Central Administrative Tribunal - Delhi
Sh. Janved Meena vs Govt. Of Nct Of Delhi on 1 January, 2012
Central Administrative Tribunal
Principal Bench
OA NO. 57/2011
New Delhi this the 9th day of January, 2012
Honble Mr.G.George Paracken, Member (J)
Honble Dr. Veena Chhotray, Member (A)
Sh. Janved Meena
S/o shri Ravilas Meena
R/o Staff Nurse (Under Susension)
Room No.13, N.O.Hospital,
Jag Pravesh Chand Hospital
Shastri Park,
Delhi-110053.
. Applicant
(By Advocate: Sh. Sachin Chauhan)
Versus
Govt. of NCT of Delhi
Through its Secretary,
Department of Health & Family Welfare,
New Secretariat,
New Delhi.
Medical Superintendent
Jag Pravesh Chand Hospital
Govt. of NCT of Delhi
Department of Health & Family Welfare,
Shastri Park,
Delhi.
Chief Secretary,
Govt. of NCT of Delhi
Ministry of Health & Family Welfare,
I.P.Estate,
New Delhi.
.. Respondents
(By Advocate: Ms.P.K.Gupta)
O R D E R
Honble Shri George Paracken:
The applicant is aggrieved by the Annexure A-1 notice of termination of his service dated 11.12.2010 issued under Rule 5 (1) of the CCS (Temporary Service) Rules, 1965 stating that his services shall stand terminated with effect from the date of expiry of a period of one month. Accordingly, he stood terminated w.e.f. 11.1.2011.
2. Brief facts necessary for adjudication of this case are delineated here. The applicant was offered the post of staff nurse in Jag Pravesh Chand Hospital under the Department of Health and Family Welfare, Govt. of NCT of Delhi vide memo dated 14.2.2009. He was later on appointed vide order dated 25.3.2009. According to the applicant, he was falsely implicated in criminal case No. 29/2010 dated 8.7.2010 u/s 7, 13 PC Act R/W 120B IPC PS AC Branch, GNCT of Delhi and he was detained under custody on 8.7.2010. Pursuant to the same, he was suspended from service vide order dated 13.7.2010 under Rule 10 (2) of CCS (CCA) Rules, 1965. Thereafter, the respondents have issued the impugned notice of termination of service dated 11.12.2010 under Rule 5 (1) of CCA (Temporary Services) Rules, 1965. The applicant submitted the Annexure A-5 appeal against the said show cause notice to the Medical Superintendent of the Hospital. According to the applicant, the only reason for issuing the aforesaid notice to him was the alleged misconduct of involvement in the aforesaid criminal case. He has, therefore, challenged the aforesaid impugned notice of termination in this Original Application on the ground that since it was on the basis of misconduct, the termination of service without enquiry would be illegal, unjustified, arbitrary, malafide and would be in violation of principles of natural justice as laid down in the departmental rules. Further, he has submitted that in the ordinary course only in the event of unsatisfactory performance of an employee on probation, his service can be terminated under the CCS (Temporary Services) Rules, 1965. But in his case, the very foundation for the issuance of the impugned order is misconduct and not his unsatisfactory performance in duty. During the pendency of this OA, the respondent issued office order dated 11.1.2011 by which the applicants service was terminated w.e.f. 10.1.2011 (AN). Therefore, the applicant amended the OA vide Miscellaneous Application No. 824 of 2011 seeking an order setting aside the aforesaid impugned notice dated 11.12.2010 and order of termination dated 11.1.2011 and direction to the respondents to reinstate him in service with all consequential benefits.
3. In support of his aforesaid submissions, the learned counsel for applicant has relied upon the judgment of Apex Court in Nehru Yuva Kendra Sangathan vs. Mehbub Alam Laskar, (2008) 1 SCC (L&S) 457, wherein it has been held as under:
16. Respondent was appointed on a temporary basis. He was put on probation. Indisputably, the period of probation was required to be completed upon rendition of satisfactory service. Only in the event of unsatisfactory performance by the employee, the termination of probation would have been held to be justified. It is, however, well-known that when the foundation for such an order is not the unsatisfactory performance on the part of the employee but overt acts amounting to misconduct, an opportunity of hearing to the concerned employee is imperative. In other words, if the employee is found to have committed a misconduct, although an order terminating probation would appear to be innocuous on its face, the same would be vitiated, if in effect and substance it is found to be stigmatic in nature.
17. Mere holding of a preliminary enquiry where explanation is called for from the employee, if followed by an innocuous order of discharge, may not be held to be punitive in nature but not when it is founded on a finding of misconduct.
4. He has also relied upon the judgment of Apex Court in Chandra Prakash Shahi vs. State of UP and others, (2000) 5 SCC 152, wherein it has been held as under:
28. The important principles which are deducible on the concept of "motive" and "foundation", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive".
5. Again he has relied upon the order of this Tribunal in OA-2663/2006 Desh Raj vs. Govt. of NCTD and another, wherein it has been held as under:
6. We have perused the counter affidavit of the Respondents with the assistance of the learned counsel. The following facts have been stated about the misconduct of the Applicant and the enquiry conducted against him in the counter affidavit :
The services of Recruit Constable Desh Raj No.2178/PTC (hereinafter called the applicant) were terminated on the allegation that on the intervening night of 4/5.11.2006, SI Jeevan Lal No. D-1910 was on Day Officer duty at PTS, Wazirabad and at about 11.15 P.M., a Police Personnel from CRPF Camp informed to the Duty Officer of PTS/Wazirabad that an intruder was caught by the CRPF Sentry towards CRPF/Mahila Camp, under intoxicated condition and who belongs to PTS, Wazirabad as per I/Card recovered from him. After receiving the information, SI Jeevan Lal, Day Officer rushed to the CRPF Camp where Deputy Commandant Poonam Gupta handed over one letter addressed to Principal/PTS, Delhi Police Wazirabad, Delhi mentioning therein that at about 2200 hrs. one Delhi Police Recruit Constable namely Desh Raj No. 2178/PTC entered by jumping over the wall between the Delhi Police Training Centre Campus and 103 Bn. CRPF who was captured by the Mahila Personnel and handed over to Delhi Police Staff and recovered I/Card from the Recruit Constable. SI Jeevan Lal, Day Officer also recorded the statement of Lady Constable J. Jay R. No. 953357535, Lady Constables Prabha Pant No. 953353048 and Lady Constable Joy Pushpa No. 943070614, they also corroborated the same story.
Since, he was undergoing his basic training of Rect. Constable and committed grave misconduct during training period, which is not tolerable in a disciplined force in any manner and found unsuitable for Police Department. Therefore, his services were terminated under Rules 5(1) CCS (Temporary Service) Rules-1965 vide officer order No.42548-595/SIP/PTC dated 13.11.2006. From a perusal of the above, it is very clear that an enquiry into an alleged misconduct by the Applicant has been conducted and his service has been terminated because of the misconduct alleged against him.
7. In other words, the order of termination is founded on the allegation of misconduct and it is, therefore, definitely punitive. There would be no occasion to interfere in the order of termination if it was issued on the basis of general unsuitability of the concerned person for his job. However, the order is not based on unsuitability of the Applicant for the post of Constable in Delhi Police. If misconduct is alleged against the Applicant, then there should have been an enquiry in which opportunity should have been given to the Applicant to defend himself. The punitive action should have been taken by holding a regular departmental enquiry. The Honble Supreme Court in Chand Prakash Shahi (supra) has held that The benefit and protection of Article 311(2) of the Constitution is available not only to temporary servants but also to a probationer and the Court in an appropriate case would be justified in lifting the veil to find out the true nature of the order by which the services were terminated.
8. The facts in this case are very clear and there is no need to labour this point any further that the Applicants services have been terminated as a result of an enquiry conducted behind his back about his misconduct and have not been terminated because of the Applicant being found unsuitable for service as Constable. The order is, therefore, punitive in nature.
9. On the basis of above, we quash the impugned order dated 13.11.2006. The Applicant should be reinstated and will be eligible for all consequential benefits. The above action should be taken within one month of the receipt of a copy of this order. The Respondents have, however, the liberty to take appropriate action against the Applicant for his alleged misconduct strictly in accordance with law, if deemed necessary by them. There will be no order as to costs.
6. Respondents have filed the reply. They have refuted the contentions of the applicant. They have also stated that no preliminary enquiry has been conducted in this case. Applicant was on probation and his services were terminated because he was not found suitable for continuous retention of service.
7. We have heard the learned counsel for the parties. We have also perused the departmental file made available by the learned counsel for the respondents. It is seen from the record that the applicant was placed under deemed suspension for the reason that he was arrested and detained in custody from 8.7.2010 as he was allegedly caught red handed while demanding and accepting the bribe of Rs.15,000/- by the Anti Corruption Branch for clearance of the name of one Sh. Rohtash Yadav in the medical examination for the post of Constable in Delhi Police. Thereafter, the Review Committee at its meeting held on 1.11.2010 decided to continue with his suspension till further review awaiting status report from the Anti Corruption Branch. Later on, on the basis of legal opinion received from the Law Department, the respondent have decided to invoke the provisions contained in Rule 5(1) of the CCS (Temporary Services) Rules, 1965 to terminate the service of the applicant without giving any reasons.
8. It is very clear from the above facts on record that the alleged misconduct of bribery and the consequential arrest and detention is the basic reason for the respondents to take the decision to terminate the service of the applicant invoking the provisions of Rule 5 (1) of the CCS (Temporary Services) Rules, 1965. In other words, the order of termination is founded on the allegation of misconduct and it is, therefore, punitive. In view of the above position, the short cut method of termination of service adopted by the respondents is illegal, arbitrary and violative of the principles of natural justice.
9. We, therefore, allow this OA. Consequently, the impugned notice of termination of service dated 11.12.2010 and the order of termination dated 11.1.2011 are quashed and set aside. The respondents shall reinstate the applicant forthwith and continue to keep him under suspension on payment of the same subsistence allowance entitled for up-to-date arrears of subsistence allowance which shall be paid to him within one month from the date of receipt of a copy of this order. Since the last Review Committee has met only on 1.11.2010, the respondents shall convene the Review Committee immediately to decide about his continued suspension/payment of enhance subsistence allowance. The respondents are, however, at liberty to take appropriate action against the applicant for his alleged misconduct in accordance with rules, if considered necessary by them. There shall be no order as to costs.
( Dr. Veena Chhotray ) ( George Paracken )
Member (A) Member (J)
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