Government has passed termination order on the findings of a preliminary inquiry report. I want to know whether it is legal or illegal. What action should be taken? The allegation levelled against me is that I have been appointed by a forged appointment letter. That allegation is false. When I have submitted a representation for consideration of my candidature for the promotion. The new director has initiated a departmental inquiry against me for getting service by a forged appointment letter.
In that proceeding I have been cooperating with the officer. But due to pressure from the director, the preliminary inquiry report was submitted with finding that the appointment letter was false. Now the termination order has been passed by the director.
Prima facie it seems that the termination order is illegal. The findings of departmental inquiry is yet to come. Your service has been terminated merely on the findings of the preliminary inquiry report.
The preliminary inquiry is just a fact finding inquiry to find whether sufficient grounds are existing for initiating a departmental inquiry against the delinquent officer. Its report forms the basis for commencement of a full-fledged inquiry. But in your case the director has used the findings of preliminary inquiry for passing a final order i.e. termination order.
Termination of service on the findings of preliminary inquiry is illegal
The findings of preliminary inquiry constitutes a prima facie ground for the government to consider whether further investigation in respect of the incident is required or not. It does not form the basis for taking final decision on the matter in dispute. [State of Maharashtra v. Saeed Sohail Sheikh, (2012) 13 SCC 192]
You have been terminated without framing charges. Framing of charges is mandatory for a regular departmental inquiry. It is settled law that a regular departmental inquiry commences only after the framing of charges. Charge also furnishes information to the delinquent officer about the nature of allegation. Report of preliminary inquiry is generally, used for framing of charges.
The government did not afford you an opportunity of hearing and cross examination of witnesses. Termination order has patent illegality because it is violating the principles of natural justice.
Opportunity to cross examine the witness, information about the allegation and opportunity to defend in departmental inquiry are indeed the integral parts of the principle of natural justice.
In Nirmala J. Jhala v. State of Gujarat, (2013) 4 SCC 301 the Supreme Court has held that the evidence recorded during the preliminary inquiry cannot be used against the delinquent officer because the officer had no opportunity to cross examine the persons examined in preliminary inquiry.
Hence, your termination order passed on the basis of evidence collected and statement of witness recorded during the preliminary inquiry is illegal.
Challenge the legality of termination order
You should file a writ petition before the High Court Allahabad and seek quashing of termination order. The court will quash the order because it has been passed without holding a proper departmental inquiry.
The departmental inquiry is said to be commenced only after framing of charges against the delinquent officer. Charges are framed after the findings of the preliminary report. No charge sheet has framed against you because the Directed has terminated you only on the basis of preliminary report.
