Union Of India vs Sh.Hem Raj
2010 Latest Caselaw 703 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P. (C.) No.9003/2007

%                       Date of Decision: 08.02.2010
Union of India                                          .... Petitioner
                       Through Mr. H.K. Gangwani, Advocate.

                                Versus

Sh.Hem Raj                                             .... Respondent
                       Through Mrs. Harvinder Oberoi, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether reporters of Local papers may be             YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?               NO
3.     Whether the judgment should be reported in           NO
       the Digest?


ANIL KUMAR, J.

* The petitioner has challenged the order dated 8th August, 2007

passed by the Central Administrative Tribunal, Principal Bench, New

Delhi in O.A No.1411/2006 titled Hem Raj v. Union of India & Ors

allowing the original application of the respondent and quashing the

termination order dated 28th February, 2006 and granting all the

consequential benefits to the respondent.

The services of the respondent were terminated under sub Rule

(1) of Rule 5 of the Central Civil Services (Temporary Service) Rules,

1965. The respondent was engaged as a casual labour (Waterman) from

19th October, 1993 to 23rd November, 1994 after he was sponsored by

employment exchange. His appointment was extended for further period

and on 31st December, 1995 his status was changed to that of contract

labour and he continued as such till September, 1996.

Pursuant to an O.A No.179/1996 filed by the respondent, he was

appointed as a casual labour with temporary status with effect from 3rd

July, 1997 and thereafter by order dated 28th December, 2005 he was

appointed as causal worker Safaiwala a Group `D' post in Central

Government.

On account of an FIR registered against the respondent by some

unknown person, he was suspended by order dated 1st February, 2006,

however, later on 27th February, 2006 the suspension of the petitioner

was revoked and thereafter on 28th February, 2006 the services of the

respondent were terminated. Aggrieved by the order of termination by

order dated 28th February, 2006 after first suspending then revoking

the suspension order, the petitioner filed an original application being

1411/2006.

The respondent asserted that his termination was based on his

false implication in the FIR and, therefore, the order of termination is

punitive in nature and not sustainable and the respondent has been

suspended without the respondent being held guilty. The Tribunal while

considering the pleas and contentions of the respondent lifted the veil to

find out the actual reason for the termination of the respondent and

concluded that there are allegations of criminal offence of preparing

forged CBI identity cards and since the respondent misused his position

while working with the CBI, on the basis of investigation an FIR was

registered under Section 34/467/468 and 471 of IPC. In the challan

filed by the CBI, the respondent was shown as an accused No.2. The

allegation of respondent indulging in fake raids impersonating as

Special Branch (CBI) official and cheating some persons by extorting

Rs.14,000/ against the demand of Rs.2 lakhs was also made.

It was inferred by the Tribunal that chargesheet disclosed

involvement of the applicant in various other manners too. Relying on

State of U.P & Ors v. Ashok Kumar, 2005 (13) SCC 652; Hari Ram

Maurya v. Union of India & Ors, 2006(9) SCC 167; Mathew P.Thomas v.

Kerala State Civil Supply Corpn. Ltd & Ors, 2003 (3) SCC 263; Dipti

Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic

Sciences, Calcutta & Ors, 1999 SCC (L&S) 596 it has been held by the

Tribunal that the foundation of the termination of the respondent is the

criminal complaint against him and it is not merely on account of the

motive and considering the distinction between the motive and the

foundation, it was inferred that the termination order is punitive and

not sustainable without a proper enquiry against the respondent. The

counsel for the petitioner rather admitted fairly before the Tribunal that

since the respondent was named as a culprit by several witnesses who

were examined in connection with the investigation in the FIR dated

24th February, 2006 hence respondent was not fit to continue in service

with a premier investigating agency and also as the appointment letter

of the respondent dated 8th September, 1997, stipulated that the

services of the respondent could be dispensed with by giving a notice of

one month in writing, therefore, the termination order dated 28th

February, 2006 without conducting any enquiry was justified.

