Central Administrative Tribunal - Cuttack
Biplab Samantray vs A.G on 19 February, 2025
1 O.A.No. 260/00497 of 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00497 of 2018
Reserved on 10.02.2025 Pronounced on 19.02.2025
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Biplab Samantray, aged about 32 years, S/o- Shri
Bipin Bihari Samantray, C-1274, Sector-6, CDA,
Cuttack, Pin-753014 Dist-Cuttack, Odisha at
present, working as Senior Accountant, Office of
the Principal Accountant General (A&E), Odisha,
Bhubaneswar-751001, Dist- Khurda, Odisha.
......Applicant
VERSUS
Union of India represented through;
1. The Comptroller and Auditor General of India,
Pocket-9, Dindayal Upadhya Marg, New Delhi-
110124.
2. Principal Accountant General (A & E), Odisha,
Sachibalaya Marg, Bhubaneswar-751001, Dist-
Khurda, Odisha
3. The Deputy Accountant General (Adm.), Office of
Principal Accountant General (A & E) Odisha,
Sachibalaya Marg, Bhubaneswar-751001, Dist-
Khurda, Odisha.
......Respondents
For the applicant : Mr. K.C.Kanungo, Counsel
For the respondents : Mr. S.K.Patra, Counsel
2 O.A.No. 260/00497 of 2018
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
In this OA, the applicant Sri Biplab Samantray, presently working as Sr. Accountant in the office of the Principal Accountant General, A&E Odisha, Bhubaneswar calls in question the one month's notice issued to him vide No. Admin.I-18-20/Sports/624 dated 14.08.2018 under Sub Rule 1 of Rule 5 of Central Civil Services (Temporary Service) Rules, 1965 and the consequential Order No. 39 dated 16.08.2018 terminating his service after expiry of the said period of notice and has sought to quash both the orders for the ends of justice on various grounds stated in the OA and rejoinder.
2. Respondents department filed their counter contesting the case of the applicant, the sum and substance of which are that the one month's notice issued to the applicant vide No. Admin.I-18- 20/Sports/624 dated 14.08.2018 under Sub Rule 1 of Rule 5 of Central Civil Services (Temporary Service) Rules, 1965 and consequential Order No. 39 dated 16.08.2018 terminating his service after expiry of the notice period are just, proper and in accordance with rules leading no judicial interference in the matter. 3 O.A.No. 260/00497 of 2018
3. Ld. Counsel for the applicant, based on his pleadings, has submitted that the respondents department issued an advertisement in the year 2012 to fill up the post of Accountant under Sports Quota (Cricket). The applicant being a renowned cricketer having fulfilled all the conditions stipulated in the advertisement, applied for the post, got selected and, consequent, respondents department issued offer of appointment in his favour on 14.03.2013. He was issued with letter of appointment on 29.05.2013, on which date he also joined in the post of Accountant in PB-1, Rs. 5200-20,200/- with GP Rs. 2800/- under respondent No.2.
In course of time, he appeared at the departmental confirmatory test in terms of the I&AD Manual of Standing Order Vol. I, which was also a condition stipulated in the letter of appointment dated 29.05.2013. The result of the test was published vide Order No. 749 dated 04.12.2014 declaring him successful in the test and, as a consequence, he was promoted on officiating basis to the post of Sr. Accountant in PB-2, Rs. 9300-34,800/- with GP Rs. 4200/- vide order dated 01.04.2016 followed by office order dated 24.05.2016 in accordance with Indian Audit and Accounts Department (Senior 4 O.A.No. 260/00497 of 2018 Accountant) Recruitment (Amendment) Rules, 2000. While the matter stood thus, like a bolt from the blue, on 16.08.2018 he received a notice No. Admin.I-18-20/Sports/624 dated 14.08.2018 under Sub Rule 1 of Rule 5 of Central Civil Services (Temporary Service) Rules, 1965 stating therein that his service shall stand terminated w.e.f. the date of expiry of period of one month. Another order was issued on 16.08.2018 stating that the services of the applicant shall be terminated w.e.f. 14.09.2018 (AN), i.e. the date of expiry of notice period. He submitted representation against such notice on 23.08.2018. Respondent No.2 in letter dated 07.09.2018 intimated the applicant to be present in her chamber for personal hearing on 11.09.2018. Due to the ensuing date of termination and time constraint for Saturday, Sunday and holiday, he filed this OA on 11.09.2018.
According to Ld. Counsel for the applicant, because of the successful completion of probation, applicant was promoted to the post of Sr. Accountant. The applicant discharged his duties with due devotion, diligence and dedication to the best satisfaction of the authorities during more than five years of his service and at no point 5 O.A.No. 260/00497 of 2018 of time he has been either reprimanded or was issued any shortcomings in discharging his official duties faithfully.
