Central Administrative Tribunal - Delhi
Rajesh Kumar vs Govt. Of Nct Delhi Through on 19 September, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A.No. 3744/2010 This the 19th day of September 2011 Honble Shri George Paracken, Member (J) Honble Dr. Veena Chhotray, Member (A) Rajesh Kumar PIS No.28105793 Ex. Const. (Ex.) in Delhi Police, S/o Sh. Manphool Singh R/o Vill. MP Majra, PO Kheri Jat, Distt. Jhajjar, Haryana-124105. Applicant (By Advocate: Sh. Anil Singal) Versus 1. Govt. of NCT Delhi through Through Commissioner of Police, Police Headquarters, I.P.Estate New Delhi. 2. Principal Police Training College, Jharoda Kalan, New Delhi. Respondents (By Advocate: Ms. Sumedha Sharma) O R D E R
Honble Shri George Paracken:
Applicant is aggrieved by following impugned orders:
(1) Annexure A-1 notice dated 19.7.2010 stating that the applicant has committed the following misconduct and asking him to show cause as to why his services should not be terminated under Rule 5 (1) of CCS (Temporary Service) Rules, 1965. It reads as under:-
Recruit Const. Rajesh Kumar No.17491/PTC (PIS No.28105793) (Roll No.446638) was selected in Delhi Police during the recruitment held in year 2009. He joined the department on 20.1.2010 and was undergoing his basic training at PTS/Jharoda Kalan, New Delhi. At the time of filling of Application Form for the above mentioned post he did not mention detail, of the criminal proceeding in column No.15 (a to e) and mentioned No against the each column. In the beginning of the application form for the post of Const.(Exe.) Male in Delhi Polic-2009 in the column of warning, it has been clearly mentioned that furnishing of false information or suppression of any factual information in the application form would be a disqualification for the job. Also, at the time of filling up of attestation form, he did not disclose any details of the criminal involvement in column No.11 (b). The police verification report received in Recruitment Cell, Delhi Police from Supdt. of Police/Jhajjar (Haryana) revealed that a case FIR No.209 dated 26.6.2005 u/s 323/452/506 IPC, PS Sadar Bahadurgarh, Distt. Jhajjar, (Haryana) was registered against him. Thus, he had suppressed his criminal involvement in application as well as in attestation form. Besides, he had also submitted a false undertaking at the time of obtaining of offer of appointment letter and succeeded in joining the department by adopting deceitful means. The concealment of facts regarding involvement in a criminal case at initial stage clearly reflects his malafide intention. (2) Annexure A-2 order dated 25.8.2010 by which the Additional Commissioner of Police and Principal, Police Training College, (PTS, for short) Jharoda Kalan, New Delhi terminated his service with immediate effect after going through his reply to the aforesaid Annexure A-1 show cause notice submitted by him and hearing him in person. It reads as under:-
During the personal hearing he re-iterated the same plea which he had explained in his written reply. From the perusal of the application form for the recruitment of Constable (Exe.) Male in Delhi Police-2009 at 15(a) i.e. whether any FIR or criminal case has ever been registered against you in which the R/Const. has written even been registered against you in which the R/Const. has written No.
A warning in this regard has been clearly notified at the top of the application form for the recruitment of Constable (Exe.) Male in Delhi Police-2009, that furnishing of false information or suppression of any factual information in the application form would be a disqualification for the job.
The R/Const. has also mentioned No in the attestation form at 11(b) i.e. whether any FIR was ever register against you, if yes give complete detail.
Warning in this regard at the top of the attestation form has clearly been notified that :-
1. The furnishing of false information or suppression of any factual information in the attestation form would be disqualification and is likely to render candidate unfit for employment under the Govt.
The R/Const. has also submitted a false undertaking at the time of obtaining the offer of appointment letter and succeeded in joining the department by adopting deceitful means.
