Common Judgment: (Sri A.V.Sesha Sai, J.)
1. Un-successful respondents in Writ Petitions are the appellants in the present Writ Appeals.
2. The facts, in brief, leading to the filing of the present Writ Appeals are as follows: The Cotton Corporation of India Limited issued a paper notification on 21.10.2014, inviting applications for the purpose of filling up the vacancies of Junior Cotton Purchasers. The writ petitioners applied for the said posts and they were appointed in the first half of the year 2015. The Cotton Corporation of India issued show cause notices, calling upon the writ petitioners to show cause as to why their services should not be terminated, while alleging that the writ petitioners got into employment by adopting fraudulent method.
3. In response to the said show cause notices, the writ petitioners submitted their explanations. Thereafter, the Cotton Corporation of India issued orders, terminating the services of the writ petitioners. Assailing the validity and legal sustainability of the said orders of termination, the respondents in these Writ Appeals, by invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, filed the Writ Petitions. The learned Single Judge, by way of the orders impugned in these Writ Appeals, allowed the Writ Petitions filed by the respondents herein by setting aside the orders of termination. The said orders passed by the learned Single Judge are under challenge in these Writ Appeals preferred under Clause 15 of the Letters Patent.
4. Heard Sri J.Sudheer, learned counsel for the writ appellants and Sri R.Raghunandan, learned senior counsel representing Sri T.Bala Mohan Reddy, learned counsel for the respondent in W.A. No.912 of 2017 and Sri M.Ramgopal Rao, learned counsel for the respondent in W.A. No.241 of 2017, apart from perusing the material available before the Court.
5. Learned counsel for the appellants Sri J.Sudheer, contends that the orders passed by the learned Single Judge are highly erroneous, contrary to law and opposed to the well-settled principles of law. In elaboration, it is further argued by the learned counsel that the learned Single Judge grossly went wrong in directing to conduct enquiry and ought to have seen that in the absence of declaration of the probation of the writ petitioners, the question of holding regular enquiry does not arise and the finding of the learned Single Judge contra cannot sustain and is liable to be set aside. It is also the contention of the learned counsel for the writ appellants that in view of the fraud and misrepresentation resorted to by the writ petitioners even prior to entering into the service and having regard to Clause 14 of the recruitment notification, there is no requirement of holding regular enquiry. It is further contended that since the allegations pertain to the period anterior to the entry into service, regular enquiry need not be conducted. In support of his submissions and contentions, learned counsel for the writ appellants, places reliance on the following judgments:
(1) Devendra Kumar v. State of Uttaranchal and others (2013) 9 SCC 363.
(2) R.Vishwanatha Pillai v. State of Kerala & Ors 2004(5) SCC 105.
(3) Vice-Chairman, Kendriya vidyalaya Sangathan and another v. Girdharilal Yadav (2004) 6 SCC 325.
(4) A.P. Public Service Commission v. Koneti Venkateswarulu and others (2005) 7 SCC 177.
(5) Kendriya Vidyalaya Sangathan and others v. Ram Ratan Yadav (2003) 3 SCC 437.
(6) R.Radhakrishnan v. Director General of Police and others (2008) 1 SCC 660.
(7) State of Manipur and others v. Y.Token Singh and others (2007) 5 SCC 65.
(8) Municipal Committee, Hoshiarpur v. Punjab State Electricity Board and others (2010) 13 SCC 216.
(9) Khub Ram v. Dalbir Singh and others (2015) 8 SCC 368.
(10) Avtar Singh v. Union of India & Others 2016 (7) Scale 378.
(11) Ram Kishan Khoiwal v. Cotton Corporation of India Limited Special Leave Application No.16117 of 2016 dated 21.06.2018 of the Gujarat High Court.
(12) Vivek Kumar v. General Manager (Hrd) CCI and another Civil Writ Petition No.15006 of 2016 dated 05.05.2017 of the Rajasthan High Court.
(13) Shri Gaurav W. Watane v. The Cotton Corporation of India Limited and others Writ Petition (L) No.3137 of 2016 dated 08.12.2016 of Bombay High Court.
6. On the contrary, learned senior counsel, Sri R.Raghunandan, representing Sri T.Bala Mohan Reddy, learned counsel for the writ petitioner-respondent in W.A. No.912 of 2017, while supporting the orders of the learned Single Judge, contends that there is absolutely no error nor there exists any infirmity in the impugned orders and in the absence of the same, the orders passed by the learned Single Judge do not warrant any interference of this Court under Clause 15 of the Letters Patent. It is the further contention of the learned senior counsel that since the orders of termination attach stigma on the writ petitioners, by any stretch of imagination, the said orders cannot be construed nor can be regarded as termination simpliciter. It is also the submission of the learned senior counsel that the judgments cited on behalf of the writ appellants are not relevant to the facts and circumstances of the case. Learned senior counsel, in support of his submissions, places reliance on the following judgments:
(1) NMDC Limited, represented by its Chairman and Managing Director, Hyderabad and others v. Sagar Pani 2017 SCC Online Hyd 518.
(2) Radhey Shyam Gupta v. U.P.State Agro Industries Corporation Limited and another (1999) 2 SCC 21.
(3) Samsher Singh v. State of Punjab Decided by the Hon'ble Supreme Court on 23.08.1974 in Civil Appeal Nos.2289 of 1970 and 632 of 1971.
(4) State Bank of India v. Palak Modi Decided by the Hon'ble Supreme Court on 03.12.2012 in Civil Appeal Nos.7841-7842 of 2012.
7. Sri M.Ramgopal Rao, learned counsel for the writ petitioner-respondent in W.A. No.241 of 2017, while supporting the submissions and contentions of the learned senior counsel appearing for the writ petitioner-respondent in W.A. No.912 of 2017, contends that the judgments cited on behalf of the appellants are irrelevant to the facts and circumstances of the present case. It is the further submission of the learned counsel that as per the Conduct, Discipline and Appeal Rules of Cotton Corporation of India Limited, it is obligatory and incumbent on the part of the authorities to hold regular enquiry before inflicting the punishment and the said Rules are applicable not only to the employees in the permanent cadre strength but also to the contingent employees and also applicable to the employees on deputation.
8. In the above background, now the issues that emerge for consideration of this Court are:-
(1) Whether the orders passed by the learned Single Judge, which are impugned in the instant Writ Petitions, are sustainable and tenable?
(2) Whether the impugned orders warrant any interference of this Court under Clause 15 of the Letters Patent?