In the above backdrop of the service record, the termination of the applicant, invoking Sub Rule 1 of Rule 5 of Central Civil Services (Temporary Service) Rules, 1965, without causing any inquiry, if there was any illegality in his appointment or shortcoming in discharging his official duties in compliance with the cardinal principles of natural justice as a precondition provided under CCS (CCA) Rules, 1965, is bad in law being violative of protection given to a Government Servant under Article 311 of the Constitution of India. It is emphatically submitted by him that passing of the test followed by promotion and in absence of any adverse report in discharging his official duties during the five years tenure, establishes that the applicant was not under probation rather he was a confirmed employee and thus does not come within the purview of Central Civil Services (Temporary Service) Rules, 1965 so as to be terminated from service without giving him any opportunity in compliance with the principles of natural justice or without following the procedure 6 O.A.No. 260/00497 of 2018 provided under CCS (CCA) Rules, 1965 in case of imposition of order of termination, removal or dismissal from service.
4. To torpedo and pulverize the stand taken by the applicant/Ld. Counsel for the applicant, Ld. Counsel for the respondents by placing reliance on the submissions made in the counter has submitted that the applicant was recruited under Sports Quota (Cricket) for the post of Accountant and joined the office of Respondent No.2 on 29.05.2013. Among other eligibility criteria, the required educational qualification for the post of Accountant under Sports Quota (Cricket) for the RY 2012-13 was Graduation in any discipline. Applicant applied for the post enclosing thereto photocopies of educational certificate as Graduation (B.Sc. PCM). Upon his selection, he was issued the offer of appointment where, among others, there were specific condition that {i} his appointment was purely temporary and will be governed by the Central Civil Services (Temporary Service) Rules, 1965 {ii} After rendering a continuous service of one year he shall have to qualify the departmental examination for Accountant DEA for confirmation in the prescribed number of changes 06 (six) 7 O.A.No. 260/00497 of 2018 and his failure to pass departmental examination in the given chances, he will be liable to be discharged from service.
The applicant, while accepting the offer of appointment, produced a copy of Provisional Degree Certificate (B.Sc. PCM) issued on 08.01.2013 by the Vice-Chancellor, Eastern Institute for Integrated Learning in Management (EIILM) University, Sikkim. Due to non-submission of Original Degree Certificate, he was appointed provisionally on temporary basis to the post of Accountant pending submission of original Degree certificate.
After rendering one year of continuous service, he was allowed to appear at the Departmental Examination for Accountant (DEA) and after passing the said examination held in August, 2014, taking into consideration his continuous service in the post of Accountant, he was promoted to the post of Sr. Accountant w.e.f. 06.04.2016. According to the respondents, after his promotion to the post of Sr. Accountant by virtue of passing DEA, he continued in his service in a temporary status without being confirmed in the post of Accountant (Entry Grade) for want of production of Original Degree Certificate. While he was continuing as such, the verification of the authenticity 8 O.A.No. 260/00497 of 2018 of the Provisional Degree certificate submitted by the applicant was sent to EIILM University, Sikkim vide letter dated 25.11.2016 and, thereafter, on 1705.2017 but both the letters returned undelivered.
In the above circumstances, a letter dated 06.06.2017 was issued to the applicant to submit Original Degree Certificate within 15 days. He prayed for more time, which was also allowed to him. He submitted the Original Degree Certificate on 11.08.2017. On examination, it was found that the Enrolment Number mentioned in the Original Degree Certificate is "EIILMU/09/832013" whereas in the Provisional Degree Certificate it was mentioned as "EIILMU/09/S32013" and, that, in the Original Degree Certificate the Stream is mentioned as "Deparlment of Science" instead of "Department of Science" as mentioned in the Provisional Certificate. The above discrepancies having been noticed, the applicant was given opportunity vide letter dated 28.08.2017 to do the needful and submit the corrected certificate. The applicant finally submitted his Original Degree Certificate issued by the EIILMU, Sikkim.
