Mobile View
Main Search Forums Advanced Search Disclaimer
Cites 3 docs
Article 311(2) in The Constitution Of India 1949
Article 311 in The Constitution Of India 1949
Article 226 in The Constitution Of India 1949

User Queries
Delhi High Court
Capt. Dharambir Singh Dabas vs Uoi & Ors. on 19 November, 2012
Author: Pradeep Nandrajog

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved on : October 30, 2012 Judgment Pronounced on : November 19 , 2012

+ W.P. (C) No.5973/1999

CAPT. DHARAMBIR SINGH DABAS ..... Petitioner Represented by: Mr.H.S.Dahiya, Advocate with

Ms.Anita Singh, Advocate

versus

UOI & ORS. ..... Respondents Represented by: Mr.R.Nischal, Advocate with

Ms.Archana Gaur, Advocate for UOI

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG

HON'BLE MR. JUSTICE MANMOHAN SINGH

PRADEEP NANDRAJOG, J.

1. The factual matrix leading to the filing of the above captioned petition is that on May 17, 1995 the petitioner, an ex-serviceman, having rendered 5 years service in the Indian Army, was offered appointment as Assistant Commandant in Central Industrial Security Force. As per the letter of appointment he was on probation for two years.

2. The petitioner was posted at CISF Unit BCCL Dhanbad. His subordinate officer named SI/Exe.A.K.Marandi was caught red-handed accepting illegal gratification in sum of `10,000/-. A preliminary inquiry was conducted pertaining to the incident and during which SI/Exe.A.K.Marandi made a statement inculpating the petitioner by stating that the petitioner was the ring leader. On July 15, 1997 the report of the WP(C) 5973/1999 Page 1 of 19 preliminary enquiry was submitted, the relevant portion whereof reads as under:-

"In view of the above facts, derived from the individuals statements, it is confirmed that, SI/Exe.A.K.Marandi post commander of Basanthimala post was fully involved in the illegal gratification from truck drivers/khalasis and supplying/sharing good amount of money ranging `10,000/- to `15,000/- (Rupees ten thousand to fifteen thousand) every week to Asstt.Comdt.D.S.Dabas of Area-XII. It is also confirmed that with the consent of Asstt.Comdnt. and Inspectors of Area-XII, the above practice and Rungdari Collections were going on at Basanthimala Post.

D. The involvement of Asstt.Comdt.D.S.Dabas & Inspector Prabhakar Jha (Bihar Side) and Inspector Chandramahi (Bengal Side) is also confirmed through the statement given by SI/Exe.A.K.Marandi and as well as through the

circumstantial evidences i.e.,

01.They did not stop this practice of illegal

gratification/Rungdari collections willfully for personal gain. Asstt.Comdt. and Inspectors of Area-XII deposed in their statement that there is no illegal gratification going on at all in Area-XII. If so, why they have issued so many office orders, again and again and cautioned in the Sainik Sammelans. It indirectly proves their guilty conscience and involvement in this case.

03.Above all, there is a general opinion in the

Basanthimatha Post area that some illegal Rungdari collections are going on which CISF personnel of

Basanthimata Post are also involved and sharing good amount of money collected by them every week in which Asstt. Comdt. And Inspectors of Area-XII are also fully involved.

In view of the above facts, it is proved that the prima- facie evidence existed in this case in which

SI/Exe.A.K.Marandi, Asstt.Comdnt.D.S.Dabas, Inspectors WP(C) 5973/1999 Page 2 of 19 Chandramani and Prabhakar Jha of Area-XII were fully involved in illegal gratification/Rungdari Collections at Basanthimatha Post of Area-XII."

3. Petitioner‟s probation was extended by one year up to October 25, 1998.

4. On May 16, 1998 the petitioner was posted to the CISF unit at FCI, Jalpaiguri. When the petitioner was posted at the unit at Jalpaiguri, complaints were received alleging collection of illegal gratification by CISF personnel from truck operators carrying food grains from the FCI depot at New Jalpaiguri. A preliminary inquiry was conducted to inquire into the said complaints. As per the inquiry report it was opined that money was being illegally collected and distributed to all officers with the active blessings of the petitioner.

