Central Administrative Tribunal - Delhi
Sh. Sanjay Kumar Dass vs Delhi Transport Corporation on 21 February, 2013
Central Administrative Tribunal Principal Bench New Delhi O.A.No.4352/2011 Order Reserved on: 16.01.2013 Order pronounced on 21.02.2013 Honble Shri Sudhir Kumar, Member (A) Honble Shri V. Ajay Kumar, Member (J) Sh. Sanjay Kumar Dass s/o Sh. S.K.Dass aged about 38 years r/o RZ-E/699/13B Gali No.18C Sadh Nagar Palam Colony New Delhi. Applicant (By Advocate: Sh Rajesh Kumar Sharma) Versus Delhi Transport Corporation (Government of N.C.T. of Delhi) through its Chairman/M.D. I.P.Estate New Delhi. Delhi Transport Corporation (Government of N.C.T. of Delhi) through its Depot Manager Vasant Vihar New Delhi. .. Respondents (By Advocate: Sh. Sarfraz Khan) O R D E R
In pursuance of the selection made by the Delhi Subordinate Services Selection Board, the applicant was offered appointment as Driver in the Delhi Transport Corporation (DTC) in the Pay Band of Rs.5200-20200 + Grade Pay of Rs.2000 and other allowances as admissible thereon vide order dated 14.10.2008. The applicant reported for duty on 17.12.2008 and worked as such till 24.05.2009 for a period of 5 months and 8 days and thereafter could not attend duty as he was affected with cancer. The respondents vide their letters, directed the applicant to report for duty or in case of sickness to appear before the Medical Officer-Incharge of DTC Medical Board for medical examination. The applicant on receiving one such letter dated 24.02.2010 approached the Medical Board of the Department which in turn referred the applicant to AIIMS Hospital for treatment and accordingly, the applicant has been taking treatment. The respondents vide their impugned order dated 16.12.2010 in exercise of the powers under Clause 9(a)(i) of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952 (in short `DRTA (CAS) Regulations, 1952), terminated the applicant from the service of the DTC.
2. Shri Rajesh Kumar Sharma, the learned counsel for the applicant submits that the impugned termination order is in violation of the statutory regulations and is bad in law, malafide and punitive in nature and colourable exercise of right with a view to harass the applicant to deprive him to claim the permanent employment.
3. On the other hand, Shri Sarfraz Khan, the learned counsel for the respondents submits that there is no illegality or infirmity in passing the impugned termination order, since the applicant is in probation, the respondents have exercised the powers conferred on them under the DRTA (CAS) Regulations, 1952.
4. Clause 9(a)(i) of the DRTA Regulations, 1952 reads as follows:
9. Termination of Service:- (a) Excepts as otherwise specified in the appointment orders, the services of an employee of the Authority may be terminated without any notice or pay in lieu of notice:-
During the period of probation and without assigning any reasons thereof.
5. Admittedly, the applicant is under probation as on the date of passing of the impugned termination order. Though the applicant joined on 17.12.2008, but admittedly worked only from 17.12.2008 to 24.05.2009, i.e., only for a period of 5 months and 8 days. The learned counsel for the applicant mainly submits that since the applicant was suffering from cancer, the respondents terminated his services as a punishment with mala-fide intention to deprive him from the permanent employment. Since the respondents themselves directed the applicant to report for the examination before the Medical Board, they cannot pass any termination order without giving the applicant an opportunity to submit his case and without conducting any regular inquiry before passing the termination order.
6. Per contra, the learned counsel for the respondents submits that the action of the respondents in directing the applicant to report for medical examination before the Medical Board does not prevent them from passing the impugned termination order in exercise of the powers conferred by them under Clause 9(i)(a) of the DRTA Regulations, 1952. Before passing the termination order, just because the applicant was directed to appear before the Medical Board, it cannot be said that the impugned termination order is in lieu of the punishment. The learned counsel, inter alia, placed reliance on the Judgement of the Honble Apex Court in State of Punjab and Others v. Sukhwinder Singh, 2005 (5) SCALE 451.
7. We have heard the learned counsel for both sides and have been through the pleadings on record.
8. Though, the learned counsel for the applicant vehemently submits that the impugned order is passed in lieu of the punishment and passed with mala-fide intention to deprive the applicant from getting permanent employee, but failed to substantiate his ground.
