Central Administrative Tribunal - Delhi
Priyanjali Mishra vs Govt. Of Nctd on 28 November, 2024
1
Item No. 34 O.A. NO. 2753/2021
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 2753/2021
Dated this the 28th day of November, 2024
Hon'ble Mr. R N Singh, Member (J)
Hon'ble Mr. B. Anand, Member (A)
Priyanjali Mishra,
Group 'B'
Ex Center Administrator,
One Stop Center, Jag Prakash Chandra Hospital, Shastri Park, New
Delhi
D/o Late Sh. Shiv Sharan Mishra,
aged about 33 years,
R/o 10/8, Phase A, Om Vihar,
Uttam Nagar, New Delhi,
.....Applicant
(Advocate: Mr. Nilansh Gaur)
Versus
1. Govt. of NCT of Delhi, Through its Chief Secretary, Delhi Secretariat, IP
Estate, New Delhi - 110002.
2. Office of District Magistrate, District North East, Govt. of NCT of Delhi,
DC Office Complex, Nand Nagri, New Delhi-110053
3. One stop center. Through Medical Superintendent
Jag Prakash Chandra Hospital,GNCT of Delhi,
Shastri Park, Delhi-110053
...Respondents
(Advocate: Mr. H.A. Khan)
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Item No. 34 O.A. NO. 2753/2021
O R D E R (ORAL)
Hon'ble Mr. R. N. Singh, Member (J) In the present O.A., filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged termination order dated 04.08.2021 (Annexure A/1), vide which her contractual engagement had been terminated w.e.f. 05.08.2021 (Annexure A/1).
2. The applicant has prayed for the following reliefs in the present O.A.:-
"8.1 To quash and set aside the termination order dated 04.08.2021, the same being a punitive and stigmatic order issued in violation of Principles of Natural Justice and direct the respondents to reinstate/re-engage the applicant as Center administrator on contract basis forthwith and with all consequential benefits;
8.2 Any other relief which this Hon'ble Tribunal may deem fit and appropriate, in the circumstances of the case"
3. In response to notice, the respondents have filed counter reply, wherein they have disputed the claim of the applicant and have prayed for dismissal of the O.A. 3 Item No. 34 O.A. NO. 2753/2021
4. Learned counsel for the applicant submits that, in the facts and circumstances of the case, no rejoinder was required and he had already made a statement to this effect.
5. Undisputed facts of the case are that pursuant to an advertisement dated 06.11.2019 of the respondents for filling up the post in Sakhi "One Step Centre" District North East, Jag Pravesh Chandra Hospital, Delhi, the applicant participated in the selection process and on being selected by the respondents, an offer of appointment dated 24.12.2019 was issued to her for the post of Centre Administrator. The applicant joined as such and has been working as such under the respondents. During her such employment, the applicant received the impugned termination order dated 04.08.2021. She preferred various representations against the impugned order, however, the same had been of no avail. Thus the present O.A.
6. Learned counsel for the applicant submits that the impugned order is not an order simplicitor and/or in 4 Item No. 34 O.A. NO. 2753/2021 consonance with the terms of the offer of appointment dated 24.12.2019, but for the misconduct as alleged in the impugned termination order. He submits that as the impugned termination order is founded on alleged misconduct of the applicant, and such order has been passed without following the principle of natural justice, the same is bad in law. He submits that the respondents have not put the applicant to any show-cause notice regarding the alleged misconduct, nor they have conducted any inquiry affording opportunity to the applicant to submit her reply/defence.
7. In support of his submissions, learned counsel for the applicant has placed reliance on the judgment of the Hon'ble Apex Court in Civil Appeal No. 9758/2024 titled Swati Priyadarshini Vs. The State of Madhya Pradesh.
8. On the other hand, learned counsel for the respondents, by referring to the counter reply on behalf of the respondents had submitted that the respondents were well within their 5 Item No. 34 O.A. NO. 2753/2021 jurisdiction to pass the impugned order, even without holding inquiry, where the contract so provides. In support of his such contention, he refers to judgment of this Tribunal in O.A. No. 1898/2021. He has further referred to para 4 of the counter reply to submit that for terminating the services of a probationer a show-cause notice is not required wherein the respondents have referred to judgment of Hon'ble High Court of Delhi in W.P. (C) 9060/2016 to contend that while taking a decision to terminate the services of a probationer, no notice is required.
