Central Administrative Tribunal - Kolkata
Debasree Bhowmik vs D/O India Post on 5 September, 2018
1 o.a.48of2013
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
No. O.A. 48 of 2013 Date of order:c[b 2018
Present Hon'ble Ms. Bidisha Banerjee, Judicial Member
Hon'ble Dr. Nandita Chatterjee, Administrative Member
Srnt. Debasree Bhowmik (Gayen),
Daughter of late Monaj Bhowmik,
Worked as GDSBPM under
Superintendent of Post Office, Baruipur Division,
And residing at Vill- Beliadanga,
P.O.- Dakshin Bárasat, P.S.- Joynagar,
District- 24 Parganas (South).
.Applicant.
Vs.
1'. Union of India,
' Fhrough theSecr
mutJcâtion, Dak Bhawan,
)0i.rj
iasteEG4neral,
n, WB. pircle,
?. I
e Superiñtndênt of 'ost Office,
.,-
uth-Presudency Divi ion, Baruipur,
\S/./.
1
'ik'ata-'700 144./
Respondents.
For the Applicant Mr. N. Roy, Counsel
For the Respondents Ms. M. Bhattacharjee, Counsel
ORDER
PER DR. NANDITA CHATTERJEE, JUDICIAL MEMBER:
The grievance of the petitioner is that, although provisionally engaged in the post' of GDSBPM, Jalaberia, Baruipur Head Office, her services had been terminated invoking Rule 8 of Gramin Dak Sevaks (Conduct & Engagement) Rules, 2001 (since amended as Department of Post, Gramin Dak Sevaks (Conduct & Engagement) Rules, 2011). Most specifically, th6 applicant seeks the following relief in the instant Original Application:-
2 o.a.480f2013 "(a) To issue direction upon the Respondent to cancel, quash and set aside the impugned order dated 21.8.2012 forthwith.
To issue further direction upon the respondent to allow and join the applicant for, the post of GDSBPM, Jalaberia 8.0. forthwith.
To issue direction upon the respondents to join the applicant in office of the respondent for the post of GDSBPM, Jalaberia, B. 0. forthwith.
Any other order or orders as the Ld. Tribunal deem fit and proper. To produce connected departmental recOrd at the time of hearing." Heard both Ld. Counsel, examined pleadings and documents on record. The case of the applicant in brief, is that, on. 17.4.2012, the respondents had issued anotification for filling up the post of GDSBPM, South Presidency Division and the applicant had applied on 14.5.2012 in response to the same.
That, thereafter, the applànt' receiveh A 26.7.2012 from the
,c as admit card of the
respondent authorities calling forjcertairi fr• ' doümE/ ,..
ror t had produced all
Madhyamik t .
- .-...,.
.... '
the documents as rquired bythe-'repoftdëflt' Dr the-s post and that, on
,,'. w
6.8.2012, the re er for oi isional engagement
of the applicant to the Jal which on 13.8.2012,
the Inspector of Pbsts fu plicant has been selected
for the said, post and thereafter she ally engaged under Jalberia
under Baruipur Head Office. The applicant took over charge on 13.8.2012 but on 21.9.2012 the Superintendent of Posts, South Presidency Division, Baruipur terminated the provisional engagement of the applicant without assigning any reason and, therefore, since the action of the respondent authorities are illegal and malafide, beig aggrieved, the applicant had filed the instant O.A. The applidant in support of her claim, had advanced, inter alia, the following, grounds:-
(a)That, no reasons had been cited by the respondent authority in terminating her engagement;
3 o.a. 48 of 2013
(b)That, despite fulfilling all the terms and conditions and eligibility, no show-cause had been issued to the applicant prior to termination, violating the. principles of natural justice and fair play.
