Indian Kanoon - Search engine for Indian Law

Delhi High Court - Orders

Mohd. Hasim vs Uoi & Ors on 21 September, 2022

Author: Satish Chandra Sharma

Bench: Chief Justice, Subramonium Prasad

                          $~7.
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      W.P.(C) 4549/2003 & C.M. No. 7851/2003
                                 MOHD. HASIM                                  ..... Petitioner
                                                    Through:     Mr. Gagan Gupta and Mr. Ananta
                                                                 Prasad Mishra, Advs.

                                                    versus

                                 UOI & ORS.                                          ..... Respondent
                                                    Through:     Ms. Shubhra Parashar with Mr.
                                                                 Virender Pratap Singh Charak and
                                                                 Mr. Shishier Khose, Advs.

                                 CORAM:
                                 HON'BLE THE CHIEF JUSTICE
                                 HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
                                                    ORDER

% 21.09.2022

1. The present petition is arising out of order dated 13.02.2003 in O.A No. 1329/2001 passed by the Central Administrative Tribunal, Principal Bench, New Delhi.

2. The facts of the case reveal that the Petitioner before this Court was appointed as an Elect (MV) under the Commandant 505, Army Base Workshop, Delhi Cantt. on probation for a period of two years. Before the completion of the probation period, the services of the Petitioner were put to an end by an order dated 09.09.2000, passed by the competent authority in exercise of powers conferred under sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965.

3. The Petitioner came up before this Court stating that the Order of termination is stigmatic in nature and it deserves to be set aside, and the Respondents have also not followed the principles of natural justice and fair play in issuing the order.

4. A detailed and exhaustive reply was filed in the matter and the Respondents did admit before the Tribunal that the Petitioner was employed on probation and police verification of his character and antecedents was sent to District Magistrate Gurgaon on 03.03.2000 and the verification was not done by the Superintendent of Police from the place where the Petitioner hails from. A report was submitted by the Additional Director of Police (Intelligence) of Rajasthan on 05.09.2000 informing the Army Authorities that the father of the Petitioner was involved in espionage work. It is stated that the father of the Petitioner was constantly in touch with ISI agents in Pakistani Embassy and had introduced a large number of army personnel to ISI agents. There are allegations against the father of the Petitioner that he visited Pakistan in 1977 and 1990, and he also visited Saudi Arabia in the year 1997. The details of criminal cases against him were also provided to the Central Administrative Tribunal and the Central Administrative Tribunal has finally dismissed the Original Application on 13.02.2003.

5. Paragraphs 7 to 18 of the order passed by the Central Administrative Tribunal read as under:

"7. I have heard the learned counsel for the parties and gone through the record.

8. The learned counsel appearing for the applicant submitted that from the counter-affidavit of the respondents it is clear that the services of the applicant had been terminated on the ground that his father was involved in espionage activities, but still there is no proof that if he is guilty of the offence as the Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:27.09.2022 17:03:49 trial is still going on.

9. As far as the conduct of the applicant is concerned, the Rajasthan Police has reported back that there is no act attributable to the applicant which may be adverse for his joining the Government service. The counter-affidavit filed by the respondents also reveals that applicant is being branded as a son of ISI agent which is a stigma on the applicant's career. If a person is removed or dismissed from service under the garb of exercise of sub-rule (i) of Rule 5 of the CCS (Temporary Service) Rules than that is .a colourable exercise of power and order passed in such like exercise of power cannot be sustained and the same should be quashed.

10. In support of his contention the learned counsel for the applicant has referred to various judgments of the Apex Court such as The State of Bihar Vs. Gopi Kishore Prasad, reported in AIR, I960 SO 689 wherein it has been held as follows:-

"Constitution of India, Article 311 (2) - Probationer - Enquiry against, for alleged misconduct -Finding of unsuitability to post on account fo corruption and unsatisfactory work -Discharge form services is punishment - He is entitled to protection under Article 11 (2)".

11. On the same point he has also referred to some more cases such as (1) Madan Mohan Prasad Vs. State of Bihar and Others entitled as AIR 197 SO 11 (2) The Comptroller and Auditor General of India Vs. Samar Singh reported in 1376 Lab.IC 806 and (3) Chandra Prakash Shahi Vs. State of U.P. and Others reported in (2000) 5 SCC 152.

12. After citing these judgments, the counsel for the applicant, submitted that even if an order terminating the services of an employee is an innocuous one but still the court can lift the veil and come to know on what reasons the applicant's services had been terminated and if it finds that the termination has been ordered because of some misconduct on the part of the applicant or as a punishment, then the same can be quashed because a temporary employee also enjoys the protection of Article 311 of the Constitution.

13. I have gone through these judgments.

14. There is no quarrel to the legal preposition as put Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:27.09.2022 17:03:49 forward by the learned counsel for the applicant that even the Temporary Government Servant enjoys the protection of Article

311. However, the court has to see in each and every case whether the order of termination is simplicitor or is actuated with any intention to punish the Government employee and/or any stigma is also attached to the career of the Government servant.