5. On October 23, 1998 the DIG (Pers.), CISF put up a note before the Ministry of Home Affairs seeking approval to terminate the services of the petitioner, the relevant portion whereof reads as under:- "Shri D.S. Dabas was appointed as Asstt. Commandant in CISF on re-employment basis vide offer of appointment dated 17.5.95....Shri Dabas was posted initially at BCCL Jharia and was subsequently posted to FCI Depot, New Jalpaiguri on serious complaints on his integrity....

While he was posted in BCCL Jharia, there were reports that he had been collecting money from the truck owners through his subordinate staff.....

Shri Dabas was asked to explain against disciplinary action and he was transferred out of BCCL Jharia.

Again, after being posted at FCI Depot, New Jalpaiguri, reports about his collection of illegal gratification from the truck

WP(C) 5973/1999 Page 3 of 19 operators, working at FCI Depot New Jalpaiguri, started coming in.....

.....

Having regard to the circumstances enumerated above and the fact that he has become desperately corrupt even while on probation and has become unreliable from the very beginning of his career, it is considered expedient and absolutely essential in public interest that the services of Shri Dabas are terminated under Rule 5(1) of CCS (T S) Rules, 1965 as the Officer is on extended period of probation.

Any leniency shown to him would decidedly encourage others to indulge in corruption and misconduct. Public interest militates for his termination from service on the strength of his proven charges of corruption....." (Emphasis Supplied)

6. And suffice would it be for us to highlight that as per the note, the inquiries conducted revealed the petitioner to be a desperately corrupt man and that his services have to be terminated on the strength of proved charges of corruption.

7. While the matter regarding termination of the services of the petitioner was pending consideration before the Ministry of Home Affairs, vide office order dated January 14, 1999 the probation of the petitioner was extended up to April 25, 1999.

8. The matter regarding termination of the services of the petitioner was examined by the Vigilance Cell of the Ministry of Home Affairs and a note dated March 04, 1999 was prepared by the Vigilance Cell in said regard, the relevant portion whereof reads as under:-

"2. Police Division of the Ministry proposes to consult CVC before invoking the provisions of Rule-5 of CCS (Temporary Service) Rules, 1965, for the purpose of doing away with the

WP(C) 5973/1999 Page 4 of 19 service of Shri D.S. Dabas, Assistant Commandant (Re- employed) in the CISF.

3. It is seen that the probation period of Shri Dabas has been extended by the competent authority till 25.4.99. It is felt that it would be appropriate that the provisions of temporary service rules are invoked only after his performance has been watched over the extended period till 25.4.99. It is further observed that serious charges of corruption have also been leveled against the officer. It would not appear appropriate to deal with the case under the temporary services rules on the basis of the corruption charges leveled against him. For these charges, he can appropriately be proceeded under the relevant disciplinary rules if a prima facie cases exists against him....." (Emphasis Supplied)

9. And suffice would it be for us to note that the opinion was not to terminate the service under the Temporary Service Rules and that disciplinary action should be initiated.

10. Vide order dated April 05, 1999 the competent authority terminated the services of the petitioner, which order reads as under:- "In pursuance of the Proviso to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 the President hereby terminates forthwith the services of Shri D.S. Dabas, Assistant Commandant, Central Security Industrial Force and directs 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."

11. Aggrieved by the order dated April 05, 1999 passed by the competent authority terminating his services the petitioner has filed the above captioned petition under Article 226 of the Constitution of India.

WP(C) 5973/1999 Page 5 of 19

12. During hearing of the writ petition, it was urged by learned counsel for the petitioner that termination being based upon alleged corrupt practices of the petitioner was punitive and hence without issuing a charge memo and holding an inquiry the services of the petitioner could not be terminated. It was urged that the termination being stigmatic i.e. labeling the petitioner as a corrupt person required an disciplinary inquiry to be held after issuing a show cause notice to the petitioner and giving him an opportunity to defend himself.

13. Per contra, it was argued by learned counsel appearing for the respondents that the order dated April 05, 1999 passed by the competent authority terminating the services of the petitioner is neither stigmatic nor punitive and thus there was no requirement to hold an inquiry before terminating the services of the petitioner while still on probation. Learned counsel placed reliance upon the decision of the Supreme Court reported as AIR 1999 SC 983 Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic SC, Calcutta and the decision of a Division Bench of this Court reported as 186 (2012) DLT 174 Union of India & Anr. v. Pravesh Malik.