9. In support of such contention, respondents in para 6 have referred to judgment of the Hon'ble Apex Court in Civil Appeal No. 9028/2012, and in para 7 of the counter reply, have referred to judgment of the Hon'ble Apex Court in the case of Oriental Insurance Co. Ltd. Vs. T. Mohammed, (1993) 1 SCC
533. Learned counsel for the respondents has also argued that the applicant has concealed material fact and has not approached this Tribunal with clean hands.
6Item No. 34 O.A. NO. 2753/2021
10. We have considered the submissions made by the learned counsels for the parties. We have also gone through the judgments referred by them. It is undisputed that before issuing the impugned termination order, no inquiry has been conducted wherein the applicant was allowed to participate nor any show-cause notice had ever been issued to the applicant.
11. Para 4 of the offer of appointment dated 24.12.2019 reads as under:-
"4. The contract can be terminated at any time by either side giving the other party two months notice. However, the contract holder shall not be eligible to give this notice before completing nine months of regular contract period since the date of engagement."
12. Paras 3 to 10 of the impugned order dated 04.08.2021 reads as under:-
"3. Whereas, it has come to the notice of the competent authorities that in contravention to the referred appointment letter dated 24.12.19 Para 3 and all established norms of good governance Ms.Priyanjali Mishra has become a habitual offender who regularly remains absent from duty at the One Stop Centre during office hours and without the prior permission/knowledge of the competent authorities
4. Whereas, it has repeatedly been informed by the staff at the OSC and at JPCH that Ms. Priyanjali Mishra indulges in gross tampering of the attendance register thereby claiming full salary even for the period when she has not performed her duties 5. Whereas, the above facts of her unauthorized absence from duties have been noticed by the competent authorities during surprise inspections at the OSC and that she was given verbal warning on the spot 7 Item No. 34 O.A. NO. 2753/2021
6. Whereas, in spite of repeated warning in this regard Ms. Priyanjali Mishra, Centre Administrator has continued with her irregular discharge of duties which has adversely effected the functioning and reputation of the OSC
7. Whereas, as reported, on 22.06.2021 an incident of assault by one inmate of OSC happened in which on one of the staffs of the OSC was grievously injured and required immediate medical attention. It has been established beyond doubt that on the day of this incident the Centre Administrator had again left the office..in...the...afternoon itself in an unauthorized manner. The entire situation was reportedly haridled by the Counsellor present at the time of incident in the absence of Centre Administrator
8. Whereas the conduct of Ms. Priyanajali Mishra in the instant case has displayed severe lack of devotion to duty, glaring act of indiscipline and resultantly jeopardised the life of one of her co-workers
9. Whereas, in view of the repeated adverse feedback about the functioning of Ms. Priyanjali Mishra (particularly from her co-workers and staff of the JPCH) have made it imperative that the continued misconduct
(s) of Ms. Priyanjali Mishra be viewed with deep concern and necessary remedial/punitive action be taken to streamline/improve the functioning of the OSC
10. Whereas, Ms. Priyanjali Mishra's misconduct (s) and lack of devotion of duty and in particular her unauthorized absence on the day of the incident as referred above has been established beyond doubt and no further need is felt to enquire into the circumstances.
Now, therefore, the contractual engagement of Ms. Priyanjali Mishra, Centre Administrator is terminated w.e.f. 5.8.2021 (AN). She is also directed to return all such department properties as may be in her custody to the Nodal Officer OSC, Distt. North East and get a No Dues certificate from SDM(HQ). Her salary/emoluments will be released after the issue of the No Dues certificate.
This issued with the prior approval of Competent Authority"
13. On perusal of the aforesaid termination order, it is apparent that the foundation for the termination of the applicant is alleged repeated absenteeism, gross tempering of attendance register, irregular discharge of duties, severe lack of devotion to duty and glaring act of indiscipline jeopardizing the life of her co-workers. Thus, there is no doubt that the 8 Item No. 34 O.A. NO. 2753/2021 termination order is for serious misconduct alleged and stated to have been proved against the applicant. In the case of Swati Priyadarshini , (Supra) facts before the Hon'ble Apex Court were that the appellant was a contractual Assistant Project Coordinator who was issued two show-cause notices regarding alleged negligence towards duties which further led to her termination and when such termination was challenged before the Learned Single Judge, the termination order was set aside and on appeal before the Division Bench of the Hon'ble Supreme Court, the judgment of the Learned Single Judge was reversed. Thus the judgment of the Hon'ble Division Bench of the Hon'ble High Court was under consideration before the Hon'ble Apex Court.