15. But now applying all these tests to the facts of the present case I may mention that the applicant in this case has been terminated vide impugned order which is -totally innocuous. That does not attach any stigma to the applicant-nor it reveals that if it has been passed to punish the applicant for any misconduct as defined under the Conduct Rules or CCS (Conduct) Rules. The services of the applicant has been terminated only on the report that applicant is the son of a person who is suspected to be an ISI agent. Whatever investigation was carried on that was carried against the father of the applicant and it is true that investigation had revealed that the father of the applicant was an active agent of ISI though case against him is still under trial. It may be that he may not be convicted but the fact remains that on enquiry the respondents had got the information that the applicant's father had earlier introduced two army personnel to ISI for working as agent for carrying out espionage activities for Pakistan so in this background the applicant was not found to be suitable to be retained in the service by the respondents because respondents are a defence organisation from where the chances are that vital informations may be passed on to ISI, and it is for this reason the services of the applicant had been terminated.

16. The counter-affidavit in categorical terms stated that it was not possible for the respondents to repose credibi1itv in the applicant at the cost of national security since it was also revealed in the report that the father and son both are residing under the same roof where the father is meeting Pak nationals who were also involved in espionage activities so the applicant's services have been terminated as a preventive measure in the initial stage (emphasis supplied)

17. Thus to my mind the purpose of keeping an employee on Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:27.09.2022 17:03:49 probation is also to see his suitability for the organisation. In this case since the department has categorically stated that they are not in a position to repose credibility in the applicant at the cost of national security, so they had every right to terminate his services under sub-rule (i) of Rule 5 of the CCS (Temporary Service) Rules, particularly when no allegations against the applicant are levelled which may amount to stigma to the career of the applicant nor it is by way of punishment.

18. In view of the above I find that, the OA is devoid of any merit and the same is dismissed. No costs."

6. This Court has gone through the order passed by the employer dated 08.09.2000 and the order passed by the Central Administrative Tribunal dated 13.02.2003. Undisputedly, in the present case, the Petitioner was a probationer and his services have been put to an end invoking Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965. Rule 5 of the said Rules reads as under:

"5. Termination of temporary service.

(1) (a) The services of a temporary Government servant shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant;

(b) the period of such notice shall be one month.

Provided that the services of any such Government servant may be terminated forthwith and on such termination, the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or as the case may be, for the period by which such notice falls short of one month.

NOTE:- The following procedure shall be adopted by the appointing authority while serving notice on such Government servant under clause (a).

(i) The notice shall be delivered or tendered to the Government Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:27.09.2022 17:03:49 servant in person.

(ii) Where personal service is not practicable, the notice shall be served on such Government servant by registered post, acknowledgement due at the address of the Government servant available with the appointing authority.

(iii) If the notice sent by registered post is returned unserved it shall be published in the Official Gazette and upon such publication, it shall be deemed to have been personally served on such Government servant on the date it was published in the Official Gazette.

(2) (a) Where a notice is given by the appointing authority terminating the services of a temporary Government servant, or where the service of any such Government servant is terminated on the expiry of the period of such notice or forthwith the Central Government or any other authority specified by the Central Government in this behalf or a head of Department, if the said authority is subordinate to him, may, of its own motion or otherwise, reopen the case and after making such inquiry as it deems fit-

(i) confirm the action taken by the appointing authority;

(ii) withdraw the notice;

(iii) reinstate the Government servant in service; or

(iv) make such other order in the case as it may consider proper.

Provided that except in special circumstances, which should be recorded in writing, no case shall be re-opened under this sub- rule after the expiry of three months-

(i) from the date of notice, in a case where notice is given;

(ii) from the date of termination of service, in a case where no notice is given.

(b) Where a Government servant is reinstated in service under sub-rule (2) the order of reinstatement shall specify -

(i) the amount or proportion of pay and allowances, if any, to be paid to the Government servant for the period of his absence between the date of termination of his services and the date of his reinstatement; and

(ii) whether the said period shall be treated as a period spent on duty for any specified purpose or purposes."

7. The order of termination dated 08.09.2000 is reproduced as under:

"ORDER OF TERMINATION OF SERVICE ISSUED UNDER THE PROVISO TO SUB-RULE (1) OF RULE 5 OF THE CENTRAL CIVIL SERVICES (TEMPORARY SERVICE) RULES, 1965 Tele: 5666593 505 Sena Base Workshop 505 Army Base Workshop Delhi Cantt - 10 PF/4961/LC 08 Sep 2000 ORDER In pursuance of the Proviso to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, I, the undersigned hereby terminate forthwith the service of T. No. 4961 Elect (MV) Shri Mohmd Hasim and direct that he shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of notice at the same rates at which he was drawing them immediately before the termination of his service, or as the case may be, for the period by which such notice falls short of one month.

Sd/-

(IS Chima) Brig Commandant (Appointing Authority)"

8. The aforesaid order makes it very clear that it is not a stigmatic order and it has been passed keeping in view Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965. Since the Order is not a stigmatic order, this Court does not find any reason to interfere with the order passed by the employer and the order passed by the Central Administrative Tribunal. It is Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:27.09.2022 17:03:49 made clear that the termination order passed in the case of the Petitioner will not disentitle him from any job in future.

9. The petition stands disposed of in the aforesaid terms.

SATISH CHANDRA SHARMA, CJ SUBRAMONIUM PRASAD, J SEPTEMBER 21, 2022 N.Khanna Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:27.09.2022 17:03:49