Meghalaya High Court
Pankaj Kumar Singh vs The Union Of India And Others on 1 July, 2013
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
IN THE HIGH COURT OF MEGHALAYA
WP(C) No.(SH)134 of 2012
No. C/5015273P Rect/Clk
Pankaj Kumar Singh,
Son of Shri Niwas Singh,
Vill: Nigahi,
PO: Nigahi
Tahsil: Singrauli,
Dist: Singrauli, (Madhya Pradesh) : Petitioner
-VERSUS -
1. The Union of India represented by
the Secretary, Ministry of Home Affairs,
Government of India, New Delhi.
2. The Directorate General of Assam Rifles,
Laitkor, Shillong, Meghalaya.
3. The Brigadier (Pers),
H.Q. Directorate General Assam Rifles,
Laitkor, Shillong, Meghalaya.
4. The Deputy Inspector General Assam Rifles,
Assam Rifles Training Centre & School,
C/o 99 A.P.O.
5. The Commanding Officer,
No.3 Training Battalion, ARTC & S,
C/o 99 A.P.O.
: Respondents
BEFORE
THE HON'BLE MR JUSTICE T NANDAKUMAR SINGH
For the petitioner :Mr R Jha, Adv
Mrs M Jha, Adv
Mr K Kharmawphlang, Adv
Mr N Khera, Adv
For the respondents : Mr SC Shyam, CGC
Date of hearing : 01.07.2013
Date of Judgment and Order : 01.07.2013
JUDGMENT AND ORDER (ORAL)
By this writ petition, the petitioner is assailing the order dated 31-10-2008 for dismissing the petitioner from service by the Commanding Officer in exercise of power conferred by Chapter VII (e) of the Assam Rifles Manual and Rule 11 (2) of the Central Civil Services Rules. For easy reference, the dismissal order dated 31-10-2008 is quoted here under:
" CONFIDENTIAL OFFICE OF THE COMMANDING OFFICER, No.3 TRAINING BATTALION (SUKHOM) ASSAM RIFLES TRAINING CENTRE AND SCHOOL, DIMAPUR (NAGALAND) 1.240019/skv/Trg/2008/3010 Dated 31st Oct 2008 DISMISSAL ORDER
1. Verification of birth certificate in respect of No.C/5015273P Rect/Clk Pankaj Kumar Singh was forwarded to the Tehsil Office, Singrauli, Dist Singrauli. (MP) vide ARTC & S letter No.I.12011/67/Rec/RR/Saugor-08/2008/1827 dated 25th Aug 2008. In response, the Tehsildar Tehsil Singrauli, Dist Sidhi,(MP) carried out an investigation and found that, permanent residential certificate of Pankaj Kumar Singh is forged and fake and the same was intimated vide their letter No.Ser/650/Praba/08 dated 26 Sep 2008.
2. As per the permanent residential certificate of No.C/5015273 P Rect/Clk Pankaj Kumar Singh and its verification. The indl gave false answer to question No.3, Part-I of AR enrollment form and I thus found as a case of fraudulent enrollment.
3. Therefore, the undersigned, as empowered by the Deputy Inspector General of Assam Rifles Training Centre and School, on his behalf in exercise of the powers conferred by Assam Rifles Manual, Chapter VII(e) & CCS-CCA Rules 11(2) hereby order that C/5015273P Rect/Clk Pankaj Kumar Singh be dismissed from service with effect from 31 Oct, 2008 for giving false answer to question No.3 Part I of AR enrollment form at the time of his enrollment.
Sd/-
(D Choudhury) Lt Col Commanding Officer No.3 Trg Battalion"
22. Heard Mr. R. Jha, learned counsel appearing for the petitioner as well as Mr. S.C. Shyam, learned CGC appearing for the respondent. Every fact leading to the filing of the present writ petition is noted. The petitioner was enrolled as a Recruit Clerk in the Assam Rifles and was undergoing training in No.3 Training Battalion (Sukhovi) at the Assam Rifles Training Centre.
3. It was to the utter shock and dismay of the petitioner when the petitioner received the impugned order dated 31-10-2008 which has been quoted above for dismissing the petitioner from service, alleging that the petitioner did not correctly fill up the form, i.e., Annexure-I under Rule 16 of the Assam Rifles Rules 1995, more particularly, column No.3 of the said form which is quoted hereunder:
"3. What is your permanent Home Address?
(a) Village/Town
(b) Thana
(c) Pargana/Tehsil
(d) District/Taluka
(e) State"
4. In para No. 3 of the said form, the recruit is to fill up the full permanent home address. Therefore, it is the case of the respondents that the petitioner did not correctly fill up his permanent home address in para No.3 of the said form. It is the submission of Mr.S.C.Shyam, learned CGC appearing for the respondent that in the report of the Verification Committee, the address of the petitioner mentioned at para No.3 of the said form is not correct and also that there is no certificate of the concerned Collector issued to the effect that the petitioner is a resident of that particular address mentioned in para No.3 of the said form.
Therefore, it is the case of the respondent that it is a fraudulent entry and recruitment on the basis of the petitioner who was appointed as clerk is not for recruitment for a particular place.
5. This court is of a considered view that the recruitment of the petitioner in which the petitioner was appointed as a clerk of a particular place by mentioning to be a resident of a particular place in para No. 3 of the said form would have 3 serious consequences of making the recruitment of a particular person, who had wrongly mentioned to be a resident of that particular place is illegal.
