Summary
The Supreme Court set aside the termination of an Ophthalmic Assistant after about 26 years of service. The termination rested on a secret police verification report, received about 25 years after he joined, declaring him 'unsuitable'. The show cause notice and the termination order gave no reasons, the report was never supplied to him, and he was given no personal hearing. The Court restored the Tribunal's order, withdrew the liberty to hold fresh proceedings, granted all service benefits, and directed police in all States to complete verification of Government appointees within six months of appointment.
Issues
- Whether the appellant, who came from East Pakistan in 1969 with his father under a migration certificate, could be treated as a non-citizen without any decision under the citizenship laws.
- Whether the termination violated natural justice because neither the show cause notice nor the termination order gave reasons, the police verification report was not supplied, and no personal hearing was given.
- What follows from the police authorities' unexplained delay of about 25 years in submitting the verification report.
- Whether the High Court rightly set aside the Tribunal's order quashing the termination.
Provisions considered
- Section 9, Foreigners Act, 1946Quoted as placing on the person concerned the burden of proving that he is not a foreigner. The Court noted that whether a person is a foreigner is a question of fact requiring careful, quasi-judicial scrutiny of evidence. (¶¶ 11, 11.1, 11.2)
- Sections 2(h), 4 and 5(1)(a)-(b), and the proviso inserted in Section 2 by Amendment Act 47 of 2019, Citizenship Act, 1955The Court stated that Section 4 entitled the appellant's father to be treated as a citizen by descent and that the appellant was entitled to seek citizenship by registration under Section 5, read with the definition of 'undivided India'. It also noted the 2019 proviso excluding persons like the appellant from 'illegal migrants'. Since no decision had been taken on his application, the citizenship contention was answered in his favour. (¶ 11.3)
- Part II (Articles 5 to 11), Constitution of IndiaReferred to as the constitutional provisions on citizenship within which the appellant's claim was examined. (¶ 11.3)
Held
- Although Section 9 of the Foreigners Act places on the claimant the burden of proving citizenship, the appellant had a basis under the Citizenship Act to claim citizenship by descent or registration. The authority had to decide his application within a reasonable time on the applicable law and his documents. No decision had been taken, so the citizenship contention was answered in his favour. (¶¶ 11, 11.1, 11.2, 11.3)
- Every administrative or quasi-judicial order must give reasons, which show application of mind and enable the affected person to challenge the order and the court to review it. Here the notice, the underlying communications and the termination order gave no reason why the appellant was 'unsuitable', and the police verification report was never served on him, so he could not meaningfully defend himself. (¶¶ 12.1, 12.2)
- A notice must state the grounds on which the authority intends to act. Any document relied on must be furnished to the employee, failing which the proceedings are vitiated as arbitrary, and a personal hearing must be given before an adverse decision such as termination. Principles of natural justice are read into rules even where the rules are silent. (¶¶ 12.3, 12.4, 12.5, 12.6)
- The termination was therefore arbitrary, illegal and contrary to natural justice. The High Court erred in treating the issue of a show cause notice and receipt of a reply as sufficient compliance. The respondents' authorities, holding that a fair hearing need not be oral and that prejudice must be shown, were accepted as law but distinguished on the facts. (¶¶ 12.6, 12.7, 12.8)
- The police verification report, due within three months of appointment, was submitted about 25 years later. The respondents admitted the delay but gave no reason for it. Given this callous delay and the invalid termination, the Tribunal's liberty to proceed afresh against the appellant long after his retirement would serve no purpose, and he was entitled to all service benefits. (¶ 13)
- Police officials in all States were directed to complete enquiries into the character, antecedents, nationality and genuineness of documents of candidates selected for Government service within the time fixed by statute or Government order, and in any event within six months of appointment. Appointments are to be regularised only after such verification. (¶ 13.1)
Result
Appeal allowed; High Court order set aside and the Tribunal's order quashing the termination restored, without the liberty to proceed afresh; unpaid service benefits to be paid within three months; directions issued to police in all States on time-bound verification; no order as to costs.