Central Administrative Tribunal - Delhi
Sh. Pramod Kumar Sheel S/O Sh. Bhuri ... vs Union Of India (Uoi) Through The ... on 14 November, 2007
ORDER Chitra Chopra, Member (A)
1. By this O.A., the applicant has impugned the orders dated 31.05.2006 (Annexure/A-1) and 27.04.2006 (Annexure/A-2) alleging that the same are unconstitutional and arbitrary, being in total violation of Articles 14, 16 and 31(2) of the Constitution as well as punitive in character under the garb of orders simplicitor passed under Rule 5(1) of the CCS (Temporary Service) Rules, 1965.
2. The facts, leading to the filing of this O.A., are as under:
The applicant was appointed as Nursing Attendant in Safdarjung Hospital by the respondents vide order dated 25.06.2002 (Annexure/A-4) for a period of three months from 06.05.2002 to 31.07.2002 and his engagement was termed as selection on merit, along with other incumbents. He was assigned temporary status with all its consequential benefits in terms of the DoP&T instructions dated 24.10.1997 vide order dated 27.06.2003 (Annexure/A-5) along with 41 other incumbents who had satisfactorily completed 240 days in their service as Nursing Attendant. In the said order, it has been shown that the applicant has worked with the respondents for 358 days during the years 2002-2003, the effective date being 01.05.2003 and the date of next increment being 01.05.2004. The applicant worked with the respondents as Nursing Attendant with honesty, diligence and to the satisfaction of his superiors.
After the applicant had rendered a total service of almost four years, Respondent No. 2 issued a notice dated 27.04.2006 (Annexure/A-2) terminating his services forthwith under Rule 5(1) of the CSS (Temporary Service) Rules, 1965. On 04.05.2006 (Annexure/A-8), the applicant made a representation to the Medical Superintendent, Safdarjang Hospital and VMMC, New Delhi requesting to withdraw the said notice dated 27.04.2006 otherwise he shall be constrained to file petition before the Hon'ble Court within 7 days from the receipt of this letter. Finding no response, the applicant filed OA-1119/206 before this Tribunal and the same was disposed of on 24.05.2006 (Annexure/A-9). The operative portion of the said order reads as under:
3...This OA is disposed of at the admission stage itself directing Respondent No. 2 to consider his representation and to pass a reasoned and speaking order thereon within two weeks from the date of receipt of copy of the order under intimation to applicant. Till such time, his representation is decided, respondents shall maintain status quo in respect of applicant as of today.
In compliance of the above order, Respondent No. 2 passed an order dated 31.05.2006 (Annexure/A-10) stating that applicant's representation dated 04.05.2006 has been considered sympathetically and due to his doubtful integrity he was not considered suitable for retention in service in Safdarjang Hospital. Accordingly, the services of the applicant, a daily wage worker with temporary status stood terminated under Rule 5(1) of CCS (Temporary) Service Rules, 1965 with effect from 31.05.2006 (AN). Applicant submits that the said order has been passed without giving him an opportunity of show cause. Hence he filed the present Original Application.
3. In the present application, the applicant seeks the following reliefs:
(i) To quash/set aside impugned orders dated 27/4/2006 and 31/5/2006 as these are unconstitutional and arbitrary, being in total violation of Articles 14,16 and 311(2) of the Constitution as well as punitive in character under the garb of orders simpliciter passed under Rule 5(1) of the CCS (Temporary Service) Rules, 1965;
(ii) To reinstate the applicant with all the consequential benefits to the job of Nursing Attendant with the Respondent/2.
4. In the counter-affidavit filed by the respondents, learned Counsel Mrs. Jasmine Ahmed has made the following submissions:
The applicant was engaged as daily wage worker for a period of three months from 06.05.2002. He was granted temporary status w.e.f. 01.05.2003 and was governed by Central Civil Services (Temporary Service) Rules, 1965. The unsatisfactory performance of the applicant was brought to the notice of the Hospital Authority during March 2006. It is submitted that the termination order of the applicant has been issued in accordance with the terms and conditions applicable to him under Rule 5(1) of CCS (Temporary Service) Rules, 1965. It is further submitted that as per explanation in Clause viii(b) under Rules-11 of CCS (CCA) Rules, 1965, the termination of service of temporary government servant, in accordance with provision with Rule 5(1) of CCS (Temporary Service) Rules, 1965 shall not amount to penalty.
