Central Administrative Tribunal - Delhi
Devender Singh vs Govt. Of Nctd on 23 May, 2023
1 O.A. No.660 of 2017
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.660 of 2017
Orders reserved on : 22.05.2023
Orders pronounced on : 23.05.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
R/Const. Devender Singh, aged - 29+ years
S/o Sh. Inder Singh,
R/o VPO_Rurkee,
District-Rohtak, Haryana.
...Applicant
(By Advocates: Shri Sachin Chauhan with Ms. Vaishali
Sulkhlan)
VERSUS
1. Govt. of NCTD through
the Chief Secretary,
Govt. of NCTD,
A-Wing, 5th Floor,
Delhi Secretariat,
New Delhi-110113.
2. The Commissioner of Police,
Police Headquarters, I.P. Estate,
New Delhi.
3. The Dy. Commissioner of Police,
Vice Principal (HQ),
Police Training College,
Jharoda Kalan, New Delhi.
...Respondents
(By Advocate: Shri Amit Yadav with Ms. Ridhi Dua)
2 OA No.660 of 2017
ORDER
Hon'ble Mr. R.N. Singh, Member (J):
By way of the present OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the order dated 11.01.2013 (Annexure A/1) passed by the respondents by invoking the provisions of sub-rule (1) of Rule 5 of Central Civil Service (Temporary Service) Rules, 1965 vide which the applicant's services have been terminated forthwith. Under challenge is also the order dated 22.05.2013 (Annexure A/2) vide which the appellate authority has rejected the appeal of the applicant.
2. The applicant in the present OA has prayed for setting aside of the said impugned orders and has also prayed for a direction to the respondents to reinstate him to the post of Constable (Executive) in Delhi Police forthwith with all consequential benefits, including seniority, promotion, pay and allowances.
3. In opposition of the claim of the applicant, the respondents have filed counter reply wherein they have prayed for dismissal of the OA with costs. The applicant 3 OA No.660 of 2017 has filed rejoinder and has reiterated his claim as made in the OA.
4. We have heard the learned counsels for the parties and have also perused the pleadings available on record.
5. The undisputed facts are that the applicant participated in the selection process for the post of Constable (Executive) (Male) in Delhi Police held in the year 2011-12. He was provisionally selected for such post and he was directed to join Police Training School, Wazirabad, Delhi for basic induction course with ongoing batch No.96, he joined the services of the respondents as such on 4.10.2012.. The respondents by invoking the provisions of sub-rule (1) of Rule 5 of the Rules ibid terminated the services of the applicant forthwith vide impugned order dated 11.01.2013. The applicant approached this Tribunal through OA No.1080/2013. However, vide order dated 20.12.2016 (Annexure A-6), the said OA was dismissed as withdrawn with liberty to the applicant to challenge the impugned order dated 11.01.2013 as well as the impugned appellate authority's order dated 22.05.2013 passed during the pendency of the said OA. Through the counter reply as well as impugned 4 OA No.660 of 2017 appellate order, it is evident that four days prior to the impugned order dated 11.01.2013, the applicant's following absence periods were declared as periods 'not spent on duty' (dies non) for his wilful unauthorized absence vide order dated 07.01.2013 (Annexure A-4):-
SL. Date of absence/arrival Period of absence No. D H M 1 45/12/13.11.2012 07 12 00 18/20.11.2012 2 17/09.12.2012 03 21 00 33/13.12.2012 3 08/23.12.2012 15 03 00 21/07.01.2013
6. The applicant was also awarded five days punishment drill for his absence for five hours on 11/12.10.12 and for his absence for sixteen hours on 25/26.10.12, one day's casual leave and punishment drill for 15 days was awarded to the applicant by the respondents. Thus, the present OA.
7. Learned counsel for the applicant has submitted that though the impugned termination order dated 11.01.2013 appears to be an order simpliciter, however, the same is based on the findings of unauthorized absence and for 5 OA No.660 of 2017 majority portion of such absence, the respondents have declared such period(s) 'not spent on duty'. However, such absence of the applicant has been categorically treated as wilful unauthorized absence and serious misconduct not only in their final order, i.e., the impugned appellate authority's order dated 22.05.2013 but also in their counter reply. As such in view of the settled position of law, the impugned orders are not sustainable in the eyes of law. In support of his arguments, Shri Chauhan, learned counsel for the applicant, has placed reliance on the Order/Judgment dated 13.2.2019 of a coordinate Bench of this Tribunal in OA No.893/2013, titled R/Const.
Yudhveer Singh vs. Govt. of NCTD and another. He has also placed reliance on the Order/Judgment dated 7.7.2015 of the Hon'ble High Court of Delhi in Writ Petition (Civil) No.6284/2012, titled S.S. Mota Singh. Jr. Model School vs. Tanjeet Kaur and another (Annexure A-7).