9. The appointment of the writ petitioners pursuant to the regular process of selection undertaken by the appellants is not in controversy. According to the appellants, in the enquiry undertaken as to the genuineness of the experience certificates produced by the writ petitioners at the time of their appointment, the authorities found that they are not genuine and further found that the writ petitioners got the employment by playing fraud and misrepresentation. Admittedly, on the basis of the said enquiry, the writ appellants issued show cause notices to the writ petitioners, calling upon them to show cause as to why their services should not be terminated. Admittedly, in response to the said show cause notices, the writ petitioners submitted their explanations and thereafter the appellant authorities issued the orders of termination. The appellants seek to justify their action by stating that since the writ petitioners are not the approved probationers, there is no requirement of conducting regular enquiry. As stated supra, it is the categoric case of the writ appellants that by way of fraud and misrepresentation, the writ petitioners gained entry into the employment. In order to resolve the issues in the present writ appeals, it would be highly essential to refer to the judgments cited by the learned counsel.
10. In Devendra Kumar's case (1 supra), the Hon'ble Supreme Court in paragraphs 12, 18 and 25 held as under:
"12. So far as the issue of obtaining the appointment by misrepresentation is concerned, it is no more res integra. The question is not whether the applicant is suitable for the post. The pendency of a criminal case/proceeding is different from suppressing the information of such pendency. The case pending against a person might not involve moral turpitude but suppressing of this information itself amounts to moral turpitude. In fact, the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information. In that eventuality, the service becomes liable to be terminated, even if there had been no further trial or the person concerned stood acquitted/discharged.
18. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit those persons who have frauded or misrepresented themselves. In such circumstances the Court should not perpetuate the fraud by entertaining petitions on their behalf. In Union of India v. M. Bhaskaram [1995 Supp (4) SCC 100], this Court, after placing reliance upon and approving its earlier judgment in Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi (1990) 3 SCC 655, observed as under:-
"If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a Court of Law as the employment secured by fraud renders it voidable at the option of the employer."
25. More so, if the initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. "Subla Fundamento cedit opus"- a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent Court. In such a case the legal maxim Nullus Commodum Capere Potest De Injuria Sua Propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation. (Vide: Union of India v. Maj. Gen. Madan Lal Yadav [AIR 1996 SC 1340]; and Lily Thomas v. Union of India & Ors., [AIR 2000 SC 1650]. Nor can a person claim any right arising out of his own wrong doing. (Juri Ex Injuria Non Oritur).
In R.Vishwanatha Pillai's case (2 supra), the Hon'ble Supreme Court held as under:
"The act or omission on the part of the appellant pertains to the period prior to his joining the service. There is no non-compliance of Rules 6 or 7 of the Rules.
This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all.
In Ishwar Dayal Sah v. State of Bihar, 1987 Lab.I.C. 390, the Division Bench of the Patna High Court examined the point as to whether a person who obtained the appointment on the basis of a false caste certificate was entitled to the protection of Article 311 of the Constitution. In the said case the employee had obtained appointment by producing a caste certificate that he belonged to a Scheduled Caste community which later on was found to be false. His appointment was cancelled. It was contended by the employee that the cancellation of his appointment amounted to removal from service within the meaning of Article 311 of the Constitution and therefore void. It was contended that he could not be terminated from service without holding departmental inquiry as provided under the Rules. Dealing with the above contention, the High Court held that if the very appointment to the civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional rights under Article 311 of the Constitution can possibly flow. It was held:
"If the very appointment to civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional rights under Article 311 can possible flow from such a tainted force. In such a situation, the question is whether the person concerned is at all a civil servant of the Union or the State and if he is not validly so, then the issue remains outside the purview of Article 311. If the very entry or the crossing of the threshold into the arena of the civil service of the State or the Union is put in issue and door is barred against him, the cloak of protection under Art.311 is not attracted."
In Girdharilal Yadav's case (3 supra), the Hon'ble Supreme Court held at paragraphs 9 to 12 as under:
"9. The respondent herein filed an original application before the Central Administrative Tribunal and by an order dated 15-10-2001, the same was disposed of directing him to prefer an appeal against the said order dated 10-10-1997; pursuant whereto he preferred an appeal. The Appellate Authority also gave the respondent a personal hearing and by an order dated 13-2-2002, dismissed the said appeal. The respondent herein filed an application before the Central Administrative Tribunal questioning the said appellate order dated 13-2-2002 which, as noticed hereinbefore, was allowed. The writ petition filed by the appellant herein questioning the said order was dismissed by the High Court stating that although the provisions of Article 311 of the Constitution of India were not applicable to the employees of Kendriya Vidyalaya Sangathan, but it was obligatory on its part to initiate an enquiry against the respondent. The High Court held that as no opportunity had been granted to the respondent explaining the circumstances which had been held against him, the judgment and order of the Central Administrative Tribunal cannot be faulted with.
10. The learned counsel appearing on behalf of the appellant would submit that keeping in view that the respondent was guilty of commission of fraud, it was not necessary to grant him a further opportunity of hearing as, admittedly, he obtained a certificate to the effect that he belonged to OBC although he was a permanent resident of Haryana and not a permanent resident of Rajasthan. The learned counsel appearing on behalf of the respondent, on the other hand, would submit that had an opportunity of hearing been given to the respondent, he could have shown that he was appointed as an open category candidate and not as a reserved category candidate.
11. The admitted facts remain that the respondent is a permanent resident of Haryana. It further stands admitted that at the relevant time, Ahirs/Yadavs of Haryana were not treated as OBC. It further stands admitted that the respondent obtained a certificate showing that he was a resident of Rajasthan, which he was not. It is not disputed that a detailed enquiry was conducted by the District Magistrate, Kota, wherein the respondent had been given an opportunity of hearing. It is also not in dispute that he had given an opportunity to show cause as to why his appointment should not be cancelled not only by the appointing authority but also by the Appellate Authority. In terms of Section 58 of the Evidence Act, 1872 facts admitted need not be proved. It is also a well-settled principle of law that the principles of natural justice should not be stretched too far and the same cannot be put in a straitjacket formula. In Bar Council of India v. High Court of Kerala [(2004) 6 SCC 311], this Court has noticed that:
"24. The principles of natural justice, it is well settled, cannot be put into a straitjacket formula. Its application will depend upon the facts and circumstances of each case. It is also well settled that if a party after having proper notice chose not to appear, he at later stage cannot be permitted to say that he had not been given a fair opportunity of hearing. The question had been considered by a Bench of this Court in Sohan Lal Gupta v. Asha Devi Gupta [(2004) 4 SCC 311] of which two of us (V.N.Khare, C.J. and Sinha, J) are parties wherein upon noticing a large number of decisions it was held:
"29. The principles of natural justice, it is trite, cannot be put in a straitjacket formula. In a given case the party should not only be required to show that he did not have a proper notice resulting in violation of principles of natural justice but also to show that he was seriously prejudiced thereby."