4. Per contra, the respondents have argued that, in response to the notification dated 17.4.2012 which was issued to fill up the vacant posts of GDSBPM, Jaberia Branch Office a total of 60 candidates had applied for the said post, out of which ten candidates were shortlisted on merit and called for bio-data verification on 6.8.2012 and the applicant, being one of such 10 candidates, had submitted her mark sheet that recorded 80.62% marks as secured by the applicant in Madhyamik examination (annexed as R-4 to the reply); Such percentage of marks beng the highest among all the shortlisted
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candidates, the applicant wasi5,isiOnallY sedt uDject to verification of her
testimonials and other ddcumet Ica rd( )hk infore'd accordingly by the
/ i J/J A
respondents vide thei memo - -.----- c_
Upon verifcatiôn fgennsmaI shee9 n admit card of the ',L_) ,•--.>-. / applicant from school records,'howev&TitIas/deteCted tht the marks contained in the mark sheet as submitted, variedirom those in'thé school records. Further the West Bengal Board of Se'ondIrEdUCtj9.fl-fUrfliShed a report wherefrom it transpired that the mark sheet submitted by the applicant was fake. Accordingly, the services of the applicant were terminated vide memo dated 21 .9.2012 and as the orders of provisional engagement had categorically stated that the said engagement was liable to be terminated without assigning any reason, if the character and antepedents are found to be fake /false, no injustice had been meted out by the respondents as far as the applicant is concerned in terminating her services and according to the respondents, the applicant does not deserve any relief and the Q.A. deserves to be dismissed on merit.
4 o.a. 48 of 2013 ISSuE The sole issue to be determined in this Original Application is whether the II termination order issued by respondents on 21 .9.2012 is legally valid.
FINDINGS (I) Upon a perusal of the pleadings and documents attached thereto it transpires that the certificate and particulars of the Madhyamik mark sheet of the applicant varies at each stage which is noted as under:-
(a)The applicant has admitted that she had qualified in the Madhyamik examination, as per her mark sheet bearing No. C/125811 against Roll No. 6134-0032 whereby she had obtained 417 marks out of Q0Ointtie MdhVamik examination in the year 61 2002. (Annere41o\th9'A. ~ sp'udrtedl iitted at the time of
(b) The markhet filing theapplicatiofl ard dotiment: verification is annexed at R-3 / to therèply and bea(s,thesarne' Roll Nonamely, C 6134-0032
-,-.-' •4g as well as the"samé names of cnèiida e and her father as in •:' / / I,,, the certificate A-4. Although the mark sheet bears the rneo-€i1581 1, the marks, however, are recorded as 693 and the group totals are also at variance from the mark sheet as admitted by the applicant.
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(c).The officials of West Bengal Board of Secondary Education, who were present during the hearing on 8.8.2018,, furnished a statement duly authenticated by the Dy. Secretary (Records), West Bengal Board of Secondary Education, wherefrom it .
transpires that the applicant obtained 417 marks Out of 800 but the roll no. and certificate number as recorded in the Board's statement is C6134-0032 and 122184 respectively. Thus, we have a case of three different mark sheets in which, while the first H.,.
5 o.a. 48 of 2013 two varies in the number of marks obtained, the last mark sheet, while corroborating the marks obtained as admitted by the applicant, records a different certificatioh number. This calls into question the veracity of both mark sheets annexed at A-4 and R- 3 respectively and it may be of academic interest to ascertain as to who was the candidate who had actually obtained the mark sheet bearing No. 0/125811 in Madhyamik Examination 2002.
(ii) The applicant has admitted, by virtue of the mark sheet annexed as A-4 toethe. Q.A., that she had obtained 417 marks out of .800 which is equivalent to 52.12%. Referring to Annexure R-2 to the reply, itis seen that of the 10 candidates who were short-listed for document verification had obtained 'rk an§irig from 72.5% to 79.37%, which 1-
r) \ were lower than flit of th àiplint. whôserñarks • 4 were recorded as /. ' . .-
80.62% (Annèxed as R-31o'th&re'pLyy' I .
I. r-
The notificatiotr dated.i-74-2Oi 2videwIiich the-post was notified to be U) Nt ..
filled up (Anhxâre, R-1 b in re,pl')d state?I1ht. "the selection will be based on the" ,, marks secured...,Jviàtricilation or equivalent :'-.---.--- •' / examinations exudihg additional. subjept, ifAny. No weightage will be given 'for ny qualification(s)- hiqher-th'an Matriculation." Hence, the only criteria for selection and engagement was the marks obtained by candidates in the Madhyamik examination.
It is apparent, therefore, that, with a percentage as low as 52.13%, the applicant had abs olutely no chance in being selected for the post as other shortlistéd candidates had got much more marks than her and one Shri Rupam Das with 79.37%, was the, logical selection as the candidate with the next highest marks of 7.9.37% (Annexure R-3 to the O.A.). Given the admitted position of the applicant that she had secured only 52.13% marks in the Madhyamik Lç 6 o.a,48of2013 / examination, there was absolutely no scope for her to be short-listed or selected for the post of GDSBPM, as notified on 17.4.2012.
(iii) It is seen that two provisional engagement letters had been issued to the applicant at Annexure A-5 and A-7 respectively. Both these provisional engagement letters are reproduced below for better understanding of the matter.
DEPARTMENT OF POSTS; INDIA OFFICE OF THE SUPDT. OF POST OFFICES; SOUTH PRESY, DIVISION BARUIPUR- 700 144 Memo No. A-107(D)/eIection Dated at Baruipur, the 06.08.2012 ORDER OF PROVISIONAL ENGAGEMENT Pending veriflcation of Character and antecedents of Smt. Debashree Bhowmick (Ga yen), b/o. Late Monaj. Bhowmick of Village - Belia/aogp,P. 0. Dakshin Barasat, S.O. Dist. South 24 . .1 . _. Z Pgs. having date of birth 7.4.1984 f!shereby prov,sionIly.engged in the post of GDSBPM, Jalabena, EDBO in account with N,m'i3it)i AshramSO underBaruipur H 0 with immediate effect \
2. She shall be paid TRCA'-at theWünfrnLim o the'7sbale applicable for GDSBPM and other
--
admissible allowances from tirreto time.
i
8. Smt. Debashree BhoWmick (Gayen)shouId:CIearJY iundersta.bd that her engagement as v GDSBPM, Jalaberia EDBO s1àll be in\a na'ture 1ofà'?bactj!able to terminated if on verification /fI %\ .9 of her character and antthetWnts founth/ake/foried or false then her.. ehgagement as GDSBPM, JalabériaEDBO will be ter?ninated withoufi'ssinih.g)areaSOfl or giving any notice to her.
\ If Her service will be overn'd b' "the GDS (Condu6t &nag'ement Rules, 2011) and as amended from time to time If these conditions are accept ioherr _shesffOyl dsign Ion the duplicate copy of this Memo. in token of her acceptance of the abovecondition (P. K. Mitra) Supt, Of Post Offices South Presy. Division Baruipur-700 1.44"
DEPARTMENT OF POST, INDIA Olo. Inspector Posts': Jaynagar Majilpur Sub Division 743337 Memo No. B- 1/BPM/Jalbèria BO Dated at JiMajilpur the 13/8/12 ORDER OF PROVISIONAL ENGAGEMENT In pursuahce of DO letter No. A-107(D/SeIection dated at Baruipur 6.8.12 Smt. Debashree BhOwmiCk (Gayen), .D/o Late Monaj Bhowmick, P.O. - Dakshin Barasat SO., Dist. - 24 Pgs(s), having date of birth 0,7.04.1984 is provisionally engaged in the post of GDSBPM Jelaberia BO in Wc with N/Ashram S. 0: under Baruipur HO with immediate effect.
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7 o.a.48of2Ol3
She shall be paid TRCA at the minimum of the scale applicable for the GDSBPM and other admissible allowance from time to time.
Smt, Debashree Bhowmick (Ga yen) should clearly understand that his engagement as GDSBPM, Jalaberia 8.0. will be in nature of contract liable to be terminated if on verification of her character and antecedents found fake / false /forged, then her engagement as GDSBPM Jalberia will be terminated without assigning any reason or giving any notice to her.
Her conduct and service shall also be governed by the Dept. of Posts, Gramin Oak Sevak (Conduct and Engagement) Rules, 2011 as amended by time to time.
If these conditions are acceptable to her, she should sign on the duplicate copy of this memo in token of her acceptance of the above condition.
Inspector Posts' JiMajilpur Sub Div.
JiMajilpur 743337."
Boththe provisional engagement letters had made it very clear that her engagement was in the natur.e\Of' c'&itfatj'i?ble to be terminated, if on ,,, .