Thereafter, on receipt of several complaints about the authenticity of the Degree certificate submitted by the applicant, the 9 O.A.No. 260/00497 of 2018 certificate was sent to the concerned University vide letter dated 21.03.2018. The said letter returned undelivered on 09.04.2018 with postal remark that EIILMU closed and hence redirected to sender. Thereafter, correspondence was made to the Under Secretary to Govt., Human Resource Development Department, Govt. of Sikkim vide letter dated 21.06.2018, in response thereto, Joint Director Higher Education/SPIO, Human Resource Development Department, Govt. of Sikkim in letter dated 03.07.2018 intimated that "the B.Sc. (PCM) is not a recognized course by UGC/DEC for EIILM University, Sikkim, therefore, the Degree of Biplab Samantary bearing Enrolment No. EIILM/09/S32013 is not valid/genuine". It is reiterated that even after promotion to the post of Sr. Accountant by virtue of qualifying the DEA his service was pending for confirmation and no such order declaring him as confirmed employee was issued, termination of his service by invoking Sub Rule 1 of Rule 5 of Central Civil Services (Temporary Service) Rules, 1965 is well justified as a condition stipulated in the offer of appointment. Since the applicant obtained the appointment fraudulently and he having not been specifically confirmed in his original post of Accountant, his services were 10 O.A.No. 260/00497 of 2018 terminated by invoking Sub Rule 1 of Rule 5 of Central Civil Services (Temporary Service) Rules, 1965. The termination of his service in the above circumstances was in accordance with DoP&T OM No. 11012/7/91-Estt.(A) dated 19.05.1993 in which it has been provided that where it is discovered later that a government servant was not qualified or eligible for his initial recruitment to a post, he can be discharged from service; which has also been approved by the Hon'ble Apex Court in the case of District Collector, Vizianagram Vs M.Tripura Sundari Devi (1990 (4) SLR 237. Ld. Counsel for the respondents has also placed reliance on the decision of the Hon'ble High Court of Judicature at Allahabad in the case of Reena Devi Vs. State of UP & Ors, AIRONLINE 2019 ALL 1999. Hence, he has prayed that this OA being devoid of any merit is liable to be dismissed.
5. For the sake of clarification, Ld. Counsel for the applicant has submitted that applicant submitted Provisional Certificate as the Original Degree Certificate was not readily available with him and after submission of the Original Degree Certificate, the condition mentioned in the offer of appointment having been met, it is construed that his appointment was a regular appointment. Next 11 O.A.No. 260/00497 of 2018 limb of his submission is that as to whether EIILM University has been dissolved is a matter subjudice before the Hon'ble High Court of Sikkim in W.P(C) No. 33/2015 and, admittedly, the University is not functioning since December, 2014 and the students enrolled with EIILM University are all regular students and have been relocated.
Insofar as mismatch between the Original and Provisional Degree certificate is concerned, it has been clarified by him that the same are inadvertent typographical error and the veracity/authenticity of the certificate could have been ascertained from the University itself and not from the Govt. of Sikkim since the Govt. of Sikkim do not control the educational affairs of the said University. It is stated that the applicant has enough evidence to prove the genuinity of the Original Degree Certificate. It is further submitted that since the respondents have admitted that passing of DEA is a precondition for confirmation as mentioned in the offer of appointment and the applicant having passed the DEA was promoted to Sr. Accountant, because no such confirmation was issued it cannot be said that the applicant was not a confirmed employee especially when in terms of the rules unless an employee is confirmed in the 12 O.A.No. 260/00497 of 2018 feeder post he cannot be promoted to higher post. To fortify his stand, Ld. Counsel for the applicant has placed reliance on the decision of the Hon'ble Apex court in the case of Smt. Santosh Yadav Vs. State of Haryana & Ors, JT 1996 (5) 641. In the aforesaid premises, Ld. Counsel reiterated grant of relief prayed for in this O.A.
6. After giving thorough consideration to the various arguments advanced by the parties, we have perused the pleadings documents placed in support thereof and have also gone through the decisions relied on by them. From the pleadings and submissions, this Tribunal is called upon to decide as under:
(a) As to whether, in the facts and circumstances above, the applicant is said to have been confirmed in the post of Accountant and if the decision is in affirmative as to whether the respondents are justified in terminating his service by invoking Sub Rule 1 of Rule 5 of Central Civil Services (Temporary Service) Rules, 1965?