25. The principles of natural justice, it is well settled, must not be stretched too far."
In Union of India v. Tulsiram Patel [(1985) 3 SCC 398] whereupon reliance has been placed by Mr. Reddy, this Court held:
"97. Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible. These rules can be adapted and modified by statutes and statutory rules and also by the constitution of the Tribunal which has to decide a particular matter and the rules by which such Tribunal is governed."
12. Furthermore, the respondent herein has been found guilty of an act of fraud. In our opinion, no further opportunity of hearing is necessary to be afforded to him. It is not necessary to dwell into the matter any further as recently in the case of Ram Chandra Singh v. Savitri Devi [(2003) 8 SCC 319], this Court has noticed:
15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together.
16. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been had.
19. In Derry v. Peek [(1889) 14 AC 337] it was held:
In an action of deceit, the plaintiff must prove actual fraud. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false.
A false statement, made through carelessness and without reasonable ground for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud. Such a statement, if made in the honest belief that it is true, is not fraudulent and does not render the person making it liable to an action of deceit."
In Koneti Venkateswarulu's case (4 supra), the Hon'ble Supreme Court held at paragraph No.3 as under:
"3. The application of the First Respondent was accepted and he was allowed to take the written examination. The First Respondent passed the written examination and was called for interview. He was also selected in the interview. Before the First Respondent could be notified about the result, the appellant learnt that the First Respondent was employed and was working as a teacher, and that he had suppressed this information by deliberately not filling up Column 11. A show cause notice was issued to the First Respondent calling upon him to show cause why his candidature should not be cancelled. The First Respondent submitted an explanation to the show cause notice stating therein inter alia that he inadvertently filled up and signed Annexure III of the application form, which was not required to be filled up by him and, therefore, there was no suppression of material information. Annexure III was intended only for candidates seeking fee exemption for un-employed youth in the age group of 18-35. This was not applicable to the First Respondent as he belonged to Scheduled Tribe. The appellant commission cancelled the candidature of the First Respondent by taking the view that he had deliberately indulged in suppression of relevant information and that his explanation to the show cause notice was not satisfactory."
In Ram Ratan Yadav's case (5 supra), the Hon'ble Supreme Court held at paragraph No.12 as under:
"12. The object of requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and verify the character and antecedents to judge his suitability to continue in service. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service. The employer having regard to the nature of the employment and all other aspects had discretion to terminate his services, which is made expressly clear in para 9 of the offer of appointment. The purpose of seeking information as per columns 12 and 13 was not to find out either the nature or gravity of the offence or the result of a criminal case ultimately. The information in the said columns was sought with a view to judge the character and antecedents of the respondent to continue in service or not. The High Court, in our view, has failed to see this aspect of the matter. It went wrong in saying that the criminal case had been subsequently withdrawn and that the offences, in which the respondent was alleged to have been involved, were also not of serious nature. In the present case the respondent was to serve as a Physical Education Teacher in Kendriya Vidyalaya. The character, conduct and antecedent of a teacher will have some impact on the minds of the students of impressionable age. The appellants having considered all the aspects passed the order of dismissal of the respondent from service. The Tribunal after due consideration rightly recorded a finding of fact in upholding the order of dismissal passed by the appellants. The High Court was clearly in error in upsetting the order of the Tribunal. The High Court was again not right in taking note of the withdrawal of the case by the State Government and that the case was not of a serious nature to set aside the order of the Tribunal on that ground as well. The respondent accepted the offer of appointment subject to the terms and conditions mentioned therein with his eyes wide open. Para 9 of the said memorandum extracted above in clear terms kept the respondent informed that the suppression of any information may lead to dismissal from service. In the attestation form, the respondent has certified that the information given by him is correct and complete to the best of his knowledge and belief; if he could not understand the contents of column nos. 12 and 13, he could not certify so. Having certified that the information given by him is correct and complete, his version cannot be accepted. The order of termination of services clearly shows that there has been due consideration of various aspects. In this view, the argument of the learned counsel for the respondent that as per para 9 of the memorandum, the termination of service was not automatic, cannot be accepted."
In R.Radhakrishnan's case (6 supra), the Hon'ble Supreme Court held at paragraph Nos.8 and 13 as under:
"8. Mr. R. Venkatramani, learned senior counsel appearing on behalf of the respondent, on the other hand, would submit that bona fide or otherwise on the part of the appellant cannot be a criteria for determining the issue. The learned counsel submitted that had the relevant fact, viz., involvement in a criminal case and that too a cognizable offence under Section 294(b) of the Indian Penal Code, been disclosed, the appointing authority could have verified his character and suitability for appointment. It was pointed out that the persons similarly situated against whom criminal cases had been instituted had not been selected.
13. In the instant case, indisputably, the appellant had suppressed a material fact. In a case of this nature, we are of the opinion that question of exercising an equitable jurisdiction in his favour would not arise.
In Y.Token Singh's case (7 supra), the Hon'ble Supreme Court at paragraph No.22, held as under:
"22. The respondents, therefore, in our opinion, were not entitled to hold the posts. In a case of this nature, where the facts are admitted, the principles of natural justice were not required to be complied with, particularly when the same would result in futility. It is true that where appointments had been made by a competent authority or at least some steps have been taken in that behalf, the principles of natural justice are required to be complied with, in view of the decision of this Court in Murugayya Udayar's case [1991 Supp (1) SCC 331]."
In Municipal Committee, Hoshiarpur's case (8 supra), the Hon'ble Supreme Court at paragraphs 31 to 36, held as under:
"31. The principles of natural justice cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. Thus, they cannot be put in a strait-jacket formula.
"13. Natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential procedural propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of."
32. The two rules of natural justice, namely, nemo judex in causa sua, and audi alteram partem now have a definite meaning and connotation in law and their contents and implications are well understood and firmly established; they are nonetheless non-statutory. The court has to determine whether the observance of the principles of natural justice was necessary for a just decision in the facts of the particular case. (Vide: The Chairman, Board of Mining Examination and Chief Inspector of Mines & Anr. v. Ramjee, AIR 1977 SC 965; Union of India & Anr. v. Tulsiram Patel, AIR 1985 SC 1416; and Managing Director, ECIL, Hyderabad v. B. Karunakar, AIR 1994 SC 1074).