-ntece c.j •efake or false and then verification her character, adentS v,erefound to b .. \\• .
her engagement as G DSBPM
- ..
A -assigning any reason or
giving any notice
d2 .9,.2012,-(n xurelA-10 to the O.A. is The temination, orde date. ! / •. •1 quoted as under:- .
-. / DEPATMENT0QSTS, INDIA 0/0. THEJPDrtF POST OFFICES SOUTH PRESIDENCY DIVISION * BARUIPUR, KOL-- 144 Dated at Barüipur the 21.9.12 No. A-107(D)/SeleCtiOfl SERVICE ISSUED UNDER THE ORDER OF TERMINATION OF PROVISION TO RULE-8 OF GDS (C&E) RULES, 2011 In pursuance of the provision of Rule-8 of GOS (C&E) Rules, 2011,1, Sri Parimal Kumar Mitra - Supdt. Of Post Offices, South Presy. Division, Kolkata - 700 144, hereby terminate the sen/ices of Smt. Debashree Bhowmik (Gayen), GDSBPM, Jalaberia B.O. in account with Nimpith SO and direct that she shall be entitled to claim a sum equivalent to the amount of her Basic Allowance plus Dearness Allowance for the wperiod of notice at the same rate at which she was drawing them immediately before the termination of her service, or, as the case may be, for the period by which such Allowance is being remitted in lieu of the notice of one month or for the period byE which such notice falls short of one month. The due amount, of Basic Allowance plus Dearness Allowance is being remitted in lieu of the 8 o.a. 48 of 2013 notice- of, one month or for the period by which such notice falls short of one month.
Station: BarUipur, Kol. 144 Date: 21.9.12 Supdt. of Post Offices South Presidency Division Baruipur, Kolkata - 144."
It is seen that the termination order had been issued in pursuance to provisions of Rule 8 of the GDS (C & E) Rules, 2001 [amended as Rule 8 of the GDS (C&E) Rules, 2011] which is examined in detail as below:-
"8. Termination & Engagement The engagement of a Sevak who has not already rendered more than three years' continuous service from the date of his engagement shall be liable to be terminated at a,y,tirne by a notice in writing given either by the Sevak to the Rec ngA'Jthb(iç Or...by the Recruiting Authority to the Sevak; _) '\ The period of s6cfffT6ticeSi1álI.e moñth.') \ Provided, that th'e se4cebfJbfly,4UCh ' Sevak may be terminated I ...
forthwith and onsuch.terrnIflatIOfltheSeVak shah be entitled to claim a sum equivIe( to tLhe [&ountYfBsiC TTrne Related Continuity Allowance çluDearnësS' A'llóWãn'ceã's!admisSibIe, for the period of the 2 'I notice at the, same drawitig them immediately before the te'rminatid bf)iisserQidë,Od,1>as the 1base may be, for the period by which sóch,notice falls ShOPt'røf or'le month.
\ The provisions of Ibl'8sthtëS1hat1t 'applies/to a Sevak, who had not rendered three years' engagemnt-ihe-a15liCaflt had joined the post on 13.8.2012 and was terminated on 21 .9.2012, which is not more than a month and, hence the provisions of Rule 8(i) is applicable to her. It is also stated therein that in case the service of such Sevak is terminated forthwith and on such termination, tIde Sevak will be entitled to claim a sum equivalent to the amount of Basic Time Rlated Continuity Allowance plus Dearness Allowance as admissible for the period of the notice and this provision has been made applicable in the termination order issued to the applicant.
Hence,1 it is inferred that the scope of issuing a notice was eschewed, by the respondent authorities with forthwith termination with payment in lieu of notice.
T:.TTP D.a. 48 of 2013 The order of respondent auuioritieS at Annexure A-10 dated 21.9.2012 is, therefore, termination simpliciter.
We now refer to the observations of the Hon'ble Apex Court in the context in which termination simpliciter may be issued.
it State of MaharaShtra v. Verappa R. Sabji & anr. 1979 (4) SCC 466, In was stated that the court will not normally go beyond the order to see if there are any motivating factors behind that order and discharging a temporary Govt.
servant from service should not be questioned except on the basis of malafide in making the order.