I have gone through the police verification report received in Rectt. Cell of Delhi Police from Supdt. of Police/Jhajjar (Haryana) which revealed that a case FIR No.209 dated 26.6.2005 U/s 23/452/506 IPC, PS Sadar Bahadurgarh Distt. Jhajjar (Haryana) was registered against him in which he has been acquitted by the Honble Court.
As per the position explained above, it is undoubtedly clear that the R/Const. has suppressed the facts in the application form/attestation form for the recruitment of Const.(Exe) Male in Delhi Police-2009, as well as submitted false undertaking.
2. The applicant has challenged the aforesaid show cause notice and the order on various grounds. One of the grounds adducted by him is that the impugned notice and order have been issued in violation of the principles of natural justice and Article 311 of the Constitution of India as he was not given any proper opportunity to defend himself before he was terminated from service illegally invoking the provisions of Rule 5 (1) of CCS (Temporary Service) Rules, 1965. In this regard, the learned counsel for the applicant has relied upon the following judgments of the Apex Court/High Courts and the order of this Tribunal:-
(1) Dinesh Kumar Vs. State of Haryana & Ors., 2006 (4) SCT 429.
(2) State of Haryana & Ors. Vs. Dinesh Kumar, (2008) 3 SCC 222.
(3) Chander Prakash Shahi Vs. State of U.P. and others, (2000) 5 SCC 152.
(4) OA-970/2007 Rajesh Kumar Vs. Union of India & Ors.
(5) OA-1795/2005 Vikram Singh Vs. Union of India & ors.
(6) OA-1508/2007 Ex. Ct. (Exe.) Prem Kumar Vs. GNCTD & ors.
3. In Dinesh Kumars case (supra), the Punjab and Haryana High Court has held that in the absence of conviction, mere registration of a criminal case is not a ground for disqualifying a candidate and not disclosing such facts does not amount to concealment of any fact. The case of State of Haryana & Ors. (supra), was an appeal against the judgment of the High Court of Haryana and Punjab in Dinesh Kumars case (supra). The Apex Court affirmed the view of the High Court and held as under:
26. It is no doubt true that in the instant case the accused persons had appeared before the concerned Magistrates with their learned advocates and on applying for bail were granted bail without being taken into formal custody, which appears to have swayed one of the benches of the Punjab and Haryana High Court to take a liberal view and to hold that no arrest had actually been effected. The said view, in our opinion, is incorrect as it goes against the very grain of Sections 46 and 439 of the Code.
27. The interpretation of arrest and custody rendered by the Full Bench in Roshan Beevis case (supra) may be relevant in the context of Sections 107 and 108 of the Customs Act where summons in respect of an enquiry may amount to custody but not to arrest, but such custody could subsequently materialize into arrest. The position is different as far as proceedings in the court are concerned in relation to enquiry into offences under the Indian Penal Code and other criminal enactments. In the latter set of cases, in order to obtain the benefit of bail an accused has to surrender to the custody of the Court or the police authorities before he can be granted the benefit thereunder. In Vol.11 of the 4th Edition of Halsburys Laws of England the term arrest has been defined in paragraph 99 in the following terms:-
99 Meaning of arrest. Arrest consists in the seizure or touching of a persons body with a view to his restraint; words may, however, amount to an arrest if, in the circumstances of the case, they are calculated to bring, and do bring, to a persons notice that he is under compulsion and he thereafter submits to the compulsion.
28. The aforesaid definition is similar in spirit to what is incorporated in Section 46 of the Code of Criminal Procedure. The concept was expanded by this Court in State of Uttar Pradesh vs. Deomen (AIR 1960 SC 1125) wherein it was interalia observed as follows:-
12. Section 46, Cr.P.C. does not contemplate any formality before a person can be said to be taken in custody. Submission to the custody by words of mouth or action by a person is sufficient. A person directly giving a police officer by word of mouth information which may be used as evidence against him may be deemed to have submitted himself to the custody of the Police Officer
29. The sequitur of the above is that when a person, who is not in custody, approaches the police officer and provides information, which leads to the discovery of a fact, which could be used against him, it would be deemed that he had surrendered to the authority of the investigating agency.
30. It must, therefore, be held that the views expressed by the High Court in Dinesh Kumars writ petition regarding arrest were incorrect, while the views expressed in the writ petitions filed by Lalit Kumar and Bhupinder correctly interpreted the meaning of the expressions arrest and custody. However, how far the same would apply in the ultimate analysis relating to the filling up of column 13(A) is another matter altogether.
31. In our view, the reasoning given in Dinesh Kumars case in that context is a possible view and does not call for interference under Article 136 of the Constitution. Conversely, the decision rendered in the writ petitions filed by Lalit Kumar and Bhupinder has to be reversed to be in line with the decision in Dinesh Kumars case. When the question as to what constitutes arrest has for long engaged the attention of different High Courts as also this Court, it may not be altogether unreasonable to expect a layman to construe that he had never been arrested on his appearing before the Court and being granted bail immediately. The position would have been different, had the person concerned not been released on bail. We would, in the facts of these cases, give the benefit of a mistaken impression, rather than that of deliberate and wilful misrepresentation and concealment of facts, to the appellants in the second of the two appeals as well, while affirming the view taken by the High Court in Dinesh Kumars case.
32. Accordingly, although, we are of the view that the legal position as to what constitutes arrest was correctly stated in the writ petitions filed by Lalit Kumar and Bhupinder, we confirm the order passed in Dinesh Kumars case and extend the same benefit to Lalit Kumar and Bhupinder also.
33. In the result, the Civil Appeal arising out of SLP(C) No. 1840 of 2007 is dismissed, while the Civil Appeal arising out of SLP(C)No.14939 of 2007 is allowed. The Judgment of the High Court dated 22nd September, 2005, impugned in the said appeal, is set aside and the concerned respondents are directed to take steps to issue appointment letters to the appellants in the said appeals subject to fulfillment of other conditions by them. It is also made clear that the appellants will be deemed to have been appointed as Constable-Drivers with effect from the date, persons lower in merit to them were appointed. However, while they will be entitled to the notional benefits of such continuous appointment, they will be entitled to salary only from the date of this judgment on the basis of such notional benefits.
4. The Apex Court in Chandra Prakash Shahi Vs. State of U.P., 2005 SCC 152 has held in cases of allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. The relevant part of the judgment is as under:
28. The important principles which are deducible on the concept of "motive" and "foundation", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive".
5. The case of Rajesh Kumar (supra) was that on verification of the Applicants Employment Exchange Registration Card number 525/2001 dated 6.11.2001 from the District Employment Officer, Rewari, Haryana, it was found that it was actually registered in the name of one Smt. Krishna Devi and that the Applicant had tampered with it, as no registration was made on 6.11.2001. The Show Cause Notice (SCN) was issued under sub Rule (1) of Rule 5 of the CCS (Temporary Services) Rules, 1965 and in reply, the Applicant stated that his name was registered in the Employment Exchange, Rewari at serial number 2525/2001 dated 6.11.2001 instead of 525/2001. He has also submitted a copy of registration certificate bearing number 2525/2001. This was also investigated and it was found that the said certificate was in the name of one Satyapal Singh and not in Applicants name. After considering the reply of the Applicant to the SCN, the fourth Respondent terminated his service under Rule 5 (1) of CCS (Temporary Service) Rules, 1965. This Tribunal quashed and set aside the show cause notice and the order of termination holding that without holding regular departmental enquiry, the service of the applicant could not have been dispensed with. The relevant part of the said order is as under:
8. We have bestowed our careful consideration to the rival contentions and have carefully perused the record of the case with the assistance of the learned counsel for both sides. In our view, the issue in this case is whether the Applicants service could have been terminated under Proviso to Rule 5 (1) (a) of CCS (Temporary Service) Rules, 1965 without following due process of regular departmental enquiry. It is not the issue, as argued by the learned counsel for the Applicant, that the condition in the advertisement for registration in the Employment Exchange, one month before the notification of the post is against the law laid down by the Honourable Supreme Court in Excise Superintendent Malkapatanam, Krishna District, AP (supra). It is also not, in our view, an issue that such insistence for registration in Employment Exchange is against the Rule 27 of Delhi Police (Punishment & Appeal) Rules, 1980. The Applicant had, as contended by him, registered his name in the Employment Exchange at Rewari. The registration certificate was found to have been tampered with by the authorities. The SCN stated thus:
Since you have tampered the Employment Card as intimated by the Employment Officer, Rewari (HR) and joined the department as Constable (Driver) by adopting deceitful means, which is a violation of sub rule (i) of Rule 5 of the CCS (Temporary Service) Rules, 1965. The DCP (PCR), the fourth Respondent herein has also recorded that [H]e got employment in Delhi Police as Constable (Driver) on the basis of forged employment card. Thus he is found guilty. The appellate authority has also expressed his view that it was clearly established that the representationist got employment as Constable (Driver) in Delhi Police on the basis of forged employment registration card. Further, the appellate authority has held that [I]t was clearly mentioned in the appointment letter that his appointment would be liable for termination without giving any reason, if facts given by him were found incorrect in any material respect. The Applicant has been punished for forging the registration certificate. Thus, in our considered view, the issue in this case is, as stated above, whether the Applicants service could be terminated under Proviso to Rule 5 (1) (a) of CCS (Temporary Service) Rules, 1965 without following the procedure for holding regular departmental enquiry. The case of Kailash Chand Meena (supra), therefore, would not apply to this case.
9. Rule 5 (1) of the CCS (Temporary Service) Rules, 1965 is as follows:
5. Termination of Temporary Service (1) (a) The services of a temporary Government servant shall be liable to termination at any time by a notice in writing given either by the Government servant to the Appointing Authority, or by Appointing Authority to Government servant;
(b) the period of notice shall be one month;
Provided that the service of any such Government servant may be terminated forthwith and on such termination, the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, as the case may be, for the period by which such notice falls short of one month. The CCS (Temporary Service) Rules, 1965 also include form of order to be issued and it would be instructive to see that:
Form II Order of termination of service issued under the proviso to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965.
In pursuance of the Proviso to Sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, I, .. (name and designation) hereby terminate forthwith the services of Shri/Shrimati/Kumari .. and direct that he/she shall be entitled to claim a sum equivalent to the amount of his/her pay plus allowances for the period of notice at the same rates at which he/she was drawing them immediately before the termination of his/her service or, as the case may be, for the period by which such notice falls short of one month.
10. A simple reading of the impugned order by which the service of the Applicant has been terminated would show that it is not an order of termination simpliciter but stigmatic in nature. It is not in Form II, which we have quoted above, but is a detailed order based on enquiry conducted by the authorities. In Chandra Prakash Shahi V. State of U.P. and others, (2000) 5 SCC 152 the Honourable Supreme Court has held as follows:
28. The important principles which are deducible on the concept of motive and foundation, concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of probationer for the post in question or for his further retention in service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against the employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of motive (emphasis added). The Honble Apex Court has observed further that [T]he benefit and protection of Article 311 (2) of the Constitution is available not only to temporary servants but also to a probationer and the Court in an appropriate case would be justified in lifting the veil to find out the true nature of the order by which the services were terminated. (emphasis supplied).
The facts are very clear in this case. There is no need even to lift the veil because the impugned order is obviously punitive in nature.
11. Article 311 (2) of the Constitution of India is reproduced below:
311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. In Chandra Prakash Shahi (supra) the Apex Court has extended the protection of Article 311 (2) to an official on probation also.
