Central Administrative Tribunal - Jaipur
Alka Chourasia vs M/O Defence on 6 August, 2021
1 O ANo, 291/107/2016 CENTRAL ADMINISTRATIVE TRIBUNAL JAIPUR BENCH, JAIPUR ORIGINAL APPLICATION No. 291/ 107/2016 Order reserved on: 27.07.2021 Date of order: O4:682021 Coram: HON'BLE MR. DINESH SHARMA, MEMBER (A) HON'BLE MRS. HINA P.SHAH, MEMBER (3) Ms. Alka Chourasia D/o. Shri Amrit Lal Chourasia, aged about 27 years R/o Line No. 13, Qtr. No. 45 Birla Nagar, Gwalior, M.P. Presently has worked on the post of Lower Division Clerk (LDC) Group "C" in Rashtriya Military School, Dholpur Raj. .. Applicant (By Adv: Shri Nirmal Sharma) VERSUS 1. Union of India through Secretary, Ministry of Defence, 101-A, South Block, New Delhi New Delhi. 2. Director, Dte Gen Mil Trg. Mt. -15, General Staff Branch, Integrated Head Quarter of Mod (Army), DHQ, PO New Delhi- 110011. 3. Sh, Abhishek Bharadwaj, Principle Lt. Col., Rastriya Military School, Dholpur (Raj. ) ...Respondents (By Adv: Shri Lalit Mohan Bhardwaj) ORDER
(Per: Dinesh Sharma, Administrative Member) In this Original Application, The applicant has prayed for the following reliefs:
2O A No. 291/107/2016 "(i) By a Suitable writ/order or direction the impugned order dated 18.1.2016 Annexure-1 may kindly be quashed and set aside in the interest of justice.
(ii) By a suitable writ/order or the direction the respondents may kindly be directed to conduct an inquiry against the respondent No. 3 under the Visakha guidelines and on the representation dated 8.1.2016 of the applicant
(iii) By a suitable writ/order or the direction the respondents may kindly be directed to regularize/confirm the services of the applicant with all consequential benefits.
(iv) Any other order which this Hon'ble Court may deem fit in the facts and circumstances of the present case may kindly be passed in favour of the applicant."
>. Annexure-1 is the order of termination of service of the applicant from the post of LDC at Rashtriya Military School, Dholpur, issued under the proviso to sub Rule (1) of Rule 5 of the Central Civil Services(Temporary Service) Rules, 1965. The applicant has stated that her services have been terminated because the respondent No. 3 repeatedly wanted him to stay in office after working hours. Since she could not accept such demand she was harassed by him. Her probation was to end, two years after her appointment, on 17.3.2015, but it was not done since the respondent No. 3 and two other officers were seriously prejudiced against the applicant as she did not surrender before them. Her explanations were called for unauthorised absence though she had been present and also for leave without permission though she had already submitted her application f'' eT 3 OA No. 293/107/2015 Since she was being seriously tortured and harassed, she submitted a detailed representation dated 8/1/2016 (Annexure-
A/8) to respondent No.2 through registered post. The applicant was terminated by order dated 18.01.2016 (impugned order at Annexure-1). Such termination, without affording her any opportunity to defend herself violates principles of natural justice. The order gives no reason for termination. The matter is covered with the Visakha guidelines of Hon'ble Supreme 'Court and no' authority can force a lady employee for staying after working hours. Instead of taking action on the complaint of the applicant 'dated 08/01/2016, she has been punished' with termination for sending the complaint. .
3. ; "The respondents (respondent No. 4 and 2 jointly and No 3 separately) have filed their replies denying the silegations made by the applicant. It is stated that the probation of the applicant was extended by one year since her performance was non satisfactory. She had been 'given enough opportunities of improving her performance, but despite issuing written warnings (e.g. letter dated 11.5.2015 at Annexure-A/4), she failed' to improve | fer. "performance 'and ° hence "her services * aie terminated by the impugnéd order. The ailegatiéns' against the "espondent No. 3 are baséless "and the applicant has ievalled these charges vzithout placing any concrete proof. The appointific authority, The' Principal of the Rastriya Military School, Dhoipiye AL poet rh o a No, 291/107/2036 Has hot been impleaded as a party 'in nig official capacity'' and thus the Original Application suffers from non-joinder of necessary party. The performance of the applicant was below par even under the former Principal and this is evident from the report of his service for the first and second years of probation and even in the extended period. These three reports are signed by different officers (annexed as Ann R-3/1 to R-3/3) and show consistent non-performance. The reply denies that the respondent No. 3 ever asked the applicant to stay after working hours. It states that out of the total tenure of 1030 days at the institute the applicant did not stay more than seven days beyond the official seven hours of working. Even in these seven days when she stayed approximately 2 working hours for certain inevitable reasons, whole office staff was functioning. The applicant was residing in government accommodation just 50 meters from the place of work. The campus of the school is guarded by the Rajasthan Police Guard. Though the applicant has named two other officers also as having worked in tandem with the respondent No. 3, they have not been impleaded. The applicant's probation was extended due to her continuous non- performance. She never made any appeal against such extension on any ground. The confirmation cannot be treated as a matter of right and the termination is as per rules. The reply also states that the applicant was marked absent when she did not report on a | 5 O ANo. 291/107 2016 time but she overwrote it and signed the attendance register.