(b) If it is held that the applicant is not a confirmed employee, as to how far the respondents are justified in terminating his service by invoking Sub Rule 1 of Rule 5 of Central Civil Services (Temporary Service) Rules, 1965 by attaching stigma?13 O.A.No. 260/00497 of 2018
7. We do not feel it necessary to go deep into the matter for answering the issues involved for adjudication by this Tribunal noted above because the respondents themselves have admitted in their counter, which has been reiterated by Ld. Counsel for the respondents during argument that after rendering continuous service of one year, the applicant shall have to qualify the Departmental Examination for Accountant is one of the conditions for confirmation. It is not in dispute that an employee cannot be promoted to the post of Sr. Accountant/higher post unless the employee concerned is confirmed in the Accountant/feeder grade. Passing of DEA by the applicant and, thereafter, his promotion to Sr. Accountant is not in dispute. The only ground which has been raised by the respondents is that since there is no ex facie order confirming the applicant in the post of Accountant even after passing the DEA and promotion to Sr. Accountant, the applicant is deemed to have been continuing under probation on temporary capacity. We are not convinced by the said submission of the Ld. Counsel for the respondents especially in absence of any such condition stipulated in the order dated 04.12.2014 declaring the applicant to have come out 14 O.A.No. 260/00497 of 2018 successful in the DEA examination held in 2014 and his order of promotion dated 01.04.2016 and 24.05.2016. The termination of his services without offering an opportunity to show cause against such an action is violative of Article 14 of the Constitution and provisions of CCS (CC&A) Rules, 1965 and against principles of natural justice. In the above event, the termination of the applicant by invoking Sub Rule 1 of Rule 5 of Central Civil Services (Temporary Service) Rules, 1965 is held to be in gross violation of cardinal principle of natural justice and the protection available under Article 311 of Constitution of India.
8. Apart from the above, we would like to place it on record that Hon'ble Supreme Court in K.C. Joshi Vs. Union of India and Others, (1985) 3 SCC 153, held that contract of service has to be in tune with Articles 14 and 16 of the Constitution of India and if it is to be suggested that one can dismiss anyone without a semblance of inquiry or whisper of principles of natural justice, such an approach overlooks the well-settled principle that if State action affects livelihood or attaches stigma, punitive action can be taken only after an inquiry, in keeping with the principles of natural justice. 15 O.A.No. 260/00497 of 2018
9. In the case of Anoop Jaiswal v. Government of India and Another, (1984) 2 SCC 369, the Hon'ble Apex Court held that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.
10. In the case of Jarnail Singh Vs. State of Punjab, (1987) SCR 1022, the Hon'ble Supreme Court held that when an allegation is made by the employee assailing the order of termination as one based on misconduct though couched in innocuous terms, it is incumbent on the court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the Court, in such a case, will lift the veil and will see whether the order was made on the ground of misconduct, inefficiency or not.
16 O.A.No. 260/00497 of 2018
11. In State of Uttar Pradesh And Anr. Vs Kaushal Kishore Shukla [1991 (1) SLR 606 (S.C)] their Lordships have further observed as follows:
"Whenever the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory or that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary government servant. If it decides to take punitive action it may hold a formal enquiry by framing charges and giving opportunity to the government servant in accordance with the provisions of Article 311 of the Constitution. Since, a temporary government servant is also entitled to the protection of Article 311(2) in the same manner as a permanent government! servant, very often, the question arises whether an order of termination is in accordance with the contract of service and relevant rules regulating the temporary employment or it is by way of punishment. It is not well settled that the form of the order is not conclusive and it is open to the Court to determine the true nature off the order. In Parshotam Lal Dhingra v. Union Of India, [1958] SCR 828, a Constitution Bench of| this Court held that the mere use of expressions like 'terminate' or 'discharge' is not conclusive and in spite of the use of such expressions, the Court may determine the true nature of the order to ascertain whether the action taken against the government servant is punitive in nature."17 O.A.No. 260/00497 of 2018
12. Law is well settled that even a temporary or contractual employee is entitled to an opportunity to be heard before termination if the termination is based on allegations or stigma that could damage their reputation, meaning the principles of natural justice must be followed even in such cases; essentially, a "stigmatic" termination requires a fair hearing regardless of the employment type. From the discussions made above, in the instant case, undoubtedly, the termination order, that casts stigma/blemish on the future career prospects of applicant by finding him guilty of misconduct, is required to be passed after following principles of natural justice and a reasonable opportunity should be afforded before criticizing the character of the applicant, in the circumstances stated above, even if it is held that the applicant was still under probation and continuing on temporary basis.
13. Hence, viewed the matter from any angle, we find gross injustice was caused to the applicant in terminating his service without offering him any opportunity to show cause against such an action which is in violation of Article 14 of the Constitution and provisions of CCS (CC&A) Rules, 1965 and against principles of 18 O.A.No. 260/00497 of 2018 natural justice. Hence, the impugned orders No. Admin.I-18- 20/Sports/624 dated 14.08.2018 and E.O. No. 39 dated 16.08.2018 are hereby quashed and since the applicant has still been continuing in service by virtue of interim order passed by this Tribunal, we pass no order relating to payment of salary etc. However, taking into consideration the depth of the allegation, it is made clear that quashing of the impugned order on the grounds stated above, shall not preclude the respondents to proceed against the applicant in accordance with law.
14. In the result, this OA stands allowed with the aforestated terms. There shall be no order as to costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS