Central Administrative Tribunal - Delhi
Poonam Singh vs Govt. Of Nctd on 18 January, 2018
Central Administrative Tribunal
Principal Bench
OA No.1775/2016
Order Reserved on: 12.01.2018
Order Pronounced on: 18.01.2018
Hon'ble Mr.V. Ajay Kumar, Member (J)
Hon'ble Ms. Nita Chowdhury, Member (A)
Poonam Singh, Aged about 33 years,
D/o Shri R.P. Singh,
R/o 63/I, IInd Floor, Ashok Nagar,
Near Tilak Nagar,
Delhi
(Welfare Officer)
... Applicant
(By Advocate: Shri Ajesh Luthra )
Versus
1. Govt. of NCT of Delhi,
Through its Chief Secretary,
5th Floor, Delhi Sachivalaya,
New Delhi.
2. The Secretary,
Department of Women and Child Development (GNCT of
Delhi),
1, Pt. Ravi Shankar Shukla Lane,
K.G. Marg, New Delhi.
... Respondents
(By Advocate : Shri Vijay Pandita )
ORDER
By Hon'ble Ms. Nita Chowdhury, Member (A) This OA has been filed by the applicant praying for the following reliefs :-
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a. Quash and set aside the impugned order dated 11/9/2015 placed at Annexure A/1.
b. Direct the respondents to re-engage the applicant with all consequential benefits including back wages.
c. Award costs of the proceedings and d. Pass any other order/direction which this Hon'ble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case."
2. The brief facts of the case are that the applicant, who was appointed on contractual basis to the post of Welfare Officer, joined the Department of Women & Child Development, GNCT of Delhi on 25.05.2010 and was posted at Children Home for Girls, Nirmal Chhaya Complex. After working for two years and two months in the Children Home for Girls-I & II, on 08.08.2012, she was transferred to Children Home for Girls-III. During her contractual arrangement, the applicant earned appreciations of the various statutory authorities. However, despite this, vide impugned order dated 11.09.2015 (Annexure-A/1), the contractual services of the applicant have been terminated with immediate effect. The perusal of the impugned order shows that allegations of misconduct and dereliction of duty have been the basis for terminating the applicant's service. Vide said order, it is alleged against the applicant that while she was posted in Short Stay Home, she was required to take appropriate steps for the restoration of the girls in 3 OA No.1775/2016 a timely manner and also to maintain the records of efforts made by her in this regard. The attitude for the inmate girls was also found apathetic.
3. It is further submitted that this action of the respondents is illegal and hence, the applicant submitted her representation dated 21.09.2015 (Annexure-A/4). However, despite lapse of considerable time, no response has been received. In support of her contentions, the applicant also relied upon decisions of this Tribunal in Dr. Nitin Kumar & Anr. Vs. Govt. of NCT of Delhi & Ors. 2008(2) SLJ 348 (CAT) and OA No. 665/2015 and batch in Isha Sharma Vs. GNCTD & Ors.
4. On the other hand, learned counsel for respondents contended that on 08.09.2015, the Homes were visited by the Commission and finding no improvement in the living conditions of the inmates and functioning of the Homes, the Chairperson, Delhi Commission for Women submitted a report dated 10.09.2015 to Delhi Government.
5. On the basis of above report, the working of the applicant was not found up to the mark and since she was also indicted for deplorable situations of the Home, as such, as per terms and conditions of her engagement, her contractual engagement, which was valid up to 30.09.2015 vide Order 4 OA No.1775/2016 No.F.9(31)/DWCD/Admn./2014/11487-511 dated 18.06.2015, on the condition that the applicant shall perform her duties in the institution up to the satisfaction of the branch in-charge, was terminated vide Order No.F.4(52)/DWCD/Admn./2015/24674-677 dated 11.09.2015. In the order due to typographical error applicant posting was recorded as Short Stay Home in place of Nari Niketan and the order was forwarded to the applicant to her residential address.