She also cannot take leave for granted just because she submitted leave application. She was in a habit of overstaying leave and moving on leave without getting it approved. The reply also denies there being any denial of Vishakha guidelines. Since repeated efforts to improve her performance failed, the respondents were left with no choice but to terminate her. The reply igo attaches the details of leave availed by the applicant during her probation period to show that she was granted sufficient leave during this period (Annexure-R-3/2).
4. The applicant has filed a rejoinder reiterating the claims made in the Original Application. She stated that she is not a casual employee and,therefore, Rule 5(1) is not applicable to her. No reasons are given in the termination order and this is in violation of judicial pronouncements. The termination is not simpliciter but it is stigmatic and in such circumstances, inquiry was mandatory, which has not been done. The rejoinder also justifies why the respondent No.3 has been made a party in his personal capacity (since she had complained against him and her services were terminated because of that complaint).
5, the matter was heard through video conferencing on 97.07.2021. The main thrust of the arguments of the Learned counsel for the applicant was that though the impugned order appears to be a case of termination simpliciter, it Is actually not 4 6 OQ A No. 291/107/2016 so since there is a stigma attached in this termination. The respondents have themselves used the word "misconduct", in their reply, while giving reasons justifying their action against the applicant. There are a number of judicial pronouncements where the Hon'ble courts have found such simple termination (without proper disciplinary proceedings giving the employee a chance for defending) wrong when there were charges or complaints of misconduct against a person, though no such thing was mentioned in the impugned order. The learned counsel for the applicant also filed a detailed written submission in support of his arguments, thereafter. The learned counsel for the respondents argued that all the allegations of the applicant against respondent No. 3 are unfounded and are an afterthought since she feared she was not going to be confirmed. Her performance was continuously unsatisfactory and there was no stigma attached to the termination done by the impugned order
6. We have gone through the pleadings, the compendium of cases cited by the learned counsel for the applicant and also the written arguments submitted later by the learned counsel for the respondents. The main issue before us is whether the termination of the applicant by the impugned order is a termination simpliciter, which is permitted as per the rules, or, as f i alleged by the applicant, whether it is a stigmatic order which should not have been passed without following proper procedure 7 OQ A No. 291/107/2016 for imposing punishment, giving chance to the applicant to defend herself. The applicant has also sought, by way of an apparently unconnected relief, action against the respondent no 3 for sexual harassment. We are dealing with this first, before handling the main issue. We find that though the applicant has made charges of harassment attracting Vaisakha judgment in the Original Application, we do not find her having raised any such allegation or complaint against any one before her letter sent to higher authorities(PM/Defence Minister, et al) on 08/01/2016(Annexure-A/8). We have gone through this letter. It gives specific details of action taken against her for her alleged unauthorised absence, mistakes in drafts, a fabricated transfer certificate, etc. There is a general complaint against three (the Principal, the Administrative officer and the Office superintendent for continuously harassing her, asking her to stay after working hours. The letter ends with charge against "the people" for "harassing her and collecting evidence in shape of notices for a malafide motive'. The letter requests necessary action to consider her transfer and treat this letter as a letter of resignation if the transfer was not possible. There is no explicit mention of sexual harassment in the letter except for hinting that it is difficult for her to stay late as she is a girl living alone. The fact remains that she did not complain about any sex-related harassment to anyone before sending this letter. This letter too r\ eg EE EE SR TE O ANo. y91/107/2016 hints at such harassment in general terms and no specific evidence is given (except that of actions apparently taken with respect to her performance or lack of it). The respondents have denied all such allegations. The applicant has not made two of the alleged harassers as parties to this Original Application. The respondents have categorically stated that the applicant overstayed only for 7 days during a period of about 1000 days and that too along with other staff. All these cast serious doubts about the applicant's allegations of sexual harassment. These charges, without any supporting evidence,which have been thrown against the respondents in this OAprimarily seeking cancellation of her termination, cannot, therefore, be taken as grounds for annulling her termination order.
5. This brings us to the main issue about whether there is any stigma attached in the termination order. We have gone through the compendium of judgments annexed by the learned counselsof both the parties. Judgments cited by learned counsel for the applicant are listed hereunder:
a) Hikki Miwu v. State of Arunachal Pradesh and Anr [2006
b) Tabong Pasar v. State of Arunachal Pradesh [1999 (3) GLT 90]
c) Dipti Prakash Banerjee v. Satvendra Nath Bose National Center for Basic Sciences, Calcutta and Ors. [AIR 1999 SC 983] 9 QO A No. 291/107/2016
d) The State of Uttar Pradesh v. Ram Chandra Trivedi [AIR 1976 SC 2547]
e) State Bank of India and Ors. v. Palak Modi and Ors. [2013 (3) SCC 607]
f) Allahabad Bank Officers Association and Ors. v. Allahabad Bank and Ors. [AIR 1996 SC 2030]
g) State of West Bengal and Ors. v. Tapas Roy [2006 (6) SCC 453]
h) Prakash Chandra Kein v. State of Madhya Pradesh & Ors.
