Central Administrative Tribunal - Delhi
Vijay vs M/O Home Affairs on 26 September, 2024
1
OA No. 91/2016
Item No.37/C-II
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 91/2016
Reserved on: - 27.08.2024
Pronounced on: - 26.09.2024
Hon'ble Mr. R. N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Sh. Vijay, Age- 21 years,
S/o Sh. Pawan,
Village- Tikan Kalan,
PO- Dhani Phogal,
Tehsil- Charkhi Dadri, Bhiwani,
Haryana-127306 ... Applicant
(By Advocate: Mr. Sachin Chauhan)
Versus
1. Union of India,
Through its Secretary,
Ministry of Home Affairs,
Govt. of India,
North Block,
New Delhi-1.
2. The Director
Intelligence Bureau,
MHA,
North Block,
Central Secretariat,
New Delhi-110 001
3. The Joint Deputy Director
Through the Director,
Intelligence Bureau,
MHA,
North Block,
Central Secretariat,
New Delhi-110 001
2
OA No. 91/2016
Item No.37/C-II
4. The Assistant Director/E,
Subsidiary Intelligence Bureau,
Ministry of Home Affairs,
Govt. of India,
Bhubaneswar ... Respondents
(By Advocate: Mr. Hanu Bhaskar)
3
OA No. 91/2016
Item No.37/C-II
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):-
In the present OA, the applicant has challenged the order dated 02.07.2015 (Annexure A-2) vide which he has been terminated from services of the respondents and a memorandum dated 10.12.2015 (Annexure A-3) vide which the impugned termination order has been upheld. The applicant has prayed for the following reliefs in Para 8 of the above OA: -
"(i) To quash and set aside the order dated 12.06.2015 and order dated 02.07.2015 whereby the services of applicant to the post of LDC has been terminated, order dated 10.12.2015 whereby the appeal of the applicant has been rejected and to further direct the respondent that applicant be reinstate back in service to the post of LDC forthwith with all consequential benefits including seniority and promotion and pay & allowance.
(ii) Any other relief which this Hon‟ble court deems fit and proper may also be awarded to the applicant."
3. Brief facts of the case, leading to the filing of the instant OA and evident from the assertion made in the OA, are that the applicant joined service on 11.06.2014 under the respondents i.e. Intelligence Bureau on the basis of Combined Higher Secondary Examination, 2012 conducted by the Staff Selection Commission in a temporary capacity as Lower Division Clerk (LDC) at Subsidiary Intelligence Bureau, Bhubneshwar. The respondents issued a Memorandum dated 14.05.2015 whereby the applicant 4 OA No. 91/2016 Item No.37/C-II was directed to attend the 2-week Induction Course scheduled to be held at RTC Kolkata from May 25 to June 5, 2015. He attended the said training course at RTC, Kolkata and nominated as Hostel Monitor by DCIO/Training.
4. The applicant submits that the respondent issued a Memorandum dated 12.06.2015 whereby the applicant was directed to explain his misconduct and to submit his reply thereof within a period of 7 days. The applicant submitted a reply to the same on 12.06.2015 highlighting that no misconduct was done by the applicant and the only reason for disrupting the applicant training course was that the upper button of applicant's shirt was found open. However, the applicant states that he was shocked to receive order dated 02.07.2015 issued by Assistant Director/E, Subsidiary Intelligence Bureau, GOI, Bhubneshwar whereby his services have been terminated under sub rule (1) of Rule 5 of CCS (Temporary Service) Rules. The applicant also mentioned that he has been falsely implicated due to wrong identification in respect of few complaints made during the period of induction course attended by him at RTC, Kolkata from May 25 to June 05, 2015.
5. The applicant further submits that he made an appeal against the order of termination dated 02.07.2015 to the Competent Authority on 14.07.2015. The applicant approached this Tribunal by way of OA No. 3537/2015 against the inaction of the 5 OA No. 91/2016 Item No.37/C-II respondents for not deciding his appeal. The respondents, however, rejected his appeal by a non-speaking and mechanical order dated 10.12.2015, thus making the order bad in law.