6. The short point in this OA is as to whether the services of the applicant, being a contractual employee, could have been terminated without giving her any notice especially when it is alleged by the applicant that the termination of her contractual employment was stigmatic.
7. Therefore, once it is proved that the services of the applicant was terminated by virtue of impugned stigmatic order, on the basis of misconduct, then the protection under Article 311 of the Constitution of India is available to her and her services cannot be terminated on speculative grounds, without holding any enquiry. This matter is no more res integra and is now well settled.
8. An identical question came to be decided by the Hon'ble Apex Court in the Ratnesh Kumar Choudhary Vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Others JT 5 OA No.1775/2016 2015 (9) 363, wherein having considered the previous judgments of Hon'ble Supreme Court in cases Samsher Singh v. State of Punjab (1974) 2 SCC 831, Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and Another (1999) 2 SCC 21, State of U.P. vs. Kaushal Kishore Shukla (1991) 1 SCC 691, Triveni Shankar Saxena vs. State of U.P. (1992) Supp (1) SCC 524, State of U.P. vs. Prem Lata Misra (1994) 4 SCC 189, Samsher Singh (supra), Parshotam Lal Dhingra vs. Union of India AIR 1958 SC 36, State of Bihar vs. Gopi Kishore Prasad AIR 1960 SC 689, State of Orissa vs. Ram Narayan Das AIR 1961 SC 177, Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, Anoop Jaiswal vs. Govt. of India (1984) 2 SCC 369, Nepal Singh vs. State of U.P. (1980) 3 SCC 288, Commissioner, Food & Civil Supplies vs. Prakash Chandra Saxena (1994) 5 SCC 177, Commissioner, Food & Civil Supplies vs. Prakash Chandra Saxena (1994) 5 SCC 177, Chandra Prakash Shahi vs. State of U.P. and Others (2000) 5 SCC 152, Union of India and Others vs. Mahaveer C. Singhvi (2010) 8 SCC 220, Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences (1999) 3 SCC 60, Pavanendra Narayan Verma vs. Sanjay Gandhi P.G.I. of Medical Sciences and Another (2002) 1 SCC 520] and State Bank of India and Others vs. Palak 6 OA No.1775/2016 Modi and Another (2013) 3 SCC 607, it was ruled by the Apex Court that if the termination order is stigmatic and based or founded upon misconduct, it would be a punitive order and court can lift the veil and declare that in the garb of termination simpliciter, the employer has punished an employee, for an act of misconduct. It was also held that if a probationer is discharged on the ground of misconduct or inefficiency or for similar reason, without a proper enquiry and without his getting a reasonable opportunity of showing cause against the termination, it may amount to removal from service within the meaning of Article 311 (2). Hence, a show cause notice was required to be issued and opportunity of being heard has to be provided to such employees in departmental enquiry before passing any adverse order, in the absence of which, the termination order would be inoperative and non-est in the eyes of law.
9. Therefore, such impugned stigmatic order of termination, against the applicants by the competent authority would be inoperative and cannot legally be sustained. Thus, the contrary arguments of the learned counsel for the respondents stricto sensu deserve to be and are hereby repelled. On the other end the ratio of law laid down in the indicated judgments by Hon'ble Apex Court is mutatis mutandis applicable to the facts of the present case and is a complete answer to the problem in hand.
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10. Thus, seen from any angle, the impugned orders cannot legally be sustained in the obtaining circumstances of the case.
11. In the circumstances, the OA is allowed, in view of the fact that applicant should not have been removed without following the process described above in the judgment of Ratnesh Kumar Choudhary (supra). The impugned order dated 11.09.2015 (Annexure-A/1) being a stigmatic one is set aside. As applicant's contractual employment was to end on 30.09.2015, she is entitled to wages upto that period. Further, in future, if she applies for any appointment, no stigma will be held against her for termination of her contract prematurely. No costs.
( Nita Chowdhury ) ( V. Ajay Kumar )
Member (A) Member (J)
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