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Judgment
By Justice Rajiv Joshi, Member (Judicial):-
Heard Shri A.K. Tiwari, learned counsel for applicant and Shri Nawal Kishore Mishra, learned counsel for the respondents at the time of hearing.
The instant Original Application under Section 19 of the Central Administrative Tribunal Act, 1985 has been filed for the following reliefs:
(i)Issue writ or direction setting aside the order dated 17.09.2019 passed by Respondent no. 4 pursuant to the show cause notice no. 37.A.16.17.2.2017-Estt. dated 26.08.2019 issued against the applicant by which applicant was terminated from his service from the post of LDC (Lower Divisional Clerk) at ESIC Model Hospital, Bapu Nagar, Ahmedabad, Gujarat.
(II)Issue writ or direction as staying the effect and operation of the order dated 17.09.2019 passed by Respondent no. 4 pursuant to the show cause notice no. 37.A.16.17.2.2017-Estt. dated 26.08.2019 issued against the applicant by which applicant was terminated from his service from the post of LDC (Lower Divisional Clerk) at ESIC Model Hospital, Bapu Nagar, Ahmedabad, Gujarat.
(III)A suitable order or direction as directing to the respondents authority to permit the applicant to work as LDC (Lower Divisional Clerk) at ESIC Model Hospital, Bapu Nagar, Ahmedabad, Gujarat.
(IV)Any other suitable order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
(V)Award cost of this application to the applicant.
The brief facts as apparent from the Original Application is that the applicant appointed as Multi Task Staff (MTS) vide Appointment Letters/Memos dated 09.07.2012 in view of selection process as per Advertisement dated 07/13.01.2012 issued by the respondents. The services of the applicant was confirmed on 28.01.2016 and further has earned promotion to the post of Lower Division Clerk (LDC) on 16.01.2017. The applicant was satisfactorily discharging his duties to the said post. However, he was received a show cause notice dated 26.08.2019 issued by the Regional Director, Employees‟ Staff Insurance Corporation Ahemdabad through Medical Superintendent, ESIC Model Hospital, Bapunagar, Ahemdabad, for which, he submitted his reply. In his reply, he had denied all the allegation levelled against him and also requested for furnishing some relevant documents. On 05.09.2019, the applicant provided some documents with the approval of respondent-4. However, the respondents issued order dated 17.09.2019, by which , the applicant was terminated from the services with immediate effect on the ground that the applicant obtained appointment by impersonation.
Feeling aggrieved by the order(s) of termination, applicant has been constrained to knock the door of this Tribunal, challenging the termination order.
On the other hand, counter reply was filed on 06.04.2021, wherein it has been stated that an advertisement dated 07/13.01.2002 was published by the ESI Corporation for recruitment to the post of MTS for the Gujarat Region. The applicant applied for and appeared in the selection process and was finally selected. At the time of the examination, the candidates were required to bring an admit card with one recently attested photograph affixed thereon. The counterfoil of the admit card was kept in the custody of the invigilator present in the examination room after obtaining the signature and thumb impressions of the candidates thereon. The attendance of the candidates appearing in the written examination was marked in the attendance sheet by obtaining the signatures and thumb impressions of the candidates. After this process, the candidates were provided with the question paper and an objective multiple-choice question (OMR) answer-sheet. Each candidate was required to put his/her signature, thumb impression and handwriting at the bottom of the OMR sheet. 4.1 The result of the written examination was declared on 13.06.2012, in which 101 candidates were declared to have passed. On preliminary analysis, it was found that 69 candidates out of the 101 selected candidates in the MTS cadre were from one State, i.e., the State of Bihar. The successful candidates were issued offers of appointment, including the applicant. However, when the selected candidates reported for joining, their credentials were scrutinized and it was noticed that some photographs pasted on the admit cards were found to be smudged or were not identical to the faces of the candidates who had reported for joining. Some candidates could not give replies to the basic questions relating to the question paper or even about the venue of the examination. This was, prima facie, suspicious and, as a precautionary measure, the thumb impressions of the candidates, ten signatures in running hand, along with a statement in running handwriting in a prescribed proforma, were obtained before two witnesses at the time of completion of the appointment formalities. The statement so obtained was compared with the statement in running hand taken on the OMR sheet at the time of examination. The appointment orders were suitably modified, inter alia, by making the appointments provisional, subject to verification of the identity of the candidates, and were thereafter issued to the appointees.
During the pre-appointment formalities of the MTS candidates, the appointing authority had a prima-facie suspicion but did not have concrete evidence or material to substantiate the said suspicion and, as such, the candidates were conditionally allowed to join. The decision was thereafter taken to get the relevant documents scrutinized by a Forensic Expert, mainly by comparing the handwriting and signatures taken at the time of the pre-appointment formalities.
For this purpose, the Central Forensic Science Laboratory (CFSL) of CBI, New Delhi, was contacted for examination of the handwriting and signatures, but the CFSL replied to the effect that, due to the huge pendency of cases, such examination would not be possible. However, it was suggested that the Finger Print Division of CFSL may be approached for examination of the thumb impressions. Meanwhile, the case of the applicant was also found to be suspicious along with those of other candidates. Hence, a list of 16 candidates was prepared and their files were kept ready with the OMR sheet, attendance sheet, counterfoil of the admit card, and proforma containing specimen thumb impressions, signatures and handwriting taken at the time of the pre-appointment formalities.
While a decision was being taken regarding the MTS successful candidates, one Shri Dharmendra Kumar wrote a letter complaining that some candidates had succeeded by arranging dummy candidates. Thereafter, the exercise was started to verify the identity of each candidate, and a Committee comprising the Joint Director and two Deputy Directors was constituted for questioning the candidates named by Shri Dharmendra Kumar and others, numbering seven candidates in all. Out of the seven candidates, only five appeared before the Committee, which then suggested that all five cases be investigated on the basis of handwriting and signatures through the Finger Print Division of CFSL. Accordingly, initially, the first four doubtful cases were forwarded to the Finger Print Division of CFSL for fingerprint examination.
Thereafter, the exercise was undertaken to verify the identification of each candidate through the Finger Print Division of CFSL, and the cases of all the candidates recruited in the year 2012 were forwarded to CFSL, New Delhi. The report dated 08.09.2017, forwarded by CFSL, New Delhi, vide letter dated 12.09.2017, disclosed that the thumb impressions of the applicant could not be compared as they were blurred and/or smudged and did not contain a sufficient number of clear ridge characteristics for comparison with the specimen left and right thumb impression slips.
A Committee comprising three officers was constituted to suggest a further course of action in the background of the facts of the case. The Committee submitted its report on 03.03.2018. The said Committee made certain observations under the caption “Committee Report for examining, deciding/recommending of disciplinary action/further action in respect of whom CFSL Report received for UDC & MTS cadre.” The recommendation of the Committee shows that the report in respect of the applicant at Sl. Nos. 1, 3, 5, 6, 10, 14 and 19 was inconclusive, and a second opinion could be taken on the basis of further evidence/documents. Accordingly, the Forensic Science Laboratory at Hyderabad was approached, and the original documents containing signatures and handwriting obtained at the time of the examination and the natural, normal and routine signatures and handwriting obtained at the time of the pre-appointment formalities were forwarded. The CFSL, Hyderabad, forwarded its report dated 30.07.2019 vide letter dated 13.08.2019, wherein it was stated that “the above-mentioned characteristic differences are fundamental in nature and are beyond the range of natural variation or intended disguise. These differences, along with the line quality between the questioned and the standard signatures and writings, when considered collectively, lead me to the opinion of their different authorship.” This opinion shows that the writer of the natural handwriting and signature did not write the disputed signatures and handwriting. Therefore, this proves impersonation.
On receipt of the report from CFSL, Hyderabad, another Committee consisting of three officers was constituted for further course of action. The Committee submitted its report on 23.08.2019 with certain observations under the caption “Committee Report for Examination/Deciding/Recommending of Disciplinary Action/Further Action in respect of whom CFSL reports received from CFSL New Delhi and CFSI Mumbai for UDC & MTS cadre.” The recommendation of the Committee in respect of the applicant shows that “this is the case of impersonation during examination and, therefore, action for termination from service may be initiated as per rules/regulations and procedure.”
As per the recommendations of the above-mentioned Committee, the Regional Director, Regional Office, ESIC, Ahmedabad, on 26.08.2019, issued a show-cause notice to the applicant, stating therein that the applicant had, by impersonation, committed fraud against the ESI Corporation and obtained appointment and thereby deprived other qualified persons of being selected, and had obtained the appointment by committing misconduct and by unfair means as per the CCS (CCA) Rules, 1965, and that grave criminal offences had also been committed by the applicant.
In response to the above-mentioned show-cause notice, the applicant submitted his replies on 31.08.2019 and 11.09.2019, contending, inter-alia, that he had appeared in person in the examination and was not guilty of any misconduct, but could not give any explanation for the mismatch between his thumb impression/handwriting given at the time of his appointment and the thumb impression/handwriting given at the time of the examination.
No purpose would have been served by holding any further inquiry, as the fact remained that the handwriting tendered by the applicant at the time of the examination and at the time of appointment did not match. The services of the applicant were rightly terminated vide order dated 17.09.2019. The appointment of the applicant was void from its inception and, as such, the applicant did not get any protection under Article 311 of the Constitution of India. The applicant obtained the appointment by playing fraud and, as such, no regular departmental proceeding was required to be initiated. Similarly situated persons approached the CAT, Patna Bench, in O.A. No. 99/2017 and O.A. No. 555/2018, but the same were dismissed vide orders dated 25.09.2019 and 01.08.2019, respectively. Hence, the instant Original Application is liable to be dismissed.
In reply, rejoinder affidavit has not been filed by the applicant on 16.08.2023, wherein reiterated the same averment as made in Original Application. However, it is stated the order of CAT Patna Bench passed in O.A .No.99/17 and O.A. No.555/2018 were challenged before the Patna High Court in CWJC No.23977/2019 and 22790/2019 and Patna High Court vide its judgment and order dated 06.02.2023 allowed the aforesaid writ petitions and which was affirmed by the Apex Court in SLP (Civil) Diary No.23895/2023.
Learned counsel for the applicant assailed the impugned order/letter on the ground that alleged impersonation has been taken note of and proved behind the back of applicant in an inquiry stated to have been conducted by a Committee. The applicant was confirmed employee in the post of MTS on 28.01.2016. Thereafter, he was promoted to the post of LDC on 16.01.2017. Therefore, he was regular holders of the post in the Employees‟ State Insurance Corporation and he has a lein in the post of LDC. They are governed by Employees‟ State Insurance Corporation (Staff and Conditions of Service) Regulations, 1959 (for short „Regulations, 1959‟). In terms of Regulation 3-Application read with Regulation No.11-Penalties like minor and major penalties and Regulation No.12 Disciplinary Authorities and other Regulations of Regulations, 1959 is applicable to this applicant having regard to the fact that he was appointed to the post of MTS followed by confirmation and promotion to the post of LDC. Aforementioned Regulations have not been followed before ordering termination.
Learned counsel for the applicant further submitted that Regulation 6-Termination of Service of an employee of the Insurance Corporation is not warranted in the present case, for the reasons, that the applicant was confirmed employee and was promoted to the post of LDC. At the best Respondents should have resorted to invoke Regulation No. 11 of Regulations, 1959 while holding departmental inquiry and imposition of any of the penalties either minor or major penalty. However, Disciplinary Authority has not resorted to or adhered to the aforesaid provisions of law.
Learned counsel for the applicant further submitted that the issue involved in this Original Application has already been set at rest by the Division Bench of Patna High Court in CWJC No.23977/2019 and 22790/2019 and Patna High Court vide its judgment and order dated 06.02.2023 allowed the aforesaid writ petitions and which was affirmed by the Apex Court in SLP (Civil) Diary No.23895/2023 vide order dated 24.07.2023.
On the other hand, learned counsel for the respondents vehemently opposed the contention of the applicant and submitted that the applicant had secured appointment in the ESI Corporation by adopting fraudulent means and by resorting to impersonation during the recruitment examination. At the stage of verification of credentials, certain discrepancies were noticed in the photographs, signatures, handwriting and thumb impressions of some selected candidates, including the applicant. Accordingly, the matter was referred for scientific examination to the forensic authorities. The report of CFSL, Hyderabad clearly opined that the handwriting and signatures obtained from the applicant at the time of pre-appointment formalities did not tally with those available on the examination records, thereby establishing impersonation.
Learned counsel for the respondents further submitted that the appointment obtained by fraud and impersonation is void ab-initio and non-est in the eyes of law. Since the very foundation of the appointment was tainted by fraud, no vested right accrued in favour of the applicant merely because he had been confirmed in service or promoted to the post of LDC. It was argued that fraud vitiates all solemn acts and, therefore, the respondents were justified in terminating the services of the applicant without resorting to a regular departmental inquiry, as the case did not involve misconduct during service but related to fraudulent entry into service itself.
Learned counsel for the respondents also submitted that the applicant was afforded adequate opportunity by issuance of a detailed show-cause notice dated 26.08.2019, to which he submitted replies, but failed to furnish any satisfactory explanation regarding the mismatch in his handwriting and signatures. The action taken by the respondents was based upon expert forensic reports and the recommendations of the duly constituted Committees. The similarly situated candidates had approached the CAT, Patna Bench in O.A. No. 99/2017 and O.A. No. 555/2018, but both Original Applications were dismissed.
Learned counsel for the Respondents cited two decisions of Apex Court, namely, R. Vishwanatha Pillai v. State of Kerala, Additional General Manager, Home Resources, BHEL Vs. Suresh Kumar Ram Kirshna Barade, (2007) SCC (L & S) 152. Accordingly, the present Original Application, being devoid of merit, is liable to be dismissed.
We have considered the submissions so raised by the learned counsel for both the parties and perused the records.
From perusal of the records, it appears that the issue involved in this original application is now more res integra as similarly situated persons had approached the CAT, Patna Bench, by way of the Original Application Nos.99/17 and 555/2018, which were dismissed by the CAT Patna Bench. Aggrieved by the said orders, the applicants therein preferred CWJC Nos. 23977/2019 and 22790/2019 before the Hon‟ble Patna High Court. The Hon‟ble High Court, vide its judgment and order dated 06.02.2023, reversed the orders passed by the Tribunal and allowed the aforesaid writ petitions, making the following observations:
06.Heard the learned counsels for the respective parties.
07.Undisputed facts are that petitioners were initially appointed against MTS posts vide Appointment Letters/Memos dated 09.07.2012 and 13.06.2012, respectively. Petitioners’ services were confirmed on 28.01.2016 and later on they were promoted to the post of LDC. Learned counsel for the Respondents disputed that petitioners were confirmed. It is to be noted that in the absence of confirmation in the post of MTS, the petitioners were not eligible to be promoted to the post of LDC, on the other hand, they were promoted to the post of LDC on 28.10.2016 and it is not disputed by the respondents, so also the respondents have not withdrawn the promotion order dated 28.10.2016 even to the stay.
08.It is relevant to reproduce certain provisions of the Regulations, 1959. Regulation 3-Application of Regulations, 1959 reads as under:
“3.Application- These regulations shall apply to every whole-time employee of the Corporation, other than the Principal Officers appointed under Section 16 of the Act:
Provided that a Government servant or an employee of a local authority, whose services have been or may be obtained on deputation by the Corporation, may be governed by such terms and conditions as may be settled by the Director General in consultation with the Government or the local authority concerned;
Provided further that an employee appointed on contract or tenure basis may be exempted from these regulations to such extent and subject to the submission of a report to the Standing Committee.”
09.Reading of the aforesaid provision, it is crystal clear that the service conditions of the petitioners like appointment, confirmation and promotion would fit into the Regulation No. 3. In other words, petitioners were governed by Regulations, 1959.
10.Learned counsel for the Respondents submitted that Regulation 5 relating to probation is attracted in the present case and so also Regulation 6-Termination of Service. But both the regulations are not attracted for the simple reason that petitioners have passed that stage, since the petitioners were appointed to the post of MTS vide Appointment Letters/Memos dated 09.07.2012 and 13.06.2012, respectively and their services were confirmed on 28.01.2016 and they were promoted to the post of LDC on 28.10.2016. Question of probation and termination are attracted only in cases of temporary employees or probationary employees. The petitioners are permanent employees, once they were confirmed in the initial post and further they were promoted to the post of LDC. It is necessary to reproduce Sub-Regulation (9) of Regulation 5-Probation and it reads as under:
“(9). Confirmation of an employee will be made only one in his service and will be in the regular in the entry grade. An employee shall be confirmed in the post after he has satisfactorily completed his period of probation, and his case has been considered by the DPC and has been cleared form all angles.”
11.Even reading of the aforesaid Sub-Regulation, it is crystal clear that Regulation No.5-Probation, is not attracted as on the date of the termination of the petitioners.
12.It is also relevant to cite Regulation No. 12Disciplinary Authorities. Sub-Regulation (3) reads as under:
(3)Notwithstanding………. EXPLANATION- Where an employee holding a post of any class is promoted, whether on probation or temporarily to the post of next higher class, he shall be deemed for the purpose of this regulation to hold the post of such higher class.”
In the light of dates and events, service condition of the petitioners as on the date of termination read with Regulations, 1959, we are of the view that before termination of the petitioners’ services, Respondents should have resorted to Regulation- 11 and 12. In other words, domestic inquiry should have been held while initiating inquiry proceedings.
Even assuming that Service Regulations, 1959 is not attracted for the argument’s sake, still the official respondents have denied principles of natural justice to the petitioners while denying in not providing CFSL report and other documents, despite there was a demand by them against showcause notice(s). In other words, in their communication dated 02.04.2018, they are claiming privilege to the extent of Director’s permission, Judicial Forum and Investigating Officer, if they intent, in that event, such documents could be provided. At the same time, no efforts have been made by the official Respondents to the extent that there was a demand of certain documents by the petitioners and it was placed before the Director to the extent whether such documents could be provided to the petitioners or not? On the other hand, concerned authority has taken a decision not to provide such of those documents which have been demanded by the petitioners and which are cited in the committee report.
Learned counsel for the Respondents cited three decisions, namely, R. Vishwanatha Pillai v. State of Kerala and Ors. (supra), Bank of India and Anr. v. Avinash D. Mandivikar and Others, (supra) and Director, Ministry of Coal and others v. Bimlendu Kumar (supra). All these three decisions are hereby distinguished with reference to facts of the case(s) in hand. It all depends on relevant Regulations. In the present case, the petitioners were governed by Regulation, 1959 with reference to the status as on the date of termination read with Regulation No.3-Application of Regulations, 1959. Therefore, Respondents cannot proceed with short cut method of holding inquiry through a committee and petitioners were not permitted to participate before the committee to have their say. Moreover, order(s) of termination is not a speaking order (Annexure P/5 to the Original Application), in so far as petitioner-Shailendra Kumar Choudhary is concerned, which reads as under:
“……….. _______________________________________ No.37.A.16.17.2.2018-Estt. Date:28.02.2019
ORDER
The reply give by Shri Shailendra Kumar Choudhary, LDC (appointed as MTS in 2012) to the Show Cause Notice dated 05.02.2019 has been considered and found not satisfactory by the Regional Director. Being the case of impersonation which is proved beyond doubt, it becomes immaterial whether the employee has completed probation or not because he is deemed not to have been appointed at all. Hence completing probation does not vest any legal right to such employee.
It is concluded that he has obtained appointment by impersonation and therefore by fraudulent means and hence on this ground as well as, as per provision of Rule 6(3) of the E.S.I. Corporation (Staff & Conditions of Service) Regulation 1959, the Regional Director has ordered the termination of Shre Shailenra Kumar Choudhary, LDC (appointed as MTS in 2012) S/o Shri Kirshan Deo Choudhary from the services of ESI Corporation with immediate effect.
The issues with the approval of Regional Director. Sd/ (D. K. Chourasia) Deputy Directory For Regional Directory To, Shri Shailendra Kumar Choudhary, LDC (appointed as MTS in 2012) S/o Shri Krishan Deo Choudhary ESI Corporation Sub Regional Office, Vadodara-Gujrat. …………………………………………………………. ”
Reading of the aforesaid termination order, it is evident that there is no application of mind by the Deputy Director or Regional Director while ordering termination. It is to be noted that order of termination is a subject matter of judicial review. In such an event, he should have passed speaking order to the extent of considering contentions of the respective parties. At this stage, it is necessary to take note of the Apex Court decision in the case of Kranti Associates (P) Ltd. v. Masood Ahmed Khan, reported in, (2010) 9 SCC 496, Para-47 reads as under:
47.Summarising the above discussion, this Court holds:
(a)In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b)A quasi-judicial authority must record reasons in support of its conclusions.
(c)Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(d)Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasijudicial or even administrative power.
(e)Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.
(f)Reasons have virtually become as indispensable a component of a decisionmaking process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(g)Reasons facilitate the process of judicial review by superior courts.
(h)The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.
(i)Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
(j)Insistence on reason is a requirement for both judicial accountability and transparency.
(k)If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l)Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not to be equated with a valid decision-making process.
(m)It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987) 100 Harvard Law Review 731-37] .)
(n)Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain [(1994) 19 EHRR 553] EHRR, at 562 para 29 and Anya v. University of Oxford [2001 EWCA Civ 405 (CA)] , wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, “adequate and intelligent reasons must be given for judicial decisions”.
(o)In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”.
The Apex Court in the case of Nair Service Society v. Dr. T. Beermasthan, reported in, (2009) 5 SCC 545 in Para-48 held as under:
“48.Several decisions have been cited before us by the respondents, but it is well established that judgments in service jurisprudence should be understood with reference to the particular service rules in the State governing that field. Reservation provisions are enabling provisions, and different State Governments can have different methods of reservation. There is no challenge to the Rules, and what is challenged is in the matter of application alone. In our opinion the communal rotation has to be applied taking 20 vacancies as a block.”