14. The Hon'ble Apex Court after considering judgments in catena of cases have ruled in para 34 as under:-
"34. It is profitable to refer to what five learned Judges of this Court laid down in Parshotam Lal Dhingra v Union of India, 1957 SCC OnLine SC 5:
"28. The position may, therefore, be summed up as follows: Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is 9 Item No. 34 O.A. NO. 2753/2021 not per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. Union of India [(1953) 1 SCC 420: (1953) SCR 655]. Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311 ... " "12. It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee." punishment and does not attract Article 311(2), as has also been held by this Court in Shyam Lal v. State of Uttar Pradesh [(1955) 1 SCR 26]. In either of the two abovementioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under Rule 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C.J., has said in Shrinivas Ganesh v.
Union of India [LR 58 Bom 673 : AIR (1956) Bom 455] wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with. As already stated if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Article 311, for it operates as a forefeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has 10 Item No. 34 O.A. NO. 2753/2021 no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression "terminate" or "discharge" is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank, or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant."
(emphasis supplied) "
15. In the case in hand, as the applicant's contractual engagement had not expired and the applicant was not disengaged by the respondents by invoking the provisions of para 4 of the offer of appointment dated 24.12.2019, the applicant was having a rightful claim to continue in the employment under the respondents, at least till the contract was valid.
11Item No. 34 O.A. NO. 2753/2021
16. Thus, out of the two tests, as ruled by the Hon'ble Apex Court in para 34 in the case of Swati Priyadarshini (Supra) one has been met in the present case. From the impugned orders it is evident that the order of termination is passed casting serious stigma upon the applicant, however, without any show cause notice and/or an inquiry, the other test, i.e., test no. 2 as ruled in para 34 of Swati Priyadarshini (Supra) is met.
17. We find the case of the applicant squarely covered by the law laid down by the Hon'ble Apex Court in the case of Swati Priyadarshini (Supra).
18. We have also given thoughtful consideration to the paragraphs of a few judgments quoted by the respondents in their reply. We find that, as those judgments are passed in different facts and circumstances, the same are not found to be of any help to the respondents.
19. We may note that in Abhijit Gupta Vs. S.N.B. National Centre, Basi Sciences & Ors. (2006) 4 SCC 469, it was 12 Item No. 34 O.A. NO. 2753/2021 considered as to what will be the real test to be applied to a situation where an employee is removed by an innocuous order of termination. So far the judgments of the Tribunal in O.A. Nos. 3545/2014, 1898/2021 and 9028/2012 are concerned, we find that the facts were entirely different. Moreover, the law laid down by the Hon'ble Apex Court in the case of Swati Priyadarshini (Supra) was not considered by the Tribunal.
20. We have also gone through para 7 of the counter reply of the respondents, wherein they are stated to have given reference to para 5 of the judgment of the Hon'ble Apex Court in the case of Oriental Insurance Co. ltd. (Supra)The said para of the judgment itself noted that 'there is nothing to indicate or suggest, even remotely ,that non-service of one month's notice as a condition precedent for termination of the respondent's service would result in vitiation or invalidation or termination, if effected'. This was admittedly the issue in the present case. The issue is not of issuance of notice or otherwise but termination by casting a stigma or without any inquiry or show cause notice. 13 Item No. 34 O.A. NO. 2753/2021 The contention of the respondents that the applicant had approached this Tribunal by concealing some facts and by indulging in misrepresentation is nothing but vague and without any basis and , therefore, such contention is also not sustainable in law.
21. In view of the aforesaid, O.A. is allowed with following orders:-
(i) Impugned termination order dated 04.08.2021 is set aside.
(ii)Applicant shall be reinstated in service from the date of her termination.
(iii) Applicant shall be entitled for consequential benefits including 50% back wages.
(iv) The aforesaid direction shall be complied with by the respondents, as expeditiously as possible, and preferably within 4 weeks of receipt of a copy of this order.14 Item No. 34 O.A. NO. 2753/2021
(v) However, the respondents shall be at liberty to proceed against the applicant, if they so decide, of course, in accordance with law.
22. However, in the facts and circumstances, there shall be no order as to cost. Associated M.A. , if any, shall also stand disposed of.
(B.Anand) (R.N. Singh)
Member (A) Member (J)
kk/