Akhil Kumar Srivastava, Member J
1. This original application was earlier decided vide order dated 20.01.2023 which was challenged by the applicant before Hon’ble High Court of Madhya Pradesh in Misc. Petition No. 2325/2023 – Punau Ram Vs.U.O.I & Ors which was allowed by the Hon’ble High Court vide judgment dated 17.08.2023 with following directions: -
“(i). The impugned order dated 20.01.2023 passed by Central Administrative Tribunal, Jabalpur Bench, Jabalpur in OA No. 200/00394/2014 is set aside.
(ii). The Tribunal is requested to reconsider OA No. 200/00394/2014 in the light of the law laid down by the apex court as explained above and also address the issue of incompetent authority having terminated the services of the petitioner on the anvil of the relevant rules/instructions as mentioned above as expeditiously as possible.”
In view of the above direction of the Hon’ble High Court, this original application has been heard and is being decided afresh.
2. The applicant, who was appointed as Substitute Bungalow Peon vide order dated 26.05.2009, has challenged the order dated 07.11.2013 (Annexure A-1) passed by the Dy. C.M.E (DSL), W.C.R, Jabalpur and order dated 09.12.2013 (Annexure A-2) passed by APO, W.C.R. Jabalpur .
3. We have heard Shri M.N. Banerjee, learned counsel for the applicant, Shri P.K. Chaurasia, learned counsel for the respondents and perused the pleadings. We have also considered rival contentions.
4. Learned counsel for the applicant submitted the services of the applicant has been dispensed with alleging being dishonest and involved in cheating by furnishing incorrect date of birth as 03.07.1975 in the mark sheet of Class VIII and since this inquiry was conducted behind the back of the applicant and no any opportunity was given to the applicant. Thus the order dated 07.11.2013 being stigmatic one is illegal and against the principles of natural justice. Learned counsel for the applicant further submitted that the Dy. C.M.E (DSL), W.C.R who had terminated the services of the applicant vide order dated 07.11.2013 was not the competent authority. Learned counsel for the applicant further submitted that the order dated 09.12.2013 by which the appeal of the applicant against termination order has been rejected, has been passed by the APO, who is also not the competent authority. Learned counsel for the applicant argued that the appointment letter dated 26.05.2009 (Annexure A-3) has been signed by the Assistant Personnel Officer (in short APO) for Chief Personnel Officer (in short CPO) with the approval of General Manager, W.C. Rly, therefore, the appointing authority is C.P.O and not the A.P.O and as such the order dated 09.12.2013 has been passed by a non-competent authority.
5. Refuting the claim of the applicant, learned counsel for the respondents submitted that the applicant was appointed as Substitute TADK against a regular post and he was never appointed as casual labour. Learned counsel for the respondents also contended that at the time of appointment, the applicant had submitted mark sheet of Class VIII wherein his date of birth has been mentioned as 03.07.1975 whereas, in his original birth certificate his date of birth has been mentioned as 03.07.1973. Thus, as the applicant furnished incorrect and forged information, he was removed from TADK (Bungalow Peon) by the competent authority. In regard to competence or non-competence of the authorities, who had passed the orders dated 07.11.2013 (Annexure A-1) and order dated 09.12.2013 (Annexure A-2), learned counsel for the respondents submitted that the appointment letter to the applicant was issued by the APO, W.C. Rly, Jabalpur on 26.05.2009. Learned counsel for the respondents further submitted that as per Para 5 of the SOPEST, the appointing authority for the employees who receives Grade Pay Rs. 1800/-is APO, thus the order dated 09.12.2013 has rightly been passed by the competent authority. Learned counsel for the respondents further submitted that the Screening Committee found the mark sheet of the applicant suspicious therefore on verification it was found that the date of birth has been manipulated by the applicant and the Head Master of Govt. Middle School, Sankui had confirmed the date of birth of the applicant as 03.07.1973. Thus, the learned counsel for the respondents submitted that the service of the applicant were terminated by giving him one moth pay in lieu of notice as per para 1502(3) of IREM and there is no need to give any show cause notice or charge sheet or to conduct departmental inquiry and prayed that the OA may be dismissed.