8. On the other hand, Shri Yadav, learned counsel appearing for the respondents, has vehemently opposed the claim of the applicant. He has argued that the impugned order dated 11.01.2013 (Annexure A-1) is an 6 OA No.660 of 2017 order simpliciter and there is nothing stigmatic/punitive in the said order. He has, accordingly, argued that interference of this Tribunal is not warranted. With regard to the stigma alleged in the impugned appellate authority's order dated 22.5.2013 (Annexure A-2), he has argued that the said order was passed by the appellate authority while dealing with the applicant's appeal and, therefore, the appellate authority's order is justified in giving reasons for termination of the services of the applicant by the disciplinary authority. He has added that in the absence of any reason in the appellate authority's order, the applicant could have been aggrieved of disposal of his appeal without reason(s). Learned counsel has further argued that approximately 10 years have passed after termination of the services of the applicant and at this belated stage, it is doubtful whether the applicant would be found medically fit to undergo rigorous training required for police personnel, particularly, keeping in view the fact that at the time of termination of his services, the applicant was a trainee. He has also argued that during probation, the applicant was not found suitable to be continued and, therefore, his services were terminated by an order simpliciter and in view of the law laid down by 7 OA No.660 of 2017 the Hon'ble Apex Court vide Judgment dated 21.9.2010 in Writ Petition (Civil) No.95/2004, titled Rajesh Kohli vs. High Court of J. & K. & another, interference by this Tribunal in the impugned orders are not warranted. He has further submitted that the law laid down by the Hon'ble Apex Court in Rajesh Kohli (supra) has not been considered by this Tribunal as well as the Hon'ble High Court of Delhi in the cases on which reliance has been placed on behalf of the applicant. As such the Orders/Judgments of this Tribunal and of the Hon'ble High Court are not binding precedent and the same are only Orders/Judgments in per incuriam.
9. We have perused the pleadings available on record and considered the submissions made by the learned counsels for the parties and have also gone through the Orders/Judgments referred to and relied upon by the learned counsels for the parties carefully.
10. In the case of Const. Yudhveer Singh (supra), under challenge was the order of termination passed by the respondents therein of a recruit Constable undergoing basic training, who absented himself from training on various occasions. After considering the law laid down by 8 OA No.660 of 2017 the Hon'ble Apex Court in a catena of cases, the Tribunal held in paras 7 to 9 as under:-
"7. In Ratnesh Kumar Choudhary Vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Others JT 2015 (9) 363, where a probationer Chest Therapist was terminated from his 5 OA No.893/2013 service, by stating that his appointment on the post of Chest Therapist was illegal in terms of investigation done by the Cabinet (Vigilance) Department and the explanation furnished by the appellant in pursuance of the show cause notice had been found unsatisfactory. The Hon'ble Apex Court while examining the contention of the appellant that his termination order was punitive and in violation of the principles of natural justice, after considering the various judgments of Hon'ble Supreme Court in 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. 9 OA No.660 of 2017 Sanjay Gandhi P.G.I. of Medical Sciences and Another (2002) 1 SCC 520] and State Bank of India and Others vs. Palak Modi and Another (2013) 3 SCC 607, ruled that if the termination order is stigmatic and based or founded upon misconduct, 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 regular departmental enquiry was required to be conducted before passing any adverse order. In the absence of which, the termination order would be inoperative and non-est in the eyes of law. The relevant paragraph of the said judgment reads as under:-
"28. In the case at hand, it is clear as crystal that on the basis of a complaint made by a member of the Legislative Assembly, an enquiry was directed to be held. It has been innocuously stated that the complaint was relating to illegal selection on the ground that the appellant did not possess the requisite qualification and was appointed to the post of Chest Therapist. The report that was submitted by the Cabinet (Vigilance) Department eloquently states about the conduct and character of the appellant. The stand taken in the counter affidavit indicates about the behaviour of the appellant. It is also noticeable that the authorities after issuing the notice to show cause and obtaining a reply from the delinquent employee did not supply the documents. Be that as it may, no regular enquiry was held and he was visited with the punishment of dismissal. It is well settled in law, if an ex parte enquiry is held behind the back of the delinquent employee and there are stigmatic remarks 10 OA No.660 of 2017 that would constitute foundation and not the motive. Therefore, when the enquiry commenced and thereafter without framing of charges or without holding an enquiry the delinquent employee was dismissed, definitely, there is clear violation of principles of natural justice. It cannot be equated with a situation of dropping of the disciplinary proceedings and passing an order of termination simpliciter. In that event it would have been motive and could not have travelled to the realm of the foundation. We may hasten to add that had the appellant would have been visited with minor punishment, the matter possibly would have been totally different. That is not the case. It is also not the case that he was terminated solely on the ground of earlier punishment. In fact, he continued in service thereafter. As the report would reflect that there are many an allegation subsequent to the imposition of punishment relating to his conduct, misbehaviour and disobedience. The Vigilance Department, in fact, had conducted an enquiry behind the back of the appellant. The stigma has been cast in view of the report received by the Central Vigilance Commission which was ex parte and when that was put to the delinquent employee, holding of a regular enquiry was imperative. It was not an enquiry only to find out that he did not possess the requisite qualification. Had that been so, the matter would have been altogether different. The allegations in the report of the Vigilance Department pertain to his misbehaviour, conduct and his dealing with the officers and the same also gets accentuated by the stand taken in the counter affidavit. Thus, by no stretch of imagination it can be accepted that it is termination simpliciter. The Division Bench has expressed the view that no departmental enquiry was required to be held as it was only an enquiry to find out the necessary 11 OA No.660 of 2017 qualification for the post of Chest Therapist. Had the factual score been so, the said analysis would have been treated as correct, but unfortunately the exposition of factual matrix is absolutely different. Under such circumstances, it is extremely difficult to concur with the view expressed by the Division Bench".