12. We are not in agreement with the argument of learned counsel for the Respondents, that reasonable opportunity has been given to the Applicant through show cause notice and also by giving him an opportunity to represent against the order of the DA. If it were so, then the disciplinary authority may feel satisfied by taking this short cut and dispense with regular departmental enquiry as prescribed under CCS (CCA) Rules, 1965 or Delhi Police (Punishment and Appeal) Rules, 1980 etc. Article 311 (2) of Constitution of India mandates that reasonable opportunity should be given to a civil servant to defend himself. The Honourable Apex Court has given the protection of Article 311 (2) to a probationer also, in case an order is punitive in nature. Rule 14 of DP (P&A) Rules stipulate that [P]unishment mentioned at Sl. No. (i) to (vii) in Rule 5 supra shall be awarded by appointing authorities only after regular departmental enquiry. Dismissal and Removal from service are, inter alia, authorized punishments under Rule 5 of the DP (P&A) Rules. In the present case the service of the Applicant has been terminated under Proviso to Rule 5 (1) (a) of CCS (Temporary) Service) Rules, 1965. The order has been passed not in Form II, prescribed under the abovesaid Rules, but in a detailed manner. The order is stigmatic. Therefore, it is our considered view that procedure of regular departmental enquiry should have been followed in the present case, before inflicting the punishment of termination on the Applicant. Needless to say, we are refraining from passing any comments on the merits of the case.
13. On the basis of above consideration, we allow the OA. The impugned orders at Annex A-2, Annex A-3, Annex A-4 i.e. the show cause notice dated 12.04.2005, order of termination dated 13.02.2006 and order dated 11.03.2006 rejecting the representation against the order of termination are quashed and set aside. Having set aside the impugned orders and show cause notice, the question now survives is as to what relief can be granted to the Applicant at this stage. We have pondered over the said issue and considering that the allegation of the department is that the Applicant had secured a job by deceit on the basis of tampering the employment card and further that the impugned orders and show cause notice have been set aside on a technical ground for not following the required procedure, we are of the considered view that the Applicant does not deserve any immediate relief. The department has necessarily to be given liberty to proceed against the Applicant in a regular departmental inquiry, and if they choose to do so, the position that existed before passing the impugned orders should be restored. If, therefore, the Applicant was put under suspension, he may continue to remain under suspension till such time the inquiry is held and concluded. If, however, the Applicant was not suspended and was in service before passing of the impugned orders, he would be taken into service. Insofar as the consequential reliefs are concerned, the same would be depended upon the final outcome of the inquiry that may be conducted against the Applicant, and if in the departmental proceedings that may be initiated against him, the charge is proved, naturally the Applicant would deserve no consequential reliefs. If he may, however, succeed in proving his innocence, he would be entitled to all consequential reliefs.
6. The case of the applicant in OA-1508/2007 (supra), was that his service therein was terminated under the provisions to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 in an arbitrary and illegal manner. According to him, at the at the time of filling up application form in June/July, 2005, he was not aware nor had any knowledge that a criminal complaint had been filed against him. He came to know of this fact only in September, 2005, and there was no occasion for him to disclose about his involvement in the criminal complaint in the application form, as he himself was not aware of the same. However, when he filled up his attestation form on 26.12.2005, he disclosed every relevant fact with regard to the criminal complaint filed by Ms. Sunita. Thereafter, he was appointed as Constable (Exe.) but without any notice to him, his services were terminated vide order dated 1.2.2007. This Tribunal allowed the OA and set aside the order of termination. The relevant part of the said order is as under:
5. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. It is by now a settled proposition of law that even a temporary government employee or probationer is entitled to protection of Article 311(2) of the Constitution of India, and, further that court can lift the veil to determine the real fact of termination. Reference in this connection be made to the judgment of the Honble Supreme Court in Chandra Prakash Shahi v State of U.P. & Others [(2000) 5 SCC 152]. It would be unnecessary to burden the present judgment over the case law. Suffice it to mention that the proposition of law as mentioned above, culled out by the Honble Supreme Court in Chandra Prakash Shahi (supra) came about after taking into consideration the entire case law as available at the time of the decision. In the present case, there would be no need to look into records with a view to find the real reason leading to termination of services of the applicant. In other words, there would be no need to lift the veil as concededly