Central Administrative Tribunal - Delhi
Amit Kumar S/O Shri Samar Pal Singh vs Union Of India (Uoi) Through Its ... on 18 September, 2007
ORDER Neena Ranjan, Member (A)
1. In this OA applicant impugns termination order dated 13.11.2006 passed under Sub-rule (1) of Rules 5 of the Central Civil Services (Temporary Service) Rules, 1965 and prays for the following reliefs:
(a) To call for the records and quash impugned order dated 29.8.2006; and
(b) direct respondents to reinstate the applicant service with all consequential benefits including seniority and arrears of pay particularly when the applicant is not able to get job despite of his best efforts.
2. Facts in brief are that applicant was selected as Constable in Delhi Police for the selection made for the year 2005 and was sent for training to Police Training College at Jharoda Kalan in New Delhi. His services were terminated by impugned order which reads as under:
In pursuance of the provisions to Sub rule (1) of Rule 5 of the Central Civil Services (Temporary Services) Rules, 1965, I, K.D. Singh, Principal, Police Training College, Jharoda Kalan, New Delhi hereby terminate forthwith the services of Recruit Constable Amit Kumar No. 1516/PTC (PIS No. 28061160) (Roll No. 826681) and direct that he shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of notice of one month at the same rates at which he was drawing then immediately before the termination of service.
3. Applicant contends that after joining he was never issued any show cause notice or warning/punishment etc. However, all of a sudden, he was dismissed from service on the grounds of concealment of facts about involvement in a criminal case which had ended in a compromise. Hence he had not mentioned the same on requisite forms.
4. Applicant further submits that he made a representation against order dated 29.8.2006 but it was arbitrarily rejected on 29.1.2007 with a non-speaking order. To substantiate his claim, applicant has relied on various cases which are as under:
(i) Chief Engineer v. Suresh R. Bhokare .
(ii) Sandeep Kumar v. The Commissioner of Police, 2006 (7) AD (Del) 423.
(iii) State of Haryana v. Ch. Bhajan Lal .
(iv) SP, CBI v. Tapan Kumar Singh .
5. In addition to the above judgments, applicant also relies on a judgment passed by this Tribunal in OA No. 2663/2006 to submit that his case is at par with the applicant in the said OA. In that it has been held as under:
7. In other words, the order of termination is founded on the allegation of misconduct and it is, therefore, definitely punitive. There would be no occasion to interfere in the order of termination if it was issued on the basis of general unsuitability of the concerned person for his job. However, the order is not based on unsuitability of the Applicant for the post of Constable in Delhi Police. If misconduct is alleged against the Applicant, then there should have been an enquiry in which opportunity should have been given to the Applicant to defend himself. The punitive action should have been taken by holding a regular departmental enquiry. The Hon'ble Supreme Court in Chand Prakash Shahi (supra) has held that 'The 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.'
8. The facts in this case are very clear and there is no need to labour this point any further that the Applicants services have been terminated as a result of an enquiry conducted behind his back about his misconduct and have not been terminated because of the Applicant being found unsuitable for service as Constable. The order is, therefore, punitive in nature.
9. On the basis of above, we quash the impugned order dated 13.11.2006. The Applicant should be reinstated and will be eligible for all consequential benefits.... The Respondents have, however, the liberty to take appropriate action against the Applicant for his alleged misconduct strictly in accordance with law, if deemed necessary by them. There will be no order as to costs.
6. Learned Counsel also relies on judgment passed in OA No. 604/2005 which covers the case of the present applicant. Hence, applicant has prayed that the OA be allowed.