14. The issue of termination of probationers has cropped up time and again. It has received judicial attention over four decades. Tests have been evolved, found to be difficult to apply; they have been reformulated from time to time.

15. Till date no test has been devised where a person‟s capacity, integrity, suitability, utility and capacity to work in harmony with the others can be tested at one go. Therefore, law vests a right in the employer, to keep under the watch the services of the person he has employed, but for a specified duration of time. This is to guard against errors of human WP(C) 5973/1999 Page 6 of 19 judgment in selecting a suitable candidate. The employee remains on test for a specified duration i.e. the period of probation before he gets a right to be permanently absorbed. This period of probation affords to the employer locus to watch the efficiency, ability, integrity, sincerity, suitability and the competence of the probationer employee. This is the period of reassurance for the employer to reassure that his initial judgment was right. Therefore, an employer has a legal right to dispense with the services of the employee without anything more, during or at the end of the prescribed period, which is styled as the period of probation.

16. In the light of the aforesaid concept of probation as understood under Service Jurisprudence, termination of the services of the probationer, during or at the end of the period of probation does not affect any right of his, as indeed he has no right to continue to hold the post, save and except after confirmation.

17. However, where a probationer is stigmatized, evil consequences flow. He has to live with the stigma all his life. This stigma would affect his future prospects of finding suitable employment elsewhere. Therefore, harmonizing the right of the employer and the right of the employee the service jurisprudence has recognized that where the termination of services of a probationer visits him with a stigma or is penal or mala fide, the probationer would have a right to justify that the cause which has resulted in his being removed is other than relating to his personal capacity, suitability, utility or capacity to work.

18. When is the order of termination of services of probationer discharge simplicitor and when is it punitive?

19. To find an answer to the above question we look at the judicial precedents on the point.

WP(C) 5973/1999 Page 7 of 19

20. The first decision on the point is the decision of the Constitutional Bench of the Supreme Court reported as AIR 1958 SC 826 Purshottam Lal Dhingra v Union of India wherein it was held that where under the contract or Rules the government has a right to terminate the services of a probationer at any time, the termination of services of the probationer, in the manner provided in the contract or Rules, would not attract the provisions of Article 311(2) of the Constitution of India. In such cases, the motive operating on the mind of the government while terminating the services of the probationer is wholly irrelevant was the law declared. However, where the government had terminated the services of the probationer to penalize him for misconduct, negligence or any like reason, the requirements of the provisions of Article 311(2) must be complied with. It was further held that it is not the form of the termination order but the substance thereof which would determine whether it is penal and that, in an appropriate case, the Court can tear the veil behind a termination order which is innocuous on its face and is a discharge simplicitor.

21. Next came the decision of the Constitutional Bench reported as AIR 1960 SC 689 State of Bihar v Gopi Kishore Prasad wherein following 5 propositions were laid down regarding termination of the services of a probationer:-

"1. Appointment to a post on probation gives to the person so appointed no right to the post and his service may be terminated, without taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant, or removing him from service.

2. The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is therefore, no punishment.

3. But, if instead of terminating such a person‟s service without any enquiry, the employer chooses to hold an enquiry into his WP(C) 5973/1999 Page 8 of 19 alleged misconduct, or inefficiency or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Article 311(2) of the Constitution.

4. In the last mentioned case, if the probationer is discharged on any one of those grounds without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it will amount to a removal from service within the meaning of Article 311(2) of the Constitution and will, therefore, be liable to be struck down.

5. But, if the employer simply terminates the services of the probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service, the probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct, or inefficiency, or some such cause."

22. Thereafter in the decision reported as 1961 (1) SCR 606 State of Bihar v Ram Narayan Das the „inquiry test‟ laid down in Gopi‟s case (supra) was given a new dimension. It was laid down that one should look into „object or purpose of the inquiry‟ and not hold the termination to be punitive merely because an inquiry was conducted before the issuance of termination order. Where the inquiry was conducted to ascertain whether the probationer is fit to be confirmed the termination order would not be punitive.

