Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 1803 (RAJ)

Union of India v. Dinesh

2005-07-18

DINESH MAHESHWARI, RAJESH BALIA

body2005
Judgment 1. Heard learned Counsel for the parties. 2. The petitioner has challenged the order dated 11.02.2003, passed by the Central Administrative Tribunal Jodhpur Bench Jodhpur, in OA No. 274/2002 which was filed by respondent. 3. The respondent was employed on the post of Seasonal Anti Malaria Laskar (SAMI) at Air-Force Station, Bikaner since, April, 1999. He was initially appointed to perform his duties on temporary basis for the period of six months w.e.f. 05.04.1999 and thereafter he is continuing on the said post. As per the terms of appointment he was appointed till 310.1999 provided he work sincerely and thereafter his services would come to an end. However, his services were not brought to an end until the expiry of period stated in order but his services were confirmed and by letter dated 14.03.2001, he was granted temporary status. Thereafter by order dated 25.09.2002 (Annex.1) attached with original application, the services of the applicant were terminated with effect from 25/10/2002 treating the letter as one month advance notice. 4. The terms and conditions of the letter reads as under: “A COL was convened at this station on 26.08.2002 in investigate into the circumstances where by thereby there was an act of fabrication of documents was committed for recruitment of SAML wherein certain incorrect and misleading details were intentionally forwarded to HQWAC, IAF (CPC) for regularization of employment as an SAML, in respect of an individuals. The Court has established that the list from employment exchange was fabricated by you and you are blamed for your action. Your character and integrity is now doubtful. Your acts are under coming of an IAF employee and deter mental to the good order and discipline of the Air Force. In view of the above, your services are no longer required and your services are terminated with effect from 210.2002 and treat this letter as one month advance notice.” 5. Respondent/appellant challenged the aforesaid termination order by filing the Original Application before CAT. 6. The Petitioner/non-applicant filed reply to original application and stated firstly that the period of engagement for the Seasonal Anti Malaria Lascar, who is locally employed is 6 months only i.e., from 01 May to 31 October. It was purely a temporary/ad hoc appointment to (ater for the need of additional manpower in order to control the outbreak of malaria during pre-monsoon and post-monsoon season. It was purely a temporary/ad hoc appointment to (ater for the need of additional manpower in order to control the outbreak of malaria during pre-monsoon and post-monsoon season. It is further submitted on behalf of the answering respondents that as per the rules and guidelines issued by DOP and T (D) 14024/2/96 - Estt. (D) dated 18.05.1998 Air Force units are to employ the Seasonal Anti Malaria Lascar on the basis of sponsorship from local employment exchange only. It is submitted that Shri Dinesh was not sponsored from local employment exchange and his name was also not included in the list of sponsored candidates by employment exchange vide their letter, Employment Exchange Letter No. SAMPRA/99/28 dated 18.03.1999. The name of Sh. Dinesh was also entered at the last without being authenticated by the local Employment Exchange or any amendment letter issued thereof . This by itself is fraud committed by the applicant, who violated the rules and guidelines issued by the DOP and T and joined their service by unfair means and gained subsequently “Temporary Status.” It was submitted on behalf of the answering respondents (the present petitioner) that the applicant has intentionally committed an act by tampering the document and tried to take the advantage of working in administrative section. 7. In reply, the following facts were also stated: “Shri Dinesh has also tempered the list of sponsored candidates forwarded to this Station and included the name of Shri Sanjay, one of his close associate showing him a favour for his advantage and wrongful/fraudulent enrollment as Seasonal Anti Malaria Lascar at Air Force Station, Bikaner. Thereby marred the prospects of other candidates. The tempering of the list of sponsored candidates from local employment exchange was observed during the scrutiny of the document. A Court of Inquiry was ordered to look into the details and anomalies committed by Sh. Dinesh during his duty for which Sh. Dinesh was found to be blame worthy and disciplinary action initiated against him.” It was further submitted in the reply that : “the averments in Para 4.5 of the original application are not admitted in the manner as alleged by the applicant . It is humbly submitted that the grant of temporary status is a procedural action of administration on completion of the minimum qualifying requirements. It is humbly submitted that the grant of temporary status is a procedural action of administration on completion of the minimum qualifying requirements. The grant of temporary status does not guarantee or commit administration of the respondents, for or on behalf of the Indian Air Force as an organization to further continuation in the service or permanent adsorption for employment of a employee, who has been granted temporary status.” It was further stated that: “when the applicant was working on the said post, an enquiry was conducted by the authorities and in the said enquiry, the applicant has been charged with fabrication of some documents for recruitment of SAML wherein certain incorrect and misleading details were intentionally forwarded to Headquarter and for the same, the termination order was passed against the applicant.” 