* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.19616/2005
% Date of Decision: 05.04.2011
Govt of NCT of Delhi ...... Petitioner
Through Mr.V.K.Tandon, Advocate.
Versus
Ajit Singh ...... Respondent
Through Mr.R.K.Saini, Mr.Sitab Ali Chaudhary
and Mr.Vikas Saini, Advocates.
CORAM:
HON'BLE MR.JUSTICE ANIL KUMAR
HON'BLE MS.JUSTICE VEENA BIRBAL
1. Whether reporters of Local papers YES
may be allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be NO
reported in the Digest?
ANIL KUMAR, J.
*
1. The petitioner, Government of NCT of Delhi has challenged the
order dated 11th April, 2005 passed by Central Administrative
Tribunal, Principal Bench, New Delhi in O.A No.105/2005 titled “Ajit
Singh v. Government of NCT of Delhi & Anr.” setting aside the order
of termination passed by the petitioner against the respondent
invoking Rule 5 of Central Civil Services (Temporary Service) Rules,
1965.
WP(C) 19616 of 2005 Page 1 of 14
2. Relevant facts to comprehend the controversies are that the
respondent was appointed as constable in Delhi Police on 18th
January, 2003 and he was placed on probation for period of two
years.
3. The respondent had applied for employment pursuant to an
advertisement in “Employment News (Rozgar Samachar)” dated
13th/19th April, 2002 stipulating the eligibility condition for applying
to the post of constable. One of the eligibility condition categorically
stipulated that the candidate should have got himself registered with
any employment exchange one month prior to the date of
advertisement to be eligible for consideration for the post of
constable.
4. A show cause notice dated 6th August, 2004 was issued to the
respondent after his employment on 18th January, 2003 as constable
stipulating that a complaint was received from Sh. Rajpal Singh
regarding the employment card submitted by the respondent to the
effect that it was forged by the respondent. The complaint stipulated
that the respondent fabricated it as it was not issued on 6th March,
2002 but on 26th March, 2002. According to the complaint the
respondent was, therefore, ineligible in terms of the eligibility
WP(C) 19616 of 2005 Page 2 of 14
conditions and he submitted the employment exchange card by
changing the date on it from 26th March, 2002 to 6th March, 2002.
5. The petitioner, therefore, issued a show cause notice asking
him as to why his services should not be terminated for the said
misconduct under sub Rule 1 of Rule 5 of CCS (Temporary Services)
Rules, 1965.
6. The show cause notice dated 6th August, 2004 was answered
by the respondent on 10th September, 2004. However, on 3rd
January, 2005 the show cause notice dated 6th August, 2004 was
withdrawn on administrative grounds.
7. Thereafter on 6th January, 2005, three days after the
withdrawal of show cause notice dated 6th August, 2004 seeking to
terminate his service on account of his misconduct of forging the
employment certificate, the petitioner issued termination order of the
respondent invoking Rule 5 of Central Civil Services (Temporary
Services) Rules, 1965. The termination order of the respondent is as
under:-
“In pursuance of the provisions of Sub-Rule (1) of Rule 5
of the Central Civil Services (Temporary Service) Rules,
1965, I, Atul Katiyar, DCP/4th Bn.DAP hereby terminate
forthwith the services of Const. Ajit Singh, No.3746/DAPWP(C) 19616 of 2005 Page 3 of 14
(PIS No.28030309) (under suspension) 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 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.
SD/-
(ATUL KATIYAR)
DY.COMMISSIONER OF POLICE
4TH BN.DAP, DELHI.
8. The respondent, therefore, challenged his termination order
dated 6th January, 2005 on the ground that his termination is not
termination simplicitor but is punitive in nature and he could not be
dismissed without a proper enquiry regarding the alleged misconduct
imputed against him of fabricating the employment exchange card.
He also contended that he had been placed under suspension before
his termination, however, neither any enquiry was conducted nor his
suspension had been revoked.
