Central Administrative Tribunal - Delhi
Sunil Kumar S/O Shri Chand Singh vs Chairman-Cum-Managing Director on 28 April, 2015
Central Administrative Tribunal Principal Bench: New Delhi OA No.3243/2013 Reserved on: 08.01.2015 Pronounced on:28.04.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Sunil Kumar s/o Shri Chand Singh R/o H.No.111, Vill. Kirari, Post Office Nangloi, Delhi 110 041. ...Applicant (By Advocate: Shri B.S. Chaudhary) Versus 1. Chairman-cum-Managing Director, Office at:- DTC Head Qtr. I.P. Estate, New Delhi. 2. Chief General Manger (P&A), Office at: DTC Head Qtr., IP Estate, New Delhi. 3. Chief Medical Officer (CMO), Medical Board, DTC, New Delhi. 4. Regional Manager (North), Subhash Palace, DTC Depot, New Delhi. 5. Depot Manager, DTC, Rohini Depot-III, New Delhi. ...Respondents (By Advocate: Manish Garg) O R D E R Dr. B.K. Sinha, Member (A):
The instant OA is directed against order of termination dated 19.07.2013 passed by the respondents under clause 9(a)(i) of the DRTA (Conditions of Appointment & Service) Regulations, 1952 [hereinafter referred to as Regulations, 1952] on account of the applicant being declared as medically unfit by the DTC Medical Board.
2. The applicant has sought the following relief(s) by means of this OA:-
(a) to set aside the impugned order dtd. 19.07.2013 for termination of applicant from service w.e.f. 17.07.2013.
(b) to direct the respondents to reinstate the applicant in his service as Driver in department of DTC concerned.
(c) to direct the respondents to provide the compensation to the applicant.
(d) award any other relief as this Honble Tribunal may deem fit and proper in the circumstances of the case.
(e) to award the cost of suit/petition.
3. The case of the applicant, in brief, is that he was selected for the post of Driver following the due process of selection. The applicant, on being found medically fit by the Medical Board, was issued offer of appointment vide letter dated 29.12.2010. The applicant had rendered one year and ten months of service when he felt uneasiness in his head and was medically examined at AIIMS where he was diagnosed as a case of tentorium meningioma and was, therefore, operated upon on 11.03.2013 and discharged on 14.03.2013. The Neurosurgeon of AIIMS declared the applicant medically fit for bus driving, vide Prescription dated 05.04.2013. However, he was required to undergo examination by the DTC Medical Board on 19.07.2013 which declared him unfit for the post of driver and his services were, therefore, terminated with immediate effect under clause 9(a)(i) of the Regulations, 1952. Thereafter, his case was also rejected by the Appellate Medical Board and representations for reinstatement were of no avail.
4. The grounds adopted by the applicant in support of his OA include that he had rendered one year and ten months unblemished service and had completed the period of probation. It is the case of the applicant that he was medically examined by the DTC Medical Board before joining and had been found fit, and since the illness had occurred during the course of service, his services could not have been terminated, but instead he was entitled to medical treatment under the rules of the respondent organization. In the second place, the applicant has been certified medically fit for duty by concerned doctors of Neurology Department of AIIIMS and the medical opinion rendered by the latter in capacity of a specialized medical institute will prevail over the decision of the medical board of DTC. In the third place, it is not a case of termination simplicitor as provided in the offer of appointment, but rather a punitive measure arising from his illness. Hence, the principles of natural justice have been violated and the impugned letter of termination deserves to be set aside.
5. The learned counsel for the applicant submitted that the Honble Supreme Court in two decisions held that once a person has rendered six months satisfactory service, he could not be discharged on medical grounds even though he has not completed the period of probation. However, the learned counsel for the applicant was not able to produce any such order.