9. A perusal of the Clause 9(a)(i) clearly shows that the respondents are empowered to terminate an employee during the period of probation without assigning any reasons thereof. It is also not the case of the applicant that the termination order is passed on any alleged misconduct on the part of the applicant or any enquiry was held in his back.
10. In Sukhwinder Singhs case (supra), while he was in probation, he was discharged from service under Rule 12.21 of the Punjab Police Rules which is analogous to the aforesaid Rule 9(a)(i) of the DRTA (CAS) Regulations, 1952. The Civil Suit filed by him was decreed in his favour and that the appeal filed by the Department was dismissed in the High Court while affirming the decree and holding that he was thrown out of job on the ground of absence from duty and imposed upon him the punishment without holding a formal inquiry. Setting aside the decree and the order of the High Court, on appeal, the Honble Apex Court, after examining the entire case law on the subject, held as follows:
18. It must be borne in mind that no employee whether a probationer or temporary will be discharged or reverted, arbitrarily, without any rhyme or reason. Where a superior officer, in order to satisfy himself whether the employee concerned should be continued in service or not makes inquiries for this purpose, it would be wrong to hold that the inquiry which was held, was really intended for the purpose of imposing punishment. If in every case where some kind of fact finding inquiry is made, wherein the employee is either given an opportunity to explain or the inquiry is held behind his back, it is held that the order of discharge or termination from service is punitive in nature, even a bona fide attempt by the superior officer to decide whether the employee concerned should be retained in service or not would run the risk of being dubbed as an order of punishment. The decision to discharge a probationer during the period of probation or the order to terminate the service of a temporary employee is taken by the appointing authority or administrative heads of various departments, who are not judicially trained people. The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. As mentioned earlier a probationer is on test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry "for the purpose of imposing punishment" and an order of discharge or termination of service as a result thereof "punitive in character", the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong.
19. In the present case neither any formal departmental inquiry nor any preliminary fact finding inquiry had been held and a simple order of discharge had been passed. The High Court has built an edifice on the basis of a statement made in the written statement that the respondent was habitual absentee during his short period of service and has concluded therefrom that it was his absence from duty that weighed in the mind of Senior Superintendent of Police as absence from duty is a misconduct. The High Court has further gone on to hold that there is direct nexus between the order of discharge of the respondent from service and his absence from duty and, therefore, the order discharging him from service will be viewed as punitive in nature calling for a regular inquiry under Rule 16.24 of the Rules. We are of the opinion that the High Court has gone completely wrong in drawing the inference that the order of discharge dated 16.3.1990 was, in fact, based upon the misconduct and was, therefore, punitive in nature, which should have been preceded by a regular departmental inquiry. There cannot be any doubt that the respondent was on probation having been appointed about eight months back. As observed in Ajit Singh and others etc. vs. State of Punjab and another (supra) the period of probation gives time and opportunity to the employer to watch the work ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserves a right to dispense with his service without anything more during or at the end of the prescribed period, which is styled as period of probation. The mere holding of preliminary inquiry where explanation is called from an employee would not make an otherwise innocuous order of discharge or termination of service punitive in nature. Therefore, the High Court was clearly in error in holding that the respondent's absence from duty was the foundation of the order, which necessitated an inquiry as envisaged under Rule 16.24(ix) of the Rules.
11. Further, in Union of India & Others v. Mahaveer C. Singhvi, 2010 (7) SCALE 623, the Honble Apex Court held that, if a finding against a probationer is arrived at behind his back on the basis of the inquiry conducted into the allegations made against him and if the same formed the foundation of the order of discharge, the same would be bad and liable to be set aside, and on the other hand, if no inquiry was held or contemplated, and the allegations were merely a motive, for the passing of an order of discharge, without giving him an opportunity of hearing, the same would be valid. When admittedly, the applicant was suffering from Cancer since the date of his appointment and could not even attend the duty even during the period of probation, the employer keeping in view the suitability of the applicant, for the job can exercise the power under the rules. In the facts circumstances of the case, his unauthorized absence cannot be said to have been formed the basis for his discharge.
12. In the circumstances and for the aforesaid reasons, the OA is devoid of any merit and accordingly the same is dismissed. No order as to costs.
(V. Ajay Kumar) (Sudhir Kumar) Member (J) Member (A) /nsnrvak/