Devashis Baruah, J.:— Heard Mr. T. J. Mahanta, learned senior counsel assisted by Mr. P. P. Dutta, learned counsel for the petitioner and Mr. P. K. Roy, learned counsel appearing on behalf of the respondent Nos. 1 to 4. Also heard Mr. H. Gupta, learned counsel appearing on behalf of the respondent No. 5.
2. The case of the petitioner is that the petitioner is an employee of the respondent No. 1 and was appointed on 03.11.1999 as the Junior Technical Assistant (Dental). Thereafter, he was promoted to Technical Assistant Grade-III (Dental) on 01.01.2021. He was further promoted to the Technical Assistant Grade-II (Dental) on 01.01.2007, and thereafter, to Medical Assistant Grade-II (Dental Hygiene) on 24.08.2012. On 01.01.2013, the petitioner was again promoted to Medical Assistant Grade-I (Dental Hygiene).
3. While the petitioner was functioning as the Medical Assistant Grade-I (Dental Hygiene), he received a show cause notice on 26.02.2016 wherein it has been mentioned that at the time of his appointment as the Junior Technical Assistant (Dental) he has submitted two certificates to show his qualifications. The said certificates were - (I) High School Leaving Certificate (In the mark sheet it has been mentioned that the General Science is one of the subjects) and (II) Certificate on ‘Dentistry Technician’ dated 02.07.1989 issued by the Biraja Medical College of Homeopathy, Allopathy, Ayurved etc. Cuttack, Orissa.
4. It has been further mentioned in the said show cause notice that the qualification certificates submitted by the petitioner which have facilitated his appointment in ONGC got verified and it was found that the certificates were forged and as per paragraph 3 of his appointment letter which stipulates “If any declaration given or information furnished by the candidate are proved to be false or if the applicant is found to have willfully suppressed any material information, he/she will be liable to removal from the services of the Corporation and such other action as the Corporation may deem necessary.”
5. On the basis of the said terms being included in the appointment letter, the said show cause notice was issued to the petitioner to explain why his services should not be terminated with immediate effect as the qualification certificates, i.e., the Dentistry Technician certificates submitted by him which were germane to his initial appointment in ONGC were proved to fake and the initial appointment as the Junior Technical Assistant (Dental) being ab-initio void.
6. In pursuance of the said show cause notice dated 26.02.2016, the petitioner submitted a detail reply on 10.03.2016. Thereafter, apprehending that the respondent authorities would initiate action on the basis of the said show cause notice which is completely foreign to the ONGC Conduct, Discipline and Appeal Rules, 1994 (for short, Rules 1994), the petitioner has approached this Court with the contention that the petitioner being a person who is a permanent employee and the dismissal/termination from his service would come within the ambit of Rule 34 (x) or (xi) and as such without initiating an enquiry under Rule 36, the action taken by the respondent authorities is in violation of the Rules 1994.
7. This Court vide order dated 28.03.2016 issued notice returnable by 6 (six) weeks and directed the respondent Nos. 1 to 4 not to take any final decision pursuant to show cause notice dated 26.02.2016 without the leave of the Court.
8. The respondent Nos. 1 to 4 after receipt of the notice filed their affidavit-in-opposition challenging the maintainability of the writ petition on the ground that the writ petition was premature. It was further stated that on enquiry being made and on receipt of a letter dated 06.06.2014 by the ONGC authority from the Director of Medical Education and Training, Odisha wherein it has been mentioned that there was no existence of any institution/hospital by the name the Biraja Medical College, Cuttack either in 1989 or at present at Cuttack Odisha; receipt of the letter dated 16.06.2014 from the Officiating Secretary, Dental Council of India (DCI) stating that no course with the nomenclature “Dentistry Technician” has been introduced by the Dental Council of India and the Biraja Medical College, Cuttack, Odisha was not approved by the DCI and also another letter dated 22.01.2014 received from the Medical Council of India, whereby it was informed that the Biraja Medical College was not recognized Medical College for the purpose of Indian Medical Council Act, 1956 and the Dentistry Technician Course does not come under the purview of Medical Council of India, the respondent authorities have issued the show cause notice on the basis of paragraph 3 of the terms of the appointment letter of the petitioner as quoted herein above. It has also been mentioned that the petitioner has duly submitted the reply to the show cause notice on 10.03.2016, but before any order could be passed and anticipating the obvious consequences, the petitioner has promptly approached this Court by filing the present writ petition.
9. An affidavit-in-reply was filed by the petitioner denying the statements and allegations made in the affidavit-in-opposition by the respondents. It has also been mentioned that the petitioner had one year experience of Dental Assistant from Jorhat Dental Clinic with effect from July, 1992 to August, 1993 and also from June, 1995 to July 1997 with one Dr. M. Sarmah, Dental Surgeon, Jorhat. The petitioner had almost three years of experience as Dental Assistant and as such he is otherwise also qualified for the post.
