Raj Kumar v. Union Of India

A.V Haridasan, Vice-Chairman (J):— The applicant, Shri Raj Kumar has filed this application impugning the order dated 20.5.1994 (Annexure A-2) of the second respondent, rejecting his appeal against the order dated 25.1.1994 of the third respondent terminating his services with immediate effect. The applicant was appointed as Mazdoor under third respondent by order dated 5.8.1992 The appointment order inter alia contains the following clauses.

“(e) The appointment may be terminated at any time on one month notice given by either side without assigning any reasons. The appointing authority, however, reserves the right of terminating your services forthwith or before the expiry of the stipulated period of notice by making payment to you a sum equivalent to your pay and allowances for the period of notice of the unexpired portion thereof.”

(o) If any declaration given or information furnished by you proves to be false or if you are found to have wilfully suppressed any material, information, you will be liable to removal from service and such other action as deemed necessary by the competent authority.”

2. While the applicant was in temporary service, on 28.10.1993, he was placed under suspension invoking Rule 10 of CCS (CCA) Rules, 1965 on the ground that a disciplinary proceeding against him was under contemplation. While he was under suspension, he was served with a notice dated 22.1.1994 to explain the reasons for not attending headquarters from 17.1.1994 to 22.1.1994 Thereafter by order dated 24.1.1994 (Annexure A. -7) the third respondent revoked the suspension and by the order dated 25.1.1994 before the applicant could give a reply to the show cause notice, the services of the applicant ware terminated by the respondents with the following orders:

“Reference para 2(o) of GE Subroto Park, Delhi Cantt. letter No. 1062/543.EIO dated 05.08.1992 Your services are hereby terminated with immediate effect.”

3. The applicant contends that the termination of his services without offering an opportunity to show cause against such an action is violative of Article 14 of the Constitution and provisions of CCS (CC&A) Rules, 1965 and against principles of natural justice. The applicant therefore, prays that the impugned order may be quashed and that the respondents may be directed to reinstate him in service with all consequential including backwages. The respondents seek to justify the impugned order on the ground that the services of the applicant were terminated in accordance with the Provisions in the appointment order as the Competent Authority on verification with the police and on the basis of a preliminary enquiry was satisfied that the applicant had in his attestation form suppressed the fact that he was arrested and that a criminal case was pending. According to the respondents in such cases giving an opportunity to show cause does not arise as the applicant was only a temporary government servant. They also Gontend that the applicant was infact called upon to; explain and he had submitted false statements.

4. We have carefully gone through the pleadings in this case, and have also heard the arguments of the learned counsel for the parties. Shri Surinder Singh, the learned counsel for the applicant argued that the order of termination in this case cannot be considered as an order of discharge simplicitor but is an order with a stigma and therefore, before resorting to such an order the principles of natural justice should have been followed. He further argued that it had not been stated in the order as to what information was suppressed by the applicant and how the information furnished by him was proved to be false. The unilateral action taken by the respondents is against all cannons of justice.

5. The learned counsel for the respondents argued that as the applicant was a temporary Mazdoor his services could be terminated without assigning any reason under sub rule 1 of Rule 5 of the CCS (Temporary Services) Rules or in accordance with the provisions contained in the appointment order and in either case it was not necessary to hold an enquiry or to follow the principles of natural justice.

6. It is well settled that in the case of a temporary Government servant, his services can be terminated in accordance with sub rule 1 of rule 5 of CCS (Temporary Services) Rules or in accordance with the terms contained in the appointment order without assigning any reason, if the competent authority finds that he is unsuitable to continue in Government Service, on account of his misconduct or for unsatisfactory record of service and that in such cases it is not necessary to hold a departmental enquiry before such termination. But it has been consistently held by the Apex court that when the termination of service is a punitive measure or by an order with a stigma, it is necessary to hold an enquiry before such termination, observing the principles of natural justice.

7. A persual of the impugned order clearly shows that the termination of the services of the applicant was not under Rule 5(1) of the CCS (Temporary Service) Rules. It is also evident that this applicant was not given one month notice or one month salary in lieu of notice. His services were terminated in view of the provisions contained in clause ‘o’ paragraph 2 of the appointment order. Shri Krishna, the learned counsel for the respondents argued that before terminating the services of a temporary government servant either invoking the powers under Rule 5(1) of the CCS (Temporary Services) Rules or basing on the terms of appointment, it is not at all necessary to hold a departmental enquiry. The principles of natural justice have no application in such cases. In support of this argument he placed reliance on the ruling of the Principal Bench of this Tribunal in Khazan Singh v. Union of India reported in (1993) 25 Administrative Tribunals Cases 769. In that case, the services of a Constable (Driver) in the Police Department of Delhi Administration were terminated under sub rule 1 of the Rule 5 of the CCS (Temporary Services) Rules, 1965. The termination of services in that case was also for the reason that the competent authority found the incumbent unsuitabe for Government Service as he had suppressed certain material facts in his attestation form. Relying on the following observations of the Supreme Court in State of Uttar Pradesh v. Kaushal Kishore Shukla, (1991) 1 SCC 691: [1991 (1) SLR 606 (SC)].

“Under the service jurisprudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service. If on the perusal of the character roll entries or on the basis of preliminary enquiry on the allegations made against an employee, the competent authority is satisfied that the employee is not suitable for the service whereupon the services of the temporary employee are terminated, no exception can be taken to such an order of termination.”

