Central Administrative Tribunal - Delhi
Bibhav Kumar vs Gnctd on 24 April, 2026
(OA No.1531-2024)
(1)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1531/2024
Reserved on: 27.03.2026
Pronounced on:24.04.2026
Hon'ble Mr. R N Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Bibhav Kumar S/o Shri Maheshwar Rai
R/o H.No.D-II,
Chandrawal Water Works II,
Civil Lines New Delhi-110052.
...Applicant
(By Advocates : Mrs. Anu Chatrath Kapur, Sr. Adv. with
Mr. Karan Sharma, Mr. M K Bhardwaj,
Mr. Mohit Siwach, Mr. Rajat Jain)
Versus
1. Government of NCT of Delhi
Through its Chief Secretary,
New Secretariat, I.P.Estate,
New Delhi.
2. The Additional Chief Secretary,
General Administration Department,
New Secretariat, I.P.Estate,
New Delhi.
3. Department of Vigilance
Through its Special Secretary (Vigilance),
Directorate of Vigilance,
4th Level C-Wing, Delhi Secretariat,
I.P.Estate, New Delhi-110002.
4. The Special Secretary,
Chief Minister's Office,
New Secretariat, I.P.Estate,
New Delhi.
...Respondents
(By Advocate : Mr.Amit Anand)
KEDAR RAM
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ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
By way of this OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s):-
"(a) Quash and set aside the Termination Order 10.04.2024 (A-
1) bearing F.No.18/4/2020/Co-terminus/GAD/Admn/3851 issued by Respondent No.3 as well as communication dated 11.04.2024 (A-1B);
(b) To quash and set aside the Show Cause Notice dated 10.11.2023 (A-1A).
(c) To declare the impugned order of termination dated 10.04.2024 as well as Show Cause Notice as void ab-initio.
(d) Summon original file/record pertaining to appointment of the Applicant along with complete noting;
(e) Issue such other/direction as may be deemed appropriate in the facts and circumstances of the case."
2. Brief facts of the case as gleaned from the OA are that the applicant was initially appointed as Private Secretary to the Hon'ble Chief Minister, Govt. of NCT of Delhi (GNCTD) vide order dated 27.02.2015 and thereafter he was re-appointed vide order dated 21.02.2020 and has completed more than 09 (nine) years of unblemished service. The aforesaid post of Private Secretary was firstly created in the year 1995 and the same was notified along with various other posts vide letter dated 04.05.1995. In the year 2015, the new Government under the Chief Ministerial-ship of Sh.Arvind Kejriwal was formed and thereafter process for making appointment against various posts in the Chief Minister's Office was started. So far as the post of Private Secretary to the Hon'ble Chief Minister is concerned, the process of the same was also initiated in 2015. The name of the applicant was also considered for appointment to the said post and therefore the requisite process for his appointment was initiated. The applicant was directed to complete the requisite KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (3) formalities which included filling up of the Attestation Form and in the said Attestation Form the applicant disclosed all the required information. It is stated that in the said Attestation Form, there was a specific column with regard to pendency of criminal case, if any, and the applicant duly disclosed about the pendency of the criminal case.
3. It is submitted that the applicant was falsely implicated in a criminal case in the year 2007 and the same was registered as FIR No. 102/07, PS-Noida, Sector-20, under Sections 353,504,506 IPC. The details of said FIR were duly given in the Attestation Form along with other required details. After filling of said Attestation Form and completion of other requisite formalities, name of the applicant was processed for appointment as per the prescribed procedure which includes the consideration of his candidature by the Hon'ble Chief Minister. After taking into account all the relevant facts, including pendency of the criminal case etc., as referred herein above, the Hon'ble Chief Minister was pleased to select the applicant for appointment to the post of Private Secretary and sent his recommendations to the Lt. Governor of Delhi. The Lt. Governor of Delhi was pleased to notify the said appointment pursuant to the recommendation/approval of the Hon'ble Chief Minister of Delhi by issuing appointment order dated 27.02.2015. The then Hon'ble Lt. Governor of Delhi had after deliberation notified the appointment of the applicant in 2015, as recommended/approved by the Hon'ble Chief Minister of Delhi. A perusal of said order dated 27.02.2015 makes it very clear that the applicant was appointed as Private Secretary to the Hon'ble Chief Minister (GNCTD), a vacant permanent co-terminus post in pay band of Rs. 37400-67000 with Grade Pay of Rs. 8700. It is also clear from the said order that the tenure of applicant was fixed KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (4) inasmuch as the same was till the tenure of the present Government or till the applicant's services were required by the Hon'ble Chief Minister (GNCTD), whichever is earlier.
4. It is further submitted that since the appointment letter mentioned that the appointment of the applicant was subject to verification of character and antecedents, the Competent Authority was pleased to issue directions to get the Character Verification Report of the applicant and the said character and antecedents report dated 31.03.2015 was duly received from Office of the Deputy Commissioner, Special Branch Delhi. The relevant portion of the said report reads as under:
"i) As per the report there is nothing adverse against the individual during his period of stay in Delhi from 21.07.2009 to 31.03.2015.
ii) The report further mentioned that a case with FIR No. 102/07, PS- Noida, Sector-20, under Sections 353, 504, 506 I.P.C. is pending trial in court of CJM/Gautam Budh Nagar, U.P."
5. It is stated that applicant has been working as Private Secretary since 27.02.2015 to till date/and no adverse report had been received against him during his appointment on the said post. The applicant's performance as Private Secretary remained above board, therefore on formation of the New Government in the year 2020, his name was again considered for appointment to the said post second time with the same terms and conditions. Since the Competent Authority had already received the character and antecedent report at the time of previous appointment of the applicant as Private Secretary in the year 2015 and no adverse report was reported, therefore the concerned department prepared a office note in February 2020, wherein it was specifically mentioned as under:
KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (5) "10. As the persons appointed on co-terminated basis are governed by CCS (Conduct) Rules (para 18 of DOPT OM dated 26.05.2014, p-2/C), the character and antecedents verification of Sh. Bibhav Kumar done at the time of his previous appointment as PS to CM may be considered, as during his subsequent period of working in the govt. with Hon'ble CM didn't have any adverse report against him. However, it may be placed on record that in case any adverse report is received in future, in this office pertaining to this last five-year period...the appointment shall have to be made subject to the outcome of the case FIR 102/07, PS- Noida, Sector-20, and Section 353,504,506 IPC, which was reported in his character and antecedents verification report from Delhi Police.
11. In view of the facts above, the following is proposed:
i) Termination of services of Sh. Bibhavi) Kumar as Private Secretary to Chief Minister on co-terminus basis w.e.f.
16.02.2020 (Α/Ν).
ii) Consideration of appointment of Sh. Bibhav Kumar as Private Secretary to Chief Minister against a vacant permanent co-terminus post in the Pay band of Rs. 37,400-87,000 + GP 8,700 (Pre revised) on co terminus basis w.e.f. 17.02.2020 (F/N) till the tenure of Hon'ble Chief Minister or till his services are required by the Hon'ble Chief Minister, whichever is earlier. The pay of the officer will be regulated in terms of DOPT OM dated 26.05.2014, para 20 (Copy place at 1/C). The appointee shall also be governed by the CCS (Conduct) Rules, 1964 during the tenure of the engagement.
The appointment will however be further subject to the outcome of the case FIR 102/07, PS- Noida, Sector-20, Section 353,504,506 IPC."
In terms of aforesaid, the applicant was re-appointed as Private Secretary on co-terminus basis against a co-terminus post in the pay band of Rs. 37400-67000 with Grade Pay of Rs. 8700 vide Order No. 131 dated 21.02.2020. A perusal of said order would show that one additional condition was incorporated i.e. the above appointment will be subject to the outcome of the case FIR No. 102/07, u/s 353, 504, 506 IPC. In terms of aforesaid appointment, the services of the applicant were continued as Private Secretary. It is also clarified that as the applicant was appointed on tenure basis and against a vacant permanent co-terminus post subject to the tenure of the Government and at the pleasure of the Hon'ble Chief Minister, therefore no KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (6) additional condition was made applicable as while filling up the civil posts under State or Union Government. However, the CCS (Conduct) Rules, 1964 were made applicable, as evident from the order of appointment itself. The performance of the applicant during second tenure also remained above board inasmuch as, no adverse report was ever received or reported. The Hon'ble Chief Minister of Delhi also appreciated his performance and the same can be verified from the office of Respondent No.4.
6. It is further stated that in November 2023, the applicant was served with a Show Cause Notice dated 10.11.2023 by the Special Secretary, Vigilance Department/Respondent No.3, without any authority in law. It is averred that the Special Secretary (Vigilance) is not the Competent Authority who could issue a Show Cause Notice to terminate the services of the applicant and that too under inapplicable rules i.e. CCS (Temporary Service) Rules, 1965. It is submitted that recently the Hon'ble High Court of Delhi has examined the jurisdiction and authority of the Central Vigilance Commission and held that the Vigilance Department cannot act as a disciplinary authority. As the applicant's appointment was notified by the Lt. Governor of Delhi as per the recommendation/approval of the Hon'ble Chief Minister (GNCTD), the Special Secretary (Vigilance) had no authority to issue a Show Cause Notice and that too by recording adverse findings against the applicant. It is also alleged that the said Special Secretary (Vigilance) committed various illegalities for the reasons best known to him as the Special Secretary (Vigilance) had no authority even to hold an inquiry, much less issuing a Show Cause Notice after recording adverse finding inasmuch as, the inquiry, if any required, the same could only be ordered by the appointing authority and in case of KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (7) applicant, the appointing authority is the Hon'ble Chief Minister. It is also contended that while it is correct that the appointment of the applicant has been notified by Lt. Governor of Delhi but the same has been on the recommendation /approval of the Chief Minister (GNCTD) and continuation of services of the applicant is also subject to pleasure of the Chief Minister.
