Director, Directorate Of ... vs Shahid Khan And Anr.
2002 Latest Caselaw 1385 Del

JUDGMENT

S.B. Sinha, C.J.

1. The order of the Central Administrative Tribunal dated 28th September, 2001 passed in OA No. 1516/1999 is the subject matter of the present writ petition by reason where of the Original Application filed by the first respondent herein questioning his termination from services and seeking reinstatement with full back wages and other allowances as per rules was allowed.

2. The basic fact of the matter is not in dispute. The first respondent was offered the post of Statistical Investigator on 1st July, 1998 which was accepted by him. He allegedly, at the time of joining, gave an undertaking to the effect that if anything adverse was found in his Police Verification (Character and Antecedents) Report, he would not claim any salary or other benefits. Allegedly, a complaint was received on 13th October, 1998 that a First Information Report dated 10th February, 1998 was filed against him. The first respondent on 28th October, 1998 submitted the Attestation Form two months after the Joining Report. On 9th March, 1999, the DCP, Special Branch, Delhi confirmed that a first respondent was named in the FIR No. 28/98 dated 10th February, 1998 under Sections 307/452/34, IPC and 27/54/59, Arms Act with P.S. Pratap Nagar. Without giving any notice, his services were terminated purported to be in terms of Section 5 of C.C.S. (Temporary Services) Rules, 1965. Aggrieved thereby, he filed the Original Application before the learned Tribunal. By reason of the impugned judgment, the learned Tribunal, inter alia, held that as the principles of natural justice had not been complied with, the order impugned could not have been sustained.

3. Mr. Kailash Gambhir, learned Counsel appearing on behalf of the petitioners would submit that keeping in view that the impugned order is an innocuous one and does not cast any stigma, it was not necessary to comply with the principles of natural justice. In support of the said contention, reliance has been placed on Commissioner of Police, Delhi and Anr. v. Dhaval Singh, 1998 SCC (L&S) 1740; State of M.P. and Anr. v. Virender Kumar Chourasiya, 1999 SCC (L&S) 1155 and a decision of this Bench in Virender Pal Singh v. Union of India and Ors., 2002 II AD (Delhi) 461.

4. Mr. V.B. Raval, learned Counsel appearing on behalf of the respondent, on the other hand, would contend that having regard to the fact that the Attestation Form was submitted much after his Joining Report, the question of invoking the purported undertaking as against the petitioner would not arise.

5. The order impugned before the learned Tribunal dated 7th June, 1999 reads thus:

"In pursuance of the Proviso to Sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, I, K.S. Baidwan, Pr. Secretary (Plg.) hereby terminate forthwith the services of Sh. Shahid Khan, Statistical Investigator 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 at the same rates at which he was drawing them immediately before the termination of his service, or, as the case may be, for the period by which such notice falls short of one month."

6. Although the said order, on the face of it, appears to be an innocuous one, having regard to the stand taken by the petitioner herein in the counter-affidavit filed before the Tribunal as also in this writ petition, there cannot be any doubt whatsoever that the services of the first respondent were terminated on the ground of misconduct. In the Memorandum dated 1st July, 1998, it was stated:

"6. If any declaration given or information furnished by Shahid Khan proved to be false or if he/she is found to have willfully suppressed any material information he/she will be liable to be removed from service and such action as Government may deemed fit."

7. The question as to whether a false declaration had been given or the first respondent had willfully suppressed any material information or not, would constitute misconduct. For the said purpose, it was incumbent upon the petitioners to initiate appropriate proceedings. It is not a question where a candidate has obtained appointment by playing fraud. It is now a well-settled principle of law that in a given case, the Court is entitled to consider the allegations made so as to find out whether the order of termination is simpliciter termination or not. It is now a well-settled principle of law that an administrative power used for unauthorized purpose would amount to malice in law. It is further trite that even in a case where the services of the temporary employee are terminated which would cast stigma, the provisions of Article 311 of the Constitution of India would be attracted.

8. In State of U.P. v. Mohammad Nooh, AIR 1958 SC 86, the Apex Court laid down the law that once a jurisdictional error is found which would intend non-observance of the principles of natural justice, a writ of certiorari may arise.