6. The respondents have filed their counter affidavit denying the averments of the applicant. It has been submitted by the respondents that the order of termination was served during the period of probation under Rule 9(a)(i) of the Regulations, 1952 which provides that services of an employee can be terminated without any notice or with pay in lieu of such notice period, except under the circumstances provided otherwise, during the period of probation without assigning any reasons. It is further submitted that the applicant had not completed the period of probation as no notification to this effect has been issued by the respondents [Wasim Beg Versus State of Uttar Pradesh - AIR 1998 (SC) 1291]. The respondents have further submitted that the order of termination issued under Rule 9 (a)(i) of the Regulations,1952 shall have the presumption attached that the applicant was undergoing a probation period [Rajajinagar Coop. Bank Ltd. Versus K. Gururaj 2001 (10) SCC 681]. The respondents have relied upon the decision of the Honble Supreme Court in the matter of State of Punjab and Others versus Sukhwinder Singh [2005 (5) SCC 569] that a probationer has no right to a post and can be discharged within the period of probation in case he was not found to be suitable. The respondents further submit that initially when medical examination of the applicant was conducted before his joining, the Medical Board only considered his physical fitness and did not go into other diseases. Subsequently, the matter came to light when the applicant submitted an application for medical advance of Rs.1,47,460/-. The case was then referred to the Medical Board for examination. The respondents have submitted that it is well established that decision of Medical Board is subject to appeal. The Appellate Medical Board has also rejected the claim of the applicant. The learned counsel for the respondents submitted that the courts are not to act as a superior appellate authority over the decision of medical board. The respondents have also denied the charge of violation of principles of natural justice as opportunity had been given to the applicant to prove his medical fitness, which he failed to do. On the issue of termination, the respondents have submitted that it was not a punitive termination as the duties of applicant involve driving bus where lives of pedestrians and passengers at large are involved, for which utmost fitness is required in the interest of public safety. Relying upon the decision of Honble Supreme Court in Ravindra Kumar Misra versus U.P. State Handloom Corporation Ltd. & Anr. [AIR 1987 (SC) 2408], the learned counsel for the respondents has submitted that termination could be dubbed as punitive only where it is founded on delinquency.
7. It appears from the records that the applicant was given a personal hearing by the Regional Manager on 23.10.2013, who had recorded that the applicant had been declared unfit on account of findings of the medical board. The probation of the applicant had also been extended by further six months. However, he has been terminated on account of his not being found medically fit by the Medical Board.
8. In view of the above, the learned counsel for the respondents has submitted that the applicant has no case whatsoever for quashing of termination order and, therefore, urged for dismissal of the same.
9. The applicant has filed a rejoinder rebutting all the points raised in the counter affidavit filed by the respondents. The applicant has repeatedly submitted that he is medically fit for duty as declared by the doctors of AIIIMS and, therefore, the Tribunal should issue mandamus to the respondents directing them to reinstate him in service.
10. We have examined the pleadings as also documents submitted by the rival parties and have also considered the oral submissions made by their respective counsels on the basis whereof we find the following two issues need to be decided by this Tribunal:-
1. Whether the findings of AIIIMS shall prevail over that of the DTC Medical Board?
2. Whether there has been any infringement of the rights of the applicant or breach of the rules of natural justice in terminating the services of the applicant?
11. Insofar as the first of the issues is concerned, we take note of the fact that no doubt AIIMS is a reputed Medical Institute and it has a large number of Specialists on its rolls. However, we also take note of the fact that insofar as issue relating to medical fitness is concerned, the opinion of the Medical Board is final. The courts are prohibited from acting as superior appellate authorities in this regard. The respondents have relied upon the decision of the Honble High Court of Delhi in the case of Delhi Transport Corporation versus Sh. Sanjay Kumar & Others and other connected cases [WP(C) No.39/2014, C.M. Nos. 65/2014, 14120/14, 14132/14 & 14394/14 and others decided by a common order on 31.10.2014]. In these cases, the Tribunal had ordered for constitution of a third medical board over the findings of the appellate medical board. The Honble High Court has held as under:-