8. In the present case, admittedly the respondents conducted an enquiry against the applicant, in respect of his alleged unauthorised absence and awarded him a written warning for the said misconduct. Further, though the impugned termination order has not given any reasons, but the facts preceding the termination order and the averments of the respondents in the counter clearly establishes that the misconduct of the applicant indeed constitutes the foundation and not motive of the action taken, the same amount to be in violation of the principles of natural justice and hence liable to be set aside.
9. Further, as the respondents have already awarded the written warning to the applicant for his proved misconduct of unauthorised absence, they cannot impose another punishment for the same misconduct, i.e. termination from service."
11. In S.S. Mota Singh. Jr. Model School (supra), before the Hob'ble High Court of Delhi, under challenge was the Order passed by the learned Delhi School Tribunal vide which the learned Delhi School Tribunal has concluded that the misconduct was the ground for terminating the services of the respondent No.1 therein and the petitioner/School ought to have conducted Domestic Enquiry in terms of the procedure laid down under the rules and further held that the words 12 OA No.660 of 2017 "Dereliction of Duty" and "Violation of Decorum" of the school, referred to in the impugned order, are stigmatic in nature. The Hon'ble High Court after considering the law laid down by the Hon'ble Apex Court in a series of cases has held in para 12 of the Order/Judgment that 'In so far as the conclusion of the Tribunal that the order of termination is stigmatic is concerned, the same would depend upon the nature/words mentioned, which, depicts the foundation of the order of termination'. The Hon'ble High Court has further noted in para 12 of the Order/Judgment that the Constitution Bench of the Hon'ble Supreme Court in Parshotam Lal Dhingra vs. Union of India, reported in AIR 1958 SCR 826, has ruled that 'it is not the form of the termination order but the substance thereof, which would determine the real reason behind the termination order.' Further in para 14 of the Order/Judgment in S.S. Mota Singh. Jr. Model School (supra), the Hon'ble High Court of Delhi has held that in the decision of the Constitution Bench in Shamsher Singh v. State of Punjab reported in AIR 1974 SC 2192, it was held that where the order of termination of services of a probationer is motivated by misconduct, negligence, inefficiency or any other disqualification, the same is not 13 OA No.660 of 2017 punitive. However, where the order terminating the services of a probationer is founded on misconduct, negligence, inefficiency or any other like disqualification, the same is punitive. In para 19 of the said Order/Judgment, the Hon'ble High Court of Delhi has observed as under:-
"19. In a judgment in S.B.I & Ors vs. Palak Modi & anr. 2013 (3) SCC 607, the Supreme Court while considering an issue related to termination of a probationer, after summing up the position of law right from Parshotam Lal Dhingra's case (supra) has held that if a final decision, taken by the competent authority to dispense with the services of the probationer albeit by a non stigmatic order, the Court can lift the veil and declare that in the garb of termination simplicitor, the employer has punished the employee for a matter of misconduct."
12. Recently, the coordinate Bench of this Tribunal vide Order/Judgment dated 8.2.2013 in OA No.2470/2015, titled Capt. Yashraj Tongia vs. Union of India and another, has considered the similar issue, paras 10 and 11 thereof read as under:-
"10. The Apex Court in Mathew P. Thomas v Kerala State Civil Supply Corpn. Ltd. & others [(2003) 3 SCC 263], in para 11 held as follows:
"....From a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times 14 OA No.660 of 2017 the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. If the form and language of the so- called order of termination simpliciter of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. In cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simpliciter, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct."