33. There may be cases where on admitted and undisputed facts, only one conclusion is possible. In such an eventuality, the application of the principles of natural justice would be a futile exercise and an empty formality. (Vide: State of U.P. v. Om Prakash Gupta, AIR 1970 SC 679; S.L. Kapoor v. Jagmohan & Ors., AIR 1981 SC 136; and U.P. Junior Doctors' Action Committee v. Dr. B. Sheetal Nandwani & Ors., AIR 1991 SC 909).
34. However, there may be cases where the non-observance of natural justice is itself prejudice to a person and proof of prejudice is not required at all. In A.R. Antulay v. R.S. Nayak & Anr., (1988) 2 SCC 602, this Court held as under:
"....No prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity."
35. Similarly, in S.L. Kapoor (supra), this Court held:
"The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced."
36. In view of the above, in case there is a non-compliance of a statutory requirement of law or the principles of natural justice have been violated under some circumstances, non-compliance of the aforesaid may itself be prejudicial to a party and in such an eventuality, it is not required that a party has to satisfy the court that his cause has been prejudiced for non-compliance of the statutory requirement or principles of natural justice. Present Case.
In Khub Ram's case (9 supra), the Hon'ble Supreme Court at paragraph No.17 held as under:
17. The learned counsel for the State of Rajasthan has submitted that Khub Ram was ineligible for want of a requisite experience and hence by working on the post as claimed by him for subsequent two years he cannot get the required eligibility. He placed reliance upon a judgment of this Court in the case of Central Bank of India v. Madhulika Guruprasad Dahir (2008) 13 SCC 170. That judgment was rendered in a case where the caste certificate which was the basis for claiming and getting appointment was found to be false. The court, in the facts of the case held the action of the applicant concerned to be fraudulent and on that basis, after discussing the relevant case law in detail in paragraphs 15, 16 and 17, declined to endorse the lenient view taken by the High Court and instead, upheld the order of termination of service of the concerned employee with a sound reasoning - "the selection of the employee was conceived in deceit and, therefore, could not be saved by equitable considerations". According to learned counsel for the State Dalbir Singh did not find place in the list of selected candidates and hence it would not be proper to uphold the direction for his appointment and if Mahavir's claim finds favour then the authority concerned may be directed to consider the claim of all selected candidates including that of Mahavir Prasad but only against original post, if available. The appointment should not be ordered from any retrospective date or with any consequential benefits.
In Avtar Singh's case (10 supra), it is held as under:
"Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
In Ram Kishan Khoiwal's case (11 supra), it is held at paragraph No.11, as under:
"Therefore, the observations have been made in the context and background of the facts. in the present case, the issue is altogether with regard to the very basis or the foundation that the appointment has been sought on the basis of false declaration by fraud or misrepresentation. This issue has been considered by the Hon'ble Apex Court time and again and it is no longer res integra that any such appointment claimed on the basis of misrepresentation or falsehood is void ab initio and the person like petitioner cannot make any claim as such order of appointment itself is bad and illegal and therefore, any submission made regarding the opportunity or violation of rules of natural justice has no merit. In any case, when the show cause notice has been issued, the petitioner has made further representation or the appeal and the same has been considered. Therefore, any such contention has no merit."
In Vivek Kumar's case (12 supra), it is held as under:
"The point was again examined by a Full Bench of the Patna High Court in Rita Mishra v. Director, Primary Education, Bihar. The question posed before the Full Bench was whether a public servant was entitled to payment of salary to him for the work done despite the fact that his letter of appointment was forged, fraudulent or illegal. The Full Bench held:
"13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in pubic service. Therefore, these rights including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. In particular, if the very appointment is rested on forgery, no statutory right can flow from it."
We agree with the view taken by the Patna High Court in the aforesaid cases.
In each of the above present writ petitions, the petitioners had given an undertaking while submitting his application form for employment that all the statements made in the application were true, complete and correct and that in case the information was found to be incorrect or false, his service were liable to be automatically cancelled whether such information was detected before or after the interview/selection. Moreover, even as per the advertisement, the candidature/appointment was liable to be revoked at any stage of the recruitment process as well as the recruitment without any reference given to the candidate concerned in case the information with respect to the eligibility was found to be false in any manner.
In spite of their above stipulation in the advertisement and declaration as above, the respondents authorities issued a show cause notice to provide any proof in support of the experience certificate. As discussed above, not an iota of proof was provided. So much so, even before this Court, no document or evidence in support of experience certificate has been placed on record. Thus, for the sake of argument, even if a regular enquiry is ordered to be held, it would be a mere formality and futility.
In any case, identical writ petition has already been dismissed by the Division Bench of Bombay High Court in the case of Shri Gaurav W. Watane v. the Cotton Corporation of India Limited and Ors. (Writ Petition No.3137 of 2016) by holding as under:-
"We are unable to agree with Mr. Desai for more than (17 of 19) [ CW-15006/2016] one reason. The petitioner claimed by this certificate to have been employed with M/s Lucky Cotton Ginning and Pressing factory. The verification of this claim was carried out by the Respondent, a public sector/Government of India undertaking by approaching the so called employer. That employer denied any employer-employee relationship and stated that the employment was by the supervisor of the firm. Initially, that was not the claim of the said employer and it stated that it employed the Petitioner but paid the salary in cash. Later-on, it changed this version and stated that the said supervisor employed the Petitioner and paid him salary. Balu's version is directly contrary to the version of the said M/s. Lucky Cotton Ginning and Pressing. He does not say that he employed the Petitioner but the firm employed him. He states that he did not pay any salary or money but the firm employer paid the same. In the light of these contrary versions, the conclusion reached by the Respondent that the experience certificate is not genuine and reliable, cannot be faulted. This conclusion cannot be termed as perverse or vitiated by any error of law apparent on the face of the record."
A contradictory order dated 4.1.2017 has been passed by the Single Bench of High Court of State of Telangana and the State of Andhra Pradesh in WA No. 240 of 2017 & other connected matters by holding that the Corporation cannot take the stand that it is a termination simpliciter, therefore, without conducting a departmental enquiry into the allegations leveled against the petitioners, it is not open for the Corporation to terminate their services by passing the impugned orders.