7. It is averred that as the very initiation of proceedings against the applicant vide Show Cause Notice dated 10.11.2023 was without jurisdiction and void ab-initio, therefore no action whatsoever could be taken based on said Show Cause Notice. In order to apprise the Competent Authority about the said unauthorized and illegal act of Special Secretary (Vigilance), the applicant requested the respondents vide letter dated 15.11.2023 to provide the relevant documents. However, vide letter dated 16.11.2023, the respondents denied to provide the said documents just to deprive the applicant from submitting an effective reply. In fact, on receipt of said documents it would be apparently clear that the Show Cause Notice dated 10.11.2023 was not only issued without any authority of law but also by distorting the facts on record. It is reiterated that since the applicant was not supplied the relevant documents as requested by him, it became difficult for him to submit an effective reply to the Show Cause Notice dated 10.11.2023 based on the documents as supplied by the respondents vide letter dated 04.12.2023. In such circumstances, the applicant submitted a formal reply dated 15.12.2023 wherein he specifically stated that the Show Cause Notice has been issued without there being any cause of action and there was no material change in the circumstances from the date of his KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (8) appointment as Private Secretary to the Hon'ble Chief Minister of Delhi.
8. It is also averred that on receipt of said reply, the respondents were required to withdraw the Show Cause Notice dated 10.11.2023 as the same was not only issued by incompetent authority with malafide intention, but also by ignoring the material facts on record. As the illegality committed by Special Secretary (Vigilance) in issuing Show Cause Notice dated 10.11.2023 was writ large and no reasonable person with common prudence would have approved such unauthorized and illegal action, therefore the applicant had all the reasons to believe that the said Show Cause Notice would be withdrawn. However, the said Show Cause Notice has not been withdrawn, rather an illegal termination order dated 10.04.2024 has been issued by the same Officer, however with slight variation. In the impugned order dated 10.04.2024, it has been stipulated that 'this issues with the approval of Competent Authority'. It is strange and shocking that neither the name nor the designation of the Competent Authority has been disclosed in the termination order. However, the said stipulation makes it abundantly clear that the Special Secretary (Vigilance) is not the Competent Authority, otherwise in the termination order it would not have been said that this was 'with the approval of Competent Authority'. The said termination order has been served upon applicant through email as well as by hand on 13.04.2024 vide forwarding letter dated 11.04.2024. It is alleged that the said impugned order dated 10.04.2024 again suffers from various illegalities since the same has also not been issued by the Competent Authority nor the due procedure has been followed while issuing the same.
KEDAR RAM
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9. The applicant has placed reliance on decision of "Taylor Vs. Taylor" [1875 (1) Ch D 426] as well as in subsequent decisions of the Hon'ble Supreme Court wherein it has been settled that if the manner of doing a particular act is prescribed under the statute, then the said act must be done in that particular manner or not at all. It has also been held that where the power is given to do a certain thing in a certain way, the thing must be done in that particular way or not at all.
10. It is contended that the applicant was appointed by the Lt. Governor (GNCTD) as per the recommendation/approval of Chief Minister (GNCTD) and the services of the applicant were co-terminus with the tenure of the Government and pleasure of the Chief Minister, the services of applicant could be terminated only by the aforesaid authorities and that too in compliance of principle of natural justice. However, the needful has not been done and the same is evident from the impugned order itself. It is stated that the appointment order itself has provided that the appointment of the applicant is subject to outcome of the FIR No. 102/07 Police Station Sector-20, Noida, Uttar Pradesh. Meaning thereby, on outcome of said FIR, the Chief Minister(GNCTD) was required to take a suitable decision regarding continuation of services of the applicant. The outcome of said FIR No. 102/07 has not come till date, hence, there was no occasion for the respondents even to initiate process with regard to termination of services of the applicant in any manner whatsoever and therefore Vigilance Department has deliberately ignored the said factual position with some oblique motive.
11. It is further contended that in the appointment order of applicant, the conditions of appointment have been duly stipulated;
KEDAR RAM
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hence the respondents could not have violated the same and have erred in law by initiating action under Temporary Service Rules, that too by concealing the material facts. For example, it has been concealed that before appointing the applicant, due verification was carried out by the respondents and the relevant rules and OMs were also taken into consideration. It is stated that in terms of the O.M. dated 02/07/1982 and Handbook for Personnel Officers 2013 issued by DoPT, the conditions and the offences which are required to be taken into consideration for appointment against the public posts were duly examined while appointing the applicant. It was found that the case of applicant is not covered under aforesaid conditions and as such there was no bar in appointing him as Private Secretary (GNCTD). In view of aforesaid factual and legal position, the Competent Authority was required to reject the said Show Cause Notice, as issued by the Vigilance Department on its own. However, the needful was not done. Rather the said Show Cause Notice has been culminated into a termination order again in an arbitrary manner and in violation of the statutory requirements, principles of natural justice, conditions of appointment order and the law laid down by the Hon'ble Supreme Court on the subject.
12. Reiterating that the CCS (Temporary Service) Rules as invoked while terminating the services of applicant are not applicable to the applicant, it is submitted that even if for the sake of argument, the same are treated to be applicable, still the impugned Show Cause Notice as well as termination order deserves to be set aside for the simple reason that both are stigmatic in nature. It is clear from the Show Cause Notice as well as termination order that the respondents have caused stigma on the applicant while issuing the aforesaid notice KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (11) and termination order. Furthermore, the impugned termination order issued by the Respondent No.3 is not in the format, as prescribed under the Central Civil Services (Temporary Service) Rules for passing termination order on justifiable grounds, rather Respondent No.3 without any authority, issued a stigmatic order to the applicant which is void ab-initio. It is stated that the aforesaid rules categorically state that when action is taken as under Rule 5 to terminate the services of a temporary employee, the order of termination which should be passed by the appointing authority, should not mention the reasons for such termination, in violation of the said rule Respondent No.3 without any authority went on to issue the termination order thereby stating detailed reasons and findings on the purported termination. The same has also been held by this Tribunal in the case of Virender vs. Govt. of NCT of Delhi vide order dated 02.06.2023 in OA No.1879/2017 as contrary to the law.
13. The respondents in their counter reply have stated that the applicant was not a Govt. employee holding any Group A, B and C post under the Central Government or Government of National Capital Territory of Delhi (GNCTD) or any State Government or any of their offices. He is a private individual, who was appointed as a Private Secretary to the Hon'ble Chief Minister, on co-terminus basis w.e.f. 16.02.2020 (A/N) till the tenure of the Hon'ble Chief Minister or till his services are required by the Hon'ble Chief Minister, whichever is earlier.
14. The appointment was made against a civil post and governed by the CCS (Conduct) Rules, 1964, during the tenure of his engagement. The appointment of the applicant being a case of employment of a private person, such person comes under the category of temporary KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (12) service only. The appointment of the applicant on 21.02.2020 was made, without bringing on record and bringing into notice of the Appointing Authority (i.e. Hon'ble L.G.) the crucial instructions pertaining to engagement of personal staff of Hon'ble Ministers and the non-permissibility of making such appointment without completing the pre-appointment formalities.
15. It is submitted that the applicant was not clear from the vigilance angle (and is still not clear) on account of FIR No.102 of 2007 in Sector-20 Police Station, Noida, Uttar Pradesh under Section 353 (assault or criminal force to deter public servant from discharging of his duties), Section 504 (intentional insult with intent to provoke breach of peace) and Section 506 (punishment for criminal intimidation) of IPC in a matter relating to obstructing a government servant from discharging his official duties and abusing and threatening such officer. It is a complaint by Sh. Mahesh Pal, Development Officer who was posted at Development Authority, Sector 6, Noida, complaining that applicant and another co-accused were obstructing the complainant, a public servant from discharging his duties and abusing /threatening the complainant. This case is still pending against the applicant before the Ld. Court of Chief Judicial Magistrate, Gautam Budh Nagar- Noida, wherein Ld. Judicial Magistrate had already taken cognizance of the offences against the applicant and charges have been framed against him. The case is at the stage of evidence.
16. It is further submitted that applicant challenged the order passed by learned CJM, Gautam Budh Nagar, vide which learned CJM took cognizance of the offence against the applicant and summoned the applicant before the Hon'ble High Court at Allahabad. The Division KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (13) Bench of the Hon'ble High Court at Allahabad vide its judgment dated 23.05.2008 [(2008) 05 AHC CK 0022 titled "Rajeev Kumar and Bibhav Kumar Rai" Vs. "State of U.P. and Others"] dismissed the petition of the applicant.
17. The respondents contend that in terms of the Department of Personnel and Training (DoPT) Office Memorandum (OM) dated 02.07.1982 read with Para 13.6 (A)(c) of Chapter-13 of the Handbook for Personnel Officers issued by the DoPT, Government of India (Gol) in May 2018, the applicant was not suitable to hold a civil post under the Government, being not clear from vigilance angle. Further, the DoPT, Gol took a serious note of lapses in engagement of non- government officials without following the verification process and had issued OM on 28.01.2013, which was in continuation of OMs dated 14.07.2011 and 15.12.2011, from which the following can be observed:
"2. It has come to notice that while appointing officials in the personal staff of Ministers, procedure and rules for the said appointments are not scrupulously followed. The genuineness of the basic documents like educational qualification/character and antecedents verification requires to be verified before appointment. Any serious lapse in the verification procedure could result in appointment of persons in the personal staff of Ministers, MP and other Govt. bodies, who are otherwise not eligible to man the post. Needless to add, this is fraught with dangers because such persons could also have access to sensitive information and data. It is therefore imperative that the concerned Ministries/Departments should never lose sight of the various instructions/ guidelines while processing the case of appointment of personnel in the office of Hon'ble Ministers"
18. The respondents further contend that while reference to the other DoPT's OMs although, were made in proposal for appointment of the applicant as Private Secretary to the Hon'ble Chief Minister at the time of processing the file in February, 2020 for his appointment, however, the above mentioned instructions issued by the DoPT (along KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (14) with DoPT's instructions issued vide its OMs dated 04.07.2011 and 28.01.2013) were not brought into the knowledge of the Appointing Authority i.e. Hon'ble Lt. Governor of Delhi) nor it was informed to the Appointing Authority that the applicant is not clear from vigilance angle, and consequently the applicant secured appointment as Private Secretary subject to outcome of the case FIR 102/07, PS-Noida, Sector 20, Section 353, 504, 506 IPC.
