Central Administrative Tribunal - Ernakulam
Latha Prabha Kumar vs Union Of India Represented By The ... on 21 December, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. NO. 14 OF 2012
Friday, this the 21st day of December, 2012
CORAM:
HON'BLE Dr. K.B.S. RAJAN , JUDICIAL MEMBER
HON'BLE Mr.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
Latha Prabha Kumar
Puthen Veedu
T.C 12/1357, Kunnukuzhy P.O
Thiruvananthapuram - 695 037 - Applicant
(By Advocate M/s.Mohan Pulickal & N.Nagaresh)
Versus
1. Union of India Represented by the Secretary
Ministry of External Affairs
South Block, New Delhi - 110 001
2. The Ambassador
Embassy of India
P.O Box : 1450
13015 - Safat Kuwait
3. The First Secretary
Embassy of India
P.O Box : 1450
13015 - Safat Kuwait
4. The Head of Chancery
Embassy of India
P.O Box : 1450
13015 - Safat Kuwait - Respondents
(By Advocate Mr.Sunil Jacob Jose, SCGSC)
The application having been heard on 20.12.2012, the Tribunal on
21.12.12 delivered the following:
O R D E R
HON'BLE DR.K.B.S RAJAN, JUDICIAL MEMBER
1. The applicant was appointed as a Clerk Typist in the Indian Embassy at Kuwait vide Annexure A-1 order dated 15-05-2003. The appointment was temporary and the order indicted that the same would not confer any title to permanent employment. The initial probation was for six months and the same having been successfully completed, probation was declared vide Annexure A-2 order dated11-04- 2004.
2. On 23-12-2010, the Head of Chancery, Kuwait issued a memorandum which, vide Annexure A-4, reads as under:-
"No.Kuw/Adm/586/6/2003 December 23, 2010
Memorandum
It has been brought to the notice of the undersigned that Mrs.Latha Prabha Kumar, Clerk, was found overcharging the applicants who applied for various consular services at the Embassy counter. She has, in this connection, submitted two letters dated 14th December 2010 and 17th December 2010, giving her explanations. On the basis of investigations carried out the Embassy have reasons to believe that the allegations against Mrs.Kumar are true.
In view of the above, Mrs.Latha Prabha Kumar is required to contact the undersigned, in person or in writing, and state why disciplinary action should not be initiated against her. A response in the matter should be given by the afternoon of 26th December, 2010, failing which a decision will be taken in absentia.
(D.N Dutta) Head of Chancery Mrs.Latha Prabha Kumar Flat # 03, Building # 50 Area # 04, Street # 09 Salwa, Kuwait "
3. The applicant responded to the same, vide Annexure A-5 dated 26-12-2010 denying the alleged malpractices, but at the same time also stating " I don't want to rule out the possibilities for small mistakes, which may happen(ed) because of work pressure." The Head of Chancery, vide the impugned order dated 28-12-2010 terminated the services of the applicant w.e.f. the afternoon of 28th December, 2010.
4. The applicant has filed a representation to the Joint Secretary (Pers), Ministry of External Affairs, New Delhi, vide Annexure A-7 dated 20-02-2011. The said representation has not so far been disposed of. Meanwhile, the respondents had handed over a cheque for KD 682.900 drawn in favour of the applicant towards her dues (which as per the applicant is short-paid).
5. The applicant has filed this OA seeking the following reliefs:-
" (i) An order quashing Annexure A6 order;
(ii) An order directing the respondents to reinstate the
applicant in the post of Clerk at the Indian Embassy, Kuwait, forthwith.
(iii) Any other order as this Hon'ble Tribunal may deem fit and proper on the facts and in the circumstances of the case. "
6. Respondents have contested the O.A. They have stated that the appointment of the applicant is on contract basis and the CCS(CC&A) Rules etc., are specifically excluded from application in respect of cases where the persons are inducted as local candidate in the Indian Embassies. Thus, a preliminary objection as to availability of jurisdiction has also bee raised vide para 2 of the reply. They have stated that this is not the first occasion where the applicant had conducted in a reprehensible manner and in this regard, they have annexed Annexure R-2 a complaint by one Shri Bineesh Banu, who had alleged that the counter clerk (the applicant herein) charged a particular amount, but initially issued receipt only for a part amount and on questioning another receipt was given. This matter was investigated and the applicant cautioned vide Annexure R-3. Respondents have further stated that vide Annexure R-4, the Consular Section received a number of complaints from the applicants coming to the Embassy for attestation for their documents that they are still asked to pay additional fills 100 for which they are not given any receipts. And 22 applicants had confirmed that they had paid amount exceeding amount reflected in the receipt. Some had also complained that they had not been given the correct change at the counter. The Ambassador, on consideration of the above, ordered that written explanation should be sought and if found to be unsatisfactory, her services should be terminated. He has also recorded, "She has already been cautioned earlier this year for similar misconduct." Through Annexure R-5, details of the excess amount allegedly received from the 22 applicants by the applicant had been indicated in a statement form. Annexure R-6 (a) dated 13-12-2010 is a complaint from one Mr. Abdul Hakeem stating that for an amount of KD 6.500 towards attestation, the applicant received from him 10KD and returned an amount of KD 3.250, thereby he was not paid the balance of 0.250 KD. This was replied to vide the explanation dated 14-12-2010 followed by another representation dated 17-12-2000. In the latter, request was made to the Embassy to show the complaint received. Vide Annexure R- 10, the disciplinary committee recommended for termination of the service of the applicant, which was approved by the Ambassador. And accordingly, the termination order was issued and the amount due to the applicant disbursed on 13-01-2011.