8. The Bench held “What becomes clear on a careful reading of the judgment is that if the order of termination of a temporary government servant is made in accordance with the rules or conditions of service and does not cast any stigma, the question of giving reasonable opportunity or complying with the principles of natural justice before passing the order of termination does not arise.”

9. Seeking support from the above observations, Shri Krishna argued that the position is well settled now that whenever the services of a temporary government servant are terminated either in accordance with the sub rule 1 of Rule 5 of the CCS (Temporary Services) Rules or under the terms of contract of employment, it is not necessary at all to follow the principles of natural justice.

10. We are in respectful agreement with the view taken by the bench that when the services of a temporary government servant are dispensed with by an innocuous order even though the reason for taking such a decision is misconduct or unsatisfactory service profile, it is not necessary to conduct art enquiry before doing so. But it is well settled that when the order of termination is not an innocuous one but one with stigma or casting a blame worthyness on the incumbents, it is obligatory on the part of the competent authority to. hold an enquiry.

11. In Shri K.K Shukla case [1991 (1) SLR 606 (S.C)]) their lordships have further observed as follows:

“Whenever the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory or that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary government servant. If it decides to take punitive action it may hold a formal enquiry by framing charges and giving opportunity to the government servant in accordance with the provisions of Article 311 of the Constitution. Since, a temporary government servant is also entitled to the protection of Article 311(2) in the same manner as a permanent government! servant, very often, the question arises whether an order of termination is in accordance with the contract of service and relevant rules regulating the temporary employment or it is by way of punishment. It is not well settled that the form of the order is not conclusive and it is open to the Court to determine the true nature off the order. In Parshotam Lal Dhingra v. Union Of India, a Constitution Bench of| this Court held that the mere use of expressions like ‘terminate’ or ‘discharge’ is not conclusive and in spite of the use of such expressions, the Court may determine the true nature of the order to ascertain whether the action taken against the government servant is punitive in nature.”

12. Let us examine whether the impugned order of termination in this case is an innocuous order, or is one with a stigma. The order by which the applicant was appointed contains the following in clause (o) of para 2:

“If any declaration given or information furnished by you proves to be false or if you are found to have wilfully supressed any material, information, you will be liable to removal from service and such other action as deemed necessary by the competent authority.”

13. The impugned order states that the applicant's services were terminated according to the above clause which clearly shows that it was proved that the information furnished by him was false and that he had suppressed material details with a view to secure the job. This undoubtedly casts a shadow on the character of the applicant and therefore is stigmatic.

14. In Khajan Singh's case also the temporary government servant was discharged from service for alleged suppression of a material information without holding any enquiry but in that case the action was taken under sub rule 1 of rule 5 of the CCS (Temporary Service) Rules without assigning any reason. In this case the impugned order is not one passed under sub rule 1 of rule 5 of the CCS (Temporary Service) Rules, But under Clause (o) paragraph 2 of the offer of appointment for the alleged reason that the applicant had furnished false details and suppressed material information in the attestation form. This was both the foundation for the action and the reason behind the impugned order. If for the same reason the services of the applicant were terminated under Rule 5(1) of the CCS (Temporary Services) Rules no exception could have been taken. But once the order contains a specific finding that the applicant was guilty of suppression of facts, the order is stigmatic. Therefore, before passing such an order, holding an enquiry in conformity with the principles of natural justice is unavoidable.

15. Learned counsel for the respondents argued that it cannot be stated that no opportunity at all was given to the applicant. Referring to Annexures 4 and 5 to the reply statement, the learned counsel argued that these statements given by the applicant would show that the applicant had been given a reasonable opportunity to defend his case. It is seen from these two statements that the applicant had not admitted his guilt. It is also seen that one annexure attached to these letters has not been placed on the record by the respondents. It is not known as to whether a show cause notice was issued. The two letters at annexures R-4 and R-5 do not contain any reference to show cause notice. The annexure to the letter at R-5 has not been produced. The file leading to the impugned order of termination was also not produced by the respondents. We repeatedly asked the learned counsel for the respondents whether the respondents would like to produce all these materials before a decision is taken in this case, offering to adjourn the case if necessary so that we could get all the relevant details. Learned counsel for the respondents stated that the respondents do not wish to furnish any further material and that the case may be decided on the basis of the material available on record. From the materials available on record we are not convinced that the applicant has been given a reasonable opportunity to show cause against the termination of his services. It is not seen that a. show cause notice to explain as to why he had furnished false information if any or informing him that his services could be terminated for any reason was served on the applicant. The two letters R4 and R5 do not show under what circumstances they were written. The annexure to the letters is not before us. Under the circumstances we are of the considered view that the termination of the service of the applicant on the basis that it was proved that he had furnished false information and suppressed material facts in the attestation form is against the principles of natural justice. It is not as if fairness in state action, and observance of principles of natural justice are dispensed with in the case of Temporary Government Servants | altogether. Once the order passed is punitive, then non-observance of principles of natural justice vitiates the orders, while an innocuous order under Rule 5(1) of the CCS (Temporary Service) Rules stands on a different footing. In this case the order of termination of the services of the applicant being a punitive order which casts a stigma on the applicant, the non-observance of the principles of natural justice vitiates the order.

16. In the light of what is stated above we allow the application and set aside the impugned order and direct the respondents to reinstate the applicant forth-with and to pay him full back wages within a period of two months from the date of communi-cation of a copy of this order. There shall be no order as to costs.

17. Application allowed.