6. Learned counsel for the applicant submits that similar orders were passed by the respondents in respect of two other employees namely Manjeet Singh and Anand Singh arising out of the same incident, who approached this Tribunal by way of OA No. 4727/2015 and OA No. 4134/2015, respectively, and the said OAs have been allowed by this Tribunal vide order dated 28.07.2023 and 05.12.2023, respectively. Learned counsel for the applicant has further argued that the claim of the applicant is also covered by an order dated 02.06.2023 of this Tribunal in OA No. 1319/2021 titled Satyender vs. Govt. of NCT of Delhi & Ors. and the order of this Tribunal in the matter of Satyender (supra) has been upheld by the Hon'ble High Court of Delhi inasmuch as the relevant Writ Petition i.e. WP(C) No. 12635/2023 has been dismissed by the Hon'ble High Court vide order/judgment dated 05.03.2024. Learned counsel submits that the present OA, in the light of aforesaid order(s)/judgment(s), deserves to be allowed.
7. Feeling aggrieved by the aforesaid act of the respondents, the applicant approached this Tribunal by way of the present OA.
8. Per contra, Mr. Hanu Bhaskar, learned counsel appearing for the respondents vehemently opposed the contentions of the 6 OA No. 91/2016 Item No.37/C-II applicant and by referring to the counter-reply filed by the respondents on 25.01.2017, submitted that during the training, the senior officers and faculty members briefed the entire trainee LDCs with utmost seriousness that they should maintain decorum both in class as well as in the guest house since other Central Govt. employees including some senior officers also reside there. They were also repeatedly made aware about the provisions of Conduct Rules and Temporary Services Rules. In spite of that, on the night of June 4, 2015 four trainees (including Shri Vijay, the applicant) indulged in gross indiscipline and unruly behavior, creating nuisance by shouting and running from floor to floor in alleged inebriated state and passing lewd comments at women, including some lady officers staying at the same complex. Some of the residents of the area made written complaints about the incident specifically indentifying the four trainee LDCs including the applicant Shri Vijay. On June 05, 2015, the four trainees were pulled out of the training before the completion due to the facts mentioned in above.
9. The respondents further submit that the services of the applicant along with three other LDCs were terminated under Rule 5 (1) of CCS (Temporary Service) Rules, 1965 due to gross indiscipline and unruly behavior while undergoing induction training at Kolkata. The said decision has been taken purely on 7 OA No. 91/2016 Item No.37/C-II administrative grounds. The misconduct of the applicant along with three others was examined threadbare. The victims of the misconduct could be assuaged by nothing less than termination.
10. It is submitted by the respondents that the impugned order is not punitive as no stigma has been cast on the applicant and the impugned termination order is an order simpliciter and carries no evil consequences, hence, the same is in accordance with law. This is not a case where the impugned order is founded on any misconduct and at the best it can be a case of termination with motive of incident. The learned counsel submits that if the foundation for the impugned order is the misconduct, the order can be interfered by this Tribunal. The termination has been passed in exercise of the power conferred under the rules and regulations.
11. We have heard the learned counsels for the parties, considered the submissions made by them and with their assistance, perused the pleadings available on record.
12. The order dated 12.06.2015 (Annexure-A/1) vide which the applicant was directed to explain his misconduct during the training and was given seven days' time to respond, itself contains that the memorandum is issued to the applicant as he was indulged in gross misconduct. In pursuance to the above order, the applicant was terminated forth with, vide order dated 8 OA No. 91/2016 Item No.37/C-II 02.07.2015. The applicant filed an appeal before the Appellate Authority which was not decided by the respondents and the applicant agitated the cause of action before this Tribunal and sought a direction for decision on his appeal by the respondents. However, the respondents rejected the appeal of the applicant vide order dated 10.12.2015.