23. Then came the decision of the Supreme Court reported as (1964) 5 SCR 190 Champaklal Chimanlal Shah v. Union of India wherein it was held that a preliminary enquiry conducted by the employer to satisfy that

WP(C) 5973/1999 Page 9 of 19 there was reason to dispense with the services of the probationer would not attract the provisions of Article 311(2) of the Constitution of India.

24. After considering the decisions in Purshottam Lal‟s case (supra), Gopi Kishore‟s case (supra) and Ram Narayan‟s case (supra), in the decision reported as AIR 1968 SC 1089 State of Punjab v. Sukh Raj Bahadur a three-Judge Bench of the Supreme Court culled out following propositions with regard to termination of services of a probationer:- "On a conspectus of these cases, following propositions are clear:

1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Art. 311 of the Constitution.

2. The circumstances preceding or attendant on the order of termination have to be examined in each case, the motive behind it immaterial.

3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.

4. An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Art. 311 of the Constitution.

5. If there be a full-scale departmental enquiry envisaged under Art. 311 i.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article." (Emphasis Supplied)

WP(C) 5973/1999 Page 10 of 19

25. We then note the decision of the Constitutional Bench reported as AIR 1974 SC 2192 Shamsher Singh v. State of Punjab wherein it was held that where the order of termination of services of a probationer is „motivated‟ by a misconduct, negligence, inefficiency or any other like disqualification, the same is not punitive. However, where the order terminating the services of a probationer is „founded' on misconduct, negligence, inefficiency or any other like disqualification, the same is punitive. It was further held that the motive behind the termination order is irrelevant for the reason motive inheres in the state of mind which is not discernible. On the other hand, if the order of termination is founded on misconduct it is objective and manifest.

26. In the decision reported as AIR 1980 SC 1896 Gujarat Steel Tubes Ltd v Gujarat Steel Tubes Mazdoor Sabha a three-Judge Bench of the Supreme Court dwelt upon the concepts of „motive‟ and „foundation‟ referred to in the earlier decisions of the Supreme Court in Purshottam Lal Dhingra and Shamsher Singh‟s cases (supra) in the following terms:- "The anatomy of a dismissal order is not a mystery, once we agree that that substance, not semblance, governs the decision. Legal criteria is not so slippery that verbal manipulations may outwit the court. Broadly stated, the face is the index to the mind and an order fair on its face may be taken at its face value. But there is more to it than that, because sometimes words are designed to conceal deeds by linguistic engineering. So it is beyond dispute that the form of the order or the language in which it is couched is not conclusive. The court will lift the veil to see the true nature of the order. Many situations arise where courts have been puzzled because the manifest language of the termination order is unequivocal or misleading and dismissals have been dressed up as simple termination. And so, judges have dyed into distinctions between the motive and foundation of the order and a variety of other variations to discover the true effect of an order of termination. Rulings are a maze on this WP(C) 5973/1999 Page 11 of 19 question but, in sum, the conclusion is clear. If two factors coexist, an inference of punishment is reasonable though not inevitable. What are they? If the severance of service is effected, the first condition is fulfilled and if the foundation or causa causans is the servant‟s misconduct the second is fulfilled. If the basis or foundation of the order of termination is clearly not turpitudinous or stigmatic or rooted in misconduct or visited with evil pecuniary effects, then the inference of dismissal stands negated and vice versa. These canons run right through the disciplinary branch of master and servant jurisprudence, both under Article 311 and in other cases including workmen under managements....

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 process but must be grounded on the substantive 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 termination is. If, thus scrutinize, 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 services of a delinquent servant, it is a dismissal, even if he had 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. 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. WP(C) 5973/1999 Page 12 of 19 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 then not the moving factor in the discharge. We need not chase other hypothetical situations here. What is decisive is the plain reason for the discharge, not the strategy of a non-enquiry or clever avoidance of stigmatizing epithets. If the basis is not misconduct, the order is saved. (Emphasis Supplied)

27. In the decision reported as (1999) 3 SCC 60 Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic SC, following 3 questions had arisen for consideration before the Supreme Court:- "(i) In what circumstances, the termination of a probationer‟s services can be said to be founded on misconduct and in what circumstances could it be said that the allegations were only the motive?

(ii) When can an order of termination of a probationer be said to contain an express stigma?