10. As to whether CAT could have issued the directions to DTC to conduct yet another medical test, this Court has no doubt that, in the present circumstances, such an order could not have been made. The post in question is that of Drivers; they have to man large buses, which ply on crowded public streets. Vision is a crucial part of the medical parameters required for the discharge of duties attached to that post. Colour blindness is an unacceptable condition. The applicants are, fortunately, not saying that despite their colour blindness, the DTC has to employ them; what they urge is that DTC should have held another test by using another technology. It is here that the CAT, in this Court's opinion, fell into error. Having not challenged the decision to hold a re-medical examination (a third in that series) in relation to colour blindness, and having undergone that medical examination, (in which by three separate boards' independent appraisal, the applicants were determined to be colour blind) the applicants could not have legitimately challenged the results of that decision. Absent proven mala fides, or illegality, procedural irregularity or violation of a binding instruction or guideline, CAT could not have directed yet another medical test - to be held in a particular manner. In the present case, no rule, administrative circular, law or guideline was shown to have been violated; there was no allegation of lack of bona fides in the decision to hold a third medical test. In these circumstances, the CAT's order directing a fourth medical test, was unwarranted. As the DTC has been one of the parties in all the afore cases and the issues being identical, the above decision of the Honble High Court acts as a good and binding legal precedent. Further, in the case of Sheila Kaul through Ms. Deepa Kaul versus State through C.B.I. [2013 (13) SCALE 138], the appellant was being prosecuted for commission of offences punishable under Sections 7, 9, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and Section 120-B read with Section 348 of IPC. The medical board suggested that the appellant in that case was not capable of understanding the questions put to her on account of unsound mind while the Honble High Court came to the conclusion that the appellant was not of unsound mind nor was she incapacitated by her age and illness. Accordingly, the matter was remitted to the High Court to decide according to law after hearing both the parties. In this regard, para 9 of the judgment is being extracted below for ready reference:
9. The report of the medical board also prima facie suggested that the plea raised by the appellant was not wholly without any basis. The trial Court had despite that report and the deposition of Dr. Khandelwal come to the conclusion that the appellant was not of 'unsound mind' nor was she incapacitated by her age and illness. All the same since the said finding had been specifically questioned by the appellant the High Court should have adverted to that aspect of the matter also. Whether or not the appellant can be described to as a person of unsound mind would largely depend upon the value which the High Court attached to the report submitted by the medical board and the deposition of Dr. Khandelwal. Suffice it to say that the process of appreciation of material concerning the medical condition of the appellant and her alleged incapacity to make her defence was inevitable. In as much as the same has escaped the attention of the High Court, the order passed by it is rendered unsustainable.
12. Insofar as the second of the issues is concerned, we take note of the condition no.8 of the letter of appointment, which provides as under:-
8. His appointment is purely temporary. He shall be on probation for a period of 2 years from the date of his temporary appointment. During the period of his probation, his services shall be liable to be terminated at any time without notice and without assigning any reason thereof. He shall be considered as having completed the period of probation satisfactorily only when a notification to this effect is issued by the Competent Authority.
13. We find that the letter of termination has been made on medical grounds. The impugned order provides as under:-
Sh. Sunil Kumar s/o Sh. Chand Singh Driver, B.No. 25361, Pay T.No.67363 was directed to DTC Medical Board I.P. Depot Dispensary vide this memo No.:RD-3/PFC(D)/2013/2324 dt 12.07.2013 for medical examination. The DTC Medical Board examined him and declared UNFIT for the post of driver w.e.f. 17.07.2013 vide No.:MB/2012/2238F dt. 17.07.2013. Therefore, his services are hereby terminated with immediate effect under clause 9(a)(i) of the DRTA Condition of his appointment and service regulation 1952 as per terms & conditions of his appointment. Therefore, the termination is on account of lack of medical fitness as certified by the Medical Board. Rule 9(a)(i) of the Regulations, 1952 provides as under:-
9. Termination of Service:- (a) Except as otherwise specified in the appointment orders, the services of an employee of the Authority may be terminated without any notice or pay in lieu of notice:-
(i) During the period of probation and without assigning any reasons thereof.
14. In relation to the instant issue, the first question to be examined is that whether the period of probation of the applicant was continuing or had been completed. It is mentioned in the order of the Regional Manager that while disposing of applicants representation for reinstatement his period of probation had been extended by further six months on account of his medical problems. The respondents have also claimed in the counter affidavit in furtherance of their arguments that a person can be confirmed in service only after successful completion of probation period and issuance of notification in that regard. In the instant case, there is notification on record to show that the period of probation has been completed successfully. Therefore, it shall be deemed that the period of probation was continuing.