9. The Tribunal after considering the pleas and contentions of the
parties and relying on 2005 III AD (Delhi) 92, Commissioner of Police
& Ors v. Regional Secretary, Board of Secondary Education, Regional
Office, Meerut, U.P. & Ors.; (1999) 3 SCC 60, Dipti Prakash Banerjee
v. S. N. Bose National Centre for Basic Sciences quashed the order of
termination under Rule 5 of the Central Civil Services (Temporary
Services) Rules, 1965 and allowed the original application of the
WP(C) 19616 of 2005 Page 4 of 14
respondent holding that the order of termination was punitive in
nature.
10. The respondent though in the application before the Tribunal
under Section 19 of the Administrative Tribunals Act, 1985 had
sought that order of termination dated 6th January, 2005 be set
aside with all consequential benefits including seniority and arrears
of pay, however, the Tribunal only passed the order setting aside the
order of termination dated 6th January, 2005, and did not grant
consequential benefits including seniority and arrears of pay. The
respondent has not challenged the order of the Tribunal dated 11th
April, 2005 not granting him consequential benefits including
seniority and arrears of pay.
11. The petitioner has challenged the order dated 11th April, 2005
passed in Original application No.105/2005 in which the Tribunal
held that the termination of the respondent under Rule 5 of CCS
(Temporary Service) Rules, 1965 was punitive and thus held that the
order of termination dated 6th January, 2005 is not sustainable and
quashed the same.
WP(C) 19616 of 2005 Page 5 of 14
12. The petitioner has challenged the order on the ground that the
Tribunal failed to observe that the respondent had filed a false
employment exchange card No.1542/2002 dated 6th March, 2002 by
changing its date from 26th March, 2002 which was the essential
requirement for appointment in Delhi Police. Thus the Tribunal failed
to appreciate that the respondent got the appointment by adopting
wrongful means which was a grave misconduct on his part. The
grounds B and C raised in the writ petition are as under:-
“B. Because the Hon‟ble CAT has failed to observe that
the respondent has filed a false Employment Exchange
Registration Card No.1542 of 2002 dated 6.3.2002 by
changing its date from 26.3.2002 which is essential
requirement for appointment in Delhi Police so that
respondent is able to get employment in Delhi Police.
C. Because the Hon‟ble CAT has failed to observe that
the respondent got appointment in Delhi Police by
adopting wrongful means which was grave misconduct.”
13. The petitioner has also contended that under Rule 5 of CCS
(Temporary Service) Rules, 1965 petitioner is entitled to terminate
the services of a temporary employee under sub Rule 1 without
giving any notice and without disclosing any reason especially since
the respondent was selected provisionally subject to verification of
his character, medical fitness and final checking of the documents. It
is asserted that after going through the documents and considering
the complaint of Sh.Rajpal Singh against the respondent, the
WP(C) 19616 of 2005 Page 6 of 14
registration date of the employment certificate was found to be bogus
and, therefore, the services of the respondent were terminated under
the rules and regulations of CCS (Temporary Service) Rules, 1965.
Ground E disclosing the foundation for terminating the service of the
respondent as stipulated in the writ petition is as under:-
“E. Because the Hon‟ble CAT has failed to observe that
the respondent was selected provisionally subject to
verification of Character, medical fitness and final
checking of documents etc. After going through the
documents and the complaint from Shri Raj Pal Singh
against the respondent the Registration date of the
respondent was found bogus, therefore, the service of
the respondent was terminated under the Rules and
Regulations of CCS Temporary Service Rule, 1965.”
14. The Tribunal has held that in order to ascertain whether the
termination of a temporary employee is simplicitor or is punitive can
be ascertained by lifting the veil. In the circumstances, in order to
ascertain whether the termination is actuated on account of
misconduct and the alleged misconduct is the foundation or not has
to be inferred from the facts and circumstances of the case.
15. The Supreme Court in State of U.P & Ors v. Ashok Kumar,
(2005) 13 SCC 652 had held that when the complaint leads to the
inquiry resulting the termination order it is the foundation of the
order of termination, however, whether the termination is only on
WP(C) 19616 of 2005 Page 7 of 14
account of some complaint which is not enquired into and which is
not made the basis of termination, then the complaint or misconduct
may be the motive but will not be the foundation and termination
will be simplicitor under Rule 5 of CCS (Temporary Service) Rules,
1965 shall be sustainable. In Ashok Kumar (Supra) a constable after
recruitment was undergoing training and he was entitled for regular
appointment on successful completion of training. However, during
his training his services were terminated which termination was
challenged by the said constable. It was held that the termination of
service of the constable was violative of Article 311(2) of the
Constitution of India as no reasonable opportunity of hearing had
been afforded to him as contemplated under the said Article 311(2).