However, the said order has been stayed by the Division Bench of the High Court of State of Telengana and State of Andhra Pradesh in WAMP No.509 of 2017 in WA NO.240 of 2017 :: The Cotton Corporation of India Ltd. & Anr. v. Janardhan Gopal Panchal & other connected matters by a detailed order. Para 17 of the said order staying the operation of the judgment passed by the Single Bench reads thus:-
"17. Whereas, in the cases on hand, the writ petitioners were not terminated due to any misconduct on their part or for their acquiring any disqualification while discharging their duties as Junior Cotton Purchasers. Here, the termination orders are passed after issuance of show-cause notices, clearly communicating the reasons for issuance of show-cause notices and ultimately finding that one year experience certificates filed by the writ petitioners are forged and fabricated. Had the said verification been made before the writ petitioners joined service, the 1st respondent corporation, without notice, would have abstained from issuing appointment orders. The writ petitioners cannot take advantage of their own wrong, and seek enquiry as per rules of the Corporation before termination. In the case on hand, misconduct does not constitute the foundation of termination necessitating an enquiry being conducted to establish the charge. In Devendra Kumar's case (supra 6), the Hon'ble Supreme Court held that giving false declaration, which amounts to suppression of material facts, attracts the maxim, Nullus commodum capere potest de injuria sua propria, i.e. persons violating the law cannot be permitted to urge that a stigma is cast, regular enquiry is necessitated and that the termination is illegal. The termination is the result of filing a false certificate by the candidate himself in the process of selection and appointment. Where an applicant gets an order by mis-representing facts, or by playing fraud upon the competent authority, such an order cannot be sustained in the eye of law. Fraud avoids all judicial acts. A person, having done wrong, cannot take advantage of his wrong and plead bar of law. Since the termination orders do not relate to the petitioners' acquiring disqualification after they joined service; and they relate to false certificate being produced as proof of possessing the qualifications prescribed for selection and appointment to the post of Junior Cotton Purchaser, it cannot be said that a stigma is attached to them and a regular enquiry, as per the Rules, is necessitated."
In view of the above discussion, this Court finds no ground to set aside the impugned orders having been passed after holding (19 of 19) [ CW- 15006/2016] fact finding enquiry and taking into consideration the reply to the show cause notice which in the facts and circumstance amounts to sufficient opportunity. The appointment of the petitioner was subject to verification of documents and other information provided in the declaration. The documents being verified as false, no right accrued to the petitioner to seek continuation in service. The petitioner could have utilised the opportunity to place some kind of proof along with its reply to the show cause notice but failed to do so. Neither has any document of salary/bank account/attendance register placed before this Court along with the writ petition. The experience certificate being false renders the very appointment as bad in the eyes of law. Therefore, the petitioners being on probation are not entitled to be treated the same way in the circumstances of the case as others who stand confirmed. The petitioner being wrongly appointed cannot be said to be holding a civil post as observed by the Apex Court in the case of R. Vishwanatha Pillai (supra). Moreover, as noticed above, similar writ petition has already been dismissed by the Division Bench of Bombay High Court.
In Shri Gaurav W. Watane's case (13 supra), the Hon'ble Apex Court at paragraphs 5, 6 and 9 held as under:
5. The termination order states that on making enquires with a view to ascertain the correctness of the statements made in this certificate, it approached the said Lucky Cotton. This entity in the initial enquiry, stated that the salary was paid in cash but they could not provide any further document to support this payment of cash salary to the petitioner. On re-verification, M/s. Lucky Cotton Ginning and Pressing Factory changed the stand stating that they have not directly employed the petitioner. It is the supervisor - Balu Batule who paid the salary to the Petitioner. It was not paid by M/s. Lucky Cotton Ginning and Pressing factory. Hence, they do not have any record of the petitioner's services with them. When the said Batule was approached, he could not provide any conclusive evidence about the employment with M/s. Lucky Cotton Ginning and Pressing factory, Amravati. Therefore, the Respondent employer concluded that the certificate produced by the petitioner is false, fake and not reliable.
6. We have very carefully and anxiously heard Mr. Desai appearing for the petitioner. With his assistance, we have perused the Writ Petition and all Annexures thereto.
9. We are unable to agree with Mr. Desai for more than one reason. The petitioner claimed by this certificate to have been employed with M/s. Lucky Cotton Ginning and Pressing Factory. The verification of this claim was carried out by the Respondent, a public sector/Government of India undertaking by approaching the so called employer. That employer denied any employer employee relationship and stated that the employment was by the supervisor of the firm. Initially, that was not the claim of the said employer and it stated that it employed the Petitioner but paid the salary in cash. Later on, it changed this version and stated that the said supervisor employed the Petitioner and paid him salary Balu's version is directly contrary to the version of the said M/s. Lucky Cotton Ginning and Pressing. He does not say that he employed the petitioner but the firm employed him. He states that he did not pay any salary or money but the firm employer paid the same. In the light of these contrary versions, the conclusion reached by the Respondent that the experience certificate is not genuine and reliable, cannot be faulted. This conclusion cannot be termed as perverse or vitiated by any error of law apparent on the face of the record. The Respondent granted complete opportunity to the petitioner before terminating the services. In such circumstances both the orders, namely the one terminating the services of the petitioner probationer as also seeking to recover the salary paid to the petitioner, are not liable to be interfered with in out writ jurisdiction. The Writ Petition is devoid of merits and is dismissed."
11. In Sagar Pant's case (14 supra), on which reliance is placed by the learned senior counsel for the respondent-writ petitioner, it is held at paragraphs 11 and 12 as under:
11. The unnumbered paragraphs 3 and 5 of the termination order which are relevant for the present purpose read as under :
"The Appointing Authority, keeping in view the ground realities, in the fitness of the circumstances and in terms of clause No.1(i) and clause 9 of the above referred appointment letter, hereby removes Shri Sagar Pani from his probationary services with immediate effect ie, from 24.06.2015."
The probationary services of Shri Sagar Pani are terminated with immediate effect and in terms of clause no.1(ii) of the appointment letter no.2(42)/R/2012 dated 27.08.2014 and a sum equivalent to Sagar Panis salary for one month ie Rs.41,303/- in lieu of notice is being credited to his bank account.
12. Clauses 1(i), 1(ii) and 9 referred to in the appointment order read as follows :
1(i) Your appointment will be temporary for the present. You will be on probation for a period of one year from the date of your appointment, which may be extended or curtailed at the discretion of the Management. Failure to complete the period of probation to the satisfaction of the Management will render you liable to discharge from the service.
1(ii) During the period of your probation, your service will be liable to be terminated by giving you one months notice in writing or by paying one months salary in lieu of notice without any reason being assigned. However, if, during the period of probation you desire to resign from the service of the Corporation you will have to give one months prior notice in writing of your intimation to resign or pay to the Corporation a sum equal to your salary for one month in lieu of notice. If your work is found to be satisfactory during the period of your probation, you will be continued in service and you may be confirmed in service in the event of its being decided to absorb you in the permanent cadre of the NMDC Limited.
If any declaration given or information furnished by you proves to be false or if you are found to have willfully suppressed any material information, you will be liable for removal from service and such other action as the Corporation may deem necessary.