19. It is emphasized that so far as applicant herein is concerned, the charges against him are grave and serious which include charge of "Assault or Criminal Force to deter public servant from discharge of his duty" (Section 353 IPC) for which the trial is at the stage of evidence and therefore, applicant was not clear (and is still not clear) from vigilance angle. The pendency of a criminal case which is a serious matter assaulting a Government servant make a person ineligible even to be considered for appointment in any Government job.
20. It is stated that the applicant as Private Secretary to the Hon'ble Chief Minister was looking into every confidential Government file which is received or called in the office of the Hon'ble Chief Minister therefore such person like the applicant with criminal antecedents should not have any access to the confidential Government records. The appointment of the applicant is void ab initio for the reason that DoPT's guidelines were not followed and the same are not brought to the notice of the Appointing Authority/Hon'ble Lt. Governor while putting the proposal for approval of his engagement in February, 2020. Since the appointment of the applicant was non-est, therefore, a detailed Show Cause Notice dated 10.11.2023 under Rule 5 of the CCS (Temporary Service) Rules, 1965 was issued to the applicant indicating that his appointment was void ab initio since the same is in violation of KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (15) the instructions issued by DoPT, and the applicant was asked to provide the status of the criminal case and also to Show Cause as to why his engagement shall not be terminated. The applicant was allowed to inspect the record.
21. It is further stated that the applicant asked for certified copy of the records vide his letter dated 15.11.2023 in response to the Show Cause Notice dated 10.11.2023, and such documents were provided to him vide letter dated 16.11.2023 of the Directorate of Vigilance of GNCTD and letter dated 04.12.2023 of the General Administrative Department of the GNCTD. After receiving the relevant documents, the applicant submitted his reply dated 15.12.2023 wherein he informed that his case is still pending adjudication. After receiving the response of the applicant dated 15.12.2023, the Appointing Authority / Hon'ble Lt. Governor having found the reply of the applicant dated 15.12.2023 not satisfactory in view of the above-mentioned points as the appointment of the applicant itself being void ab initio and considering that perpetuating an error is no virtue but to correct it is a compulsion of administrative conscience, decided to terminate the services of the applicant, as communicated to the applicant vide order dated 10.04.2023.
22. It is contended that with respect to claim made by the applicant that his Appointing Authority is the Hon'ble Chief Minister or approval / recommendation of Hon'ble Chief Minister was required for termination of his engagement period by Hon'ble Lt. Governor, it is submitted that while the Additional Secretary to the Hon'ble Chief Minister, Govt. of NCT of Delhi vide his Note dated 17.02.2020 requested that services of the applicant may be continued as Private Secretary to Chief Minister instead of his re-appointment. However, the services of the applicant KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (16) were terminated w.e.f. 16.02.2020 vide Order No.130 dated 21.02.2020, and then he was appointed afresh w.e.f. 17.02.2020 vide Order No. 131 dated 21.02.2020, and the said file was not routed through Hon'ble Chief Minister (GNCTD) and the said file was approved by the Appointing Authority / the then Hon'ble Lt. Governor. It may be observed that the Appointing Authority did not accede to the request of Hon'ble Chief Minister for continuation of services of the applicant instead of his reappointment, and firstly terminated his services vide Order No. 130 and then engaged him afresh vide Order No. 131. The applicant never challenged his termination vide Order No. 130 dated 21.02.2020, thus, the said Order attained finality. This establishes that the Appointing Authority to engage the applicant was Hon'ble Lt. Governor, and not the Hon'ble Chief Minister, and Appointing Authority/Hon'ble Lt. Governor does not require any recommendation of the Hon'ble Chief Minister in "Service Matters". Since, Hon'ble Lt. Governor is the Appointing Authority of the applicant, therefore, Hon'ble Lt. Governor has the due authority to terminate the engagement of the applicant. Therefore, such claim made by the applicant is wrong and thus denied.
23. It is further contended that the order of termination that has been issued against the applicant is an order of termination simplicitor, based on the circumstances where the very appointment of the applicant is non-est in law. The order of termination did not reflect any "motive" of mis-conduct on the part of the applicant, while issuing the said order, hence it is not stigmatic. The Original Application is an abuse of the process of the law. The applicant has no legal right to continue as Private Secretary to the Hon'ble Chief Minister, when the appointment itself was not in accordance with the law. The KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (17) appointment being void ab initio, the order of termination has been rightly passed.
24. The respondents also emphasized that the jurisdiction of this Tribunal is akin to the jurisdiction of the Hon'ble High Court under Article 226 of the Constitution of India which empowers the Hon'ble High Court to entertain a writ of quo warranto challenging an appointment to the public office. In the present case, the appointment of the applicant holding of the civil post of "Private Secretary to the Chief Minister", was found to be non-est in law. The Tribunal has sufficient power to appreciate the passing of such an order. Hence, the essential question that arises for consideration is whether or not the applicant was entitled to continue to hold the civil post of "Private Secretary to the Chief Minister". In any case, the present OA has become infructuous and it is only a futile exercise to consider this OA at this stage for the reason that besides the fact that Hon'ble Chief Minister has been arrested and is in judicial custody from 21.03.2024 (except for the period from 10.05.2024 till 02.06.2024), the applicant also has been arrested and is in judicial custody for an offence under Section 308 (attempt to commit culpable homicide), Section 341 (punishment for wrongful restraint), Section 354B (assault or use of criminal force to women with intent to disrobe), Section 506 (punishment for criminal intimidation), Section 509 (word, gesture or act intended to insult the modesty of a woman) of IPC in FIR No. 277/2024 dated 18.05.2024 in the matter of an FIR lodged by Hon'ble Member of Parliament (Rajya Sabha). The applicant not being a Government servant, his appointment being a private appointment (which was done by flouting the provisions of law) which is also co- terminus with the Hon'ble Chief Minister, he and the Hon'ble Chief KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (18) Minister both being under judicial custody, this Tribunal may dismiss the OA. No relief may be granted by the Tribunal in the present case.
25. We have heard both the parties and also perused the pleadings on record, including the counter reply, the rejoinder and the written submissions filed by the parties. There is no dispute that the applicant was initially appointed as Private Secretary to the Hon'ble Chief Minister, Govt. of NCT of Delhi vide order dated 27.02.2015 and thereafter he was re-appointed in the same post vide order dated 21.02.2020. It is also not in dispute that when the requisite process for his appointment was initiated, the applicant was directed to complete requisite formalities which included filling up of the Attestation Form and in the said Attestation Form, the applicant disclosed all the information, as required including pendency a criminal case which was registered vide FIR No. 102/07, PS-Noida, Sector-20, under Sections 353,504,506 IPC. After taking into account all the relevant facts, including pendency of criminal case, he was appointed by the competent authority, i.e. Lt. Governor of Delhi pursuant to the recommendations of the Hon'ble Chief Minister. It is also evident that the applicant was appointed as Private Secretary to the Hon'ble Chief Minister, Govt. of NCT of Delhi against co-terminus post and his tenure was fixed, inasmuch as the same was till the tenure of the present Government or till the applicant's services were required by the Hon'ble Chief Minister (GNCTD), whichever is earlier. Therefore, it is clear that the applicant did not suppress any material information including pendency of criminal case against him. This leaves us with four issues as follows:
(i) Did the applicant suppress any information regarding the pending FIR No. 102/07, PS. Noida Sector-20, Section 353, 504, 506 IPC at the time of his appointment.
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(ii) Whether show cause to the applicant preceding his termination was issued by the competent authority or not.
(iii) Was the pending FIR No. 102/07, PS. Noida Sector-20, Section 353, 504, 506 IPC which was duly disclosed by the applicant at the time of his initial appointment in his attestation form,is a valid ground to terminate his services.
(iv) Was such termination order stigmatic in nature thus requiring a proper enquiry before terminating his services.
26. So far the first issue related to suppression of the matter regarding the pendency of FIR is concerned facts speak for themselves. The applicant was initially appointed on 27.02.2025 and again on 21.02.2020, his name was considered for appointment as per the recommendations of the then Hon'ble Chief Minister of Govt. of NCT of Delhi and thereafter he filled in the Attestation Form. Further, the character and antecedents report also called for concerned Police Department. In his Attestation Form, he indicated about the aforesaid FIR and after due application of mind he was appointed as Private Secretary of the Chief Minister of Govt. of NCT of Delhi. Also the Special Branch of Delhi Police conducted a detailed enquiry and submitted a character and antecedents' report where it was clearly mentioned that nothing adverse against the applicant. Further, appointment of the applicant was made subject to the outcome of the said FIR, which was pending. Therefore, there is nothing to indicate that applicant did not divulge any material fact about the registration of a FIR against him.
27. With regard to the second issue pertaining to show cause, it is evident that a show cause notice was issued to the applicant on 10.11.2023 to which the applicant responded. The impugned show cause notice reads as follows:
"Show Cause Notice KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (20) Subject: Illegal engagement of Sh. Bibhav Kumar S/o Mehashwar Rai against the rules and norms as Personal Secretary to Hon'ble Chief Minister.
1. Whereas, Sh. Bibhav Kumar was engaged on co-terminus basis as Private Secretary to Hon'ble Chief Minister in the pay band of Rs. 37400-67000+ GP 8700/- vide GAD order No. 269 dated 27.02.2015;
2 And Whereas, attention is invited to proposal of GAD (F.No. 18/4/2020/Co-terminus/GAD/Admn./CD No. 062594185), wherein the engagement of Sh. Bibhav Kumar was proposed by the GAD on 17.02.2020 as under: -
8. Consequent upon the resignation of Council of Ministers notified vide dated 14.02.2020 (p-20-21/C) the term of the govt. has ended, and being a co-terminus officer the appointment of Sh. Bibhav Kumar will also have to be terminated. However, in terms of DOPT OM dated 26.05.2014, the personal staff of the outgoing minister can continue to hold their post for a period not exceeding 15 days.
