Central Administrative Tribunal - Delhi
Arun Kumar Safi vs Govt. Of Nctd on 17 August, 2023
1
OA No.3026 of 2016
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.3026/2016
Reserved on: 01.08.2023
Pronounced on: 17.08.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Arun Kumar Safi,
Ex-chowkidar/Guard,
Aged about 41 years,
S/o Mahavir Safi,
Posted at EDMC Primary School,
Krishna Nagar, Double Story,
Nursing Wing, Delhi-31.
...Applicant
(By Advocate: Sh. Shailendra Tiwary)
Versus
1. Govt. of NCT of Delhi,
Director Education, EDMC (HQ),
419, Udyog Sadan,
Patparganj Industrial Area,
Delhi-110 092.
2. Principal, EDMC Primary School,
Samaspur Jagir,
Delhi-110 091.
3. Principal, EDMC, Primary School,
Krishna Nagar, Double Story
Nursing Wing, Delhi-31.
-Respondents
(By Advocates: Kumar Rajesh Singh & Ms.
Punam Singh)
2
OA No.3026 of 2016
ORDER
R.N. Singh, Member (J):
Through the medium of this Original Application (OA), filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:
"(a) direct the Respondents to take steps for re-instatement/ regularization of the services of the applicant as his respective job.
(b) issue time bound directions to the Respondents to take immediate action in regard to regularization of service of humble applicant.
(c) Award the cost of litigation.
(d) Pass any other order/orders which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
2. Brief facts of the case are that the applicant was initially appointed in the year 2003 as chowkidar/guard on casual basis. 2.1 The applicant continued to work in that capacity till 2011. In the year 2012 he was appointed on contract basis for one year, which had been continued from time to time till the year 2016.
3OA No.3026 of 2016 2.2 However, on the night of 12.04.2016 when the applicant was on duty in the school premises at about 3.30 am the electricity supply suddenly went off and he found that three persons were roaming around the school and when he warned them and reached near to two of them; they caught hold of him and one person took away the motor installed in the school premises.
2.3 The applicant immediately informed the Principal and narrated the whole incident and also called PCR. The PCR came and lodged the report. Meanwhile, the Principal also came to the school. Thereafter, it was opined by the Principal and the staff that a new motor should be purchased by the applicant which he did. The applicant also narrated the facts to the Deputy Director of Education, Shahdara, South Zone, Anand Vihar.
2.4 Thereafter, the applicant was transferred to Krishna Nagar, Nursing wing vide order dated 13.04.2016 issued by the School Inspector. He, however, sought 4 OA No.3026 of 2016 permission from the school authority to accept his joining on 18th April, 2016. It is pointed out that within two months he was transferred twice.
2.5 However, to the utter shock and surprise of applicant he was dismissed from service with immediate effect, without assigning any reason with the approval of Commissioner, East Delhi Municipal Corporation vide order dated 22.04.2016.
3. Shri Shailendra Tiwary, the learned counsel appearing for the applicant submitted that the action of the respondent in terminating the services of the applicant is arbitrary and mala fide. He has been punished with no fault of his but on the whims and fancies of the biased attitude of the school authority. The said action of the respondents is in clear cut violation of principles of natural justice as before terminating his services the applicant has not been given any opportunity to defend himself and such termination is stigmatic and punitive and that too without any enquiry or 5 OA No.3026 of 2016 any kind of notice and, therefore, the same is bad in law. To buttress his contention, Mr. Tiwary has relied upon a decision of the Hon'ble High Court of Delhi in Nina Lath Gupta v. Union of India, Neutral Citation No.2023:DHC:2944. It is submitted that the case of the applicant is squarely covered by the aforesaid decision of the Hon'ble High Court of Delhi. The learned counsel, therefore, prayed that the instant OA may also be disposed of in terms of the aforesaid decision.
4. Pursuant to the notices issued, the respondents entered appearance and filed their reply, thereby vehemently denying the averments made by the applicant in the OA. The learned counsel for the respondents, by referring to the reply filed by the respondents, submitted that the applicant was appointed to the post of chowkidar on contract basis against leave posts in the schools under EDMC. The terms of appointment of contractual worker are quite explicit and the applicant cannot claim regularization as a matter of right. The reason 6 OA No.3026 of 2016 for terminating the services of the applicant is a cause of theft for which liability by virtue of his being chowkidar is made out thereby indicating that he was found committing dereliction in duty. The learned counsel further submitted that since his appointment on contract basis is not under statutory services rules and as per terms and conditions of contract, the services of applicant are liable to be dismissed due to the fact of his being found committing dereliction in performance of his duty and hence his continuance in the service was not found to be imperative and major penalty proceedings as applicable to regular employees could not be resorted to in his case. 4.1 In view of the above submissions, it is 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 the respective parties and also gone through the pleadings on record, including the judgment 7 OA No.3026 of 2016 relied upon by learned counsel for the applicant.
6. 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 observed as follows:
"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 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 8 OA No.3026 of 2016 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 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 9 OA No.3026 of 2016 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 backwages 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 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 10 OA No.3026 of 2016 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."
7. 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 Nina Lath Gupta (supra). 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 11 OA No.3026 of 2016 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."
8. 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 reality weighed with the employer to terminate the services of the probationer.
9. 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 an order simpliciter, however, if the attending circumstances, more 12 OA No.3026 of 2016 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.
10. We are conscious of the fact that the applicant was not holding the position on regular basis or he was under probation. However, by working for respondents on casual/contractual basis, he has earned the right to continue in preference to juniors and freshers. Moreover, it is settled law that without following due process of law, one cannot be condemned and held to be guilty of any offence or misconduct. However, in the present case, the respondents have terminated/disengaged the applicant for the alleged offence/misconduct without conducting any enquiry/trial where the applicant was allowed to participate and dispute and disprove the same.
11. Further, we are of the considered opinion that the issue raised in the instant case 13 OA No.3026 of 2016 is squarely covered by a recent decision of the Division Bench of this Tribunal in Manjeet Singh v. Union of India & Ors., OA No.4727/2017 decided on 28.07.2023 where both of us [Hon'ble Mr. R.N. Singh, Member (J) and Hon'ble Mr. Sanjeeva Kumar, Member (A)] were constituting the Bench. We, therefore, follow the same.
12. In the aforesaid background, even if it is assumed that the impugned order of termination dated 06.05.2016 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 respondents could have conducted at least a summary enquiry, keeping in view the terms and conditions of the contract, before passing the impugned termination order dated 06.05.2016. The same being passed without holding an enquiry and 14 OA No.3026 of 2016 without following the principles of natural justice is not sustainable in the eyes of law. We, therefore, hold that the impugned termination order dated 06.05.2016 is not an order simpliciter but ex-facie stigmatic, keeping in view the stand taken by the respondents in the counter-reply and also during the course of hearing in the matter.
13. In the result, for the foregoing reasons, the impugned order dated 06.05.2016, whereby the services of the applicant have been terminated is quashed and set aside. The respondents are directed to reinstate the applicant in service on the post of chowkidar/guard, 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 take action against the applicant in accordance with the terms and conditions of the contract, if they so decide.
15OA No.3026 of 2016
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.'