7. In the counter, respondents pleaded that applicant joined the department on 29.3.2006 (AN) on the basis of an undertaking subject to various verifications, i.e., character, antecedents, medical fitness etc. After verification of character and antecedents, it was revealed that he was involved in a criminal case FIR No. 88/2001 Under Section 147/148/323/324/504/506 IPC P.S. Garh Pukhta (UP). Applicant was acquitted of the charge on 21.2.2006 by the court of Additional Chief Judicial Magistrate, Kairna, Muzzafar Nagar, (UP) on the basis of a comprise reached between the parties. Hence, respondents argue that even though applicant was aware of these facts he had concealed the same. Hence, he was terminated from service on 29.8.2006. Thereafter, his representation to the Commissioner of Police, Delhi was also rejected on 29.1.2007.
8. In support of their claim, respondents rely heavily on the decision in CWP No. 1621/1996 Shri Shankar Singh v. Municipal Corporation of Delhi wherein it is mentioned:
If the person give a false declaration that he has never been arrested or involved in a criminal case, the department/management has a right to terminate his services on the grounds of concealment of facts and not disclosing information as required by him. No enquiry was necessary in this case because there was no dispute about the facts. Moreover, the petitioner was only a temporary employee on the probation. His service 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.
9. The next argument advanced is that there is no provision for giving show cause notice to a temporary government servant under Rule 5 of CCS (Temporary Service) Rules, 1965 and as such his services were terminated in accordance with rules.
10. I have heard both the learned Counsels and perused the records on file.
11. The main issue here is suppression of material information regarding applicant's involvement in a case and his termination from service under Rule 5 of the CCS (Temporary Service) Rules, 1965. I may mention that on this point Hon'ble Supreme Court in the case of State of Haryana and Anr. v. Jagdish Chand has held as under:
Discharge of a constable by Superintendent of Police within three years of his joining service - Where the SP records a finding which would be a stigma on the career of the discharged officer, opportunity has to be given before recording adverse finding - Held in this case order is not an order of discharge simplicitor and in absence of opportunity, the order of discharge is vitiated by manifest error of law - Directed that an enquiring be held and opportunity given to the Police Officer to defend himself - Order of High Court set aside.
12. On the basis of the above it be apparently clear that once a representation is preferred against the order of termination, which in the present case does not precede a reasonable opportunity to show cause as a public functionary while exercising discretion, a reasonable order was to be expected. Removal of applicant from service without issuance of a show cause notice cannot be termed as a reasonable order. It has been passed in a mechanical manner and is against the right of an individual to be allowed natural justice.
13. It is also seen that in Circular of Police Department dated 24.2.1998 issued by the Deputy Commissioner of Police which deals with cases of concealment of facts about involvement of candidates in criminal cases or giving wrong information at the time of filling up application forms as well as attestation form or submitting forged/bogus documents for recruitment in Delhi Police.
It is specifically indicated in para 2 (ii) that a show cause notice be issued to probationer candidates:
2(ii) In case the declaration/document is found false/bogus after appointment but before declaring the individual confirmed, his services should be terminated under rule 5 (1) of the CCS (Temporary Service) Rules, 1965 by issuing a show cause notice to the individual and the passing a suitable order after considering his response to the show cause notice.
14. Hence, as per the own circular of respondent, a show cause notice was necessary to be issued to applicant before passing a final order.
15. In view of this departmental order of 24.21998 and after going through various judicial pronouncements, it becomes clear that though the order of termination is an innocuous simplicitor one, yet nothing precludes this Court in the matter of termination of service of a probationer under CCS (Temporary Service) Rules, 1965 to lift the veil and to examine the circumstances preceding post-termination. Though applicant admits non-disclosure of fact of involvement in a criminal case in which he was acquitted, yet an acquittal in a criminal trial obliterates the stigma of involvement in a criminal offence. If the decision of the trial court acquitting the accused is on merits and has not been appealed against, it attains finality. As a result thereof, what is obliterated is the factum of FIR, proceedings in the trial court, etc.
16. In the result, for the foregoing reasons, present OA is partly allowed, impugned orders are set aside. Consequences to follow. Respondents shall accord to the applicant a reasonable opportunity by issuance of show cause notice etc. and adopting due process of law, they shall consider the defence. In such an event, law shall take its own course. No costs.