Clause 1(i) of the appointment order enables the Management to discharge the services of the respondent if the latter fails to complete the period of probation to the satisfaction of the Management. Under Clause 1(ii) the appellants have reserved to themselves the power to terminate the respondents probation by giving one months notice in writing or by paying one month salary in lieu of notice without assigning any reason. Similarly, the respondent is also vested with the right to resign from the service by giving one months notice in writing or by paying a sum equal to one months salary in lieu of notice. Had the respondents termination been either or under both the said Clauses, such a discharge could not have been termed as punitive. If the misconduct was not the foundation and was merely motive, the termination order would not have referred to condition No.9 of the appointment order, under which the respondent is liable to be removed if it is proved that he has given a false declaration or information or willfully suppressed any material information. Though the impugned termination order per se does not allege misconduct by referring to condition No.9, such allegation of misconduct gets incorporated into the termination order. Therefore, as rightly held by the learned single Judge, the alleged misconduct on the part of the respondent is the foundation for termination of his services. As held in a catena of decisions referred to supra, if misconduct is the foundation, the termination is punitive in nature, which requires holding of an enquiry. As the appellants have failed to hold any enquiry, the learned single Judge has rightly set-aside the termination order.
In Radhey Shyam Gupta's case (15 supra), the Hon'ble Apex Court at paragraphs 33, 34, 35 and 36 held as under:
33. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the Officer, as stated by Shah, J. (as he then was) in Ram Narayan Das's case. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary inquiry is held because the purpose of a preliminary inquiry is to find out if there is prima facie evidence or material to initiate a regular departmental inquiry. It has been so decided in Champaklal's case. The purpose of the preliminary inquiry is not to find out misconduct on the part of the Officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental inquiry is started, a charge memo issued, reply obtained, and an enquiry Officer is appointed - if at that point of time, the inquiry is dropped and a simple notice of termination is passed, thee same will not be punitive because the enquiry Officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur's case and in Benjamin's case. In the latter case, the departmental inquiry was stopped because the employer was not sure of establishing the quilt of the employee. In all these cases the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujrat Steel Tubes case, the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer, by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.
34. But in cases where the termination is preceded by an inquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the Officer and where on the basis of such a report, the termination order is issued, such an order will be violative of principles of natural justice inasmuch as the purpose of the inquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental inquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employees conduct but are cases where the employer has virtually accepted the definitive and clear findings of the Inquiry Officer, which are all arrived at behind the back of the employee - even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive, in such cases.
35. Coming now to the facts of the case before us, the inquiry officer, Sri R.P. Singh examined witnesses and in his report dated 22.1.76 has said: "I conclude that Sri R.P. Gupta took a sum of Rs.2000/- from Sri Jai Chandra Lal, thereafter referring to certain facts said they 'go to prove the correctness of the complaint". Not only that, he concluded "I therefore suggest that service of Shri R.S. Gupta may be terminated and one month salary may be given to him in lied of the notice". The very next day, the impugned simple order of termination followed.
36. In our view, it is an absolutely clear case where the inquiry officer examined witnesses, recorded their statements and gave a clear finding of the appellant accepting a bribe and even recommended his termination. All these were done behind the back of the appellant. The Managing Director passed the termination order the very next day. It cannot in the above circumstances be stated, by any stretch of inspection that the report is a preliminary inquiry report. It's findings are definitive. It is not a preliminary report where some facts are gathered and a recommendation is made for a regular departmental inquiry. In view of the principles laid down in the cases referred to above, this case is an obvious case where the report and its findings are the foundation of the termination order and not merely the motive. The Tribunal was right in its conclusion. The High Court was in grave error in treating such a report as a preliminary report.
In Samsher Singh's case (16 supra), it is held at paragraphs 158 to 161 as under:
158. The third contention, argued elaborately by both sides, turns on the scope and sweep of Article 311 in the background of the rules framed under Article 309 and the 'pleasure' doctrine expressed in Article 310. The two probationers, who are appellants, have contended that what purport to be simple terminations of probation on the ground of 'unsuitability' are really and in substance by way of punishment and falling short of the rigorous prescriptions of Article 311(2), they are bad. Their complaint is that penal consequences have been visited on them by the impugned orders and since even a probationer is protected by Article 311(2), in such situations the Court must void those orders. Naturally, the launching pad of the argument is Dhingra case. In a sense, Dhingra is the Magna Carta of the Indian civil servant, although it has spawned diverse judicial trends, difficult to be disciplined into one single, simple, practical formula applicable to termination of probation of freshers and of the services of temporary employees. The judicial search has turned the focus on the discovery of the element of punishment in the order passed by Government. If the proceedings are disciplinary, the rule in Dhingra case is attracted. But if the termination is innocuous and does not stigmatise the probationer or temporary servant, the constitutional shield of Article 311 is unavailable. In a series of cases, the Court has wrestled with the problem "of devising a principle or rule to determine this question" - where non-punitive termination of probation for unsuitability ends and punitive action for delinquency begins. In Gopi Kishore this Court ruled that where the State holds an enquiry on the basis of complaints of misconduct against a probationer or temporary servant, the employer must be presumed to have abandoned his right to terminate simipliciter and to have undertaken disciplinary proceedings bringing in its wake the protective operation of Article 311. At first flush, the distinguishing mark would therefore appear to be the holding of an inquiry into the complaints of misconduct. Sinha, C.J observed:
"It is true that, if the Government came to the conclusion that the respondent was not a fit and proper person to hold a post in the public service of the State, it could discharge him without holding any enquiry into his alleged misconduct.... Instead of taking that easy course, the Government chose the more difficult one of starting proceedings against him and of branding him as a dishonest and an incompetent officer. He had the right, in those circumstances, to insist upon the protection of Article 311(2) of the Constitution."
The learned Chief Justice summarised the legal position thus:
"1. Appointment to a post on probation gives the person so appointed no right to the post and his services 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 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. . . . .
5. But, if the employer simply terminates the services of a 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 case."
159. The fifth proposition states that the real motive behind the removal is irrelevant and the holding of an enquiry leaving an indelible stain as a consequence alone attracts Article 311(2). Ram Narayan Das dealt with a case where the rules under the proviso to Article 309 provided some sort of an enquiry before termination of probation. In such a case, the enquiry test would necessarily break down and so the Court had to devise a different test. Mr Justice Shah (as he then was) stated the rule thus:
"The enquiry against the respondent was for ascertaining whether he was fit to be confirmed .... The third proposition in ... (the Gopi Kishore) case refers to an enquiry into allegations of misconduct or inefficiency with a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed. Therefore, the fact of holding of an enquiry is not decisive of the question. What is decisive is whether the order is by way of punishment, in the light of the tests laid down in Purshottam Lal Dhingra Case."