(iii) Can the stigma be gathered by referring back to proceedings referred to in the order of termination?

28. With respect to the question No.(i), the Court observed as under:-

"If findings were arrived at an inquiry 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 will be bad. But if the inquiry was not held, no findings were arrived at and the employer was not inclined to conduct an inquiry 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 inquire 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."

WP(C) 5973/1999 Page 13 of 19

29. With respect to the question No.(ii), the Court observed as under:-

"Thus, it depends on the facts and circumstances of each case and the language or words employed in the order of termination of the probationer to judge whether the words employed amounts to stigma or not."

30. With respect to the question No.(iii), the Court observed as under:- "On this point, therefore, we hold that the words amounting to "stigma" need not be contained in the order of termination but may also be contained in an order or proceeding referred to in the order of termination or in an annexure thereto and would vitiate the order of termination."

31. We then note the decision of the Supreme Court reported as (2002) 1 SCC 520 Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences wherein the Supreme Court summarized the law relating to the termination of services of a probationer as follows:- "One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct (c) which culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of termination. Conversely if any of the three factors is missing, the termination has been upheld.

.....

....Therefore, whenever a probationer challenges his termination the courts first task will be to apply the test of stigma or the form test. If the order survives this examination the substance of the termination will have to be found out.

Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to cleared viz. what language in a termination order would amount to a stigma? Generally speaking when a probationer‟s WP(C) 5973/1999 Page 14 of 19 appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer‟s appointment, is also not stigmatic." (Emphasis Supplied)

32. Lastly, we note the decision of a three-Judge Bench of the Supreme Court reported as (2005) 5 SCC 569 State of Punjab v Sukhwinder Singh wherein the ratio of law laid down by the Supreme Court in Ram Narayan‟s case (supra) that where the inquiry was conducted by the employer to ascertain whether the probationer is fit to be confirmed the termination order would not be punitive was reiterated.

33. From the aforesaid decisions, we can safely conclude that the legal position which emerges is that the where an inquiry is conducted into an alleged misconduct committed by the probationer behind his back and a simple order of termination is passed „founded‟ on the report of the inquiry indicting the probationer, the action of termination of services of probationer would be tainted. But where no findings are arrived at any inquiry or no inquiry is held but the employer chooses to discontinue the services of an employee against whom complaints are received it would be a case of the complaints „motivating‟ the action of termination of services of probationer and hence would not be tainted.

34. To illustrate, let us take a hypothetical situation. A and B are working as Head Cashier and Junior Cashier respectively in a bank. Whereas A is the permanent employee of the bank, B is a probationer. The chest of the bank has 2 locks numbered X and Y. Whereas A is entrusted with the key of lock X and B is entrusted with the key of lock Y. The WP(C) 5973/1999 Page 15 of 19 purpose is that the chest could be opened after both locks X and Y are unlocked and since cash is kept in the chest, A and B would have to jointly open the chest and each would be a guard against the other. On a given day some money is found missing from the chest. An inquiry conducted reveals that A and B used to entrust their respective key to each other when one would leave the precincts of the bank for some personal work. Nobody‟s guilt is determined, and as a matter of fact the fact finding inquiry is not intended to determine anybody‟s guilt. Services of B are terminated by the bank. It would be a case where the termination based on the inquiry would be „motivated‟ on the inquiry report and not „founded‟ thereon. There is no aspersion cast upon B and the termination would be immune from challenge. But if the inquiry held is to find out who misappropriated the money and a definite finding is arrived at that B misappropriated the money and holding him to be a corrupt man, services of B are terminated, it would be a case where termination is „founded‟ on the inquiry and would be vitiated in law.

35. In the backdrop of above legal position, we proceed to determine whether the order dated April 05, 1999 passed by the competent authority terminating the services of the petitioner is stigmatic/punitive and thus tainted.

36. As already noted hereinabove, the respondents allege that complaints were received at both the Units were the petitioner was posted to the effect that 'rangdari' meaning money being extorted was being resorted to at the Units where petitioner was working as an Assistant Commandant and the booty was being shared by various officers, including the petitioner.

