Central Administrative Tribunal - Delhi
Sh. Suresh Chand Jain vs Director General on 7 September, 2011
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-935/2011
New Delhi this the 7th day of September, 2011.
Honble Mrs. Meera Chhibber, Member (J)
Honble Dr. A.K. Mishra, Member (A)
Sh. Suresh Chand Jain,
S/o late Sh. Jeewan Lal Jain,
R/o SQ-39, Gulmohar Enclave,
SFS, Second Floor,
New Delhi-49. . Applicant
(through Sh. Niranjan Saha, Advocate)
Versus
1. Director General,
National Institute of Fashion Technology(NIFT)
(Ministry of Textiles, Government of India)
Head Office, Near Gulmohar Park,
Haus Khas, New Delhi-16.
2. The Registrar (Establishment),
National Institute of Fashion Technology(NIFT)
(Ministry of Textiles, Government of India)
Head Office, Near Gulmohar Park,
Hauz Khas, New Delhi-16. .. Respondents
(through Sh. K. Vijay Kumar for Ms. Vibha Datta Makhija, Advocate)
O R D E R
Dr. A.K. Mishra, Member (A) The applicant has challenged the order dated 02.04.2009 and dated 08.02.2011 of Respondent No.2 by which his services were terminated during his probation period. His prayer is to set aside these orders, direct the respondents for his reinstatement and for grant of all consequential benefits as well as the cost of litigation. The applicant joined the National Institute of Fashion Technology (NIFT) as a Junior Assistant (Grade-C) on contract basis during 1999. He was given higher pay scale and engaged on contract as a Research Assistant during December 2005; on proper selection he was appointed as a Research Assistant on 15.02.2008. Due to administrative reasons, he was transferred from the Head Office to Delhi Centre where he was asked to work in the examination cell under Controller of Examination (COE) of Delhi Centre. He was again surrendered to the Head Office on 01.04.2009 and his services were terminating during the probation period by the impugned order dated 02.04.2009. He filed OA-1095/2010 challenging this order in the Tribunal which directed Respondent No. 1 to consider his representation against the termination and pass a speaking order. Accordingly, Respondent No.1 passed the impugned order dated 08.02.2011; hence the present O.A.
2. Learned counsel for the applicant submits that both the impugned orders have been passed without giving any opportunity to the applicant to state his case refuting the allegations made against him. According to him, there was a preliminary enquiry by a Committee against allegations of negligence on the part of the applicant, which resulted in delayed publication of results, but the applicant was never given any opportunity to present his case before this Committee. It is his submission that the report of the Committee formed the foundation for the so called termination simplicitor. Since there was a fact finding enquiry where the applicant was denied any opportunity, the Tribunal should lift the veil and look into the actual cause leading to the termination. In these circumstances, he contends, the proper course of action for the respondents would have been to initiate regular disciplinary proceedings against the applicant and ensure fair enquiry.
2.1 The applicant has stated that he had worked for three years at the Information Communication Technology (ICT) Unit of the Head Office to the full satisfaction of the respondent authority and there was no complaint of any negligence or misconduct on his part. The respondent authority should have taken into consideration the entire period of his work with the respondent organization before assessing his performance as unsatisfactory instead of limiting the consideration to a short period at Delhi Centre.
2.2 Learned counsel further reiterates his contention that the impugned order is not a termination simplicitor as it carries a stigma. He cites the decision of the Honble Supreme Court in the case Dipti Prakash Banerjee Vs. Satyendra Nath Bose, National Centre for Basic Services, (1999) 3 SCC 60 where it was held that if findings are arrived at in an enquiry about the misconduct of an employee behind his back without proper departmental enquiry, the order of termination will have to be treated as founded on those allegations and will be bad.
2.3 It is further contended that the applicant has already crossed the age of 40 years and at this stage it would be difficult for him to seek any other appointment particularly in the context of the termination order which says that his performance was unsatisfactory.