9. Since Hon'ble CM has now desired that Sh. Bibhav Kumar should continue working with him as Private Secretary, to consider his fresh appointment, the earlier term of co terminus appointment shall have to be terminated first. Hence, the services of ShBibhav Kumar may be terminated w.e.f. 16.02.2020 (A/N) and thereafter his appointment as Private Secretary to CM w.e.f. 17.02.2020(F/N) may be considered.
10. As the persons appointed on co-terminated basis are governed by CCS (Conduct) Rules (para 18 of DOPT OM dated 26.05.2014, the character and antecedents verification of Sh.
Bibhav Kumar done at the time of his previous appointment as PS to CM may be considered, as during his subsequent period of working in the govt with Hon'ble CM didn't have any adverse report against him. However it may be placed on record that in case any adverse report is received in future, in this office pertaining to this last five year period, the officer would be liable for necessary action, in terms of relevant rules in the matter. As of now, the appointment shall have to be made subject to the outcome of the case FIR 102/07 PS- Noida, Sector-20, and Section 353,504,506 IPC, which was reported in his character and antecedents verification report from Delhi Police.
11. In view of the facts above, the following is proposed:
i) Termination of services of Sh. Bibhav Kumar as Private Secretary to Chief Minister on co-terminus basis w.e.f.
16.02.2020 (A/N).
ii) Consideration of appointment of Sh. Bibhav Kumar as Private Secretary to Chief Minister against a vacant permanent co-terminum post in the Pay band of Rs.37,400-67,000 + GP 8,700 (Pre revised) on co terminus basis w.e.f. 17.02.2020 (FN) till the tenure of Hon'ble Chief Minister or till his services are required by the Hon'ble Chief Minister, whichever is earlier. The pay of the officer will be regulated in terms of KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (21) DOPT OM dated 26.05.2014, para 20 Copy place of I/C. The appointee shall also be governed by the CCS (Conduct) Rules, 1964 during the tenure of the engagement The appointment will however be further subject to the outcome of the case FIR 102:07. PS- Nolda, Sector-20, Section 353.504.506 IPC...."
3. And Whereas, from the above proposal of GAD, it is observed that the terms of Sh. Bibhav Kumar are regulated under CCS (Conduct) Rules, 1964 and his pay shall also be regulated as per DoPT's O.M. No. 8/50/2013-CS-II-(C) dated 26.05.2014;
4. And Whereas, the following has been informed by the GAD on 15.05.2023 w.rt. present status of the criminal case against Sh. Bibhav Kumar -
33. In this regard, it is submitted that in reply to the above- mentioned letter, the Station House Officer, Police Station, Sector-20 Noida, vide Letter dated 29.04.23 (Page 16) has informed that the FIR No. 102/2007 was filed on 25.01.2007 by the complainant St. Mahesh Pul who was posted at Development Authority, Sector 6. Noida The said FIR was registered under Sections 353/504/506 of IPC against Sh Rajeev Kumar Sio Sh Ram Kewal and Sh. Bibhav Kumar S/o Sh. Maheshwar Roy for ebstructing the complainant, a public servant, from discharging his duty and abusing/threatening the complainant. The case was investigated by Sub-Inspector Sh Om Pal Sharma and without arresting the accused Sh. Rajeev Kumar and Sh. Bibhuv Kumar Charge Sheet No. 236 dated 01.06.2007 was filed before the Hon'ble Court of the Chief Judicial Magistrate, Gautam Budh Nagar. Presently, the case is at the stage of Evidence in the above-mentioned court and the next hearing is on 19.05.2023
5. And Whereas, the engagement proposal of GAD initially stated that the appointment is subject to the outcome of the case FIR No. 102/07, PS. Noida Sector-20, Section 353, 504, 506 IPC 6 And Whereas, it is observed that this is a case of employment of a private person (i.e. Sh. Bibhav Kumar) as Private Secretary to the Hon'ble Chief Minister and as per the extant rules, such person comes under the category of temporary service;
7. And Whereas, DoPT vide its O.M. No. 8/32/2010-CS-II(C) dated 04.07.20211 has provided as under. -
"...However, references are being received from various Ministries/Departments regarding ante-dating of appointment of officials in the personal staff of Ministers. It has also come to the notice that officials are appointed in the personal staff of Ministers in anticipation of completion of pre-appointment formalitiesthere. This is not only irregular but also creates administrative difficulties. Due twestivity of work handled by the Ministers, it is not appropriate to allow appointments in the personal staff of Ministers without prior verification of character und antecedents...." (Emphasis Supplied) KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (22)
8. And Whereas, DoPT vide its OM. No. 8/37/2011-CS-II(C) dated 15.12.20211 has provided as under: -
The undersigned is directed to refer to this Deptt's O.M. No. 8/32/2010CS-I(C) dated 04.07.2011 on the subject mentioned above and to say that the Prime Minister's Office has again reiterated its earlier direction to strictly comply with the requirement of completion of IB verification before appointment of non-government official in the personal staff of Ministers.
2. It has come to the notice that officials are appointed in the personal staff of Ministers in anticipation of completion of pre-
appointment formalities at a later stage. This is not only irregular but also creates administrative difficulties. Dus ta sensitivity of work handled by the Ministers, it is not appropriate to allow appointments in the personal staff of Ministers without prior verification of character and antecedents.
3. Accordingly, it is requested that all the Ministries Departments may strictly comply with the directions issued by the Prime Minister's Office in this regard This Department will not entertain any request for ante-dating of appointment of non-government officials in the personal staff of Ministers in future.
(Emphasis Supplied)
9. And Whereas, it is observed that character and antecedent verification is to be verified before engaging non-government officials in personal staff of ministers,
10. And Whereas, it is observed that charges against Sh. Bibhav Kumar are grave in nature u/s 353, 504 & 506 of IPC for which the trial against Sh. Bibhav Kumar has reached the stage of evidence, and Sh. Bibhav Kumar is not clear from vigilance angle:
11. And Whereas, DoPT has also seriously taken note of such kind of lapses in engagement of non-government officials without following verification process and issued another memorandum DoPT O.M. No. 8/11/2012-CS-II(C) dated 28.01.2013 in continuation to the earlier memorandum dated 04.07.2011 and 8/37/2011-CS-II(C) dated 15.12.20211 observed as under:-
"2. It has come to notice that while appointing officials in the personal staff of Ministers, procedure and rules for the said appointments are not scrupulously followed.The genuineness of the basic documents like educational qualification/ character and antecedents verification requires to be verified before appointment. Any serious lapse in the verification procedure could result in appointment of persons in the personal staff of Ministers, MP and other Govt, bodies, who are otherwise not eligible to man the post. Needless to add, this is fraught with dangers because such persons could also have access to sensitive information and data. It is therefore imperative that the concerned Ministries Departments should never lose sight of the various Instructions/guidelines while processing the case of KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (23) appointment of personnel in the office of Hon'ble Ministers". (Emphasis Supplied)
12. And Whereas, engagement of Sh. Bibhav Kumar as reflected in the note of GAD, was forwarded to Hon'ble Lt. Governor without routing it through the Hon'ble CM, and Sh. Bibhav Kumar has also been called by the Enforcement Directorate (as accused/witness) on 23.02.2023 with reference to liquor scam in NCT of Delhi:
13 And Whereas, the initial engagement of Sh. Bibhav Kumar is void-ab-initio and not in conformity with the extant rules as his engagement is to be governed as per the instructions issued by the DoPT from time to time, which were not apprised by the GAD to the then Hon'ble Lt. Governor while putting up the proposal for approval of his engagement in the year 2022;
14. And Whereas, continuation of service of Sh. Bibhav Kumar, who have a history of criminal antecedents, is in gross violation of the instructions issued by the DoPT, Govt. of India from time to time, and such engagement of Sh. Bibhav Kumar is void-ab-
initio being in gross violation of instructions issued by the DoPT, Govt. of India in this regard.
15. And Whereas, the services of Sh. Bibhav Kumar is to liable to be terminated as per the provisions of the Central Civil Services (Temporary Service) Rules, and Rule 5 of the said Rules which provides that engagement of a temporary government servant can be terminated from service by serving a notice in writing of one month prior to termination or it can be terminated forthwith after putting an entitled claim equivalent to amount of his pay for the purpose of his notice;
16. Now, therefore, Sh. Bibhav Kumar is hereby directed to provide within a weeks' time from the date of issuance of this notice about the status of the above mentioned criminal case and as to why his engagement shall not be terminated on expiry of one month from the date of issuance of this notice, on account of the such pending criminal case before the Court of Law in light of violation of above mentioned DoPT's instructions.
17. Sh. Bibhav Kumar can inspect the relevant file records on any working day, if so desires. If the reply not received within a weeks' time, it will be presumed that he has nothing more to say and the Directorate of Vigilance shall process the matter as per the extent rules."
28. Learned counsel for the applicant has argued that the said show cause notice was not explicitly approved by the competent authority, i.e. Lt. Governor and instead was issued by the Special Secretary (Vigilance) without prior approval of the Lt. Governor and therefore it is considered non est and since the termination order was the final result of such show cause notice, the same was not legally tenable too.
KEDAR RAM
KEDA 2026.04.24
16:24:00
R RAM +05'30'
(OA No.1531-2024)
(24)
Thus, termination based on such show cause notice becomes invalid in the eyes of law and it is ab-initio-void. In support of such contention, a plethora of judgments have been cited, more specifically Supreme Court's judgment in Chairman-cum-Managing Director Coal India Limited and Others vs. Ananta Saha and Others (2011) 5 SCC 142 which reads as follows:
"31. This Court has repeatedly held that an order of dismissal from service passed against a delinquent employee after holding him guilty of misconduct may be an administrative order, nevertheless proceedings held against such a public servant under the Statutory Rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings. The authority has to give some reason, which may be very brief, for initiation of the inquiry and conclusion thereof. It has to pass a speaking order and cannot be an ipse dixit either of the inquiry officer or the authority. (Vide Bachhittar Singh v. State of Punjab &Anr., AIR 1963 SC 395; Union of India v. H.C. Goel, AIR 1964 SC 364; Anil Kumar v. Presiding Officer & Ors., AIR 1985 SC 1121; and Union of India & Ors. v. Prakash Kumar Tandon, (2009) 2 SCC 541). Thus, the above referred to order could not be sufficient to initiate any disciplinary proceedings.
32. It is a settled legal proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact-situation, the legal maxim "sublatofundamentocadit opus" is applicable, meaning thereby, in case a foundation is removed, the superstructure falls.
** ** ** ** ** **
34. As in the instant case, there had been no proper initiation of disciplinary proceedings after the first round of litigation, all other consequential proceedings stood vitiated and on that count no fault can be found with the impugned judgment and order of the High Court."
29. Further, placing reliance on the judgment of the Hon'ble Supreme Court in Union of India and Others vs. B.V. Gopinath (2014) 1 SCC 351, learned counsel for the applicant argues that it is incumbent upon the competent authority to personally approve the charge sheet or show cause notice. Even if the Lt. Governor approved the proposal to initiate an inquiry, there is nothing to indicate that he approved the specific contents of the show cause notice. It is argued that if the actual remarks mentioned in the show cause notice were KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (25) not put up before the Lt. Governor any subsequent action based on such a show cause notice had no legal validity.
30. Learned counsel for the respondents, on the other hand, argues that there is no doubt that the Lt. Governor had eventually signed the final termination order and he had also approved the show cause notice, and as such, there is no infirmity in the order. The Special Secretary (Vigilance) did not exercise any independent statutory power. Learned counsel in support of such claim has also produced before us the relevant notings. Relevant portion of the said notings is reproduced below:
"57. The Department may also bring it to the notice that in the past officers as senior as Chief Secretary were allegedly manhandled in the office of Hon'ble CM.
58. Continuation of service of this kind of officers with a history of assault, intimidating public servant using criminal forces against them is not in tune with OMs issued by DoP&T Gol and his appointment is vold-ad-initio in terms of DoP&T circular.
59. Engagement of Sh. Bibhav Kumar as reflected in the note of GAD at 2/N, was forwarded to Hon'ble Lt. Governor without routing it through the Hon'ble CM, perhaps due to the reason that the Hon'ble CM himself is the interested party in this case.
60. Now therefore, it is proposed that Sh. Bibhav Kumar may be given one month prior notice for his termination on account of the pending case before the Chief Judicial Magistrate and in pursuance to DoP&T O.M. No. 8/32/2010-CS-II(C) dated 04.07.20211 read with DoP&T O.M. No. 8/11/2012-CS-II(C) dated 28.01.2013 as these two circulars prohibit appointment in anticipation of completion of pre-appointment formalities at a later stage. The condition of GAD that his appointment is subject to the final outcome of this criminal case is directly in conflict with the such circular mentioned at para 49 and reiterated at para 54.
Reference pre-pages:
61. Hon'ble Lt. Governor has perused the matter and desired that the Directorate of Vigilance shall seek the status of the case from Shri Bibhav Kumar within 07 days and submit its recommendation for further appropriate action."
KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (26) It is evident from the notings that the Special Secretary (Vigilance) vide relevant notings proposed that the applicant may be given one month prior notice for his termination citing the relevant circulars which prohibit appointment in anticipation of completion of pre- appointment formalities and also holding that the condition of GAD that his appointment is subject to the final outcome of this criminal case was directly in conflict with the such circular mentioned. However, the competent authority, i.e., the Lt. Governor of Delhi, directed the Directorate of Vigilance to seek the applicant's status before taking further appropriate action and gave a seven-day-window to clarify the same in his case. It is fairly well known that any proposal for action or steps in a department has to emanate from lower stage and the ultimate decision is taken by the authority which is vested with the power. Therefore, the noting referred to though create a ground and place relevant matter before the competent authority, no show cause notice is to have been placed for the approval of Competent which was approved by the competent authority.
31. Further, following the aforesaid notice dated 10.11.2023, the very next noting dated 16.11.2023 at Para 62 reads as follows:
"Sub: Appointment of Sh. Bibhav Kumar, Pvt. Secretary to the Hon'ble CM on Co-terminus basis.
62. May kindly peruse that Sh. Bibhav Kumar, Pvt. Secretary to the Hon'ble CM was issued a show cause notice dated 10.11.2023 (p-119/c) after approval of Hon'ble LG to show cause as to why his engagement shall not be terminated on expiry of one month from the date of issue of the said show cause notice on account of pending criminal case before the court of Law, as mentioned in the said show cause notice, in violation of DoPT's instructions and rules in this regard, thereby the said engagement to be illegal."
32. While the said note was based on certain grounds and reasons so mentioned therein, which was perused by the concerned authority, KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (27) who desired that the Directorate of Vigilance shall check the status of the case from the applicant within seven days and submit its recommendations for further appropriate action. How this was converted into a show cause is not clear to us. The respondents have also failed to show as to what action was taken by them on the directions of the Hon'ble LG, shown approved by the competent authority and was not supplemented by fresh reason or otherwise, subsequently. Therefore, the contention of the applicant that the show cause notice was not approved by the competent authority stands to reason and it bereft of approval of the concerned authority and in the light of the the ratio of the judgments cited i.e. Union of India and Others (supra) vs. B.V. Gopinath and Chairman-cum-Managing Director Coal India Limited and Others vs. Ananta Saha and Others (supra), the show cause notice is a nullity.
33. Also though the show cause notice observes that character and antecedent verification is to be verified before engaging non- government officials in personal staff of ministers, it is not in doubt that such verification was done before the appointment of applicant.
34. Moreover a close reading of the notings leading to issuance of show cause notice indicates that the respondents had already made up their mind to terminate his services as per para 60 which reads as follows-
"60. Now therefore, it is proposed that Sh. Bibhav Kumar may be given one month prior notice for his termination on account of the pending case before the Chief Judicial Magistrate and in pursuance to DoP&T O.M. No. 8/32/2010-CS-II(C) dated 04.07.20211 read with DoP&T O.M. No. 8/11/2012-CS-II(C) dated 28.01.2013 as these two circulars prohibit appointment in anticipation of completion of pre-appointment formalities at a later stage. The condition of GAD that his appointment is subject to the final outcome of this criminal case is directly in conflict KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (28) with the such circular mentioned at para 49 and reiterated at para 54."
In such a situation there is a compelling reason to conclude that the so called show cause notice itself was an empty formality.
35. Having dealt with the two issues, we now travel to the third i.e. whether pending FIR could have led to his termination. The respondents have much emphasized that in terms of the relevant instructions of Department of Personnel & Training dated 02.07.1982 read with Para 13.6 (A) (c) of Chapter-13 of the Handbook for Personnel Officers issued by the DoP&T, Govt. of India in May 2018, the applicant was not suitable to hold a civil post. However, at the time of processing the file in February 2020 for his appointment, the above mentioned instructions issued by the DoP&T were not brought into the knowledge of the appointing authority, i.e. Hon'ble L.G. nor it was informed to the appointing authority that the applicant was not clear from vigilance angle.
36. In this regard, we have perused the relevant OMs cited by the respondents at Annexures A10, A-11 and A-12. Para 3.1 (C) of OM dated 02.07.1982 issued by the Ministry of Home Affairs at Annexure A-10 reads as follows:
"Normally a person convicted of an offence involving moral turpitude should be regarded as ineligible for Government service."
37. Further at Annexure A-11 titled "Handbook for Personnel Officers 2013 at Para 13.2 mentioned as follows:
"(c) Normally a person convicted of an offence involving moral turpitude should be regarded as ineligible for Government service; Provided in cases the appointing authority feels that there are redeeming features and reasons to believe that such a person" has cured himself of the weakness, specific approval of the Government may be obtained for his employment."
KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (29) From the above, it is clear that the aforesaid OMs do not put any embargo on the appointment of a person unless he is convicted and he is charged with moral turpitude. In the instant case, the FIR No.102/27 has been duly disclosed by the applicant at the time of filling the relevant proforma and it is not in dispute that the said FIR was at the stage of evidence. As such, the applicant had not been convicted.
38. The respondents for their action have also placed reliance on OM dated 04.07.2011 (Annexure A-12) which reads as follows:
"OFFICE MEMORANDUM Subject: Appointment of non-government officials in the personal staff of Ministers regarding.
The undersigned is directed to invite reference to the existing instructions regarding appointment/scale/entitlement of personal staff admissible to Ministers/Deputy Ministers/Parliamentary Secretaries in the Union Council of Ministers issued vide this Deptt's O.M.No.8/3/92-CS(1) dated 14.1.1994, which inter alia stipulates verification of character and antecedents of the non government officials before appointment in the personal staff of the Union Council of Ministers.
However, references are being received from various Ministries/Departments regarding ante-dating of appointment of officials in the personal staff of Ministers. It has also come to the notice that officials are appointed in the personal staff of Ministers in anticipation of completion of pre-appointment formalities at a later stage. This is not only irregular but also creates administrative difficulties. Due to sensitivity of work handled by the Ministers, it is not appropriate to allow appointments in the personal staff of Ministers without prior verification of character and antecedents.
3. The Prime Minister has taken a serious view of this and has directed that a non-government personnel shall not be appointed in the personal staff of Minister before 1.8 verification is complete. The Intelligence Bureau has also been requested to ensure that verification of character and antecedents does not take more than 15 days. This Department will henceforth not entertain any request for ante-dating of appointment of such personnel.
4. The compliance of this O.M. may kindly be ensured."
KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (30)
39. The applicant's case is not covered by the aforementioned OM as such verification had been duly completed at the time of his initial appointment and there was no material change during his subsequent appointment in 2020. In fact, this has been duly noted by the respondents at the time of his second appointment. The noting at pages 181 and 182 of the Paper Book which was put up during his appointment for the second time in 2020 in fact clearly states that the
40. Thus, we find that the case of the applicant is not covered under the aforesaid conditions and as such, there was no bar in appointing him as Private Secretary to the Hon'ble Chief Minister of Govt. of NCT of Delhi and he could not be disqualified merely on the ground of a pending FIR in which the judicial proceedings had not even been completed. Moreover, at the cost of repetition, we again take note of undisputed but crucial element that the applicant did not suppress the fact of the pending FIR at any point of time and despite being aware of the same, he was appointed twice. Moreover if at all there was any irregularity in not placing the full facts before the competent authority, it was the fault of the concerned officials and the applicant was in no way to blame for this. Therefore, termination on the ground of pending FIR, which was always in the know of respondents, appears to be a case of non-application of mind.
41. Having dealt with the 3 issues, we now consider whether the impugned order cast any stigma on the applicant which makes the termination order punitive, thus calling for an enquiry before passing such order. Towards this we travel to certain paras of the impugned order dated 10.04.2024 as follows:
"8. And Whereas, it is observed that charges against Sh. Bibhav Kumar are grave in nature, including charge of "Assault or criminal force to deter public servant from discharge of his KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (31) duty" [section 353 IPC), for which the trial against Sh. Bibhav Kumar is at the stage of evidence, and therefore Sh. Bibhav Kumar is not clear from vigilance angle.
9. And Whereas, DoPT has seriously taken note of such kind of lapses in engagement of non-government officials without following verification process and issued another memorandum vide Ο.Μ. Νο. 8/11/2012-CS-II(C) dated 28.01.2013 in continuation to the earlier memorandum dated 04.07.2011 and 8/37/2011-CS-II(C) deted 15.12.20211 observed as under-
"2. It has come to notice that while appointing officials in the personal staff of Minister, procedure and rules for the said appointments are not scrupulously followed. The genuineness of the basic documents like educational qualification character and antecedentsverification requires to be verified before appointment. Any serious lapse in the verification procedure could result in appointment of persons in the personal staff of Ministers, MP and other Govt, bodies, who are otherwise not eligible to man the post. Needless to add, this is fraught with dangers, because such persons could have access to sensitive information and data. It is therefore imperative that the concerned Ministries Departments should never lose sight of the various instructions/guidelines while processing the case of appointment of personnel in the office of Hon'ble Ministers."
(Emphasis Supplied)
10. And Whereas, a show cause notice dated 10th November, 2023 was issued to ShBibhav Kumar to provide status of the above mentioned criminal case and as to why his engagement shall not be terminated on expiry of one month from the date of issuance of the notice, on account of the such pending criminal case before the Court of Law in light of violation of above mentioned DoPT's instructions."
A close reading of the show cause notice also smacks of stigma, more specifically Paras 10 and 12 which are reproduced below:
"10. And Whereas, it is observed that charges against Sh. Bibhav Kumar are grave in nature u/s 353, 504 & 506 of IPC for which the trial against Sh. Bibhav Kumar has reached the stage of evidence, and Sh. Bibhav Kumar is not clear from vigilance angle:
** ** ** ** ** **
12. And Whereas, engagement of Sh. Bibhav Kumar as reflected in the note of GAD, was forwarded to Hon'ble Lt. Governor without routing it through the Hon'ble CM, and Sh. Bibhav Kumar has also been called by the Enforcement Directorate (as accused/witness) on 23.02.2023 with reference to liquor scam in NCT of Delhi."
(Emphasis Supplied) KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (32)
42. It is not in doubt that whether an order is stigmatic depends onif it goes beyond a simple termination and casts a slur on the individual's character or reputation, thereby affecting his future employability.
43. From the above paras, as contained in the impugned order and show cause, it is evident that the foundation of the order of termination passed under Rule 5 of the CCS (Temporary Service) Rules, 1965 is clearly misconduct. If findings were arrived at regarding the misconduct without a regular enquiry, the order of termination is to be treated as "founded" on the allegation of misconduct.
44. In this case we rely upon an order passed by this very Bench in OA No.660/2017, where a similar controversy came up for consideration before the Tribunal. The relevant part of the order reads as follows:
"13. Now the issue, which arises for adjudication as to whether the order of termination of the services of the applicant in the case in hand is an order of termination simpliciter or punitive/stigmatic, is put to rest by the respondents themselves through the appellate authority's order which admittedly final order of the respondents in respect of termination of the applicant's services in as much as it is recorded in para 3 that 'Recruit Constable Devender Singh, No.30598/PTC was a habitual absentee and absenteeism in a disciplined force like Delhi Police amounts to a serious misconduct as availability of such type of personnel always remains doubtful... Absenteesim in the force is a very serious matter as it cripples the entire administration of the police department. It is a serious misconduct on the part of delinquent recruit constable which calls for an exemplary punishment. Further in para 2 of the counter reply, the respondents have asserted as under-
"2. That he was directed to join Police Training School, Wazirabad, Delhi for his basic induction course with the ongoing batch No. 96. During his short span of training since 04.10.2012 to the date of termination of his services ie. 11.01.2013 he remained absent from his basic training on 05 occasions. This act of the above Recruit Constable wasamount to highly in disciplined, un-devoted trainee and not likely to become a good Police officer. He was not considered fit to be retained in the Police force being a habitual absentee as retention of this type of incompetent persons in the Police Force creates bad impression amongst the other fellow trainees."
KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (33)
14. From the aforesaid, it is evident that while deciding as to whether the termination of a probationer is termination simpliciter or a punitive, the Tribunal can travel beyond the order of termination to find out what is the reality of the background and foundation of the order of termination.
15. In view of the aforesaid, it is undisputed that the impugned order of termination has merged into the appellate authority's order dated 22.5.2013 and the appellate authority's order is apparently stigmatic & punitive and the same is not permissible in the absence of a regular departmental enquiry in accordance with the law. So far the Judgment of the Hon'ble Apex Court in Rajesh Kohli (supra) relied upon by the learned counsel appearing for the respondents is 18 OA No.660 of 2017 concerned, in the said case, the petitioner was recommended by the Hon'ble High Court of Jammu and Kashmir for appointment as District and Session Judge on temporary basis and on acceptance of such recommendations by the Government, an order of appointment was issued to him. In the said case, two orders were challenged, one which was the order of the Hon'ble High Court passed on the basis of resolution of the Full Court and other one issued by the Government of Jammu and Kashmir, on the ground that they were stigmatic ones. In para 23, the Hon'ble Apex Court ruled that the order of termination is a fall out of his unsatisfactory service adjudged on the basis of his overall performance and the manner in which he conducted himself. The Hon'ble Apex Court ruled that such satisfaction even if recorded that his service is unsatisfactory would not make the order stigmatic or punitive as sought by the petitioner. Nowhere in the said Judgment, the Hon'ble Apex Court has ruled that even if foundation of the order of termination passed under Rule 5 of the Central Civil Service (Temporary Service) Rules, 1965, is misconduct, interference by the Court(s) and Tribunal(s) is not warranted.
16. In view of the aforesaid facts and discussion, the impugned orders dated 11.01.2013 (Annexure A-1) and 22.5.2013 (Annexure A-2) are set aside. The applicant shall be reinstated in service subject to his medical fitness as expeditiously as possible and in any case, not later than six weeks from the date of receipt of a copy of this Order. The applicant shall be entitled for consequential benefits, Le.., seniority, fixation of pay, however, only on notional basis and the respondents shall pass necessary order(s) in this regard and release the benefits, if any, as expeditiously as possible and preferably within eight weeks. However, the respondents shall be at liberty to initiate enquiry proceedings and conclude the same in accordance with the relevant rules and instructions, if they so decide.
17. The present OA is allowed in the aforesaid However, the facts and circumstances, there shall be no order as to terms. costs.
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On this issue, we also derive sustenance from Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others, (1999) 3 SCC 60.
ii) Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Ors., Civil Appal No.8662 of 2015, decided on 15.10.2015.
iii) State Bank of India & Ors. v. Palak Modi & Ors., Civil Appeal Nos. 7841-7843 of 2012, decided on 03.12.2012.
iv) Decision of the Hon'ble High Court of Delhi in S.S. Mota Singh Jr. Model School v. Tanjeet Kaur and Anr., W.P. No.6284/2012, decided on 07.07.2015. (C)
v) Delhi of the Hon'ble High Court of Delhi in Lalita Kumari v. Delhi Social Welfare Board &Anr., W.P. (C) No.944/2020, decided on 25.02.2021.
45. The Hon'ble High Court of Delhi has considered a similar controversy in Nina Lath Gupta, 2023:DHC:2944 as below-
"27. Therefore, what emerges from the conspectus of the aforesaid judgments is that if an order is founded on allegations, the order is stigmatic and punitive and services of an employee cannot be an dispensed with without affording him the of defending opportunity accusations/allegations made against him in a full-fledged inquiry. Since this case relates to a tenure appointment, it will be pertinent to look at the law with respect to stigmatic orders in the context of tenure appointments. In Dr. L.P. Agarwal v. Union of India and Others, (1992) 3 SCC 526, Petitioner was Director, AIIMS, who had been appointed for a period of 5 years or till he attained the age of 62 years, whichever was earlier, the Supreme Couri examined the meaning and connotation of the term 'tenure' and observed that tenure is a term during which an office is held. It is a condition of holding office and once a person is appointed to a tenure post, his appointment begins when he joins and comes to an end on completion of the tenure, unless curtailed on justifiable grounds. Such a person does not superannuate, he only goes out of office on completion of his tenure and thus, the question of prematurely retiring him does not arise. In A.P. State Federation of Coop. Spinning Mills Ltd (supra), Respondent was appointed as General Manager (Finance) for a period of 3 years and prior to the said period coming to an end, his services were terminated. Respondent approached the High Court in a writ petition seeking quashing of the order and the learned Single Judge dismissed the writ petition after coming to a conclusion that the termination order was innocuous and not penal in nature and termination being in accordance with the contract of service, after giving three months salary in lieu of the notice, required no interference. The Division Bench, allowing the appeal held that though the order on the face of it appeared to be innocuous, however, the attendant circumstances were examined, more particularly, if the stand in the counter affidavit, the conclusion was irresistible that the order was penal in natureand since penalty was imposed without affording opportunity to meet the KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (35) charge, the order was unsustainable. This order of the Division Bench was challenged before the Supreme Court and the contention of the Appellant was that the reasons indicated in the order were the motive for termination and not the foundation, requiring an inquiry, prior to termination. The Supreme Court upheld the order of the Division Bench, to the extent that the order of termination was vitiated and ruled as follows:-
"3. The legal position is fairly well settled that an order of termination of a temporary employee or a probationer or even a tenure employee, simpliciter without casting any stigma may not be interfered with by the court. But the court is not debarred from looking at the attendant circumstances, namely, the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the order of termination or formed the foundation for the same order. If the court comes to a conclusion that the order was, in fact, the motive, then obviously the order would not be interfered with, but if the court comes to a conclusion that the so-called inefficiency was the real foundation for passing of order of termination, then obviously such an order would be held to be penal in nature and must be interfered with since the appropriate procedure has not been followed. The decisions of this Court relied upon by Mr K. Ram Kumar also stipulate that if an allegation of arbitrariness is made in assailing an order of termination, it will be open for the employer to indicate how and what was the motive for passing the order of termination, and it is in that sense in the counter-affidavit it can be indicated that the unsuitability of the person was the reason for which the employer acted in accordance with the terms of employment and it never wanted to punish the employee. But on examining the assertions made in paras 13 and 14 of the counter-affidavit, in the present case it would be difficult for us to hold that in the case in hand, the appellant-employer really terminated the services in accordance with the terms of the employment and not by way of imposing the penalty in question.