7. The applicant has filed her rejoinder wherein, the contentions of the respondents have all been denied and justification given in respect of charging of 100 fills extra till 8.30 hrs on 17-10-2010. Certain allegations as to the personal feud of the officer who had initiated R-4 note has also been referred to. It has also been stated that when the respondents have themselves felt that inadvertent mistakes do occur, (vide Annexure R-2, as also the note of first secretary at Annexure R-4) had ultimately held the applicant guilty of misconduct. The applicant has also stated that when normally one would question about the excess payment etc., in the counter itself it is strange that without questioning such over charge at the counter all these complainants would have approached the Consular Officers direct to launch their oral complaints without even preferring the written complaints.
8. Counsel for the applicant submitted that as regards the question of jurisdiction, the following decisions would go in his favour:-
(a) 1992(19) ATC 435.(b) OA No. 1030 of 1999 (b) Order in OA No. 660 of 2005
9. As regards merits, the counsel submitted that there is no semblance of the principles of natural justice followed in this case. He has submitted that even as per the guidelines,
10. Counsel for the respondents submitted that the applicant had been in the habit of overcharging which brings down the reputation of the Indian Embassy at the foreign land. She was cautioned earlier too and it was only when the magnitude of the misconduct was found sizable that as many as 22 complaints were received that the services of the applicant had been terminated after issuing a show cause notice.
11. Arguments were heard and documents perused. First as to jurisdiction. In so far as the decision relied upon by the counsel for the applicant, decision reported ijn 1992(19) ATC 435 may not be of much assistance to the applicant in view of the fact that in that case the applicant was a regular appointee of Central Water Commission and sent on a project work to Bhutan. However, the other case in OA No. 1030 of 1999 as well as OA No. 660 of 2005 relates to the same individual and in the said case also, the guidelines as the one filed in the present OA had been filed by the respondents and the case is almost identical to the facts of this case, inasmuch as in that case also the applicant was appointed purely on a temporary basis, terminable at anytime without notice and without assigning any reason. Order in OA No. 1030/99 culminated to Supreme Court level and there has been no objection over the jurisdiction of this Tribunal in that regard. In fact the respondents had relied upon another case OA No. 595 of 2005 of the Principal Bench, decided on 4th January, 2008, wherein the question of jurisdiction was analyzed extensively and the Tribunal had come to the conclusion that the Tribunal does enjoy jurisdiction under Sec. 14 of the A.T. Act,1985. Thus, jurisdiction of this Tribunal has been crystallized.
12. As regards merits of the matter, it is to be noted that in regard to the nature of appointment, the Guidelines attached, vide Annexure R-1, vide the preamble thereof (Introduction: Local Cadre) reads as under:-
" Indian Missions/Posts abroad are manned by personnel posted from India or on transfer from other Indian Missions; and by employees recruited locally, who are called locally recruited staff or local employees or local recruits. Such local posts are termed as Local Cadre. They are recruited on contractual basis under the powers delegated to Head of Missions/Posts. Local employees are separate entity and they are different from India-based personnel in so far as service conditions are concerned. They are on contract service liable to termination on one month's pay. Central Civil Services (Classification, Control and Appeal) Rules, Pension Rules, are not applicable to locally recruited staff. Pay Commissions' recommendations are also not extended to them. Their services are not transferable to India or other Indian Missions/Posts abroad. "
13. Thus, CCS (CC&A) Rules are not applicable. Nor does the applicant insist upon the following of the said Rules. However, the Mission has a mechanism of monitoring by way of writing confidential reports and in the event of misconduct by the local employee, a proper memo/show cause notice should be served on the employee and placed in the service record. Para G of Annexure R-1 refers. Again, as regards termination of services, Clause H of the Guidelines reads as under:-
" The grounds for termination of the contract from the Embassy will be (a) inadequate performance, (b) willful misconduct, disobedience or neglect of duties, ) breach of security, (d) discourtesy, misbehavior with colleagues or superiors, (e) frequent lack of punctuality without due justification to the satisfaction of the HOC. In keeping with laws of natural justice, the Mission should take care to avoid unilateral/arbitrary action. The Mission is required to serve a show cause notice on the employee before termination except in case of breach of security. In all cases where the services of local employees are terminated, full facts indicating the reasons for termination of their service should be reported to the Ministry immediately. The procedure laid down above will not apply to the local employees in our Missions/Posts abroad where it is found that this procedure runs counter to contractual bilateral agreements or local rules of the host country. "
14. The above would go to show that the decision should be in keeping with the laws of natural justice. The applicant submits that there is violation of the said principles of natural justice, while the respondents contend that show cause notice has been issued. Now it is to be seen as to what is the extent of principle of natural justice to be followed and whether the same had been followed.