services of the applicant were terminated because of an allegation made against him that he had not disclosed the factum of his involvement in a criminal case pending in a court of law. It is once again a settled proposition of law that if for determination of suitability of a probationer for a post in question or for his further retention in service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his services, the order would not be punitive in nature, but if there are allegations of misconduct and an order terminating his services is passed on the basis of that enquiry, the order would be punitive in nature. This is what precisely has been held by the Honble Supreme Court in Chandra Prakash Shahi (supra). In our considered view, whether enquiry to find out the misconduct of the employee is conducted or not, but if the order of termination is because of misconduct alleged to have been indulged in by the employee, the same would be punitive, and, therefore, the employee would be entitled to protection of Article 311(2) of the Constitution. Facts of the case aforesaid reveal that Chandra Prakash Shahi was recruited as Constable on 1.10.1985. He successfully completed training on 6.9.1986 and was thereafter placed on probation for two years which he completed on 5.9.1988 without any blemish. On 19.7.1989 his services were terminated by a simple notice issued in terms of rule 3 of U.P. Temporary Government Servants (Termination of Service) Rules, 1975. The U.P. Public Services Tribunal before which the termination was challenged, came to the conclusion that the termination order, though innocuously worded, was punitive in nature. Services of Shahi were terminated on the basis of a preliminary enquiry which was instituted as a result of quarrel between two other constables. Shahi and some other constables were also found involved in the case indulging in acts of indiscipline and misbehaviour. The order of termination was set aside by the Tribunal, and on appeal the Honble Supreme Court affirmed the order aforesaid.
6. The learned counsel representing the respondents would, however, endeavour us to hold that that no enquiry was required to be held in the case and the applicant did not have the protection of Article 311(2), relying upon the Single Bench decision of the Delhi High court in Shankar Singh (supra). The facts of the case aforesaid reveal that Shankar Singh, a workman, had challenged an award of the labour court dated 10.2.1995 before the High Court. The question referred by the government to the labour court was as follows:
Whether the termination of services of Shri Shankar Singh is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect? Shankar Singh, the petitioner before the High Court, was appointed as daily wager Beldar on 15.3.1984 and was regularised a few days thereafter. At the time of his appointment on regular basis, he had given a declaration that he had never been arrested/convicted and no case was pending against him in a court of law, and that if his declaration was found to be incorrect, his services could be terminated without assigning any reason. On verification, it was found that the petitioner had made a false declaration at the time of taking regular service and his services were terminated on 15.10.1984. The declaration was found to be false inasmuch as he was arrested by police in a case under the Excise Act, alleging recovery of charas from him. He faced criminal trial and was acquitted by the court by giving him benefit of doubt on 21.9.1982. This fact came to the knowledge of the respondent when his character verification was sent to police and the police gave report about the fact that he was involved in the above mentioned case. After receiving this information, his services were terminated under rule 5(1) of the CCS (Temporary Service) Rules, 1965. He challenged the order aforesaid before the labour court, with the result already mentioned above, and the question referred by the government was answered against him. Aggrieved, he filed writ petition before the High Court. It was urged on behalf of the petitioner that he was acquitted by the court, and, therefore, the criminal case at one time pending against him had no implication on his service. His contention was repelled by observing that he had concealed information at the time of acceptance of government service, and that no fault could be found in terminating his services during the period of probation because of concealment of information. It was further held that no enquiry was necessary in the case because there was no dispute about the facts, and moreover the petitioner was only a temporary employee on probation, and, therefore, his services could be terminated without assigning any reason during the probation period if his work and conduct was not satisfactory or he was not suitable for the organisation. The judgment relied upon by the counsel representing the respondents does appear to support the plea raised, as noticed above. On facts, however, we find that whereas in the present case the applicant appears to have a plausible explanation, the petitioner in Shankar Singh (supra) had no such explanation to offer. It may be recalled that in the present case the pendency of criminal case was not known to the applicant at the time he filled his application form; it was a complaint case instituted in the court straightway, in which the accused would normally have