[2010 95) MPHT 452]
i) Judgement of Hon'ble M.P. High Court in case of Pradeep Singh Tomar v. State of Madhya Pradesh and Ors. [Writ Petition No. 8651/2016]
j) Judgement of Hon'ble Rajasthan High Court of in case of Madhav Hari Goyal v. Bank of India and Ors. [SB Civil Writ No. 8977/2016]
k) Dr. Vijaykumarain C.P.V. Vs. Central University of Kerela and ors [2020 (12) SCC 426] and
1) Judgement of Central Administrative Tribunal, Jabalpur Bench in O.A. No. 202.805/2017 in Ankit Sharam Vs Comptroller and Auditor General vide order dated 14.07.2020.
judgments cited by learned counsel for th € respondents are as under:
a) Radhey Shyam Gupta Vs. U.P. State Agro I Corporation Limited [1999 (2) scc pg 21) ndustries
b) Director Aryabhatt Research Institute of Observati ational Science (ARIES) vs. Devendra Joshi [Civil A 2926/2018 decided on 19.93 2018] Ppeal No. 20.07.2021 in the Gauhati High Court] 10 O A No. 291/107/2016
d) Ratnesh Kumar Choudhary Vs Indira Gandhi Institute of Medical Sciences, Patna, Bihar [2015 (XV) (SCC Page No.
151)]
e) Abhay jain Vs The High Court of Rajasthan [D.B. C.W.P. No. 6749/2016 titled as decided on 21.10.2019]
f) Monika Singh Vs. Union of India& Ors [O.A. No. 534/2010 decided on 27.02.2013 by C.A.T., Jaipur Bench]
g) Vijayinder Vs Union of India& Ors [OA No. 70/2018 decided on 05.03.2019 by C.A.T., Chandigarh Bench]
h) Progressive Education Society Vs Rajendra and Another [(2008)3 SCC 310]
i) Sumit Kumar vs. Punjab & Haryana High Court and another [CWP No. 32907-18 decided on 14.01.2020]
j) S. Sharavanan VS Salim Ali Centre for Ornithology and another decided by Madras High Court [Wit petition No. 19816/2005 on 22.11.2019]
k) State of Punjab Vs. V.K. Khanna [2001 (2) SCC 330] g. The ratio decidedin these judgments is very clear. If an action is taken against a person to terminate his/her services for acts involving moral turpitude and acts that may have an impact on his/her future reemployment, it is definitely punitive and, therefore, it should not be done without giving a chance to the person to defend oneself. The decisions also prohibit taking action to terminate probation for acts done before such probation ged forgery/fraud/impersonation started (alle in the selection process): The decisions clearly indicate that the stigma need not be in the words of the termination order. The courts can look into related matters/documents (though it may not extend to going deep into note-files to look for such grounds) if there is enough 04 No, 281/100/2018 evidence to connect termination with the alleged acts of misconduct leading to the termination. Any such termination after acts for which police complaints/FIRs have been lodged, is clearly an act of punishment and for such an inquiry is necessary before imposing the punishment. To summarise, each case has to be judged on the facts and circumstances of that case. The broad principle to be kept in mind is that a punitive action should not be disguised under a simple termination order since, though this may achieve the objective of the employer(of getting rid of an unwanted employee), it attaches a stigma to the employee without him/her getting a chance to defend.
9. We have examined the facts and circumstances of this case in the light of these judgments. There is enough evidence to show that her superior officers, including officers against whom there is no charge of harassment, did not find the conduct of the ' applicant satisfactory. Her probation was extended once. All three confidential reports during her probation period clearly point out the unsatisfactory nature of her performance. Termination of the probation of an employee for such unsatisfactory performance during the Probation cannot be termed as stigmatic. There is no charge of any misconduct of a serious nature against the applicant (carrying moral turpitude or other serious criminal consequences) even in the connected documents. The charges against her are mainly of unauthorized 12 O A No. 291/107/2016 absence, overstaying on leave, or lack of due diligence in her performance. Though the respondents have used the word "misconduct" in their reply, (and have also wrongly quoted CCA Rules, this, by itself, does not make the action stigmatic in the light of the ratio of the judgments quoted above. Even if sending of a letter (with alleged unsubstantiated charges) to higher-ups were to be taken as a reason for her termination (though it is nowhere explicitly stated to be the sole reason), this would not
- be a reason carrying stigma. Thus, since there is nothing stigmatic in the reasons behind the termination, the termination cannot be set aside on this ground.
10. For the above-mentioned reasons, we do not find anything against the rules or against the ratio of judicial pronouncements In this matterin the action taken against the applicant. The Original Application is, therefore, dismissed. No costs. \ f) "(Hina P, Shan, Member (J) Member (A) Ifp~ boo (Dinesh Sharma) >