four months from the date of receipt of a certified copy of this order.
O.A. finally disposed of accordingly.
19. No costs.
(Swarup Kumar Mishra) (Devendra Chaudhry)
Member (J) Member (A)
JNS
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