9. Yet again, in Khem Chand v. Union of India and Ors., , it has been held :

"19. To summarize the reasonable opportunity envisaged by the provision under consideration includes:

(a)    an opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;
 

(b)   an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defense; and finally
 

(c)    an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the Competent Authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflict one of the three punishments and communicates that same to the Government servant. 
 

In short the substance of the protection provided by rules, like Rule 55 referred to above, was bodily lifted out of the rules and together with an additional opportunity embodied in Section 240(3) of the Government of India Act, 1935 so as to give a statutory protection to the Government servants and has now been incorporated in Article 311(2) so as to convert the protection into a constitutional safeguard."

10. In State of M.P. and Anr. v. Virender Kumar Chourasiya, (supra), the question which arose for consideration before the Supreme Court was that where temporary services were terminated during probation period, the principles of natural justice are not required to be complied with. Such is not the position here.

11. In Virender Pal Singh v. Union of India and Ors. (supra), the question which arose for consideration was as to whether a Constable should disclose all material facts. Therein, during police verification, it was found that he had suppressed the material information. Such is not the position here.

12. The learned Tribunal in the impugned judgment; interpreting the purported undertaking, held that thereby the first respondent did not accept the fact that he has suppressed the material facts. It was held:

"8. Indeed in our view, applicant's case is covered by the ratio of the Hon'ble Supreme Court's ruling in Commissioner of Police, Delhi and Anr. v. Dhaval Singh 1998 SCC (L&S) 1740. In that case, respondent, a candidate for appointment as constable in Delhi Police had put a cross mark in the column in which he was required to give information about pendency of any criminal case against him. He submitted information/attestation form in August, 1995, but on 15.11.1995 he voluntarily informed the authority concerned of the criminal case against him. His candidature was cancelled on 26.11,1995 and he was acquitted in the criminal case on 8.12.1995, On facts, the Hon'ble Supreme Court held that the concerned authority had not applied its mind to the intimation given by the appellant on 15.11.1995 before canceling his appointment and held the cancellation to be invalid owing to non-application of mind and being violative of natural justice."

13. In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors., , it was held:

"40. The above language in the letter dated 11.12.1995 would clearly imply that this was not a case of any preliminary findings. If these were referred to as mere allegations, it would have been a case of motive. But as these definitive conclusions of misconduct are evident on the face of this letter dated 11.12.1995 and this letter falls within the "whole period", the conclusion is inescapable that these findings were part of the foundation of the impugned order and it is not a case of mere motive. On this ground, the order requires to be set aside.

41. We shall next take up the second aspect relating to stigma. We shall assume that the words used in the impugned order do not contain any stigma. We shall then refer to the three other letters to which the order makes a reference. In the first letter dated 30.4.1996, we do not find anything objectionable. Coming to the next letter, we however find that para (iii) refers to the scuffle between the appellant and one P. Chakraborty regarding which the appellant made a complaint on 28.5.1996. An Enquiry Committee is said to have been appointed and it gave a report. The extract from the report of the Committee dated 15.7.1996 is found in the counter of the respondents. The Enquiry Committee found the appellant's "behavior reprehensible" and it confirmed that the appellant was "involved in a scuffle and did misdeeds like obtaining false signatures", and said that the appellant was "guilty of inefficient performance or duty, irregular attendance without permission, rude and disorderly behavior and willful insubordination". Whatever may be said about the other words, the words used in connection with the finding of the Enquiry Committee about the scuffle and about the appellant obtaining false signatures, are, in our opinion, clearly in the nature of a stigma. Further, the Enquiry Committee said he must be "punished". It did not say that proceedings for disciplinary action were to be initiated. Thus on the ground of "stigma" also, the impugned order is liable to be set aside."

14. In V.P. Ahuja v. State of Punjab and Ors., , it was held:

"7. A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice.

9. The entire case law with respect to a "probationer" was reviewed by this Court in a recent decision in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, . This decision fully covers the instant case as well, particularly as in this case, the order impugned is stigmatic on the face of it."

15. Having regard to the fact that the respondent's services were sought to be terminated on the ground of commission of misconduct, it was obligatory on the part of the respondents to initiate departmental proceedings against him. The learned Tribunal, therefore, in our opinion is correct in passing the impugned order. However, there cannot any doubt whatsoever that the petitioner herein would be entitled to initiate appropriate action against the first respondent accordingly. This writ petition is, therefore, dismissed.

16. No order as to costs.