The misconduct in this case alleged against the constable was that
he was found using unfair means while undergoing training with
other trainees which was the foundation of the termination and,
therefore, it was held to be violative of Article 311(2) of the
Constitution of India.
16. The Supreme Court had held that whether the order of
termination is simplicitor or punitive is ultimately to be decided
having due regard to the facts and circumstances of each case. The
Supreme Court in Dipti Prakash Banerjee v. Satyendra Nath Bose
WP(C) 19616 of 2005 Page 8 of 14
National Centre for Basic Sciences, (1999) 3 SCC 60 at pages 71 and
72 in paragraph 21 had held as under:-
“21. If findings were arrived at in an enquiry as to
misconduct, behind the back of the officer or without a
regular departmental enquiry, the simple order of
termination is to be treated as “founded” on the
allegations and will be bad. But if the enquiry was not
held, no findings were arrived at and the employer was
not inclined to conduct an enquiry but, at the same
time, he did not want to continue the employee against
whom there were complaints, it would only be a case of
motive and the order would not be bad. Similar is the
position if the employer did not want to enquire into the
truth of the allegations because of delay in regular
departmental proceedings or he was doubtful about
securing adequate evidence. In such a circumstance, the
allegations would be a motive and not the foundation
and the simple order of termination would be valid.”
17. The Supreme Court in (1980) 2 SCC 593, Gujarat Steel Tubes
Ltd and Ors Vs. Gujarat Steel Tubes Mazdoor Sabha and Ors had
also laid down the test to distinguish whether the termination order
is punitive or not. It was held that the form of the order is not
decisive and the Court may lift the veil to see the true nature of the
order. It was held that the substance, and not the semblance governs
the decision. In paragraphs 53 and 54 it was held as under:-
“53. Masters and servants cannot be permitted to play
hide and seek with the law of dismissals and the plain
and proper criteria are not to be misdirected by
terminological cover-ups or by appeal to psychic
processes but must be grounded on the substantiveWP(C) 19616 of 2005 Page 9 of 14
reason for the order, whether disclosed or
undisclosed. The Court will find out from other
proceedings or documents connected with the formal
order of termination what the true ground for the
termination is. If, thus scrutinized, the order has a
punitive flavor in cause or consequence, it is dismissal. If
it falls short of this test, it cannot be called a
punishment. To put it slightly differently, a termination
effected because the master is satisfied of the
misconduct and of the consequent desirability of
terminating the service of the delinquent servant, is a
dismissal, even if he had the right in law to terminate
with an innocent order under the standing order or
otherwise. Whether, in such a case the grounds are
recorded in a different proceeding from the formal order
does not detract from its nature. Nor the fact that,
after being satisfied of the guilt, the master
abandons the enquiry and proceeds to terminate.
Given an alleged misconduct and a live nexus between it
and the termination of service the conclusion is
dismissal, even if full benefits as on simple termination,
are given and non-injurious terminology is used.
54. On the contrary, even if there is suspicion of
misconduct the master may say that he does not wish to
bother about it and may not go into his guilt but may
feel like not keeping a man he is not happy with. He may
not like to investigate nor take the risk of continuing a
dubious servant. Then it is not dismissal but
termination simplicitor, if no injurious record of reasons
or punitive pecuniary cut-back on his full terminal
benefits is found. For, in fact, misconduct is not then the
moving factor in the discharge. We need not chase other
hypothetical situations here.