Thus a shift was made from the factum of enquiry to the object of the enquiry. Madan Gopal found the Court applying the object of enquiry doctrine to a simple order of termination which had been preceded by a show cause notice and enquiry. It was held that if the enquiry was intended to take traumatic action, the innocent phraseology of the order made no difference. Then came Jagdish Mitter v. Union of India (supra) where Mr Justice Gajendragadkar (as he then was) held:
"No doubt the order purports to be one of discharge and, as such, can be referred to the power of the authority to terminate the temporary appointment with one month's notice. But it seems to us that when the order refers to the fact that the appellant was found undesirable to be retained in Government service, it expressly casts a stigma on the appellant and in that sense, must be held to be an order of dismissal and not a mere order of discharge."
160. Thus we see how membranous distinctions have been evolved between an enquiry merely to ascertain unsuitability and one held to punish the delinquent - too impractical and uncertain, particularly when we remember that the machinery to apply this delicate test is the administrator, untrained in legal nuances. The impact on the 'fired' individual, be it termination of probation or removal from service, is often the same. Referring to the anomaly of the object of inquiry test, Dr Tripathi has pointed out37:
"The 'object of inquiry' rule discourages this fair procedure and the impulse of justice behind it by insisting that the order setting up the inquiry will be judicially scrutinised for the purpose of ascertaining the object of the inquiry."
Again, could it be that if you summarily pack off a probationer, the order is judicially un-scrutable and immune? If you conscientiously seek to satisfy yourself about allegations by some sort of enquiry you get caught in the coils of law, however, harmlessly the order may be phrased. And so, this sphinx-complex has had to give way in later cases. In some cases the rule of guidance has been stated to be 'the substance of the matter' and the 'foundation' of the order. When does 'motive' trespass into 'foundation'? When do we lift the veil of 'form' to touch the 'substance'? When the Court says so. These 'Freudian' frontiers obviously fail in the work-a-day world and Dr Tripathi's observations in this context are not without force. He says:
"As already explained, in a situation where the order of termination purports to be a mere order of discharge without stating the stigmatizing results of the departmental enquiry a search for the 'substance of the matter' will be indistinguishable from a search for the motive (real, unrevealed object) of the order.
Failure to appreciate this relationship between motive (the real, but unrevealed object) and form (the apparent, or officially revealed object) in the present context has led to an unreal interplay of words and phrases wherein symbols like 'motive', 'substance', 'form' or 'direct' parade in different combinations without communicating precise situations or entities in the world of facts.
161. The need, in this branch of jurisprudence, is not so much to reach perfect justice but to lay down a plain test which the administrator and civil servant can understand without subtlety and apply without difficulty. After all, between 'unsuitability' and 'misconduct', 'thin partitions do their bounds divide'. And, over the years, in the rulings of this Court, the accent has shifted, the canons have varied and predictability has proved difficult because the play of legal light and shade has been baffling. The learned Chief Justice has, in his judgment, tackled this problem and explained the rule which must govern the determination of the question as to when termination of service of a probationer can be said to amount to discharge simpliciter and when it can be said to amount to punishment so as to attract the inhibition of Article 311. We are in agreement with what the learned Chief Justice has said in this connection. So far as the present case is concerned, it is clear on the facts set out in the judgment of the learned Chief Justice that there is breach of the requirements of Rule 7 and the orders of termination passed against the appellants are, on that account, liable to be quashed and set aside.
In Palak Modi's case (17 supra), the Hon'ble Apex Court held as under:
11. The question whether termination of the service of a temporary employee or a probationer can be treated as punitive even though the order passed by the competent authority does not contain any stigma has been considered in a series of judgments. In Parshotam Lal Dhingra v. Union of India, 1958 SCR 828, which can be considered as an important milestone in the development of one facet of service jurisprudence in the country, the Constitution Bench was called upon to decide whether the order of reversion of an official holding a higher post in an officiating capacity could be treated as punitive. After elaborate consideration of the relevant provisions of the Constitution and judicial decisions on the subject, the Constitution Bench observed:
"...In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with...."
16. In Anoop Jaiswal v. Government of India (1984) 2 SCC 369, this Court considered the question whether termination of the appellant's service, who was appointed to Indian Police Service and was on probation, by invoking Rule 12(b) of the Indian Police Service (Probation) Rules, 1954 was punitive in nature. The facts found by the Court were that while undergoing training at National Police Academy, Hyderabad, the Probationary Officers had delayed attending the ceremonial drill practice. The Director of the Academy called explanation from all the probationers. The appellant was accused of having instigated others not to join ceremonial drill practice on time. He denied the allegation. Thereafter, his service was terminated by a non-stigmatic order. The appellant challenged the termination of his service on the ground of violation of Articles 14 and 311(2) of the Constitution. The writ petition filed by him was summarily dismissed by the Delhi High Court. This Court referred to the averments contained in the pleadings of the parties, the judgments in Parshotam Lal Dhingra v. Union of India (supra), Samsher Singh v. State of Punjab (supra) State of Punjab v. Shri Sukh Raj Bahadur (supra), Union of India v. R.S. Dhaba (supra), State of Bihar v. Shiva Bhikshuk Mishra (supra), R.S. Sial v. State of U.P. (1974) 3 SCR 754, State of U.P. v. Ram Chandra Trivedi (1976) 4 SCC 52 and I.N. Saksena v. State of M.P. (1967) 2 SCR 496 and held:
"It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.
In the instant case, the period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the gymnasium and acting as one of the ringleaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries were made behind the back of the appellant. Only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ringleaders were not seriously taken note of. Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution."
21. We shall now consider whether termination of the services of the private respondents is vitiated due to violation of the rules of natural justice. It will be useful to notice Rules 15 and 16 of the Rules which regulate probation and confirmation of the officers of Bank, paragraphs 7(part) and 10 of the advertisement issued by the Bank for recruitment of Probationary Officers, the extracts of note prepared by Deputy General Manager, Central Recruitment and Promotion Department, which was approved by respondent No.3, letters dated 12.5.2011 and 3.6.2011 of Assistant General Manager (HR), which were duly initialed by the General Manager.
26. There is a marked distinction between the concepts of satisfactory completion of probation and successful passing of the training/test held during or at the end of the period of probation, which are sine qua non for confirmation of a probationer and the Bank's right to punish a probationer for any defined misconduct, misbehaviour or misdemeanor. In a given case, the competent authority may, while deciding the issue of suitability of probationer to be confirmed, ignore the act(s) of misconduct and terminate his service without casting any aspersion or stigma which may adversely affect his future prospects but, if the misconduct/misdemeanor constitutes the basis of the final decision taken by the competent authority to dispense with the service of the probationer albeit by a non stigmatic order, the Court can lift the veil and declare that in the garb of termination simpliciter, the employer has punished the employee for an act of misconduct.