37. On receipt of aforesaid complaints, two preliminary enquiries were conducted to inquire into the allegations leveled in said complaints. The WP(C) 5973/1999 Page 16 of 19 petitioner was not put to notice. No charge-sheet was issued to him. The preliminary enquiry reports indicted the petitioner of being actively involved in the corruption stated to be rampant in the two Units where petitioner was posted. Thereafter the competent authority passed the order dated April 05, 1999 terminating the services of the petitioner. Such being the position, the order dated April 05, 1999 terminating the services of the petitioner is tainted as it is 'founded' upon the reports of the preliminary enquiries which had indicted the petitioner. The fact that the order dated April 05, 1999 is 'founded' upon the reports of the preliminary enquiry is clearly evident from the fact that the petitioner has been labeled as a 'corrupt man' in the note dated October 23, 1998 put by the DIG (Pers), CISF before the Ministry of Home Affairs. (See the contents of the note dated October 23, 1998 noted by us in the foregoing paras).

38. In this regard, we note that the Vigilance Cell of the Ministry of Home Affairs had advised that since the proposed order to terminate the services of the petitioner intended to be passed by CISF visits the petitioner with stigma, the services of the petitioner should not be terminated under Rule 5 of the CCS (Temporary Services) Rules and that a regular departmental inquiry be initiated for said purpose. (See the contents of the note dated March 04, 1999 noted by us in the foregoing paras). However, the CISF/Ministry of Home Affairs did not pay any heed to the aforesaid advice rendered by the Vigilance Cell and proceeded to terminate the services of the petitioner under Rule 5 of the CCS (Temporary Services) Rules.

39. Due to the non application of mind, the respondents are faced with a situation where the order dated April 05, 1999 terminating the services of the petitioner is liable to be quashed as it visits the petitioner with stigma. WP(C) 5973/1999 Page 17 of 19

40. With respect to the decisions relied upon by the respondents, we fail to understand as to how the decision in Dipti Prakash‟ case (supra) is of any help to the respondents. We have already discussed said decision in the foregoing paras. The ratio of law laid down in said case was that, if findings were arrived at an inquiry 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 will be bad'; which is the position in the instant case.

41. In Parvesh Malik‟s case (supra) the respondents were appointed as Field Assistant in the Cabinet Secretariat. The appointment letters issued to the respondents provided that the respondents shall be on probation for a period of 2 years from the date of appointment. Before the expiration of the period of probation, the petitioner terminated the services of the respondents. Be it noted here that the termination order(s) did not cast any aspersion on the respondents. Aggrieved by the issuance of the termination order(s) the respondent filed an application before the Central Administrative Tribunal, Principal Bench, New Delhi contending therein that:- (i) they had complained against the misbehavior Training Instructor to their superior officers; (ii) an inquiry was conducted into the matter but they were not associated in said inquiry; (iii) after the conclusion of inquiry their petitioner terminated their services; and (iv) action of the petitioner of terminating their services is punitive in view of the fact that said action was based upon the inquiry which was conducted behind their backs. The Tribunal allowed the application(s) filed by the respondents and quashed the termination order(s) issued by the petitioners. Aggrieved by the aforesaid, the petitioner had filed a writ petition before a Division Bench of this Court. While adjudicating said petition, it was noted by this Court that WP(C) 5973/1999 Page 18 of 19 the enquiry conducted in the said case was not an enquiry against the respondents but an enquiry into the complaints of the respondents however the team sent to investigate the complaints made by the respondents had an occasion to appraise the conduct of the respondents and did not find the same to be befitting as required from an employee. In view of the ratio of law laid down by the Supreme Court in Sukhwinder‟s case (supra) that where the inquiry was conducted by the employer to ascertain whether the probationer is fit to be confirmed the termination order would not be punitive this Court quashed the order passed by the Tribunal.

42. The decision in Parvesh Malik‟s case (supra) is entirely distinguishable on facts from the present case.

43. In view of above discussion, the order dated April 05, 1999 issued by the competent authority terminating the services of the petitioner is hereby quashed. The petitioner is reinstated in service and is held entitled to 50% back wages which shall be paid to him within a period of 12 weeks from today.

44. No costs.

(PRADEEP NANDRAJOG)

JUDGE

(MANMOHAN SINGH)

JUDGE

NOVEMBER 19, 2012 /dk/

WP(C) 5973/1999 Page 19 of 19