The aforesaid decision in the case of Nair Service Society v. Dr. T. Beermasthan (supra), is attracted in the present case in order to distinguish the cited decisions on behalf of Respondents. Thus, Respondents have not made out a case to contend that there was no confirmation, therefore, Regulation-5 and 6 are attracted. On the other hand, having regard to the status of the petitioners that they were promoted to the post of LDC, the respondents have not taken any steps to revert them to the post of MTS before terminating their services. In fact, the contention of the respondents are that petitioners were not confirmed and it cannot be appreciable for the reasons that petitioners were promoted. The CAT has failed to take note of whether Regulations, 1959, is attracted in the case(s) in hand or not and it is a legal issue. Therefore, the petitioners have made out prima facie case, so as to interfere with the order of termination and the order of the CAT.
In the light of these facts and circumstance, orders dated 28.02.2019, 20.03.2019 and 21.05.2018, respectively, are set aside, so also order(s) of CAT dated 01.08.2019 passed in O.A. No. 050/00326/2019 and O.A. No. 050/00555/2018.
The concerned Respondent is hereby directed to extend all monetary benefits to the petitioners during the intervening period from the date of their termination from service till date, reserving liberty to the concerned Respondents to resort to disciplinary proceedings under Regulation-11 read with 12 and any other Regulation of Regulations, 1959. Such departmental inquiry shall be initiated and completed within a period of six months from the date of receipt of this order.
The writ petitions stand allowed.
At this stage, learned counsel for the Respondents contended that order dated 28.01.2016 vide Annexure- P/3 is not a confirmation order. If it is not confirmation order, there was no point in considering the petitioners’ name for promotion to the post of LDC, therefore, the contention of the Respondents that petitioners were not confirmed employee, cannot be appreciable. Accordingly, the aforesaid contention of the respondents, is hereby rejected.
The order passed in CWJC No.23977/2019 and CWJC No.22790/2019 has already been affirmed by the Apex Court in SLP (Civil) Diary No.23895/2023.
From the aforesaid observations of the Hon‟ble Patna High Court, it is evident that the petitioners therein were similarly situated to the applicant in the present Original Application. In the present case also, the applicant was initially appointed to the post of MTS, his services were subsequently confirmed, and thereafter he was promoted to the post of LDC. Thus, as on the date of termination, the applicant was not a probationer or a temporary employee, but was holding a regular post after confirmation and promotion. The Patna High Court has categorically held that, in such circumstances, the Employees‟ State Insurance Corporation (Staff and Conditions of Service) Regulations, 1959 were applicable and that, before terminating the services of such an employee, the respondents ought to have resorted to Regulations 11 and 12 and held a regular departmental inquiry. The High Court further observed that even otherwise, denial of the CFSL report and other documents demanded by the employee amounted to denial of the principles of natural justice.
In the present case also, the applicant had been confirmed in service and subsequently promoted to the post of LDC before the impugned order of termination dated 17.09.2019 was passed. Therefore, the ratio and directions contained in the judgment of the Patna High Court, having regard to the substantially similar factual and legal circumstances, are directly relevant to the controversy involved in the present Original Application. The respondents, instead of conducting a regular departmental inquiry in accordance with Regulations 11 and 12 of the Regulations, 1959, proceeded to terminate the services of the applicant on the basis of the Committee proceedings and the forensic material.
As the facts and controversy involved in this Original Application is squarely covered by the aforesaid Order/Judgment passed by the Patna High Court in CWJC No.23977/2019 and CWJC No.22790/2019, this Original application is disposed of finally in terms of the judgment/directions issued in CWJC No.23977/2019 and CWJC No.22790/2019 passed Patna High Court, which was affirmed up to the Apex Court, which shall be applicable in this case mutatis mutandis.
Accordingly, in view of aforesaid judicial pronouncements, impugned order dated 17.09.2019 is hereby set aside. The respondents are directed to extend all monetary benefits to the applicant during the intervening period from the date of his termination from service till date, reserving liberty to the concerned Respondents to resort to disciplinary proceedings under Regulation-11 read with 12 and any other Regulation of Regulations, 1959. Such departmental inquiry shall be initiated and completed within a period of six months from the date of receipt of this order.
Resultantly, instant Original Application stands allowed.
All MAs pending in this O.A. also stand disposed off.
No order as to costs.