SARATA CHANDRA DASH Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ petition has been filed against the judgment and order dated 23.4.1998 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.679 of 1992 dismissing the O.A. which was filed by the petitioner.

(2.) AT the very outset it is pertinent to mention that for the recruitment examination for the post of Postal Clerk under opposite party No.3 the petitioner made an application and submitted forged mark sheet etc. for securing an employment. In the application, he described stating himself to be a 1st Division student by securing 498 marks in the aggregate in the High School Examination but actually he had secured only 336 marks and was placed in 3rd Division. Learned Asst. Solicitor General Mr. J. K. Mishra appearing for the opposite parties submitted that the selection was based on the percentage of marks obtained in the High School Certificate Examination and, therefore, the petitioner was selected on the basis of the forged mark sheet but when it was revealed the C.B.I. investigated into the matter and prosecuted the petitioner for the offences punishable under Sections 420/468/471 I.P.C. Charge -sheet was filed in the Court of Addl. Chief Judicial Magistrate, Bhubaneswar, thereafter, the trial commenced. On conclusion of the trial, the petitioner was found guilty of the offences punishable under Sections 420/471 I.P.C. and convicted accordingly but instead of sentencing him he was released under Section 4 of the Probation of Offenders Act vide judgment and order dated 10.5.1977. Consequent upon his conviction in his services were terminated in the criminal case vide impugned order dated 12.5.1977. The petitioner preferred an appeal on 28.9.1977. When the appeal was not disposed of since long, he approached the Tribunal by filing O.A. No.99 of 1989 which was disposed of on 22.3.1989. Thereafter Review Application No.27 of 1990 was started suo motu by the Tribunal which was disposed vide order dated 20.12.1990 with the observation that the petitioner may file a representation before the Director General, Posts, for consideration of the matter. Accordingly the representation was filed on 6.5.1991 which was disposed of and rejected vide order dated 26.3.1992. Aggrieved, the petitioner filed O.A. No.679 of 1992, the same having been dismissed by the Tribunal the impugned judgment and order dated 23.4.1998, he has filed the instant writ petition.

(3.) IT is a fact that the petitioner was a temporary Government servant and his services could be terminated by an innoucuous order under Rule 5 of the Central Civil Services (Temporary Service) Rules 1965. It was not necessary for the opposite parties to consider his conduct which has led to his conviction. Had the forced mark sheet showing 498 marks to have been obtained by the petitioner in the High School Certificate Examination not been considered, he would not have been appointed on the post. Therefore, once it was established that the petitioner had not secured 498 marks in the High School Certificate Examination and had secured only 336 marks and was placed in 3rd Division, his initial selection was null and void. But since he had rendered services, the opposite parties preferred to terminate his services. In the explanation given under Rule 11 of the Central Civil Services (Classification Control and Appeal) Rules, 1965, termination of the services of a temporary Government servant in accordance with the provisions of Sub -rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 does not amount to punishment. The relevant portion of the explanation to Rule 11 is quoted as under : "Explanation - The following shall not amount to a penalty within the meaning of this rule, namely : - xx xx xx xx (viii) termination of the services - xx xx xx xx (b) of a temporary Government servant in accordance with the provisions of sub -rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1956." Rule 5 (1) of the CCS (Temporary Service) Rules, 1965 is also quoted as under : "5. Termination of temporary service - (1) (a) The services of a temporary Government servant who is not in quasi -permanent service shall be liable to termination at any time by a notice in writing given either by the Government servant to the Appointing Authority or by the Appointing Authority to the Government servant : (b) The period of such notice shall be one month : Provided that the service of any such Government servant may be terminated forthwith and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or as the case may be, for the period by which such notice falls short of one month. Note - The following procedure shall be adopted by the appointing authority while serving notice on such Government under Clause (a) - (i) The notice shall be delivered or tendered to the Government servant in person. (ii) Where personal service is not practicable, the notice shall be served on such Government servant by Registered post acknowledgement due at the address of the Government servant available with the Appointing Authority. (iii) If the notice sent by registered post is returned unserved it shall be published in the official Gazette and upon such publication, it shall be deemed to have been personally served on such Government servant on the date it was published in the official Gazette." The language of the impugned order terminating the petitioner from service is also necessary to be perused here to see whether it is in consonance with the CCS (Temporary Service) Rules, 1965 or not. The same is reproduced as under: "Indian Posts and Telegraphs Department, Office of the Supdt. of Post Office Dhenkanal Division. Memo No. F. Stt/6 dated at Dhenkanal the 11th May 1977. In pursuance of the proviso to Sub -Rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, I hereby terminate forthwith the services of Sri Sarat Chandra Das clerk under suspension and direct that he shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of one month at the same rates at which he was drawing them immediately before his suspension. Dated : 12.3.77 Station : Dhenkanal. Sd/ - Supdt. of Posts Offices Dhenkanal Division. Copy to : 1) U/R The Postmaster, Dhenkanal H.O. for information and necessary action. 2) The Postmaster General Orissa Circle, Bhubaneswar 751 001 with reference to circle office file No. ST/13/21/73 dated : 25.3.1977. 3) Regd A/D Sri Sarat Chandra Das, clerk under suspension at Dera Post, Dera, Dist : Dhenkanal. 4) The Dy. Director Accounts (Postal) Cuttack.