In Jarnail Singh v. State of Punjab, 1986 SCC (L&S) 524, State of Punjab v. S.R. Bahadur (1968) 3 SCR 234, State of Bihar v. Shiva BhikShUk nble Apex Gounthas held that it may be that an Misra (1971) 2 SCR 191, the N%o% ( \ acé änd'do.es not cdntain any imputation of order which is innocuous 6?r the* '--
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(or, finding whether it was misOonduct is a circurnstCe r3 -
or admihistiätiVe routine. But the entirety of made by way of punishmeflh4 circumstances preceding'or attendt pn the wilpugned order must be examined _)-. / ,-:.--->' .. \ i.
and the overriding test will aIways&e whether the' misconduct ..-- •.. 1 / is a mere motive or j.., is the very foundation of the -order.
JohnsoflPUmPS Ltd. 1975 SCC (L&S) 169, the In L. Michael & anr. V. MIs.
Apex Court, while holding that 'Loss of confidence' is a ground for Hon'ble I discharge simpliciter, had observed a follows:-
The form of the order in such a case is not conclusive and the tribunal "j..
can go behind the order to find the reasons which led to the order and then consider for itself whether the termination was a colourable exercise of unfair labbur practice. The manner of dressing up an order does not matter. The Court will lift the veil to view the reality or substance of the order."
In Máhindra Singh Dhantwal v. Hindusthan Motors Limited & ors. 1976 (4) it was held that if there is any violation of the principles of natural SCC 606, justice in the enquiry, the Tribunal can go into the whole question relating to the misconduct and come to its own conclusipfl whether the same is established.
10 o.a.48of2013 I' The Hon'ble Court further held, however, that it was open to the Tribunal to pierCe the veil of the order and have a close look at all the circumstances and cOme to a decision whether the order was passed on account of certain misconduct. The employer cannot get away by merely describing the termination as simple in his letter of discharge. But if the Tribunal finds that a particular termination of, service of a workman is in truth and substance innocuous or in exercise of a bona fide right under the contract, there will be no contravention of the Act.
In State of Haryana & anr. V. Satyendra Singh Rathore 2005 SCC (L&S) 977 and in Nepal Singh v. State of UP & ors. 1980 SCC (L&S) 376, courts held the ratio that:
c. f ".... An order is not punitiveithè ma-eflai g6inst the government sen/ant on which the superior aufhority has acted c (stitutes the motive and not the foundation of the ordeT "... Whether an ord.et of terQ j p'ynitive has ultimately citer 'or, to be decided hàving du_r s an&vikumstances of each case. Many a timers the dis the founJiation and motive in re/a tion to any order of te)tp thin orLot)prlapping. It may be difficult eitheç to Ldategori strictlyoders of termination simpliciter fal/ing\in o2eo pr/\ baspd on misconduct as foundation for pas'sing Thp'c of io\imp?iciter or on motive on the. ground of unsuitabilit/tO tce( When the factual scenario of the present case'is bon, ba'ckdround of legal principles QUS enuncia ted by. the Sup?em.E decisions, the inevitable conc/usion is that the High, justified in interfering with the order of termination."
Hence, as held by the Hon'ble Apex Court in the above matters, we examine the termination order issued by the respondent authorities at Annexure A-10 to the O.A. to conclude that the material on which the termination was effected was the fake certificate substantiating the applicant's unsuitability to continue in service. The production of the fake certificate leading to the applicant's unsuitability to continue in service was the motive and not the foundation of termination.1
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11 o.a.48of2013
The termination simpliciter dated 21.9.2012 was hence not punitive in.
nature andhence, we hold the termination order dated 21.9.2012 as valid and we find no reaon to interfere with the same.
The termination order being a termination simpliciter and as has been held in Parshotam La! Dhingra v. Union Of India AIR 158 SC 36 and Om Prakash Mann v. Director of Education (Bani) (2006) 7 SCC 558, the appointee having accepted the terms and conditions stipulated in the provisional engagement order is not permitted to turn around and say that the terms were not legally valid.
Accordingly, the O.A. is dismissed on merit. There will be no orders on cost.
(NanditaChatterjee) k(8idisha Ba"nerjee) Administrative Memb€ Judicial Member r_t
-J sP .
n