Central Administrative Tribunal - Delhi
Satya S/O Shri Ram Narayan vs The Director (Printing) on 16 April, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.4193/2011 Order reserved on 12th April 2012 Order pronounced on 16th April, 2012 Honble Shri M.L. Chauhan, Member (J) Honble Smt. Manjulika Gautam, Member (A) Satya s/o Shri Ram Narayan VPO Palli, Faridabad .. Applicant (By Advocate: Shri K C Mittal) Versus 1. The Director (Printing) Directorate of Printing B Wing, Nirman Bhawan New Delhi-11 2. The Secretary Ministry of Urban Development & Poverty Alleviation Nirman Bhawan, New Delhi-11 3. The Manager Govt. of India Press Ring Road, Mayapuri, New Delhi ..Respondents (By Advocate: Shri Subhash Gosain) O R D E R
Shri M. L. Chauhan:
The applicant has filed the present OA, thereby praying for the following reliefs:
(a) Quash and set aside the Impugned notice dated 31.10.2011 to terminate the services of the applicant on the post of Asst. Binder, issued by the respondents.
(b) Any other order that may be deemed fit and appropriate in the circumstances of the case may also be passed.
2. When the matter was listed on 24.11.2011, while issuing the notice to the respondents, this Tribunal has passed the following orders:-
The grievance of the applicant is regarding impugned order dated 31.10.2010 (Annexure A-1) whereby it has been stated that the services of the applicant shall stand terminated after the expiry of the period of one month. From the material placed on record, it is also evident that initially respondents have initiated the disciplinary proceedings against the applicant by issuing the charge sheet dated 24.5.2011 (Annexure A-6) but it appears that subsequently the respondents without holding the inquiry have passed an order of termination invoking sub-rule 1 of Rule 5 of CCS (CCA) Rules, 1965. The applicant has further stated that he joined service on 10.3.2008 as such he has also completed the probationary period. Thus it was incumbent upon the respondents to terminate the services of the applicant after expiry of the period of probation without resorting to disciplinary proceedings.
We have given due consideration to the submissions made by the learned counsel for applicant and we are of the view that the applicant has, prima facie, made out a case for grant of ex parte interim stay.
Accordingly, issue short notice to the respondents, returnable on 8.12.2011. In the meantime, operation of the impugned order dated 31.10.2010 (Annexure A-1) shall stand stayed till the next date.
3. The stay so granted by the Tribunal has been continued from time to time. Pursuant to the notice issued by this Tribunal, the respondents have filed reply affidavit wherein it has been stated that the services of the applicant have not been terminated on the basis of charge sheet dated 24.5.2011 (Annexure P-6) but his services have been terminated on the ground that the applicant has filled up the attestation form in the month of May 2011, whereby he has suppressed the fact regarding two criminal cases registered against him by the Faridabad Police. It has been stated that one case has been registered in the month of April 2008 being case No.65 dated 2.4.2008 under Sections 147/148/452/323/509 and 427 IPC registered with Police Station, SGM Nagar, Faridabad, whereas the other criminal case was registered in the month of June 2008 being case No.178 dated 19.6.2008 under Sections 452/323/387/506 and 34 IPC. It has further been stated that the fact regarding registration of these two criminal cases came to the knowledge of the respondents only after receiving verification report dated 20.9.2011 as such the notice dated 31.10.2011 (Annexure P-1) was issued for termination of the services of the applicant in pursuance of sub-rule (1) of Rule 5 of the CCS (Temporary Service) Rules, 1965 (for short TS Rules) effective from the date of expiry of a period of one month from the date on which the said notice is served on the applicant.
4. We have heard the learned counsel for the parties and gone through the material placed on record.
5. It is not in dispute that the offer of appointment on the post of Assistant Binder was given to the applicant on 29.2.2008 and he joined the duty on 10.3.2008. The respondents as well as the applicant have placed copy of the offer of appointment dated 29.2.2008 on record. The terms and conditions, as mentioned in the aforesaid letter, inter alia, stipulate that the appointment is temporary and will not confer any right to permanent employment and paragraph 2 (iv) of the terms and conditions further stipulates that the appointment will be treated as on probation for a period of two years. Further, the appointment was made subject to production of certificate of fitness and attestation form to be duly filled in, signed or got attested from the authority. Since the applicant has joined on 10.3.2008, he has completed the maximum period of probation, as provided in the letter of offer of appointment on 9.3.2010.
6. From the material placed on record, it is evident that the services of the applicant were satisfactory during the probation period. This fact is also not disputed by the respondents in the reply. Further, in the reply affidavit, the respondents have stated that the services of the applicant and other similarly situated could not be confirmed because the recruitment process in various Govt. of India Presses was suspended vide OM dated 3.4.2008 (Annexure R-6), as there was a complaint regarding irregularities committed in the selection process and matter was being investigated by the Chief Vigilance Officer of the Ministry of Urban Development.
7. From the material placed on record, it is also evident that it is only in the year 2011 after the completion of the maximum period of probation, as prescribed in the offer of appointment that the applicant was placed under suspension vide order dated 29.3.2011 (Annexure P-4), which suspension order was revoked on 19.5.2011 (Annexure P-5) and thereafter charge sheet was issued against the applicant on 24.5.2011 (Annexure P-6). It may be stated here that the attestation form, which was to be filled in, signed and got attested from the authorities in terms of paragraph 3 of the offer of appointment letter dated 29.3.2008 (Annexure P-3), was filled in by the applicant in May 2011 much after the completion of probation period whereby the applicant has suppressed the fact regarding two criminal cases registered against him, as referred to above.
8. Thus, on the basis of these facts, as stated above, the question, which requires our consideration is whether the services of the applicant could have been terminated by resorting to provisions of the TS Rules or it was incumbent upon the respondents to hold regular inquiry for the aforesaid misconduct. According to us, it was not permissible for the respondents to invoke the provisions of the TS Rules without issuance of show cause notice / holding regular inquiry for the aforesaid misconduct before terminating the services of the applicant. It is also not under dispute that the applicant was appointed as Assistant Binder after due selection on 10.3.2008. Admittedly, when the applicant was appointed no criminal case was registered against him and the criminal cases, as referred to above, were registered after his joining on the said post. Had the show cause notice issued to the applicant, he would have explained the circumstances under which he answered the queries in column No.12 of the attestation form, as he might have understood that he should answer the queries in column No.12 with reference to the position as on the date of appointment on 10.3.2008. Admittedly, on 10.3.2008, no criminal case was instituted or pending against the applicant. That apart, the applicant has completed the period of probation, which in terms of the offer of appointment, was two years and his work and conduct during that period was found satisfactory. It is not the case set up by the respondents in their reply affidavit that period of probation of two years was extendable but the reason given by the respondents not to confirm the applicant and other similarly situated persons was that the cases of confirmation were pending because of the inquiry relating to irregular selection of the applicant and other similarly situated persons. Thus, it cannot be said that the applicant was a temporary employee and his services could have terminated in terms of the TS Rules ibid.
9. Law on this point is no longer res integra. At this stage, we wish to refer to the decision of the Apex Court in the case of Kamal Nayan Mishra v. State of Madhya Pradesh & others, (2010) 1 SCC (L&S) 573. That was a case where the appellant before the Apex Court was appointed as Peon on 24.7.1980. Nearly a decade later, on 22.8.1989, the appellant was charge-sheeted in a criminal case for the offences under Sections 148, 324/149, 326/149 and 506 IPC. He was acquitted by judgment dated 9.9.2004 passed by the Judicial Magistrate, First Class, Reva, MP. In the year 1994, the appellant was required to submit an attestation form giving his personal data in regard to his educational qualifications, antecedents, etc. He filled up and submitted the said form on 27.10.1994. In answer to the queries in Column 12, which relates to case pending against the concerned in court of law, he answered in negative. The said attestation form was sent to verification and on receipt of verification report no show cause or charge sheet was issued to the appellant and after considerable period, his services were terminated for giving wrong information and concealment of facts in attestation form. The appellant challenged his termination order and the learned Single Judge of the High Court dismissed the writ petition by order dated 11.10.2007 relying upon the judgment of the Apex Court in Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav, (2003) 3 SCC 437. The appeal filed before the Division Bench was also dismissed. Matter was carried to the Apex Court. It was argued before the Apex Court that there was no intentional suppression or misrepresentation in the attestation form. It was contended that the appellant has only basic education and he was given to understand that he should answer the queries in Column 12 with reference to the position as on the date of his appointment in the year 1980. He, therefore, answered truthfully all the three queries in Column 12 in the negative and he did not realize that clauses (b) and (c) of Column 12 required him to state the particulars as on the date of filling up of attestation form. It was further contended that being a regular confirmed employee, his services could not have been terminated without an inquiry under the relevant service rules, and the termination is violative of Article 311 of the Constitution of India.
10. The question, which was under consideration before the Apex Court in the aforesaid case, was whether the ratio decidendi of the decision in Ram Ratan Yadavs case (supra) apply to the case appellant? Does it hold that the State Government could dismiss or remove the holder of a civil post, without any inquiry or opportunity to show cause, once it is found that he has given incorrect/false information in the personal attestation form? The Apex Court in Kamal Nayan Mishras case (supra), in paragraphs 17 & 18, has held as under:-
17. Ram Ratan Yadav (supra) held that the services of a probationer who gave wrong information in regard to material particulars having a bearing on his fitness or suitability for appointment, can be terminated without giving any opportunity to show cause against the proposed termination. But once a probationer is confirmed in the post, his position and status becomes different as he gets the protection of Article 311. If it is found that the government servant who is holder of a civil post, has given any false information during the course of employment, that will have to be treated as a misconduct, and punishment can be imposed only after subjecting him to an appropriate disciplinary proceedings as per the relevant service Rules.
18. There are also several other features in this case which distinguish it from Ram Ratan Yadav. First is that Ram Ratan Yadav related to an employee of Kendriya Vidyalaya Sangathan, who did not have the protection of Article 311 of the Constitution of India, whereas in this case we are concerned with a government servant protected by Article 311. Second is that the attestation form in this case, was required to be furnished by the employee, not when he was appointed, but after fourteen years of service. The third is that while action was promptly taken against the probationer, in the case of Ram Ratan Yadav, within the period of probation, in this case even after knowing that appellant had furnished wrong information, the respondents did not take any action for seven long years, which indicated that the department proceeded for a long time on the assumption that the wrong information did not call for any disciplinary or punitive action. The belated decision to terminate him, seven years later was unjustified and violative of Article 311. (emphasis supplied)
11. Thus, the ratio, as laid down by the Apex Court in the aforesaid case, is attracted in the instant case also. From the material placed on record, it is found that when the applicant herein joined the services of the respondents on 10.3.2008, no criminal case was pending. The applicant, as per the terms and conditions of the offer of appointment, was required to furnish the attestation form at the time of joining of services. However, in the instant case, the applicant was asked to furnish the attestation form after a period of more than three years of service. As already stated above, in the instant case, the applicant has given false information, if any, during the course of employment. Thus, in terms of the law laid down in paragraph 17, as quoted above, such false information given during the course of employment has to be treated as misconduct and punishment can be imposed only after subjecting such persons to an appropriate disciplinary proceeding as per the relevant rules.
12. Thus, viewing the matter from any angle, we are of the view that the action of the respondents to terminate the services of the applicant either without giving a proper show cause notice or holding a regular inquiry cannot be upheld.
13. Accordingly, the present OA is disposed of and the impugned order dated 31.10.2011 is hereby quashed and set aside. However, we leave it open to the respondents to proceed with the matter after subjecting the applicant to proper disciplinary proceeding as per service rules or to proceed with the matter in the light of the judgment of the High Court of Delhi in Union of India & others v. Dharam Vir Singh (W.P. (C) No.4745/2011 and other connected matters) decided on 7.3.2012 wherein the petitioners, who were selected as Assistant Binders pursuant to the selection carried out in the year 2007-2008, which selection has been found to be vitiated on account of irregularity in the recruitment process; the High Court in the aforesaid case has directed the authorities to take necessary action qua the person already appointed in case the report of Chief Vigilance Officer regarding the aforesaid selection is accepted. No costs.
( Smt. Manjulika Gautam ) ( M. L. Chauhan ) Member (A) Member (J) /sunil/