Central Administrative Tribunal - Delhi
Manjeet Singh vs M/O Home Affairs on 28 July, 2023
1
OA No.4727/2015
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.4727/2015
Reserved on: 20.07.2023
Pronounced on: 28.07.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Manjeet Singh, Age-23 years,
S/o late Sh. Suresh Kumar,
House No.302/A, Village Katlupur,
PO-Nahri, District Sonepat,
Haryana-131103.
...Applicant
(By Advocate: Sh. 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,
Intelligence Bureau,
Ministry of Home Affairs,
Govt. of India, 35, S.P. Marg,
New Delhi-110 021.
4. The Assistant Director/E,
Subsidiary Intelligence Bureau,
Ministry of Home Affairs,
Govt. of India, Varansi,
Uttar Pradesh.
-Respondents
(By Advocate: Shri R.K. Jain)
2
OA No.4727/2015
ORDER
Hon'ble Mr. R.N. Singh, Member (J):
Through the medium of this Original Application (OA), filed under Section 19 of the Administrative Tribunals Act, 1985, applicant has prayed for the following reliefs:
"(i) To quash and set aside the order dated 04.08.2015 whereby the services of the applicant to the post of LDC has been terminated and order dated 03.11.2015 whereby the statutory 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.
or/and
(ii) Any other relief which this Hon'ble Court deems fit and proper may also be awarded to the applicant."
2. 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 Intelligence Bureau on the basis of Combined Higher Secondary Examination, 2012 conducted by the Staff Selection Commission on 26.09.2014 in a temporary capacity as Lower Division Clerk (LDC) at Subsidiary Intelligence Bureau, Varansi.
3OA No.4727/2015 2.1 The respondent issued a Memorandum whereby the applicant was directed to attend the two-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 was nominated at Hostel Monitor by DCIO/Training.
2.2 However, the applicant was shocked to receive order dated 04.08.2015 issued by Assistant Director/E, Subsidiary Intelligence Bureau, Govt. of India, Lucknow whereby his services have been terminated under sub rule (1) of Rule 5 of the CCS (Temporary Service) Rules.
2.3 The applicant made an appeal against the order of termination dated 04.08.2015 to the competent authority on 10.08.2015. 2.4 The respondents conducted Preliminary Enquiry (PE) against the applicant in respect of the false and vague allegation and the order of termination issued by the Disciplinary Authority (DA) is only formal in nature but otherwise the decision to terminate 4 OA No.4727/2015 the services of the applicant has been taken at the Head Office of IB at Delhi.
2.5 The applicant has not been communicated officially about nature of misconduct on the basis of which he has been terminated. He through unofficial sources came to know about his termination along with 03 other officials who were also sent for induction court at Kolkata along with the applicant. This was confirmed by the applicant from Mr. Vijay, Mr. Anand Singh and Mr. Parveen as they have also been terminated from service under Rule 5 (1) of CCS (TS) Rules, 1965.
2.6 In the instant case the applicant is falsely implicated due to wrong identification in respect of few complaints made during the period of induction course attended by him at RTC, Kolkata between May 25 to June 05, 2015. He is not aware of the nature of the complaint nor the fact that how does he come in picture and hence the termination order is stigmatic as being solely founded on false 5 OA No.4727/2015 complaint against him during the induction course at Kolkata.
2.7 The applicant approached this Tribunal in OA No.3864/2014 against the inaction of the respondents in not deciding his appeal. The respondents, however, rejected his appeal by a non-speaking and mechanical order, thus making the order as bad in law.
3. Shri Sachin Chauhan, learned counsel appearing for the applicant submitted that though the services of the applicant have been terminated by a non-stigmatic order simpliciter but the foundation of the termination order is his specific misconduct. The Court can lift the veil to ascertain the foundation. However, in the present case veil is not even required to be lifted in view of the assertions made by the respondents in the counter-reply. 3.1 Shri Chauhan further submitted that the issue raised in the instant case is no more res integra and is settled by a recent decision of the Division Bench of this Tribunal in Satyender v. Govt. of NCT of Delhi & Ors., decided on 02.06.2023, where both of us 6 OA No.4727/2015 (Hon'ble Mr. R.N. Singh, Member (J) and Hon'ble Mr. Sanjeev Kumar, Member (A)) were constituting the Bench.