13. In addition to the judgments referred hereinabove in Para 6, the applicant has also relied upon the judgment of this tribunal in OA Nos. 184, 273, 851, 135 of 1990 titled Ganga Ram & Ors. Vs. Union of India Ors. decided on 13.02.1991. The relevant portion of the above mentioned judgment is as follows:-
"16. It will thus be seen that it is not a speaking order at all. It does not give any reason nor makes any declaration of law. Consequently, it is not a binding order under Article 141 of the Constitution. It will only have an effect in the case of Shri Rasila Ram and Three [SLPs (Civil) Nos. 9345 to 9348 of 1989- OA Nos. 89/99, 1667/87, 1497/88 and 1802/88]. Until the decision of the Full Bench is set aside, reversed or modified by the Supreme Court, the Full Bench decision of the Tribunal in the case of Rasila Ram (supra) remains effective.
17. We thus conclude that the interim order that has been passed in the case of Union of India Vs. Rasila Ram & Three Others is not a declaration of law under Article 141 of the Constitution nor is it binding on any case other than those which were the subject matters of the S.L.Ps and the O.As. from which they arise. We accordingly answer the question referred to us."9 OA No. 91/2016
Item No.37/C-II
14. The applicant places reliance on OA No. 1319/2021 in the matter of Satyender Vs. GNCTD decided on 02.06.2023. The relevant portion of the same reads as under:-
"13. In the aforesaid background, even if it is assumed that the impugned order dated 07.09.2020 is presumed to be an order simpliciter, however, in view of the specific stand taken by the respondents in the counter-reply, precisely recorded hereinabove, we are of the considered view that the impugned order of termination is founded on an act of specific misconduct of applicant and, therefore, the impugned order is found to be punitive and stigmatic. The same being passed without holding an enquiry and without following the principles of natural justice is not sustainable in the eyes of law.
14. Accordingly, the impugned SCN dated 26.08.2020, order dated 07.09.2020 and appellate order dated 10.06.2021 are set aside. The respondents are directed to reinstate the applicant in service, as expeditiously as possible, and preferably within six weeks of receipt of a certified copy of this order. The applicant shall be entitled to consequential benefits in accordance with the relevant rules and instructions on the subject. However, the respondents shall be at liberty to initiate disciplinary enquiry and or to take action in accordance with the relevant rules, if they so decide.
15. The OA stands partly allowed in the aforesaid terms. However, in the facts and circumstances of the case, there shall be no order as to costs."
15. The judgment of this Tribunal in the matter of Satyender (supra) was upheld by the Hon'ble High Court of Delhi in the Writ Petition (C) 12635/2023 in the matter of GNCTD & Ors. Vs. Satyender. The ratio laid down in the above mentioned judicial orders/judgment is applicable in this case also. The Hon'ble High 10 OA No. 91/2016 Item No.37/C-II Court of Delhi while deciding the matter on 05.03.2024 has held as under:-
"2. We find that the issue raised in the present petition is squarely covered against the petitioner by a recent decision of a Co-ordinate Bench dated 28.02.2024 in W.P.(C) 12696/2023 titled Govt of NCT of Delhi and Ors v Virendra. From a perusal of the record, it emerges that till date notice has not been issued in the present petition. Even today, an adjournment slip has been moved by the petitioner, but despite the matter being passed over, none appears on behalf of the petitioners.