18. On the basis of the test laid down by the Supreme Court on
lifting the veil, it is apparent that the foundation of the termination
order is the alleged fabrication in the employment certificate by the
respondent whereby he allegedly changed the date of the certificate
WP(C) 19616 of 2005 Page 10 of 14
from 26th March, 2002 to 6th March, 2002. The learned counsel for
the petitioner also relied on photocopy of his application form which
incorporates the date of registration in Clause 10C as 6th March,
2002 and not 26th March, 2002. If the respondent in his reply to
show cause notice admitted that the certificate issued to him was
dated 26th March, 2002 then why he had filed the date of registration
as 6th March, 2002 in his application form. In the circumstances, it
is apparent that the manipulation appears to be at the instance of
the respondent himself and the petitioner after enquiry where the
respondent was not involved got himself satisfied. From the grounds
taken in the writ petition which are enumerated hereinabove it is
also apparent that the foundation for termination of the service of the
respondent is the alleged misconduct on his part whereby he is
alleged to have changed the date of certificate from 26th March, 2002
to 6th March, 2002. Though a complete enquiry was not initiated and
concluded in the case of the respondent, however, a show cause
notice dated 6th August, 2004 was issued to the respondent which
was also replied by the respondent by reply dated 10th September,
2004. After the reply was given on behalf of the respondent, the show
cause notice dated 6th August, 2004 was allegedly withdrawn on 3rd
January, 2005 and three days thereafter the termination order
invoking Rule 5 of Central Civil Service (Temporary Service) Rules,
WP(C) 19616 of 2005 Page 11 of 14
1965 was issued terminating the service of the respondent. In the
circumstances, it is not possible to draw any other inference but that
the service of the respondent was terminated under the shelter of
Rule 5 of Central Civil Service (Temporary Service) Rules, 1965
though on the ground that he mis-conducted by tampering with his
employment certificate. The Court can find out even from the other
proceedings or documents connected with the formal order of
termination what the true ground for termination is. In the present
case even in the writ petition it is alleged that the respondent had
mis-conducted by tempering with the employment certificate. The
learned counsel for the petitioner, Mr. Tandon, has produced a copy
of the application form of the respondent showing the date of
employment certificate as 6th March, 2002. It is contended that if
according to the respondent his certificate of employment exchange
was dated 26th March, 2002, then why did he write the date of
certificate as 6th March, 2002 in the appropriate column. According
to him this shows the complicity of the respondent. If that be so,
then it is apparent that the foundation of termination is alleged mis-
conduct on the part of the respondent and the petitioner could not
have terminated the respondent under section 5 of the CCS
(Temporary Services) Rules, 1965 and the termination of the
respondent cannot be termed to be termination simplicitor. There is
WP(C) 19616 of 2005 Page 12 of 14
apparent live nexus between the alleged mis-conduct of the
respondent and his termination. Even though full benefits were given
to the respondent on his simple termination and the language in the
order of termination is non injurious, yet it remains termination on
mis-conduct without an appropriate enquiry.
19. On such an allegation the services of the respondent could not
be terminated without conducting a proper enquiry as termination
without conducting a proper enquiry would be violative of Article 311
(2) of the Constitution of India. The Tribunal also lifted the veil and
reached the conclusion that the order dated 6th January, 2005
terminating the services of the respondent invoking Rule 5 of Central
Civil Service (Temporary Service) Rules, 1965 was punitive and not
termination simplicitor and could not be sustained.
20. The learned counsel for the respondent has also tried to
contend that requirement of registration with the Employment
Exchange one month prior to date of advertisement was not
mandatory and would not dis-entitle the respondent from
employment. Such pleas are not to be considered at this stage and
can be canvassed by the respondent during enquiry if it is conducted
WP(C) 19616 of 2005 Page 13 of 14
by the petitioner, if so advised. In any case the grievance of the
petitioner seems to be the alleged forgery done by the respondent.
21. For the foregoing reasons we do not find any such illegality or
perversity in the order dated 11th April, 2005 passed in original
application No.105/2005 titled “Ajit Singh v. Government of NCT of
Delhi” which would require correction by this Court by exercising its
power under Article 226 of the Constitution of India. Thus the writ
petition is dismissed and the order of Tribunal setting aside the order
of termination is upheld. However, it is clarified that the petitioner
shall be entitled to conduct disciplinary proceedings against the
respondent, if so advised for the allegations made against him in
accordance with rules and regulations. The parties in the facts and
circumstances are left to bear their own cost.
ANIL KUMAR, J.
VEENA BIRBAL, J.
April 05, 2011.
„k‟
WP(C) 19616 of 2005 Page 14 of 14