6. The impugned order dated 31-10-2008 clearly mentions that the petitioner had been dismissed from service in exercise of the power conferred by Chapter VII (e) of the Assam Rifles Manual and Rule 11 (2) of the Central Civil Services Rules which reads as follows:
"11. Penalties The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely:-
Minor Penalties-
(i) censure;
(ii) withholding of his promotion;
(iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders;
[(iii) (a) reduction to a lower stage in the time-scale of pay by one stage for a period not exceeding three years, without cumulative effect and not adversely affecting his pension.]
(iv) withholding of increments of pay;
Major Penalties-
(v) save as provided for in Clause (iii) (a), reduction to lower stage in the time-scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay;
(vi) reduction to lower time-scale of pay, grade, post or Service which shall ordinarily be a bar to the promotion of the Government servant to the time- scale of pay, grade, post or Service from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post or Service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or Service;
(vii) compulsory retirement;
(viii) removal from service which shall not be a disqualification for future employment under the Government;
(ix) dismissal from service which shall ordinarily be a disqualification for future employment under the Government:"
47. Under Rule 11 of the Central Civil Services Rules, dismissal from service is a major penalty. Rule 14 of the Central Civil Services Rules 1965, clearly provides that the procedures for imposing the major penalty under section 11 (v) to (ix). Under Rule 14 of the Central Civil Services Rules, no order imposing any penalties specified in clause (v) to (ix) of Rule 11 shall be made except after an inquiry held in the manner provided under Rule 14, or in the manner provided by the Public Servants (Inquiries) Act, 1850. It will be more profitable to reproduce the relevant portion of Rule 14 of the Central Civil Services Rules 1965 which reads as follows:
"Procedure for imposing major penalties -
(1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under the Act.
(2)Whenever the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof:
['Provided that where there is a complaint of sexual harassment within the meaning of rule 3 C of the Central Civil Services (Conduct) Rules, 1964, the complaints Committee established in each ministry or Department or Office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the complaints committee for holding the inquiry into the complaints of sexual harassments, the inquiry as far as practicable in accordance with the procedure laid down in these rules'] EXPLANATION - Where the Disciplinary Authority itself holds the inquiry, any reference in sub-rule (7) to sub-rule (20) and in sub-rule (22) to the inquiring authority shall be construed as a reference to the Disciplinary Authority.5
(3) Where it is proposed to hold an inquiry against a Government servant under this rule and rule 15, the disciplinary authority shall draw up or cause to be drawn up-
(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-
(a) a statement of all relevant facts including any admission or confession made by the Government servant;
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
(4) The Disciplinary Authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person."
8. The petitioner filed the writ petition assailing the said dismissal order for the grounds mentioned in para No.3 of the writ petition which read as follows:
" 3. That the petitioner challenges the impugned order of dismissal on the following ground amongst others:
a) Because the impugned order has passed by the respondent in violation of the principle of natural justice.
b) Because the impugned order has been passed by the respondent without serving a show cause notice or without affording reasonable opportunity to the innocent petitioner to defend the charge, which violates the principle of Audi Alterm Partem Rules and is therefore arbitrary, illegal and liable to set aside and quashed.
a. Because the impugned order of termination having inflicted a major penalty ought to have been passed following the 6 requirements as laid down Art.311 of the Constitution of India and Rule 14 of the CCS(CCA) Rules 1965 and having not been done the impugned order is void ab-
initio and unconstitutional and as such liable to be set aside and quashed."
9. The respondent filed the affidavit-in-opposition, wherein the respondent did not deny that the impugned order dated 31-10-2008 as indicated in the order itself was issued in exercise of the power conferred by the Central Civil Services Rules 11 (2) by the Commanding Officer No.3 Training Battalion. Mr. S.C.Shyam, learned CGC appearing for the respondent strenuously contended that under the Assam Rifles Manual Chapter VII (e), it is not required to have any inquiry before passing the dismissal order.
10. As stated above, the impugned order dated 31-10-2008 itself clearly states that the impugned order was passed in exercise of the power conferred by the Central Civil Services Rules 11 (2). In such cases, for imposing the major penalty mentioned in clause (v) to (ix) of the Rule 11 of the Central Civil Services Rules 1965, procedure for imposing the major penalty as provided in Central Civil Services Rules is bound to be followed.
11. It clearly states that validity of the order is to be decided basing on the reasons or conditions of the order itself. What is not mentioned in the order cannot be supplemented by way of an affidavit or otherwise. If the impugned order validity challenged in the writ petition is allowed to be justified by giving reasons in an affidavit or otherwise, any illegal order will be validated by giving the reasons in an affidavit or otherwise. Regarding this point, it would be sufficed to refer to the three decisions of the Apex Court:
1. Delhi Transport Corporation versus DTC Mazdoor Congress AIR 1991 SC 101.
2. Satwati Deswal versus State of Haryana 2010(1) SCC 126.
3. 7
13. For the foregoing reasons, the dismissal order dated 31-10-2008 is hereby set aside. The petitioner should be taken back in service within three months from the date of receipt of the certified copy of this Judgment and Order. As there was a considerable delay in filing the present writ petition, so far as the case of the petitioner is concerned, from the date of dismissal to the date of reinstatement in service, this court is of the considered view that justice will be served if only 50% of the arrear pay is paid to the petitioner.
14. Accordingly, this writ petition is disposed of.
JUDGE S.Rynjah 8