3. In these circumstances, when we find that the matter is already covered by a recent decision of a Coordinate Bench in Virendra (supra), we have proceeded to consider the petition on merits. As noted hereinabove, the learned Tribunal has set aside the impugned order after finding that even though the termination of the respondent was punitive and stigmatic, the same had been passed without holding any enquiry or following the principles of natural justice. Since a similar stigmatic order passed under Rule 5 of CCS (Temporary Services) Rules, 1965, was quashed by the Co-ordinate Bench in Virendra (supra), we may usefully refer to paragraph nos. 45 to 48 of this decision. The same read as under:
"45. The stand of the petitioners before the Tribunal and before us is by relying upon the fact that the petitioner was absent between the period April 11, 2017 to April 21, 2017 for which a memorandum was issued to the respondent. A reference is also made to the FIR registered against respondent under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Ac', for short). So it follows that the absence / the FIR were the foundation' for terminating the services of the respondent and as such the same could not have been done without following the principles of natural justice. The said order of termination is stigmatic and punitive in nature. We may also state that, had the rules permitted, a government servant who is 'found unlikely to prove himself an efficient 11 OA No. 91/2016 Item No.37/C-II police officer' may be discharged by the employer within three years of enrollment, as was the rule in the case of Jaswant Singh (supra) would justify the termination, but no such rule has been shown to us. In any case, the termination being under Rule 5, the same has to be an order simpliciter.
46. In the present case, we have already held that the impugned order is stigmatic and that the Tribunal was justified to the extent of holding that the termination order of the respondent was bad. But, what we do not agree is the conclusion arrived by the Tribunal, that is, the Tribunal while setting aside the order of termination had granted liberty to the petitioners to initiate disciplinary enquiry and/or take action in accordance with the relevant rules depending upon the final outcome of the FIR, which according to us shall mean that the employer needs to wait for the final decision on the FIR, which will take its own time.
47. We would state here that, mere pendency of an FIR shall not restrain/preclude the employer to initiate disciplinary proceedings under the relevant rules, as it is a settled law that, a Criminal Case & Departmental Enquiry are two different proceedings and for holding the charge against a government servant in a departmental enquiry, the same needs to be proved on the principles of preponderance of probability.
48. We dispose of the petition by directing the petitioners to reinstate the respondent in service within six weeks of the receipt of the copy of this order with all consequential benefits in accordance with the relevant rules and instructions but with liberty to the petitioners to initiate action against the respondent in accordance with the conduct rules and proceed accordingly. No costs."
In the light of the aforesaid, when a Co-ordinate Bench of this Court has already taken a view that a stigmatic order cannot be passed under Rule 5 of CCS (Temporary Services) Rules, 1965 without holding an enquiry and following the principles of natural justice, we find absolutely no reason to interfere with the impugned order 12 OA No. 91/2016 Item No.37/C-II which while setting aside a stigmatic order passed against the respondent, has granted liberty to the petitioner to initiate action against him as per law if deemed necessary."
16. The applicant further places reliance on OA No. 4727/2015 in the matter of Manjeet Singh Vs. Union of India & Ors. decided on 28.07.2023 and OA No. 4134/2015 in the matter of Shri Anand Singh Vs. Union of India & Ors. decided on 05.12.2023. The relevant portion of Manjeet Singh (supra) reads as under:-
"7. The decision of the Hon‟ble Apex Court in Pavanendra Narayan Verma, (supra), referred and relied upon by the learned counsel for the respondents, has been considered by the Hon‟ble Apex Court in a recent decision in Dr. Vijayakumaran C.P.V. v. Central University of Kerala & Ors., Civil Appeal No.777 of 2020 decided on 28.01.2020. The relevant part of the order reads:
"9. In the case of Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences & Anr.3, the Court observed thus:
"21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full scale formal enquiry (b) into 3 (2002) 1 SCC 520 allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld." In the present case, all the three elements are attracted, as a result of which it must follow that the stated order is exfacie stigmatic and punitive. Such an order could be issued only after 13 OA No. 91/2016 Item No.37/C-II subjecting the incumbent to a regular inquiry as per the service rules. As a matter of fact, the Internal Complaints Committee had recommended to proceed against the appellant appropriately but the Executive Council proceeded under the mistaken belief that in terms of clause 7 of the contract, it was open to the Executive Council to terminate the services of the appellant without a formal regular inquiry as per the service rules. Indisputably, in the present case, the Internal Complaints Committee was constituted in reference to the complaints received from the girl students about the alleged misconduct committed by the appellant, which allegations were duly inquired into in a formal inquiry after giving opportunity to the appellant and culminated with the report recording finding against the appellant with recommendation to proceed against him.