For the reasons stated above, learned Counsel for respondents has submitted that the applicant is not entitled for any relief, as prayed for.
5. In the rejoinder-affidavit, Dr. D.C. Vohra, learned Counsel for the applicant has reiterated his submissions made in the O.A.
6. I have heard the learned Counsel for both the parties and perused the pleadings placed on record.
7. During the course of arguments, learned Counsel for the applicant contended that the termination order is not a termination simplicitor but is on the ground of doubtful integrity. This has caused a stigma on the applicant because having charged the applicant with doubtful integrity, respondents must have proceeded with the procedure laid for enquiry to find the truth of the allegation and cannot by taking cover under Rule 5(1) of CCS (Temporary Services) Rules, 1965 pass a punitive order terminating the services. Learned Counsel further contended that the applicant had never been given any warning or show cause notice. If something had been wrong with his conduct he should have been given at least some warning, memo etc. before issuance of charge sheet. The stand of the respondents is untenable as while on the one hand they have submitted that reasons are not required for terminating services of the temporary employee, on the other hand in the impugned order dated 31.05.2006 they have given reasons of doubtful integrity for his termination. Applicant has thus been punished without any enquiry or show cause notice. Learned Counsel for the applicant further submitted that in terms of Rule 5(2)(a) of the CCS (Temporary Services) Rules, 1965 enquiry should be made before terminating the service of the applicant.
8. While refuting the above contentions, learned Counsel for respondents Ms. Jasmine Ahmed submitted that the order dated 31.05.2006 has been issued entirely in compliance with the Tribunal's order dated 24.05.2006, in terms of this, respondents were required to give reasons. Applicant was a temporary employee and has been terminated in accordance with the CCS (Temporary Services) Rules, 1965 and cannot claim as of right to continue in service.
9. Learned Counsel has placed reliance on the decision of Hon'ble Supreme Court in Secretary, State of Karnataka and Ors. v. Uma Devi (3) and Ors. 2006(4)SCC 1. She also contended that a case like the applicant being a temporary employee does not come in the domain of enquiry and termination having been effected under Rule 5(1) of the above Rules, no reasons were required to be given.
10. In so far as the facts are concerned, there is no dispute. Applicant was initially served simple termination order dated 27.04.2006. Although applicant was initially engaged as Nursing Attendant on daily wages, he was along with so many others given temporary status vide order dated 27.06.2003 and was continuing since then. Coming to the order dated 31.05.2006, there is no denial to the fact that respondents have now given reasons for his termination, namely, his doubtful integrity and on these grounds found him unfit/unsuitable for continuing in service. The relevant portion of the order reads as under:
Whereas the representation dated 4.5.06 from Shri Pramod Kumar Sheel was considered sympathetically and due to his doubtful integrity he was not considered suitable for retention in service in Safdarjung Hospital. Accordingly, the services of Shri Pramod Kumar Sheel a Daily Wages worker with temporary status stand terminated under Rule 5(1) of CCS (Temporary Service) Rules, 1965 with effect from 31.5.06(AN).
11. It is apparent from the above that respondents have introduced a new dimension to the termination of the applicant. I am, therefore, inclined to accept the contention of learned Counsel for the applicant that it no longer remains an order of termination simplicitor, it has now become a termination on certain definite grounds, namely, doubtful integrity. In view of this, respondents would rightly be required to take action in accordance with Rule 5(2)(a) of the CCS (Temporary Services) Rules, 1965, which reads as under:
5(2)(a) Where a notice is given by the appointing authority terminating services of a temporary Government servant, or where the services of any such Government servant is terminated either on the expiry of the period of such notice or forthwith by payment of pay plus allowance, the Central Government or any other authority specified by the Central Government in this behalf or a Head of Department, if the said authority is sub-ordinate to him, may, of its own motion or otherwise, re-open the case, and after making such enquiry as it deems fit,-
confirm the action taken by the appointing authority;
withdraw the notice;
reinstate the Government servant in service; or make such other order in the case as it may consider proper:
Provided that except in special circumstances, which should be recorded in writing, no case shall be reopened under this sub-rule after the expiry of three months- from the date of notice, in a case where notice is given;
from the date of termination of service, in a case where no notice is given.
12. In this view of the matter, the O.A. is allowed. Impugned orders are set aside. Consequences would follow. No costs.