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2003 DIGILAW 364 (JK)

Pankaj Sudan v. Union Of India

2003-11-25

PERMOD KOHLI

body2003
Pursuant to the advertisement notice, issued by Bharat Sanchar Nigam Ltd, inviting applications for the posts of Sr. Telecom Operating Assistants, petitioners, who were fully qualified and eligible, applied for the post. They were required to appear in the examination. They successfully cleared the paper-I of the examination. Vide letter dated 4.3.2002, they were asked to appear in paper-II (computer Test). This was also successfully cleared by them. Their result was declared vide letter dated 26.3.2002 and consequently vide letter dated 29.4.2002, they were directed to produce testimonials. On being selected, they were deputed for job training vide letter dated 22.5.2002 and after completion of three months job training, petitioners were temporarily appointed as Sr Telecom Operating Assistants vide letter dated 23.9.2002 subject to stipulations contained therein. While they were performing their duties, impugned orders came to be passed whereby services of the petitioners have been terminated. It was also ordered to pay them one month pay plus allowances for the period of notice. These orders are under challenge. 2. Main plank of challenge as projected in the writ petition is that the petitioners services have been terminated on account of allegations that their Employment Registration Cards issued by the Employment Exchange Rajouri. are not valid. It is submitted that Principles of Natural Justice have been violated as no opportunity of being heard was given to the petitioners before passing impugned orders. 3. In the objections filed by the respondents it is admitted that orders terminating the petitioners services have been issued. It is submitted that this was done as Investigating Team of the Department found that no Employment Registration Cards under Registration No. 98/2002 and B/846/99 in the name of the petitioners 2 and 1 respectively, had been issued by the Deputy Director, Employment Rajouri. Mr.Nanda Vehementally argued that petitioners services could be terminated in terms of Rule 5 of CCS (CCA) Temporary Service Rules 1965 as their Employment Registration Cards issued by the Employment Exchange, Rajouri were found fictitious and fabricated. 4. It is admitted that the petitioners were selected. On being successfully qualified in the examination, they came to be appointed. It is also not disputed that they were eligible and qualified. Only question needs considerations is whether the respondents could have terminated the services of the petitioners on the ground that they had produced fictitious and fabricated Employment Registration Cards. Mr. On being successfully qualified in the examination, they came to be appointed. It is also not disputed that they were eligible and qualified. Only question needs considerations is whether the respondents could have terminated the services of the petitioners on the ground that they had produced fictitious and fabricated Employment Registration Cards. Mr. Raina has argued that petitioners were/are possessed of genuine Employment Registration Cards. He has also referred to certificate issued by the Assistant Director Employment Rajouri dated 15.9.2003, annexure-N with the writ petition, wherein it is certified that Pankaj Suden i.e petitioner No. 1 has been duly registered with the Employment Exchange Rajouri under Registration No (b) 846/99 dated 18.12.99. Photostat copy of the identity card has also been placed with the writ petition. Similarly, photostat copy of the registration certificate in respect to petitioner No. 2 has been also produced. It is further submitted that no explanation was sought from the petitioners for proving the genuineness of the Registration Employment Cards produced by them. It is submitted that as petitioners have not been afforded an opportunity of being heard, consequential impugned orders are not sustainable. It is admitted position that before passing impugned orders petitioners have not been provided any opportunity of being heard. Even no explanation was sought from them regarding the genuineness of the Employment Registration Cards produced by them. Some enquiry is said to be conducted by the respondent at the back of the petitioners. 5. Neither petitioners were asked to associate with the enquiry nor afforded any opportunity by the Enquiry Officer to establish their claim with regard to genuineness of the Employment Registration Cards. It is also seen that the petitioners were discharged under Rule 5 of CCS(CCA) Temporary Service Rules 1965, though nothing has been mentioned in the impugned orders. Petitioners services have been dispensed with considering them as temporary employees. From the reply, it is established that termination of the petitioners is punitive in nature. This definitely creates stigma. The orders of termination having been passed without affording opportunity of being heard to the petitioners are not sustainable. Petitioners services have been dispensed with considering them as temporary employees. From the reply, it is established that termination of the petitioners is punitive in nature. This definitely creates stigma. The orders of termination having been passed without affording opportunity of being heard to the petitioners are not sustainable. In Director General of Police and others versus Mrityunjoy Sarkar and others (1996) 8 SCC 280, Apex Court while considering the similar issue held as under: " In the discharge order, it was stated that the respondents had exercised the power under Rule 34(b) of the West Bengal Service Regulations ( Part I) and the instructions contained in Memo No 4145(2) dated 22.11.1985 of the Assistant Inspector General of Police, West Bengal. It is not in dispute that the Commissioner of Labour in his letter dated 5/7-9-1985 had informed the appellants that the list of the names forwarded by the Employment 6. Exchange was a fake one and their names were fabricated as they do not correspond to the entries in the Employment Exchange. Consequently, he directed the appellants to take action according to rules. It would thus be clear that the foundation for discharge is production of fake list of persons from the Employment Exchange for recruitment as Armed Reserved Constables. If that is accepted then it would cause a stigma on the respondents for future recruitment as they have produced fictitious record to secure employment. Principles of natural justice require that they should be given reasonable opportunity of representation in the enquiry to be conducted and appropriate orders with reasons in support thereof need to be passed. It is settled legal position and the said procedure has not been followed. Under these circumstances, the High Court had not committed any error in dismissing the appeal. It would be open to the appellants to issue notice to all the respondents and consider their case and then pass appropriate orders within reasons however, brief they may be, in support thereof within a period of six weeks from the date of the receipt of this order. The said notice shall be given to the respondents stating the grounds on which they seek to discharge them and the respondents are directed to submit their objections, if any, and the material in support thereof within one month thereafter. The said notice shall be given to the respondents stating the grounds on which they seek to discharge them and the respondents are directed to submit their objections, if any, and the material in support thereof within one month thereafter. After receipt of the objections the appellants are directed to consider the objections and pass appropriate orders within six weeks thereafter and to communicate the same to all the respondents with acknowledgement due. The order, as stated earlier should contain concise reasons in support of their conclusions." 7. There is another aspect of the matter, whether possession of Employment Registration Cards can be considered eligibility criteria or qualification for service of a permanent employee. In my opinion Employment Registration Card cannot and should not be a eligibility criteria for securing employment. Therefore, whether the petitioners were/are holding valid Employment Registration Cards, is irrelevant. Though using a fake document for securing employment is definitely a serious matter and needs to be enquired into. In the totality of the circumstances, this petition is allowed. Impugned orders are quashed. Petitioners are directed to be reinstated in service. However, respondents are at liberty to hold an enquiry whether petitioners have produced fake/fabricated Employment Registration for securing employment. Before proceedings with the enquiry petitioners be served with show cause notices. After receiving their replies they may be proceeded with the enquiry. Suffice it to say that petitioners shall be associated with said enquiry. They be provided adequate opportunity so that they could defend themselves. 8. Petition is accordingly disposed of along with connected CMP.