6. On the other hand, learned counsel for the applicant submitted that the SOPEST is not applicable in the case of the applicant as the applicant was working as Bungalow Peon who comes under casual labour and not Railway Servant hence not included as Railway servant as per Rule 103 (43) of IREC.
7. After having heard learned counsel for both the parties, to our mind, the issues that formally need to be decided in this OA are the following:-
(1) Whether the order dated 07.11.2013 (Annexure A-1) is stigmatic?
(2) Whether the orders dated 07.11.2013 and 09.12.2013 have been passed by a non-competent authority?
8. Learned counsel for the applicant argued that the order dated 07.11.2013 is not simplicitor but it is stigmatic as the services of the applicant have been dispensed with by casting aspersion on the applicant of furnishing incorrect date of birth, hence, an inquiry was to be conducted after giving reasonable opportunity to the applicant before passing the impugned order, therefore, the impugned suffers from violation of principles of natural justice.
9. It is noted that in the matter of `stigma', an order of termination may have on a person's future prospects of employment is a matter of relevant consideration. In the seven Judge case in Samsher Singh vs.State of Punjab [1974 (2) SCC 831] Hon’ble Apex Court has observed that if a simple order of termination was passed, that would enable the officer to "make good in other walks of life without a stigma. "It was also stated in Bishan Lal Gupta vs. State of Haryana [1978 (1) SCC 202] that if the order contained a stigma, the termination would be bad for "the individual concerned must suffer a substantial loss of reputation which may affect his future prospects". In view of the above position, it appears that the word “dishonesty” used in the order dated 07.11.2013 can be said to contain a `stigma'. Hon’ble Supreme Court in the case of Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others – (1999) 3 SCC 60 has clarified that the words amounting to `stigma' need not be contained in the order of termination but may also be contained in an order or proceeding referred to in the order of termination or in an annexure thereto and would vitiate the order of termination. Thus, we are of the considered opinion that an inquiry was to be conducted after giving reasonable opportunity to the applicant before passing the impugned order.
10. So far as the second issue regarding competence of the authority who has passed the order dated 07.11.2013 is concerned, it is seen that the said order has been passed by Shri S.K. Sethiya to whom the applicant was engaged as Substitute Bunglow Peon without approval of PHOD/DRM/CWM which has been itself provided in the Circular dated 07.08.2008 produced by the respondents. In this regard, sub para 4.3 of para 4 of the aforesaid Circular which relates to the termination /discharge are reproduced below: -
“4.3. Officer who has engaged Bungalow Peon should carefully watch performance of the Bungalow Peon and can retrench his service if he is not found satisfactory but with the approval of his PHOD/DRM/CWM” .
Thus, it is clear that the officer who has passed the order dated 07.11.2013, was not competent to pass such order. It is also noted that the order dated 07.11.2013 does not contain any approval of the competent authority and only a copy of the said order has been endorsed to the Chief Personnel Officer, West Central Railway, Jabalpur for information.
11. In view of the discussions made in paragraphs 9 and 10, the order dated 07.11.2013 is not sustainable and liable to be set aside. Accordingly, the Original Application No. 394/2014 is allowed. The order dated 07.11.2013 (Annexure A-1) is set aside. Consequently, the order dated 09.12.2013 is also set aside and the respondents are directed to reinstate the applicant in service without any back wages within a period of one month from the date of communication of this order. However, it is made clear that this order shall not preclude the competent authority from taking appropriate decision in accordance with law. However, we feel it necessary to observe that the liberty given by this Tribunal shall not be construed as a mandate for initiation of adverse action against the applicant and the competent authority shall take appropriate decision after objectively considering the entire record.
12. No order as to costs.