15. No doubt, termination order has been issued with a reason that being lack of medical fitness as certified by the medical board. We find that in case of State of Punjab and Others versus Sukhwinder Singh (supra), the respondent was discharged from service w.e.f. 16.03.1990 under the Punjab Police Rules 12.21 as he was not likely to become an efficient police officer. The respondent had not completed three years of service, and, therefore, he was only a probationer in terms of the Rules. The Honble Supreme Court, after having considered the decisions in various cases including a Full Bench of Punjab and Haryana High Court in Sher Singh v. State of Haryana and others [1994 (1) PLR 456]; The Superintendent of Police, Ludhiana and another vs. Dwarka Das [1979 (1) SLR 299]; Ajit Singh and others etc. vs. State of Punjab and another [AIR 1983 SC 494]; Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences and another [(2002) 1 SCC 520]; State of Punjab and others vs. Balbir Singh [(2004) 11 SCC 743]; and Smt. Rajinder Kaur vs. State of Punjab and another [(1986) 4 SCC 141], held that a probationer does not have any right to hold a post. Enquiry conducted to obtain preliminary facts mentioning absence from duty cannot qualify as termination on account of punishment. The final view of the Honble Supreme Court case is extracted as under:-
18. It must be borne in mind that no employee whether a probationer or temporary will be discharged or reverted, arbitrarily, without any rhyme or reason. Where a superior officer, in order to satisfy himself whether the employee concerned should be continued in service or not makes inquiries for this purpose, it would be wrong to hold that the inquiry which was held, was really intended for the purpose of imposing punishment. If in every case where some kind of fact finding inquiry is made, wherein the employee is either given an opportunity to explain or the inquiry is held behind his back, it is held that the order of discharge or termination from service is punitive in nature, even a bona fide attempt by the superior officer to decide whether the employee concerned should be retained in service or not would run the risk of being dubbed as an order of punishment. The decision to discharge a probationer during the period of probation or the order to terminate the service of a temporary employee is taken by the appointing authority or administrative heads of various departments, who are not judicially trained people. The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. As mentioned earlier a probationer is on test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry "for the purpose of imposing punishment" and an order of discharge or termination of service as a result thereof "punitive in character", the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong.
16. In the instant case, we find that the applicant had been given opportunity to file appeal against the findings of the medical board. He had also been given an opportunity to file representation as also personal hearing, which was considered on 23.10.2013 by the Regional Manager. We find that confirmation is subject to satisfactory completion of probation period, however, where lack of physical fitness to discharge duties is proved during probation, it cannot amount to satisfactory completion of probation period. Above all, as mentioned above, the facts in case of State of Punjab and Others versus Sukhwinder Singh (supra), are clearly attracted to the facts of the instant case. We further find that the afore decision has been relied upon by the Honble Supreme Court in State of Punjab versus Rajesh Kumar [2006 (12) SCC 418] where it has been clearly held that the period of probation gives an opportunity to the employer to watch the work, efficiency, ability, sincerity and competence of the employee. In this regard, paras 8, 9 & 10 of the judgment are being extracted as under:-
8. The Full Bench of the High Court of Punjab & Haryana has held in the case of Sher Singh vs. State of Haryana, 1994(2) S.L.R. Page 100 that a constable can be discharged from service under Rule 12.21 of Punjab Police Rules, 1934 at any time within three years of his enrolment in spite of the fact that there is a specific allegation which may even amount to misconduct against him. It was further held by the Full Bench that a Superintendent of Police can form his opinion on police officer not only on the basis of the periodic reports contemplated under Rule 19.5 but also on the basis of any other relevant material. In view of the above decision, the constable can be discharged from service even if there is specific allegation which may amount to misconduct against him.
9. The High Court, in our opinion, has also failed to notice that departmental enquiry is not required before passing an order under Rule 12.21 of Punjab Police Rules to discharge a constable on ground of his unauthorised absence and being habitual absentee who is not suitable to become a police officer.
10. All the Courts below are not right in observing that the order of discharge dated 18.10.1992 passed by the Senior superintendent of Police is based on misconduct of the respondent and, therefore, no opportunity of hearing is necessary as per law. Therefore, this issue is answered against the applicant.
17. Now we come to the conclusion as to what relief can be provided to the applicant. We have already held that neither the principles of natural justice have been infringed nor have the respondents been in error in issuing the order of termination simplicitor, as specific reasons for lack of medical fitness have been cited. However, we just cannot ignore the argument of the learned counsel for the respondents that a bus driver is required to drive in high density traffic for long hours, for which he must be physically fit so as to restrict the chances of error to minimum, as not only the lives of the passengers and the driver himself are at risk but also of the pedestrians and motorists at large. There can be no quarrel on this particularly when the appellate medical board has also held that the applicant was not medically fit enough to drive a bus. However, in the same breath, we also take note of the fact that a person can fall ill at any time and there is no control over the same, and hence, it does not fall into the category of misconduct.
18. In view of our above discussion and also the equity being in favour of the applicant, though we disallow the main prayer of quashing the impugned order dated 19.07.2013, yet direct the respondents to consider the applicant for giving appointment against some other post where his services could be utilized whenever such vacancy is made available. In this regard, we also take note of the argument of the respondents that as the applicant had not completed probation period, such a right does not accrue to him. Despite being conscious of this fact, keeping in view the condition of the applicant, still we are inclined to pass such order on humanitarian consideration because in DTC, surely there must be any number of other trades in which the applicant could be employed.
19. With the above directions, the instant OA stands disposed of with no order as to costs.
(Dr. B.K.Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/