The Tribunal has held that the order of termination though does

not stipulate the serious misconduct committed by the applicant but

the foundation of the termination order is the alleged serious

misconduct for which the respondent was suspended, however, the

suspension was revoked and thereafter he has been terminated without

any enquiry and establishment of his alleged guilt. In the

circumstances, the findings of the tribunal that the termination is not

simplicitor, but punitive cannot be faulted. The Tribunal has noted in

para 23 as under:-

"23. Taking the totality of facts and circumstances of the present case into consideration, I come to the conclusion that the order of termination given to the applicant is definitely punitive. Action against the applicant under the CCA Rules having been taken by way of issuing the order of suspension and a charge-sheet against him having been filed in a trial court, after investigation having been conducted behind his back, the respondents cannot now contend that the applicant‟s alleged „serious misconduct‟ is not the „foundation‟ for the issue of the order of termination."

The learned counsel for the petitioner is unable to demonstrate or

show how the order of termination is not punitive is nature. Rather the

counsel for the petitioner before the Tribunal had admitted categorically

that since the respondent was not found fit to continue in service and

since the order of appointment also stipulated that he could be

terminated by giving one month‟s notice, therefore, the services of the

respondents were terminated. The admission made by the counsel for

the petitioner has not been withdrawn and cannot be allowed to be

withdrawn in the facts and circumstances of the case. The relevant

portion of para 12 of the judgment of the Tribunal is as under:-

"12. Shri Rajesh Katyal, learned counsel for the respondents, fairly admitted that the applicant was named as culprit by several witnesses, who were examined in connection with the investigation in the FIR dated 24.02.2006, and hence, he was not fit to continue in service with a premier Investigating Agency, such as, CBI. He also highlighted the contention of the respondents that the applicant‟s order of appointment dated 08.09.1997 (Annexure A-2) had clearly stated that the services of the applicant can be dispensed with by giving a notice of one month in writing."

In the circumstances, it cannot be held that the order of

termination of the respondent is not punitive but it is simplicitor and

the foundation of the order of termination is not based on the

misconduct imputed against him.

The learned counsel for the petitioner has also relied on (1997) 10

SCC 682, State of U.P & Ors v. Rajender Kumar Singh and Anr and

(1996) 6 SCC 229, Secretary, Ministry of Works & Housing Govt. of

India and Ors v. Mohinder Singh Jagdev and Ors to contend that the

order of the termination is sustainable. In State of U.P and Ors (Supra)

authorities had received a complaint from the superior of a constable

that he was keeping company with and demanding money from the anti

social elements and on consideration of adverse service record his

services were terminated by a non stigmatic order. The case relied on by

the petitioner is distinguishable as in that case the adverse service

record could be a motive for termination of the service by an order

which was non stigmatic but in the case of the respondent even the

counsel for the petitioner has admitted that he has been terminated on

account of his implication in the criminal case. In the circumstances,

the inference of the Tribunal that the foundation of the order of

termination is punitive cannot be faulted and on the basis of the above

noted case petitioner cannot contend and justify the termination order

dated 28th February, 2006 and allege that the order is not punitive. The

other precedent cited by the petitioner, Secretary, Ministry of Works

and Housing (Supra) is also distinguishable as the above judgment was

about commencement of limitation for filing a suit against the wrongful

termination of service. The Supreme Court had held that the period of

limitation to file a suit for declaring the termination order to be

unconstitutional commenced on the date of termination of the services

and not on the date of the acquittal. Apparently on the basis of the ratio

of the said case it cannot be held that the order of termination dated

28th February, 2006 of the respondent was not punitive and is

distinguishable and the petitioner can be terminated without

conducting any enquiry. This is no more res integra that the ratio of any

decision must be understood in the background of the facts of that

case. What is of the essence in a decision is its ratio and not every

observation found therein nor what logically follows from the various

observations made in it. It must be remembered that a decision is only

an authority for what it actually decides. It is well settled that a little

difference in facts or additional facts may make a lot of difference in the

precedential value of a decision. The ratio of one case cannot be

mechanically applied to another case without having regard to the fact

situation and circumstances obtaining in two cases. Consequently on

the basis of ratio of the cases relied on by the petitioners, no inference

against the respondent can be drawn nor it can be held that the

decision of the Tribunal is contrary to law laid down by the Supreme

Court.

In the circumstances there is no such illegality or irregularity in

the order of the Tribunal dated 8th August, 2007 which shall require

interference by this Court. The writ petition is, therefore, without any

merit and it is dismissed.

ANIL KUMAR, J.

February 8, 2010                                 MOOL CHAND GARG, J.
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