Petitioner V. Central Administrative Tribunal, Hyderabad Bench

WP/23024/2003

AI Insights

The case revolves around a Writ Petition filed by the petitioner challenging the order of termination from service, which was initially granted on compassionate grounds following the death of his father, an employee in the Income Tax Department. The termination was based on allegations of suppression of material facts concerning the properties owned by the petitioner's father, which were not disclosed in the application for compassionate appointment. The Central Administrative Tribunal dismissed the petitioner's challenge, leading to the filing of the present Writ Petition. The court examined whether the termination was arbitrary or punitive and whether it required a departmental enquiry.

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 796131 (HC-ANDHRA_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 03-07-2014
• Assessment Year: misc
• Other Referred Cases: V.P. Ahuja v. State of Punjab and others, Chandra Prakash Shahi v. State of U.P and others
• Laws Referred To: Central Civil Services (Classification, Control & Appeal) Rules, 1965
• Result in Favour of: Revenue
• Court: HIGH COURT
• Keywords: Compassionate appointment; Departmental Enquiry; Punitive Action; Suppression of Material Facts; Termination of service
• Section: 226

Judgement Text

"HON'BLE SRI JUSTICE K.C.BHANU AND HON'BLE SMT JUSTICE ANIS WRIT PETITION No.23024 of 2003 O R D E R: (per Hon’ble Sri Justice K.C. Bhanu) This Writ Petition is filed challenging the order, dated 12.09.2003, passed by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad, (for short ‘the Tribunal), in O.A.No.1166 of 2002. 2. The facts that are necessary for disposal of the present petition are that the father of the petitioner, while working in Income Tax Department, died in harness in the year 1997. Thereafter, the petitioner made an application seeking for appointment on compassionate grounds. His application was considered and he was appointed as Upper Division Clerk in the Income Tax Department. After the appointment, the services of the petitioner were terminated by the order passed by the Chief Commissioner of Income-Tax Hyderabad-1 in proceedings bearing F.No.Con.Vig.1(106)/2002 dated 05.08.2002, on the ground of suppression of material facts. Aggrieved by the action of the respondents, the petitioner filed the above Original Application seeking to set aside the order of removal from service. But it was dismissed. Challenging the same, the petitioner filed the present Writ Petition. 3. It is contended by the learned counsel appearing for the petitioner that whatever the properties held by the father of the petitioner which are within his knowledge, have been specifically mentioned in the application seeking for compassionate appointment and the petitioner has given detailed explanation about the properties held by his father on 19.12.2001 and none of the contentions raised in the explanation has been taken into consideration. The learned counsel also contended that certain words in the removal order amounts to stigma and when it amounts to stigma, except by conducting a departmental enquiry, the services cannot be terminated and hence, he prays to set aside the impugned order. 4. The learned standing counsel appearing for the respondents contended that normally the compassionate appointment will be given to the dependant of the person, who has died in harness and to redeem the family in distress; that on the ground of owning several properties, which were suppressed in the application form, the termination of the petitioner was effected and there are no grounds to interfere with the impugned order passed by the Tribunal and therefore, she prays to dismiss the Writ Petition. 5. A perusal of the order passed by the Tribunal shows that the Tribunal, after considering the material available on record, came to a conclusion that some of the properties held by the father of the petitioner were gifted away, some of the properties were sold away and some other properties were kept off from the knowledge of the Department. Those findings have not been under challenge by denying or disputing by raising a ground in the Writ Petition. 6. Compassionate appointment is an exception to the general rule that appointment to public service should be on merits and through open invitation. It is to mitigate the hardship due death of the bread-earner in the family and such appointment should be provided immediately to redeem the family in distress. A distinction shall be drawn between the termination simplicitor and termination by way of punishment. In the case of the latter, necessarily a departmental enquiry has to be conducted in accordance with the Central Civil Services (Classification, Control & Appeal) Rules, 1965, (for short ‘the Rules’). Unless a regular departmental enquiry is conducted, the termination is bad. In case of termination simplicitor, it does not require conducting any enquiry and the ground of misrepresentation of facts is sufficient to pass termination order. 7. The learned counsel appearing for the petitioner placed reliance on a decision reported in V.P. Ahuja v. State of Punjab and others[1], wherein it is held as follows: “7. A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice.” A perusal of the above decision shows that even a temporary servant cannot be terminated arbitrarily. The arbitrary exercise of the power may be - removal without following the rules or the conditions of contract of service entered into between the parties. In such a case, the arbitrary exercise of power in termination of an employee is a ground for setting aside the termination order. But, in this case, there is no such arbitrary exercise of power by the appointing authority. In the original application, it seems the petitioner has shown three properties which are standing in the name of his father, whereas during the course of enquiry, it came into light that he has movable and immovable properties as mentioned in the notice issued for the termination of the employee. Therefore, the above decision has no application to the present facts of the case. 8. The learned counsel appearing for the petitioner also relied upon a decision reported in Chandra Prakash Shahi v. State of U.P and others[2], wherein it is held as follows: “28. The important principles which are deducible on the concept of \"motive\" and \"foundation\", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of \"motive\".” From the above decision, it is clear that motive is not an integral part of misconduct. It can only be taken as aid in assessment of misconduct. If the termination is founded on misconduct, then it would be punishment. In deciding whether in a given case a termination was by way of punishment or not, the Courts look to the substance of the matter and not the form, if termination is arbitrary or discriminatory or there is no bona fide application of mind in the consideration of relevant materials. The law is well settled that motive operating in the mind of the employer was wholly irrelevant. 9. The findings of the Tribunal are not shown to be incorrect or perverse or not based on material available on record. In the absence of perverse finding, exercise of jurisdiction under Article 226 of the Constitution of India cannot arise. Therefore, we are of the view that the Writ Petition is devoid of merits and is liable to be dismissed. 10. Accordingly, the Writ Petition is dismissed. No order as to costs. The miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed. ______________________ JUSTICE K.C.BHANU ____​___________ JUSTICE ANIS Date: 03.07.2014 sr [1] AIR 2000 SUPREME COURT 1080 [2] (2000) 5 Supreme Court Cases 152 "