4. In fact, the letter of the Commissioner for Handlooms and Director of Handlooms and Textiles dated 19-5-1993 was the foundation for the employer to terminate the services and as such the Division Bench of the AndhraPradesh High Court was justified in holding that the order of termination is based upon a misconduct, though on the face of it, it is innocuous in nature. We therefore do not find any infirmity with the said conclusion of the Division Bench of the Andhra Pradesh High Court requiring our interference."
XXX XXX XXX
29. Another judgment, which needs a mention and is close on facts, is in the case of Dr. Vijayakumaran C.P.V. v. Central University of Kerala and Others, (2020) 12 SCC 426, wherein the Supreme Court observed that the termination order was issued in the backdrop of Internal KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (36) Complaints Committee Report and going by the terms and tenor of the order, it incomprehensible to construe such an order to be an order simplicitor when the report of the Inquiry Committee was the foundation. The Supreme Court also reiterated the position of law that the material which amounts to stigma need not be contained in the termination order and may be in any document referred to therein, which reference will inevitably effect the future prospects of the incumbent and if so, the order must be construed as an ex facie stigmatic order of termination."
43. Further the Hon'ble High Court of Allahabad in Vijay Raj v. Union of India, Writ A. No.63968 of 2005, decided on 05.03.2020, has considered the law laid down by the Hon'ble Apex Court in a catena of decisions, including in a few Constitution Bench judgements and ruled in paras 61 and 62 as follows:
"61. From the above discussions, the principles discernible to find out whether a simple order of termination/discharge of a temporary employee or probationer is punitive or not, broadly, may be stated as under:
(a) The termination of services of a temporary servant or probationer under the rules of his employment or in exercise of contractual right is neither per se dismissal nor removal and does not attract the provisions of Article 311 of the Constitution.
(b) An order of termination simplicitor prima facie is not a punishment and carries no evil consequences.
(c) Where termination simplicitor is challenged on the ground of casting stigma or penal in nature, the Court initially would glance the order itself to find out whether it cast any stigma and can be said to be penal or not. If it does not, no further enquiry shall be held unless there is some material to show certain circumstances, preceding or attending. shadowing the simplicitorness of the said order.
(d) The Court is not precluded from going beyond the order to find out as to whether circumstances, preceding or attending, makes it punitive or not. If the circumstances, preceding or attending, show only the motive of the employer to terminate, it being immaterial would not vitiate the order unless it is found that order is founded on such act or omission constituting misconduct.
(e) If the order visits the public servant with evil consequences or casts aspersions against his character or integrity, it would be an order by way of punishment irrespective of whether the employee was a mere probationer or temporary.
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(f) "Motive" and "foundation" are distinct, though the distinction is either very thin or overlapping. "Motive" is the moving power, which impels action for a definite result, or to put it differently.
"Motive™ is that which incites or stimulates a person to do an act. "Foundation", however, is the basis, i.e., the conduct of the employee, When his acts and omissions treated to be misconduct, proved or founded, it becomes a case of foundation.
(g) If an order has a punitive flavour in cause or consequence, it is dismissal, but if it falls short of it, it would not.
(h) Where the employer is satisfied of the misconduct and the consequent desirability of termination, it is dismissal even though the order is worded innocuously. However, where there is mere suspicion of misconduct and the employer does not wish to bother about it, and, instead of going into the correctness of guilt, feel like not to keep the employee and thus terminate him, it is simpliciter termination and not punitive.
(i) Where the termination simplicitor is preceded by an enquiry, preliminary or regular, the Court would see the purpose, object of such enquiry as also the stage at which, the order of termination has been passed.
(j) Every enquiry preceding the order of termination/discharge, would not make it punitive. Where an enquiry contemplated in the rules before terminating an probationer or temporary employee is held, it would not make the order punitive.
(k) If the enquiry is to find out whether the employee is fit to be confirmed or retained in service or to continue, such an enquiry would not render termination punitive.
(l) Where the employer hold a formal enquiry to find out the correctness of the alleged misconduct of the employee and proceed on the finding thereof, such an order would be punitive, and, cannot be passed without giving an opportunity to the concerned employee.
(m) If some formal departmental enquiry commenced but not pursued to the end. Instead a simple order of termination is passed, the motive operating in the mind of the authority would be immaterial and such an order would be non punitive
(n) When an order of termination is assailed on the ground of mala fide or arbitrariness, while defending the plea of mala fide, if the authority has referred certain facts justifying the order of discharge relating to misconduct, negligence or inefficiency of the employee in the appeal or in the affidavit filed before the Court, that would not make the order founded on any misconduct.
(o) Sometimes when some reason is mentioned in the order, that by itself would not make the order punitive ог stigmatic.
The following words mentioned in the order have not been held to be punitive.
i. "want of application", ii. "lack of potential", iii. "found not dependable", iv. "under suspension", v. "work is unsatisfactory", vi. "unlikely to prove an efficient officer".
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(p) Description of background facts also have not been held to be stigmatic.
(q) However, the words "undesirable to be retained in Government service", have been held stigmatic.
(r) If there is (i) a full scale formal enquiry, (ii) in the allegations involving moral turpitude or misconduct, (iii) which culminated in a finding of guilt; where all these three factors are present, the order of termination would be punitive irrespective of the form. However, if any one of three factors is missing. then it would not be punitive.
62. The aforesaid are not exhaustive, but lay down some of the principles to find out whether termination of an employee is simplicitor or punitive. Each and every case has to be considered in the light of the facts and circumstances of the case, but broadly the aforesaid are the factors to find out whether termination of an employee is punitive or not."
46. We are conscious that each and every case has to be considered in the light of the facts and circumstances of case, of course, broadly keeping in view the factors as recorded in the said judgment to find out whether the termination of an employee is punitive or not? It also stands settled that while deciding whether the termination is a termination simpliciter ог punitive, the Tribunal can travel beyond the order of termination to find out what in reality weighed in the mind of the employer to terminate the services of the probationer.
47. From the judgment of the Hon'ble High Court of Delhi in Nina Lath Gupta (supra) it is settled that even if the order of termination of the probationer, on the face of it, appears to be innocuous and or order simpliciter, however, if the attending circumstances, more particularly the stand taken in the counter-affidavit, the conclusion was irresistible that the order was penal in nature and since the penalty was imposed without affording an opportunity to meet the charge, the order was not sustainable in the eyes of law.
48. In the aforesaid background, even if it is assumed that the impugned order dated 07.07.2017 is an order simpliciter, we are of KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (39) the considered view that the impugned order of termination is founded on an act of specific misconduct of applicant and, therefore, the impugned termination order is found to be punitive and stigmatic. The same being passed without holding an enquiry and without following the principles of natural justice is not sustainable in the eyes of law.
49. Learned counsel for the respondents states that the impugned order is an order simplicitor, inasmuch as it merely states the factual aspects and contains nothing to suggest any stigma. The perusal of the order indicates that the applicant's appointment was on a co- terminus basis and governed by CCS (Temporary Service) Rules, 1965. It also records the factual existence of FIR No.102/2007, PS Sector 22, Noida under Sections 353, 504, 506 IPC. It also adds that the Hon'ble High Court of Allahabad dismissed a writ petition to quash the FIR in 2008, which means that the said FIR is still in existence. However, we also find that the impugned order goes beyond termination under the rules by disregarding certain material, which tantamount to interpreting the simple facts in a manner to make it stigmatic. For example, it states that the charges (specifically Section 353 IPC/assault or criminal force to deter public servant from discharge of his duty) are grave in nature. It also explicitly concludes that the individual is not clear from a vigilance angle. Further, it characterizes the applicant's initial engagement as illegal and as such void-ab-initio because the DoP&T instructions were supposedly not meticulously followed. The impugned order also makes a reference to the DoP&T Circulars asserting that such appointments are fraught with dangers such as persons could also have access to sensitive information and data. Such assertions on the part of respondents are clearly stigmatic in nature.