no knowledge till such time he receives the summons. As per the procedure prescribed in CrPC, on receipt of a complaint, the concerned criminal court has to record preliminary evidence, and it is only if sufficient evidence is led that may prima facie show commission of an offence, that the Magistrate takes cognizance and issues summons. Admittedly, the applicant, when came to know about pendency of the criminal complaint, mentioned every detail of the same in the attestation form. This was done by him before his employment. Having informed the department about his involvement in the criminal case, non-mentioning of the same in the declaration form may be an innocent mistake, or could well be for the reason that there was no requirement to do so, having been done earlier. The observations of the learned Single Judge that If he gives a false declaration that he has never been arrested or involved in a criminal case, department/management has a right to terminate his service on the ground of concealment of facts and not disclosing information as required from him, and that No enquiry was necessary in this case because there was no dispute about the facts, may be correct in the facts and circumstances of that case, but may not be correct when there is a genuine dispute with regard to facts. We may only mention that the law declared by the Honble Supreme Court is binding on all courts within the territory of India in view of the provisions contained in Article 141 of the Constitution. The settled law on the issue is that be it a case of an employee who is employed temporarily or on probation, if the order terminating his services is punitive, he would have the protection of Article 311(2), and that being so, he cannot be asked to quit before an enquiry is held in the matter and he is found guilty of the allegations subject matter of the misconduct. The law laid down by the Honble Supreme Court squarely applies to the facts of the present case and has necessarily to be followed.
7. For the reasons mentioned above, we set aside orders dated 1.2.2007 (Annexure-1) and dated 24.5.2007 (Annexure-2), and consequently allow the present Application. It may, however, be open to the respondents to deal with the applicant in accordance with law. There shall, however, be no order as to costs.
8. Before we may part with this order, we would like to mention that as per summoning order placed on record as Annexure-3, the allegations against the applicant and his co-accused were that they had forcibly encroached upon 20 sq yards of the land of complainant by demolishing boundary wall and thrashed the complainant and her family members on being resisted. It is mentioned in the summoning order that the documents placed on record revealed that parties relations were also strained on account of a drain flowing in between their houses. It further appears that with regard to accused Jagdish only, a separate case in respect of the same incident came to be registered, and with regard to others a criminal complaint was filed. With regard to some other accused, it has been observed by the learned Magistrate that their role had either not been specified or the depositions were vague and general in nature. Only accused 1, 2, 5 and 12 were summoned under sections 451/323/506/34 IPC.
7. The orders of this Tribunal in OA-1795/2005 (supra) and OA-1508/2007 are based on the judgements in Dinesh Kumars case (supra) and Chandra Prakash Shahis case (supra) respectively.
8. The respondents have filed their reply reiterating their position in the show cause notice and the order of termination. According to them, the disciplinary authoritys order is as per law and there is no infirmity in it.
9. We have heard the learned counsel for the parties and have gone through the documents on record. The only issue for our consideration is whether the applicants service could have been terminated under Proviso to Rule 5 (1) (a) of CCS (Temporary Service) Rules, 1965 without following the due process of regular departmental enquiry. From the show cause notice issued to the applicant it is seen that he has been punished for the alleged misconduct stated therein. A plain and simple reading of the impugned Annexure A-2 order by which the service of the applicant was terminated would reveal that it is not an order of termination simplicitor but it is a stigmatic and punitive one. The facts are abundantly clear in this case. Therefore, it is our considered view that the applicant could not have been terminated from service under Rule 5(1) of the CCS (Temporary Service) Rules, 1965. The applicants case is covered by the judgments/orders of the Apex Court, High Court and this Tribunal relied by the applicant and referred to in this order. Consequently, we set aside the Annexure A-1 show cause notice dated 19.7.2010 and Annexure A-2 order dated 25.8.2010 and allow the present application.
10. Resultantly, the respondents shall reinstate the applicant in service forthwith retrospectively from the date of his termination from service with all consequential benefits except back wages. However, it is open to the respondents to deal with the applicant in accordance with law, if so advised. Needless to say that we have refrained ourselves from considering case on merits. There shall be no order as to costs.
( Dr. Veena Chhotray ) ( George Paracken )
Member (A) Member (J)
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