3. Learned counsel for the respondents submits that the applicant was working as a Research Assistant at NIFT, Head Office after his appointment on 15.02.2008. Finding his work not very satisfactory, he was transferred from NIFT, Head Office to NIFT Delhi Centre on 04.08.2008. He was posted to the Examination Cell at Delhi Centre and was assigned duties of F&A Department relating to receipt of assignments from students, preparation of results which required the applicant to work sincerely in a time bound manner to enable publication of results on scheduled dates. He was given a Memorandum dated 05.03.2009 by which he was advised to improve his work. Because of his negligence in work, the assignments could not be forwarded to the Faculty of the subject concerned on time for evaluation and the marks could not be obtained for display on the scheduled dates. Besides, he had failed to co-ordinate properly and follow up with subject matter faculty in getting the marks of assignments for mid term/end term evaluations, which led to delay in forwarding those to the Chief Examination Officer, Head Office for tabulation. He was also found absent from his seat during working hours for which a warning letter was issued. It is further submitted that he had to be withdrawn from the Examination Cell and attached to the office of the Registrar, Delhi Centre. Since no one was interested in taking him at Delhi Centre, he had to be surrendered to the Head Office. Keeping in view his unsatisfactory performance, a decision was taken to terminate his services during the probation period by issuing the impugned order dated 02.04.2009, which was legally justified.
4. We wanted to ascertain whether any enquiry Committee was set up to look into the alleged acts of omission/commission of the applicant as stated by the learned counsel for the applicant and summoned copies of the office records for examination. It is seen from the copy of the file concerned placed before us that on receipt of verbal complaints against the applicant, Director, NIFT, Delhi Centre was requested to give his assessment on the performance of the applicant, which he submitted vide Annexure R-6. A copy of the letter dated 20.03.2009 in which his absence from seat was noticed at 12.00 noon of that date and a copy of Memorandum dated 05.03.2009 in which he was advised to improve his performance in the Examination Cell have also been enclosed. Neither has the applicant given any document in support of his averment that a preliminary fact finding Committee was constituted which submitted a report in respect of allegations brought against him, nor is there any such evidence seen from the copies of the office record submitted by the respondents. It was true that the Director, Delhi Centre gave his assessment about the performance of the applicant in the Examination Cell, but there is no allegation of mala fide either against Respondent No.1 or Respondent No.2. Learned counsel for the respondents placed reliance on the following orders of the Honble Supreme Court of India:-
1. Chaitanya Prakash and Anr. Vs. H. Omkarapa, (2010) 2 scc 623.
Jagdish Mitter Vs. U.O.I., AIR 1964 SC 449 T.C. Pillai Vs. Indian Institute of Technology, (1971)2 SCC 251.
Muir Mills Unit of NTC (UP) Ltd. Vs. Swayam Prakash Shrivastava, (2007) 1 SCC 491.
Rajasthan Adult Education Assn. Vs. Ashoka Bhatacharya, (1998) 9 SCC 61.
The ratio of these judgments is that the services of an employee who is on probation can be terminated on account of unsatisfactory work and if there is no stigma attached to the applicant in the termination order, the principle of natural justice to afford an opportunity of hearing is not applicable even in those cases where it refers to the performance of the employee not being satisfactory. It goes without saying that there has to be some cause on the basis of which services of employees on probation are terminated and if it is only unsatisfactory performance, the question of abiding by the principles of natural justice (particularly of audi alteram partem) is not applicable. We find from the representation of the applicant dated 06.04.2009 to the Director, Delhi Centre that he had not brought any allegation either against the Direct or against any other person. It is only in his representation dated 13.04.2009 that in addition to his complaints about proper accommodation, timings of work, non-availability of furniture, his being the only the male person in that department and other such issues he brought in some allegations against one Mr. Darshan Singh, Guest Faculty. Neither has he impleaded Mr. Darshan Singh or the Director of Delhi Circle as respondents in the present application nor has he taken those allegations against Mr. Singh as grounds in the present application.
5. It is for the respondent authorities to take a view on the performance level of an employee during the period he is on probation. The applicant has not dispelled the allegation that there were delays in preparation of the results of F&A Department and in obtaining marks of assignment and forwarding those to the COE Cell. Admittedly, the order is only one of termination simplicitor on the basis that his performance was not satisfactory. As discussed, the respondents were entitled to pass such an order. Therefore, we do not find that any ground has been made out to interfere with this order. The O.A. is accordingly dismissed. No costs.
(Dr. A.K. Mishra) (Mrs. Meera Chhibber)
Member (A) Member (J)
/vinita/