15. First as to the law on the subject. In the case of Sahara India (Firm) Lucknow vs Commissioner of Income tax, the Apex Court has held as under:-
"15. Rules of "natural justice" are not embodied rules. The phrase "natural justice" is also not capable of a precise definition. The underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by the State or its functionaries. Therefore, the principle implies a duty to act fairly i.e. fair play in action. As observed by this Court in A.K. Kraipak v. Union of India the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. (Also see ITO v. Madnani Engg. Works Ltd.)
16. In Swadeshi Cotton Mills v. Union of India R.S. Sarkaria, J., speaking for the majority in a three-Judge Bench, lucidly explained the meaning and scope of the concept of "natural justice". Referring to several decisions, His Lordship observed thus:
"Rules of natural justice are not embodied rules. Being means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue of such rules. But there are two fundamental maxims of natural justice viz. (i) audi alteram partem and (ii) nemo judex in re sua. The audi alteram partem rule has many facets, two of them being (a) notice of the case to be met; and (b) opportunity to explain. This rule cannot be sacrificed at the altar of administrative convenience or celerity. The general principle--as distinguished from an absolute rule of uniform application'seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post-decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Conversely if the statute conferring the power is silent with regard to the giving of a pre- decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing, shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative process or frustrate the need for utmost promptitude. In short, this rule of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise."
17. Initially, it was the general view that the rules of natural justice would apply only to judicial or quasi-judicial proceedings and not to an administrative action. However, in State of Orissa v. Dr. Binapani Dei the distinction between quasi-judicial and administrative decisions was perceptively mitigated and it was held that even an administrative order or decision in matters involving civil consequences, has to be made consistent with the rules of natural justice. Since then the concept of natural justice has made great strides and is invariably read into administrative actions involving civil consequences, unless the statute, conferring power, excludes its application by express language.
18. Recently, in Canara Bank v. V.K. Awasthy16 the concept, scope, history of development and significance of principles of natural justice have been discussed in extenso, with reference to earlier cases on the subject. Inter alia, observing that the principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights, the Court said: (SCC pp. 331-32, para 14) "14. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression `civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life."
19. Thus, it is trite that unless a statutory provision either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences for the party affected. The principle will hold good irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi- judicial. "
16. In the instant case, when one complaint was made vide Annexure R-2, explanation was called for. From the reply, it appears that full details thereof have been given. Similarly, vide Annexure R-6, the explanation furnished thereof, vide Annexure R-7 reflects that some of the details were made known. The applicant has stated that some one trapped a net and had named a few persons. In so far as 22 complaints are concerned, the applicant's contention is that none of the complaints had been made available to her. Details of the same are not known. In fact, the applicant goes to state that one Mr. Vinod (a superior officer) called her on phone and when the applicant told him, "I want to talk to you in person, I want to see the complaint and call the man before me" the phone was disconnected. There has been a reference to this complaint in Annexure R-10 (whereby decision to terminate the services of the applicant had taken place) but there has been no discussion about the contentions raised in the explanation.
17. Appeal preferred by the applicant before the Joint Secretary, is elaborate and the same is still to be considered and decided.
18. Termination from service on certain misconduct amounts to major punishment which results in a civil consequence and justice demands that due opportunity should be given. In the case of Biecco Lawrie Ltd., vs State of West Bengal (2009) 10 SCC 342, the Apex Court has held as under:-
"18. The principle of natural justice is attracted whenever a person suffers a civil consequence or a prejudice is caused to him by an administrative action. In other words principle of natural justice is attracted where there is some right which is likely to be affected by any act of the administration including a legitimate expectation. [See Ashoka Smokeless Coal India (P) Ltd. v. Union of India.] The procedure to be followed is not a matter of secondary importance and in the broadest sense natural justice simply indicates the sense of what is right and wrong (Voinet v. Barrett2) and even in its technical sense it is now often equated with fairness. As a well-defined concept, it comprises of two fundamental rules of fair procedure that--a man may not be a Judge in his own cause (nemo judex in re sua) and that a man's defence must always be fairly heard."
19. In the case of Mohd. Sartaj vs State of UP (2006) 2 SCC 315, the Apex Court has held as under:-
" In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence. The Court has also cited the observation of one of the judges of the House of Lords in Ridge v. Baldwin for the purpose that the administrative body may in a proper case be bound to give a person who is affected by their decision, an opportunity of making representation."
20. The above are the legal proposition which are to be telescoped in the facts of the case. Since the appeal before the Ministry is pending, ends of justice would be met if direction is given to the first respondent to consider the appeal preferred by the applicant in the light of the above legal proposition and his decision, duly addressing all the grounds raised by the applicant is communicated to the applicant. Accordingly, this OA is disposed of with a direction to the respondent No. 1 to dispose of the pending appeal vide Annexure A-7 keeping in view the above discussion, within a period of two months from the date of communication of this order.
21. Under the circumstances, there shall be no orders as to costs.
(Dated this the 21st day of December, 2012)
K. GEORGE JOSEPH Dr. K.B.S. RAJAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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