3.2 The learned counsel further relied on a decision of the Hon'ble High Court of Delhi in S.S. Mota Singh Jr. Model School v. Tanjeet Kaur and Anr., W.P. (C) No.6284/2012, decided on 07.07.2015. The learned counsel, therefore, prayed that the instant OA is required to be allowed in terms of the directions given in the aforesaid cases. 3.3 In view of the above, the learned counsel submitted that since the termination of the applicant is based on the applicant's specific misconduct, it cannot be termed as an order simpliciter. The impugned order, is, therefore, found to be punitive and stigmatic and is required to be quashed and set aside by allowing the instant OA, keeping in view the directions of this Tribunal in Satyender (supra).
4. Per contra, Mr. R.K. Jain, learned counsel appearing for the respondents vehemently opposed the contentions of the 7 OA No.4727/2015 applicant and by referring to the counter-reply filed by the respondents, submitted that "During the induction training for LDCs at RTC Kolkata, 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 Government 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 04, 2015 four trainees (including the applicant) indulged in gross indiscipline and unruly behaviour, 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 identifying the four trainee LDCs including the applicant. On June 05, 2015, the four trainees were pulled out of the training before its completion due to the facts mentioned above." 8 OA No.4727/2015 4.1 Shri Jain further submitted that the services of the applicant along with three other LDCs were terminated under Rule 5 (1) of CCS (TS) Rules, 1965, due to gross indiscipline and unruly behaviour while undergoing induction training at Kolkata. The said decision has been taken purely on administrative grounds. The misconducts of the applicant along with three others were examined threadbare. The victims of the misconduct could be assuaged by nothing less than termination. 4.2 It is further submitted that they were also repeatedly made aware about the provisions of Conduct Rules and Temporary Service Rules. In spite of that, on the night of June 04, 2015, four trainees, including the applicant indulged in gross indiscipline and unruly behaviour, 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. 4.3 It is submitted that the impugned order is not punitive as no stigma has been cast on 9 OA No.4727/2015 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 submitted 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.
4.4 In support of his contention Shri Jain has relied upon a decision of the Hon'ble Supreme Court in Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Another, (2002) 1 SCC 520. 4.5 In view of the submissions made hereinabove, the learned counsel submitted that the OA is liable to be dismissed being devoid of merit.
5. We have considered the submissions made by the learned counsels appearing for 10 OA No.4727/2015 the respective parties and also gone through the pleadings on record, including the judgments relied upon by learned counsels appearing for both the parties.
6. The short question, which arises for our consideration in this OA, is whether the impugned order of termination is an order simpliciter or ex-facie stigmatic?
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 11 OA No.4727/2015 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 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 12 OA No.4727/2015 employee by merely passing a simple order of 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 law, after the culmination of the proceedings 13 OA No.4727/2015 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 14 OA No.4727/2015 Nina Lath Gupta v. Union of India, 2023: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 simplicitor 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 15 OA No.4727/2015 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.
11. Further, we are of the considered opinion that the issue raised in the instant case is squarely covered by the decision of the Division Bench of this Tribunal in Satyendra (supra) and as such the directions given therein are mutatis mutandis applicable to the facts of the present case. We, therefore, follow the same.
16OA No.4727/2015
12. In the aforesaid background, even if it is assumed that the impugned order of termination dated 04.08.2015 is 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. We, therefore, hold that the impugned termination order is not an order simpliciter but ex-facie stigmatic, keeping in view the stand taken by the respondents in the counter-reply.
13. In the result, for the foregoing reasons, the impugned order dated 04.08.2015, whereby the services of the applicant to the post of LDC has been terminated and Appellate Order dated 03.11.2015, rejecting the appeal 17 OA No.4727/2015 of the applicant, are quashed and set aside. The respondents are directed to reinstate the applicant in service on the post of LDC, 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.
14. 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.
(Sanjeeva Kumar) (R.N.Singh)
Member (A) Member (J)
'San.'