27. The use of unfair means in the evaluation test/confirmation test held by the Bank certainly constitutes a misconduct. The Bank itself had treated such an act to be a misconduct (paragraph 10 of advertisement dated 1.7.2008). It is not in dispute that the services of the private respondents were not terminated on the ground that there was any deficiency or shortcoming in their work or performance during probation or that they had failed to satisfactorily complete the training or had failed to secure the qualifying marks in the
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test held on 27.2.2011. As a matter of fact, the note prepared by the Deputy General Manager, which was approved by the General Manager makes it crystal clear that the decision to dispense with the services of the private respondents was taken solely on the ground that they were guilty of using unfair means in the test held on 27.2.2011. To put it differently, the foundation of the action taken by the General Manager was the accusation that while appearing in the objective test, the private respondents had resorted to copying. IBPS had relied upon the analysis made by the computer and sent report to the Bank that 18 candidates were suspected to have used unfair means. The concerned authority then sent for the chart of seating arrangement and treated the same as a piece of evidence for coming to the conclusion that the private respondents had indeed used unfair means in the examination. This exercise was not preceded by an inquiry involving the private respondents and no opportunity was given to them to defend themselves against the charge of use of unfair means. In other words, they were condemned unheard which, in our considered view, was legally impermissible. 33. The proposition laid down in none of the five judgments relied upon by the learned counsel for the appellants is of any assistance to their cause, which were decided on their own facts. We may also add that the abstract proposition laid down in paragraph 29 of the judgment in Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences (supra) is not only contrary to the Constitution Bench judgment in Samsher Singh v. State of Punjab (supra), but large number of other judgments - State of Bihar v. Shiva Bhikshuk Mishra (supra), Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha (supra) and Anoop Jaiswal v. Government of India (supra) to which reference has been made by us and to which attention of the two-Judge Bench does not appear to have been drawn. Therefore, the said proposition must be read as confined to the facts of that case and cannot be relied upon for taking the view that a simple order of termination of service can never be declared as punitive even though it may be founded on serious allegation of misconduct or misdemeanor on the part of the employee. 34. In the result, the appeals are dismissed. The appellants shall reinstate the private respondents within 15 days of the production of copy of this judgment before respondent No.3 and give them all consequential benefits like pay, allowances, etc. within next one month. However, it is made clear that this judgment shall not preclude the competent authority from taking fresh decision in the matter of confirmation of the private respondents after giving them effective opportunity of hearing against the allegation of use of unfair means in the test held on 27.2.2011. 12. A reading of the judgments sought to be relied upon by the learned counsel for the appellants Sri J.Sudheer shows, in clear and unequivocal terms, that in the reported pronouncements, there was no dispute as to the reason and foundation for passing the orders, dispensing with the service of the probationers and in fact, the foundation in the said cases was the admitted and undisputed realities, such as, involvement in the criminal cases and suppression of the same and cancellation of community certificates by the competent authorities. Such contingencies are conspicuously absent in the cases on hand. 13. On the other hand, the allegation of production of false and bogus experience certificates is seriously disputed by the writ petitioners. Fraud/misrepresentation can neither be attributed nor can be decided in unilateral manner without giving complete opportunity to the person against whom such allegations are made. Once the alleged fraud/misrepresentation is made, the foundation for termination of an employee, though he/she is an unapproved probationer, holding of regular enquiry, wherein the delinquent is required to be afforded complete opportunity, is mandatory and any conclusions without being preceded by fair play, in the considered view of this Court, is nothing but attaching stigma to the future career of an individual. 14. As observed supra, it is very much lucid and crystal clear from the judgments cited by the learned counsel for the appellants that in the said cases, non-disclosure of the undisputed factum of involvement of the delinquent in criminal cases at the time of entry into the service was the basis for dispensing with the service and the said issue never a contentious issue. In the cases on hand, the reason for dispensing the service of the writ petitioners is the alleged fraud/misrepresentation by production of incorrect experience certificates. This issue as per the writ petitioners is not correct and it is the case of the writ petitioners that had the opportunity been given to them, they would have proved the genuineness of the said certificates. Admittedly, in the cases on hand, except the unilateral enquiry said to have been undertaken by the appellants and except issuing show cause notices, calling for explanations, no opportunity to rebut the said allegations was given to the writ petitioners by holding regular enquiry. In this unilateral manner, an employee who is regularly recruited, though probation is not declared, cannot be branded that he resorted fraud/misrepresentation which would undoubtedly impact his/her future career. In the name of non-declaration of probation, such valuable right to disprove cannot be denied. In the considered opinion of this Court, the course of action adopted by the writ appellants is a patent infraction and infringement of fundamental rights guaranteed to the writ petitioners under Articles 14 and 21 of the Constitution of India and also a palpable violation of the principles of natural justice. The judgments cited by the learned counsel for the writ appellants, having regard to the above reasons, would not render any assistance to the appellants herein. 15. A perusal of the orders passed by the learned Single Judge clearly and clinchingly reveal that the learned Single Judge after elaborately and meticulously scanning the entire material available on record and while referring to judgments cited on behalf of the writ petitioners and by recording valid, cogent and convincing reasons, allowed the Writ Petitions with a direction to the writ appellants to conduct regular enquiry and pass appropriate orders afresh. Therefore, the facts and circumstances of the case and the position of law referred to supra drives this Court to arrive at an irresistible conclusion that the action impugned in the writ petitions is not only violative of Articles 14 and 21 of the Constitution of India but also violative of the principles of natural justice and this Court does not find any merit in the Writ Appeals. The service conditions of the employees of the Cotton Corporation of India are governed by the Cotton Corporation of India Limited, Conduct, Discipline and Appeal Rules, 1975. Rule 2 of the said Rules stipulates that rules shall apply to all employees except those in casual employment or paid from contingencies. Rule 23 of the said Rules deals with the penalties and Clause (vi) of Rule 23 of the said Rules relates to termination of service. Rule 25 of the said Rules deals with the procedure for imposing major penalty, wherein an elaborate procedure is prescribed. In the instant case, admittedly, without being proceeded by any regular enquiry, the services of the writ petitioners herein were dispensed with by the appellants herein. 16. For the aforesaid reasons, this Court does not find any merit in these Writ Appeals and they are, accordingly, dismissed. There shall be no order as to costs. Miscellaneous applications, if any pending in these Writ Appeals, shall also stand dismissed.