10. Upon receipt of complaints from aggrieved women (girl students of the University) about the sexual harassment at workplace (in this case, University campus), it was obligatory on the Administration to refer such complaints to the Internal Committee or the Local Committee, within the stipulated time period as predicated in Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (for short, „the 2013 Act‟). Upon receipt of such complaint, an inquiry is required to be undertaken by the Internal Committee or the Local Committee in conformity with the stipulations in Section 11 of the 2013 Act. The procedure for conducting such inquiry has also been amplified in the 2015 Regulations. Thus understood, it necessarily follows that the inquiry is a formal inquiry required to be undertaken in terms of the 2015 Regulations. The allegations to be inquired into by such Committee being of "sexual harassment" defined in Section 2(n) read with Section 3 of the 2013 Act and being a serious matter bordering on criminality, it would certainly not be advisable to confer the benefit on such employee by merely passing a simple order of 14 OA No. 91/2016 Item No.37/C-II termination. Such complaints ought to be taken to its logical end by not only initiating departmental or regular inquiry as per the service rules, but also followed by other actions as per law. In such cases, a regular inquiry or departmental action as per service rules is also indispensable so as to enable the employee concerned to vindicate his position and establish his innocence. We say no more.
11. A priori, we have no hesitation in concluding that the impugned termination order dated 30.11.2017 is illegal being exfacie stigmatic as it has been issued without subjecting the appellant to a regular inquiry as per the service rules. On this conclusion, the appellant would stand reinstated, but whether he should be granted back wages and other benefits including placing him under suspension and proceeding against him by way of departmental or regular inquiry as per the service rules, is, in our opinion, a matter to be taken forward by the authority concerned in accordance with law. We do not intend to issue any direction in that regard keeping in mind the principle underlying the exposition of the Constitution Bench in Managing Director, ECIL, Hyderabad & Ors. vs. R. Karunakar & Ors. 4. In that case, the Court was called upon to decide as to what should be the incidental order to be passed by the Court in case after following necessary procedure, the Court/Tribunal was to set aside the order of punishment. The Court observed thus:
"31. ...................Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the 4 (1993) 4 SCC 727 authority/ management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to 15 OA No. 91/2016 Item No.37/C-II law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law." (emphasis supplied) Following the principle underlying the above quoted exposition, we proceed to hold that even though the impugned order of termination dated 30.11.2017 is set aside in terms of this judgment, as a result of which the appellant would stand reinstated, but at the same time, due to flawed approach of the respondent No. 1 -
University, the entitlement to grant backwages is a matter which will be subject to the outcome of further action to be taken by the University as per the service rules and in accordance with law.
12. Accordingly, this appeal partly succeeds. We set aside the impugned judgments and orders dated 30.1.2018 and 20.2.2018 passed by the High Court including the order of termination dated 30.11.2017 issued under the signatures of the Vice Chancellor of the respondent No. 1 - University; and instead direct reinstatement of the appellant and leave the question regarding back wages, placing him under suspension and initiating departmental or regular inquiry as per the service rules, to be taken forward by the authority concerned in accordance with law."
8. The decision of the Hon‟ble Supreme Court in Dr. Vijayakumaran C.P.V. (supra) has further been considered by the Hon‟ble High Court of Delhi in a recent decision in Nina Lath Gupta v. Union of India, 16 OA No. 91/2016 Item No.37/C-II :DHC:2944. The relevant part of the judgment reads as follows:
"29. Another judgment, which needs a mention and is close on facts, is in the case of Dr. Vijayakumaran C.P.V. v. Central University of Kerala and Others, (2020) 12 SCC 426, wherein the Supreme Court observed that the termination order was issued in the backdrop of Internal Complaints Committee Report and going by the terms and tenor of the order, it was incomprehensible to construe such an order to be an order simpliciter when the report of the Inquiry Committee was the foundation. The Supreme Court also reiterated the position of law that the material which amounts to stigma need not be contained in the termination order and may be in any document referred to therein, which reference will inevitably effect the future prospects of the incumbent and if so, the order must be construed as an ex facie stigmatic order of termination."