8. Be that as it may, the Tribunal found that a person, who is holding temporary status, cannot be terminated from service on the basis of fact finding inquiry and also Court of enquiry has no application to the case of civilian Government servants in defence. In accordance with principle laid down by the Tribunal in Bheek Singh Rathore vs. Union of India in O.A. No. 24/2001 the applicant is not subject to the Air Force Act and the finding of the Court of inquiry, which is just a fact finding inquiry, has no application to his case and also the same cannot take place of a regular inquiry wherein a charge sheet is required to be issued and the inquiry is required to be a conventional inquiry in case of the misconduct which is not conducted in the case here. But, in the instant case, admittedly, the applicant has not been issued even with a charge-sheet. The case of Bheek Singh Rathore (Supra) fully covers the controversy involved in this case. 9. A similar controversy came up for adjudication before the Ahmedabad Bench of the Tribunal in Malkondaiya vs. Union of India and Others case reported in 2002 (3) ATJ 100 and Honble Court in Nar Singh Pal vs. Union of India and Ors. reported in 2000 SCC 362 (L&S). 10. On the aforesaid premise, the termination was set aside with liberty to the petitioner to hold a fresh departmental inquiry in accordance with law. 11. reported in 2000 SCC 362 (L&S). 10. On the aforesaid premise, the termination was set aside with liberty to the petitioner to hold a fresh departmental inquiry in accordance with law. 11. The fact that the applicant before the Tribunal was civilian and was entitled to be treated as civilian in the matter of disciplinary proceeding is not disputed. However, what has been argued before us is that the Court of enquiry which was conducted and in which the respondent was found guilty of charges. 12. In the facts and circumstances, we are unable to agree with the learned Counsel that enquiry conducted by the Court of inquiry against the respondent could be held as enquiry in accordance with principles of natural justice, firstly because no charge of such gross misconduct was levelled due to which he could be removed. 13. In the case of Sanjay vs. Union of India & Ors., OA. No. 138/2003, the Honble Tribunal has specifically held that there is no need for sponsoring the name and once the name has been sponsored through employment exchange, he can be engaged next time without again sponsoring through the employment exchange and in above case the Tribunal has held that the name of Sanjay has been sponsored by the employment exchange. That Sanjay was initially engaged as Seasonal Anti Malaria Lascar at Air Force Station, Bikaner on 21.05.1999 for a period of six months i.e., upto 310.1999. Subsequently, he was re-engaged for a period of six months w.e.f. 10.05.2000 and therefore, continued on the said post during the seasons. The extension was granted from time to time and his case was also forwarded for grant of temporary status in accordance with the scheme. His name was sponsored through the employment exchange at the time of the first appointment. 14. The case of the applicant is that all of sudden on 29.04.2003, he was discontinued and was not reengaged. It has been averred that it is misreading that the applicant was appointed on the temporary basis. He was never granted temporary status. His name was subsequently not sponsored by the employment exchange and the individual also did not apply for the employment in personal capacity. His name was not considered since, the same was not sponsored by the local Employment Exchange for the season in question as per the rules in force. The grounds have been generally denied. His name was subsequently not sponsored by the employment exchange and the individual also did not apply for the employment in personal capacity. His name was not considered since, the same was not sponsored by the local Employment Exchange for the season in question as per the rules in force. The grounds have been generally denied. Respondents as to their own policy at Ann.A/1 dated 21.08.1997 very specifically provided that there is no need to approach employment exchange every time if an Anti Malaria Lascar is to be engaged for performing duties of casual/seasonal nature. Once an AML has been sponsored through employment exchange, he can be engaged next time without sponsorship through the employment exchange. Nothing has been placed on record even to suggest that there is any subsequent change in the policy. If there is no change, why the very policy has not been adhered to in the case of the respondent-applicant, has not been explained. However, persons for the post of Seasonal Anti Malaria Lascars were engaged only for the period from 01.05.2003 to 310.2003 and that period is now over and therefore no relief as such can be granted to the applicant. Since, applicant has not worked on the said post so he cannot be granted the back wages on the principle of no work no pay. However, the respondents would treat him as continue on their roll alongwith other similarly situated persons. 15. It was admitted before the Tribunal in the present case that as per the policy in existence, it was not required that the person whose appointment on preliminary basis was made by sending of name by employment exchange, second time, his name was not required to be sent by employment exchange. It was on the first appointment, his name was required to be considered by employment exchange. 16. The applicant specifically averred before the authorities that he had worked under the control of JWO Mr. Subarmaniyam, therefore, he has not made any act of fabrication of the document for recruitment of SAMI. 17. The petitioner stated that his name was considered because Sanjay was not employed and in view of Subarmaniyams case (Supra) when his name was already sponsored by employment exchange in 1999 no subsequent sponsoring of name was required. 9.18. The order of the Tribunal in Sanjays case has since been confirmed by this Court in D.B. Civil Writ Pet. 17. The petitioner stated that his name was considered because Sanjay was not employed and in view of Subarmaniyams case (Supra) when his name was already sponsored by employment exchange in 1999 no subsequent sponsoring of name was required. 9.18. The order of the Tribunal in Sanjays case has since been confirmed by this Court in D.B. Civil Writ Pet. No. 2231/2005 decided on 19.04.2005. The Judgment of Honble Supreme Court in Nar Singh Pal vs. Union of India and Ors., reported in 2000 SCC (L&S) 362 clearly shows that on alleged inquiry, if any, conducted against the applicant, if it was in breach of principles of natural justice, no punishment can be awarded, and if that is done, it will be without jurisdiction. 19. In view thereof we do not find any merit in this case, the petition is, therefore, dismissed. 20. No order as to costs.