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50. This Tribunal in R/Const. Devender Singh vs. Govt. of NCTD & Others vide OA No.660/2017 on 23.05.2023, held as below-
"10. In the case of Const. Yudhveer Singh (supra), under challenge was the order of termination passed by the respondents therein of a recruit Constable undergoing basic training, who absented himself from training on various occasions. After considering the law laid down by the Hon'ble Apex Court in a catena of cases, the Tribunal held in paras 7 to 9 as under:-
"7. In Ratnesh Kumar Choudhary Vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Others JT 2015 (9) 363, where a probationer Chest Therapist was terminated from his 5 OA No.893/2013 service, by stating that his appointment on the post of Chest Therapist was illegal in terms of investigation done by the Cabinet (Vigilance) Department and the explanation furnished by the appellant in pursuance of the show cause notice had been found unsatisfactory. The Hon'ble Apex Court while examining the contention of the appellant that his termination order was punitive and in violation of the principles of natural justice, after considering the various judgments of Hon'ble Supreme Court in Samsher Singh v. State of Punjab (1974) 2 SCC 831, Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and Another (1999) 2 SCC 21, State of U.P. vs. Kaushal Kishore Shukla (1991) 1 SCC 691, Triveni Shankar Saxena vs. State of U.P.(1992) Supp (1) SCC 524, State of U.P. vs. Prem Lata Misra (1994) 4 SCC 189, Samsher Singh (supra), Parshotam Lal Dhingra vs. Union of India AIR 1958 SC 36, State of Bihar vs. Gopi Kishore Prasad AIR 1960 SC 689, State of Orissa vs. Ram Narayan Das AIR 1961 SC 177, Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, Anoop Jaiswal vs. Govt. of India (1984) 2 SCC 369, Nepal Singh vs. State of U.P. (1980) 3 SCC 288, Commissioner, Food & Civil Supplies vs. Prakash Chandra Saxena (1994) 5 SCC 177, Commissioner, Food & Civil Supplies vs. Prakash Chandra Saxena (1994) 5 SCC 177, Chandra Prakash Shahi vs. State of U.P. and Others (2000) 5 SCC 152, Union of India and Others vs. Mahaveer C. Singhvi (2010) 8 SCC 220, Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences (1999) 3 SCC 60, Pavanendra Narayan Verma vs. Sanjay Gandhi P.G.I. of Medical Sciences and Another (2002) 1 SCC 520] and State Bank of India and Others vs. Palak Modi and Another (2013) 3 SCC 607, ruled that if the termination order is stigmatic and based or founded upon misconduct, would be a punitive order and court can lift the veil and declare that in the garb of termination simpliciter, the employer has punished an employee, for an act of misconduct. It was also held that if a probationer is discharged on the ground of misconduct or inefficiency or for similar reason, without a proper enquiry and without his getting a reasonable opportunity of showing cause against the termination, it may amount to removal from KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (41) service within the meaning of Article 311 (2). Hence, a regular departmental enquiry was required to be conducted before passing any adverse order. In the absence of which, the termination order would be inoperative and non-est in the eyes of law. The relevant paragraph of the said judgment reads as under:-
"28. In the case at hand, it is clear as crystal that on the basis of a complaint made by a member of the Legislative Assembly, an enquiry was directed to be held. It has been innocuously stated that the complaint was relating to illegal selection on the ground that the appellant did not possess the requisite qualification and was appointed to the post of Chest Therapist. The report that was submitted by the Cabinet (Vigilance) Department eloquently states about the conduct and character of the appellant. The stand taken in the counter affidavit indicates about the behaviour of the appellant. It is also noticeable that the authorities after issuing the notice to show cause and obtaining a reply from the delinquent employee did not supply the documents. Be that as it may, no regular enquiry was held and he was visited with the punishment of dismissal. It is well settled in law, if an ex parte enquiry is held behind the back of the delinquent employee and there are stigmatic remarks that would constitute foundation and not the motive. Therefore, when the enquiry commenced and thereafter without framing of charges or without holding an enquiry the delinquent employee was dismissed, definitely, there is clear violation of principles of natural justice. It cannot be equated with a situation of dropping of the disciplinary proceedings and passing an order of termination simpliciter. In that event it would have been motive and could not have travelled to the realm of the foundation. We may hasten to add that had the appellant would have been visited with minor punishment, the matter possibly would have been totally different. That is not the case. It is also not the case that he was terminated solely on the ground of earlier punishment. In fact, he continued in service thereafter. As the report would reflect that there are many an allegation subsequent to the imposition of punishment relating to his conduct, misbehaviour and disobedience. The Vigilance Department, in fact, had conducted an enquiry behind the back of the appellant. The stigma has been cast in view of the report received by the Central Vigilance Commission which was ex parte and when that was put to the delinquent employee, holding of a regular enquiry was imperative. It was not an enquiry only to find out that he did not possess the requisite qualification. Had that been so, the matter would have been altogether different. The allegations in the report of the Vigilance Department pertain to his misbehaviour, conduct and his dealing with the officers and the same also gets accentuated by the stand taken in the counter affidavit. Thus, by no stretch of imagination it can be accepted that it is termination simpliciter. The Division Bench has expressed the view that no departmental enquiry was required to be held as it was only an enquiry to find out the necessary qualification for the post of Chest Therapist. Had KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (42) the factual score been so, the said analysis would have been treated as correct, but unfortunately the exposition of factual matrix is absolutely different. Under such circumstances, it is extremely difficult to concur with the view expressed by the Division Bench".
8. In the present case, admittedly the respondents conducted an enquiry against the applicant, in respect of his alleged unauthorised absence and awarded him a written warning for the said misconduct. Further, though the impugned termination order has not given any reasons, but the facts preceding the termination order and the averments of the respondents in the counter clearly establishes that the misconduct of the applicant indeed constitutes the foundation and not motive of the action taken, the same amount to be in violation of the principles of natural justice and hence liable to be set aside.
9. Further, as the respondents have already awarded the written warning to the applicant for his proved misconduct of unauthorised absence, they cannot impose another punishment for the same misconduct, i.e. termination from service."
51. The Hon'ble Supreme Court in Pavanendra Narayan Verma vs. Sanjay Gandhi P.G.I. of Medical Sciences & Others, AIR 2002 SCC 23 has clearly stated that there is a distinction between the motive for a termination which does not require an enquiry and the foundation of the order, which if stigmatic, needs an enquiry. The Supreme Court has held that merely recording that an employee's performance is "unsatisfactory" is not stigmatic; however, leveling allegations of misconduct or lack of integrity is stigmatic in nature. If the order is founded on specific allegations of misconduct, rather than merely on unsatisfactory temporary service, the conduct of a full disciplinary enquiry is mandatory. Rule 5 of CCS (Temporary Service) Rules, permits termination by notice, however, it cannot be invoked where the termination is punitive in nature. The court in Dipti Prakash Banerjee versus Satendra Nath Bose National Centre for Basic Sciences, Calcutta and Others (1999) 3 SCC 60 ruled that if the termination is itself stigmatic or contains offensive remarks imputing misconduct, it must be quashed if no enquiry was held.
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52. While invoking Rule 5 of the CCS (Temporary Service) Rules, the inclusion of findings not based on enquiry is impermissible and renders the order void ab initio; and any assessment of charges in such a manner tends to make the termination stigmatic.It is evident that the assertions made in the impugned order form the foundation of the termination and are not merely the background motive. Therefore, a strong legal argument arises that a formal enquiry or, where applicable, a de novo enquiry with an opportunity of hearing, was required. The order does not merely terminate the applicant it leaves a trait suggesting lack of vigilance clearance, thereby adversely affecting the individual's reputation.
53. If the termination is based on allegations of misconduct of a grave nature, rather than being a simple administrative action, a formal enquiry--despite Rule 5 of the CCS (Temporary Service) Rules--is ordinarily required. In such an enquiry, it is contingent that the applicant is given an opportunity to cross-examine witnesses, including the complainant, rather than being limited to submitting a written reply. Since the order characterizes the charges as grave in nature, only a formal enquiry could have determined whether these charges actually warranted continuation or termination of service, more so when the matter was still at the stage of evidence.
54. A show-cause notice was issued on November 10, 2023 without the explicit approval of the competent authority, asking the applicant to provide the status of the criminal case and to show cause why his engagement should not be terminated. The applicant replied on December 15, 2023 stating that the pendency of the FIR had already been disclosed at the time of appointment and that there had been no material change in circumstances. Thus, while the department KEDAR RAM KEDA 2026.04.24 16:24:00 R RAM +05'30' (OA No.1531-2024) (44) provided an opportunity to respond, the final order went further by declaring the appointment illegal and void ab initio, thereby rendering the entire period of engagement illegal. At the cost of repetition, we also mention that the order concludes that the applicant is not clear from the vigilance angle which is conclusive finding having long term consequences in terms of stigma cast upon the applicant.
55. In such circumstances, as per the principles laid by the Hon'ble Supreme Court, a full enquiry is the only way to truly comply with the principles of natural justice. Therefore, we find strength in the argument of the learned counsel for the applicant that the impugned order is stigmatic and devoid of a formal enquiry; such stigmatic order cannot be sustained.
56. Accordingly the OA is allowed and we order the following-
(a) The impugned show cause notice dated 10.11.2023 and orders dated 10.04.2024 and 11.04.2024 are set aside.
(b) As a result, the applicant will be restored to his position and will be entitled for all consequential benefits. However, we limit such consequential benefits to 50% of his total entitlements.
(c) Further, respondents have drawn our attention to the order passed by the Hon'ble Supreme Court in Bibhav Kumar vs. State of NCT of Delhi, in Special Leave to Appeal (Crl.) No.(s) 9817/2024 dated 02.09.2024, wherein the following was held-
"10. In addition to the terms and conditions to be imposed by the Trial Court, we, in the interest of justice, deem it appropriate to direct the following additional terms and conditions:
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(i) The petitioner shall not be restored to the position of Private Secretary to the Chief Minister of Delhi and shall also not be given any other assignment during the pendency of the trial.
(ii) The petitioner shall not enter the premises of the Chief Minister's Residence Office or till all the vulnerable witnesses are examined by the Trial Court.
(iii) The prosecution is directed firstly to produce important and private vulnerable witnesses. Such witnesses should be examined first by the Trial Court.
(iv). The Trial Court shall make an endeavour to examine the important or vulnerable witnesses as early as possible, and preferably within three months.
(v) The petitioner shall not make any public comments on the merits of the issues, which are sub-judice before the Trial Court. This condition is imposed at this stage to safeguard the victim's rights and to dissuade a recent tendency of building self-serving narrative on public platforms.
(vi) However, the petitioner shall be at liberty to raise all his contentions before the Trial Court."
57. In the light of the aforesaid order dated 02.09.2024, the applicant will be restored to his position only till 01.09.2024. Accordingly, the consequential benefits will be limited to 01.09.2024 only. Needful in the compliance of the aforesaid directions will be done within a period of six weeks from the date of receipt of a certified copy of the order.
58. In the facts and circumstances of the case, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N.Singh)
Member (A) Member (J)
/kdr/
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