The above observation of the Apex Court makes it clear 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 is the background and what weighed with the employer to terminate the services of the probationer. 15 OA No.660 of 2017
11. The Hon‟ble Supreme Court in Dipti Prakash Banerjee v Satyendra Nath Bose National Centre for Basic Sciences, Calcutta & others [(1999) 3 SCC 60], laid down the criterion for differentiating as to when a simple order of termination is to be treated as „founded‟ on the allegations of misconduct, and when complaints could be only as a „motive‟ for passing such an order of termination. The Hon‟ble Supreme Court held that to determine as to whether the termination of services is punitive or simpliciter would depend upon the stigma in the order of termination. It was held that stigma may be inferable from the references quoted in the termination order, though the order itself may not contain anything offensive. It was further held that termination order would be bad if it contains stigma but no regular inquiry has been held. In para 21 the Apex Court made the following observations:
"21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as „founded‟ on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."
13. Now the issue, which arises for adjudication as to whether the order of termination of the services of the applicant in the case in hand is an order of termination simpliciter or punitive/stigmatic, is put to 16 OA No.660 of 2017 rest by the respondents themselves through the appellate authority's order which is admittedly final order of the respondents in respect of termination of the applicant's services in as much as it is recorded in para 3 that 'Recruit Constable Devender Singh, No.30598/PTC was a habitual absentee and absenteeism in a disciplined force like Delhi Police amounts to a serious misconduct as availability of such type of personnel always remains doubtful...... Absenteesim in the force is a very serious matter as it cripples the entire administration of the police department. It is a serious misconduct on the part of delinquent recruit constable which calls for an exemplary punishment.' Further in para 2 of the counter reply, the respondents have asserted as under:-
"2. That he was directed to join Police Training School, Wazirabad, Delhi for his basic induction course with the ongoing batch No.96. During his short span of training since 04.10.2012 to the date of termination of his services i.e. 11.01.2013 he remained absent from his basic training on 05 occasions. This act of the above Recruit Constable was amount to highly in 17 OA No.660 of 2017 disciplined, un-devoted trainee and not likely to become a good Police officer. He was not considered fit to be retained in the Police force being a habitual absentee as retention of this type of incompetent persons in the Police Force creates bad impression amongst the other fellow trainees."
14. From the aforesaid, it is evident that while deciding as to whether the termination of a probationer is termination simpliciter or a punitive, the Tribunal can travel beyond the order of termination to find out what is the reality of the background and foundation of the order of termination.
15. In view of the aforesaid, it is undisputed that the impugned order of termination has merged into the appellate authority's order dated 22.5.2013 and the appellate authority's order is apparently stigmatic & punitive and the same is not permissible in the absence of a regular departmental enquiry in accordance with the law. So far the Judgment of the Hon'ble Apex Court in Rajesh Kohli (supra) relied upon by the learned counsel appearing for the respondents is 18 OA No.660 of 2017 concerned, in the said case, the petitioner was recommended by the Hon'ble High Court of Jammu and Kashmir for appointment as District and Session Judge on temporary basis and on acceptance of such recommendations by the Government, an order of appointment was issued to him. In the said case, two orders were challenged, one which was the order of the Hon'ble High Court passed on the basis of resolution of the Full Court and other one issued by the Government of Jammu and Kashmir, on the ground that they were stigmatic ones. In para 23, the Hon'ble Apex Court ruled that the order of termination is a fall out of his unsatisfactory service adjudged on the basis of his overall performance and the manner in which he conducted himself. The Hon'ble Apex Court ruled that such satisfaction even if recorded that his service is unsatisfactory would not make the order stigmatic or punitive as sought by the petitioner. Nowhere in the said Judgment, the Hon'ble Apex Court has ruled that even if foundation of the order of termination passed under Rule 5 of the Central Civil Service (Temporary Service) Rules, 1965, is a misconduct, interference by the Court(s) and Tribunal(s) is not warranted.
19 OA No.660 of 2017
16. In view of the aforesaid facts and discussion, the impugned orders dated 11.01.2013 (Annexure A-1) and 22.5.2013 (Annexure A-2) are set aside. The applicant shall be reinstated in service subject to his medical fitness as expeditiously as possible and in any case, not later than six weeks from the date of receipt of a copy of this Order. The applicant shall be entitled for consequential benefits, i.e.., seniority, fixation of pay, however, only on notional basis and the respondents shall pass necessary order(s) in this regard and release the benefits, if any, as expeditiously as possible and preferably within eight weeks. However, the respondents shall be at liberty to initiate enquiry proceedings and conclude the same in accordance with the relevant rules and instructions, if they so decide.
17. The present OA is allowed in the aforesaid terms. However, in the facts and circumstances, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh)
Member (A) Member (J)
/ravi/