9. From the aforesaid judgment it stands settled that each and every case has to be considered in the light of the facts and circumstances of case, of course, broadly keeping in view the factors as recorded in the said judgment to find out whether the termination of an employee is punitive or not? It also stands settled that while deciding whether the termination of a probationer is a termination simpliciter or punitive, the Tribunal can travel beyond the order of termination to find out what in reality weighed with the employer to terminate the services of the probationer.
10. From the judgment of the Hon‟ble High Court of Delhi in Nina Lath Gupta (supra) it is settled that even if the order of termination of the probationer, on the face of it, appears to be innocuous and or order simpliciter, however, if the attending circumstances, more particularly the stand taken in the counter-affidavit, the conclusion was irresistible that the order was penal in nature and since the penalty was imposed without affording an opportunity to meet the charge, the order was not sustainable in the eyes of law."
17OA No. 91/2016 Item No.37/C-II
17. The respondents while deciding the appeal of the applicant on 10.12.2015 (Annexure-A/3|) stated the following:-
"7. The official committed grave misconduct during the induction training while he was on probation and such misconduct is not tolerable in a disciplined force like IB in any manner. Considering the serious misconducts of the official, which is unbecoming of a Govt. servant during the induction training Shri Vijay, who was in temporary capacity, was found unsuitable for Government service, and therefore his services were terminated by the competent authority w.e.f. July 2, 2015 under Rule 5 of CCS (TS) Rules, 1965, and as per the provision in para 2
(ii) of offer of appointment."
18. While filing their reply, the respondents have stated that the impugned order is neither punitive nor stigmatic and does not cast any stigma on the applicant. It is an order simpliciter and does not carry any evil consequences. Therefore, the impugned order is in accordance with law.
19. The order dated 10.12.2015 (Annexure-A/3) passed by the Appellate Authority and referred in Para 17 above does not pass the test laid down in the case of Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences & Anr.3. It is well established and judicially evolved test that whether substance of any order of termination is punitive or not is to be seen whether prior to the termination. (a) There was full scale formal enquiry,
(b) allegations involved moral turpitude or misconduct, (c) which culminated in finding of guilt. If all three factors are present, the 18 OA No. 91/2016 Item No.37/C-II termination has been held to be punitive irrespective of the form of termination order. It could be seen that all the three elements are present in the appellate order dated 02.07.2015 (Annexure- A/2). In the aforesaid background, even if it is assumed that the impugned order is a simpliciter, however, in view of specific stand taken by the respondents while disposing of appeal of the applicant the appellate order cannot be construed as order simpliciter.
20. We are of the considered view that the impugned order of termination is founded on account of specific misconduct of applicant that impugned order is found to be punitive and stigmatic and such elements are reflected by the respondents in their appellate order. The same is being passed without holding enquiry and without following principles of natural justice which is not sustainable in the eyes of law.
21. In view of the above, the present OA is allowed with following directions:-
i. Orders dated 12.06.2015 (Annexure-A/1) and 02.07.2015 (Annexure-A/2) passed by the respondents are quashed and set aside and the respondents are directed to reinstate the applicant within six weeks of the receipt of certified copy of this Order.
ii. The applicant shall be entitled to all consequential benefits.19 OA No. 91/2016
Item No.37/C-II iii. However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
iv. No cost. Pending MAs, if any, stand closed
(Rajinder Kashyap) (R.N. Singh)
Member (A) Member (J)
/neetu/