10. Mr. T.J. Mahanta, learned senior counsel for the petitioner submits that the perusal of the Rules 1994 would go to show that the modus adopted by the respondent authorities is totally foreign to the said provisions of the said Rules 1994 inasmuch as a dismissal from service under Rule 34 (x) or (xi) can only be done by holding an enquiry in terms of Rule 36. Mr. Mahanta, learned senior counsel further submitted that though the Rule 41 of the Rules 1994 permits the respondent authorities to do away with the enquiry as required under Rule 36 but the same can only be done for reasons to be recorded in writing on the basis of the circumstances as stipulated in the said Rule.
11. I have also heard Mr. P.K. Roy, learned counsel appearing on behalf of the respondent Nos. 1 to 4 who submits that on the basis of the documents available with the respondent authorities it is clear that the petitioner had obtained a certificate from an institution which does not exist as would be apparent from the documents annexed to the affidavit-in-opposition. Mr. P. K. Roy, learned counsel further submits that paragraph 3 of the appointment letter of the petitioner categorically stipulates that if any declaration given or information furnished by the candidate are proved to be false or if the applicant is found to have willfully suppressed any material information, he will be liable for removal from the services of the Corporation and such other action as the Corporation may deem necessary. It is on the basis of the said clause in the appointment letter of the petitioner that he was issued the show cause notice and removal of the petitioner from the services of the Corporation would not amount to a dismissal within the ambit of Rule 34 (x) or (xi) as it is not even a penalty as would be seen from the Note 1 (vii) of the Rules 1994 which stipulates certain actions of termination of service which do not amount to penalty within the ambit of the Rules 1994. Mr. P. K. Roy, learned counsel has specifically drawn attention of this Court to Note 1 (vii)(b) of said Rules 1994 and submits that termination of services in accordance with the terms of the appointment of the petitioner would not come within the ambit of penalty as stipulate in Rule 34.
12. I have heard the learned counsel for the parties and given my anxious consideration to the matter. From a perusal of the Rules 1994 which have been annexed as Annexure-12 to the instant writ petition, the concept of issuing of a show cause notice to terminate an employee is not envisaged. Rule 34 of the said Rules 1994 stipulates the nature of penalty. Relevant for the purpose of the instant case would be Rule 34 (x) and (xi) which is part of the major penalty and means any dismissal from service. Note 1 of Rule 34 stipulates exceptions which would not come within the ambit of penalty. Note 1 (vii) stipulates that in certain circumstances pertaining to termination of services, the same would be exception to Rule 34. Sub-clause (a) stipulates termination of services of an employee appointed on probation, during or at the end of the period of probation in circumstances with the terms of his appointment. Sub-clause (b) stipulates termination of an employee in accordance with the terms of his appointment and sub-clause (c) stipulates termination of an employee employed under an agreement in accordance with the terms of such agreement.
13. Mr. P. K. Roy, learned counsel appearing on behalf of the respondent Nos. 1 to 4 has laid emphasis on termination of the services of an employee in accordance with the terms of his appointment would be attracted in the instant case and applying paragraph 3 of the appointment letter of the petitioner he specifically submits that if any declaration given or information furnished by the candidate are proved to be false he will be liable to be removed from the services of the Corporation.
14. In the opinion of this Court, paragraph 3 of the appointment letter of the petitioner would not come within the ambit of Note 1 (vii)(b) as paragraph 3 stipulates that any declaration given or information furnished by the candidate are proved to be false. To prove a particular information or declaration to be false would require an adjudication and the same cannot be done by an adjudication on the basis of show cause proceeding that too when a proceeding has been specifically evolved in the Rules 1994 and thereupon terminating the services. Accordingly, as the imposition of penalty of removal of service as has been sought to be done by the show cause notice and such termination from the service would come within the ambit of Rule 34 (x) or Rule 34 (xi), this Court is of the opinion that the procedure mandated under Rule 36 has to be followed in the case of the petitioner, more so when the petitioner has been working in the said establishment since 1997 and has been promoted from time to time as already mentioned herein above. It is further relevant to take note that the Rule 41 of the Rules 1994 stipulates a special procedure in certain cases. Rule 41(a)(ii) and (iii) stipulate that when the Disciplinary Authority or the Board is satisfied for the reasons to be recorded in writing on the circumstances mentioned therein it may dispense with the enquiry and pass such order as deemed fit. Admittedly, the said course of action has not yet been adopted as has been submitted by Mr. P. K. Roy, learned counsel for the respondents.
15. In view of the above, the issuance of show cause notice dated 26.02.2016 in the manner which has been done in the instant case on the premises that Note 1 (vii)(b) would apply to the instant case, this Court is of the view that such course of action is not permissible as per the Rules, 1994 and consequently interferes with the show cause notice in view of the facts and grounds mentioned herein above. However, the respondents are granted the liberty to initiate steps under Rule 36 of the Rules 1994 or even adopt the procedure as stipulated under Rule 41 (a) (ii) and (iii) on being satisfied that circumstances exist as stipulated thereon for reasons to be recorded in writing.
16. With the above observations, the writ petition stands allowed thereby setting aside and quashing the show cause notice dated 26.02.2016.
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