Central Administrative Tribunal - Delhi
Sh. R. C. Dubey vs Union Of India on 28 May, 2010
Central Administrative Tribunal Principal Bench TA No.1471/2009 New Delhi, this the 28th day of May, 2010 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Sh. R. C. Dubey S/o Late B. R. Dubey Flat No.29/61, Himalaya Apartment, Patparganj, Delhi 110 092. Applicant (By Advocate: Mrs. Jyoti Singh with Mr. Amandeep) Versus 1. Union of India Through its Secretary Ministry of Human Resource Development, Shastri Bhawan, New Delhi. 2. Navodaya Vidyalaya Samiti Through Director Department of Education A-39, Kailash Colony, New Delhi 48. Respondents (By Advocate: Shri S. Rajappa) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
The Applicant challenges termination of his service from the post of Principal of Navodaya Vidyalaya issued to him vide order dated 5.7.1995 (Annexure-16) and terms the same as stigmatic though the order is claimed by the Respondents to be an order simplicitor. Questions which come up for our determination are: (i) whether the form and the nature of the termination are conclusive to decide the same as simple or punitive termination and for the said purpose whether this Tribunal can lift the veil to find out the reasons behind the termination order? (ii) Can the services of the employee, who has been on the extended period of probation, be terminated if he is alleged to have committed misconduct, without holding an enquiry?
2. The brief facts which led to the termination of the Applicant reveal that the Applicant while working as Principal, Bharatiya Vidya Bhavan (BVB) School at Vikram Nagar, M. P. was selected and appointed by Navodaya Vidyalaya Samiti (NVS) as Principal of its School vide letter dated 20.8.1992 (Annexure-1). He reported to Regional Office of NVS at Lucknow on 23.12.1992 and joined as Principal of NVS School at Gumla, Bihar. It is the case of the Applicant that when he demanded to get his provident fund, gratuity from the BVB where he worked for 11 years, including 4 years as Principal, the concerned authority of BVB became annoyed and conspired to interfere in the peaceful working of the Applicant. The NVS Deputy Director vide his letter dated 6.7.1993 (Annexure-2) informed the Applicant that certain serious financial irregularities committed by him were brought to the notice of NVS by the authority of BVB, which he replied by his letter dated 30.07.1993 (Annexure-3) informing inter alia that he was appreciated by BVB for his work as Principal. Copy of those appreciation letters are at Annexure 4, 5 and 6. The Applicant also furnished copy of No Dues Certificate, Relieving Letter and Audit Report in support of his innocence. It is averred by the Applicant that as his provident fund, gratuity etc. were not released by BVB, he filed Petition No.28/1993 before the District Consumer Court of Gumla which was decided in his favour vide order dated 29.6.1994 directing the BVB to pay him Rs.60474.60. This annoyed the BVB authorities further; as a result, false allegations were leveled against him and influenced the Respondent No.2. In the meantime, the Applicants probation period with NVS, which was completing on 23.12.1994, was extended for a period of 6 months vide letter dated 21.12.1994 (Annexure-10). The probation of the Applicant was extended for the second time for a period of 37 days only i.e. up to 1.8.1995 vide letter dated 5.6.1995 (Annexure-11) wherein it was stated that the Applicant should show improvement in his performance during the extended period of probation. This being so, the Applicant was transferred to join Navodaya Vidyalaya, Karimganj, Assam, vide letter dated 10.5.1995 (Annexure-12). The said transfer letter was received by him on 23.6.1995 and on 24.7.1995 when he reported at the Regional Office, he was directed vide order dated 25.7.1995 (Annexure-13) to remain attached with the Regional Office at Shillong until further orders. The Applicant avers that when he visited the NVS Regional Office at Patna on 18.9.1995, he received a letter dated 7.4.1995 (Annexure-14) in which it was alleged that certain incidents took place during the Board examination at the School in Gumla and he was incapable of providing prudent leadership to the Vidyalaya. It is the case of the Applicant that neither the letter was served on him, nor he was timely informed of the content of the same. On 26.9.1995, he gave his reply to the Deputy Director, Shillong with whom he was attached then. It is stated that the termination order dated 5.7.1995 (Annexure-16) was served on him on 28.9.1995 and on that date he was relieved of his duties (Annexure-17). The Applicant submitted a representation dated 18.10.1995 (Annexure-18) requesting Director, NVS to review the order of terminating his service, and followed up with letters dated 26.10.1995 (Annexure-19) and 28.11.1995 (Annexure-20). As he was not getting any response from the NVS on his representations and having been aggrieved by the termination order, he moved the Honble High Court of Delhi in Writ Petition (C) No.404 of 1996 , which on transfer to this Tribunal has been registered as TA 1471 of 2009. The Applicants has sought the following relief(s) :-
i. pass/issue a writ of certiorari or any other appropriate writ or directions or order quashing and setting aside the impugned order dt. 5.7.1995, vide Annexure 16, passed by the respondent no.2 and to reinstate the petitioner in service to the post of Principal Navodaya Vidyalaya as he was holding at the time of his termination of services, along with the full back wages and all other consequential benefits as is permissible by law as if the impugned order was not passed;
ii. issue appropriate writ or directions or order in the nature of Mandamus thereby directing the respondents to let the petitioner continue to the post of Principal during the pendency of this petition, the respondents are restrained from impleading enforcing or giving effect to the impugned order dt. 5.7.1995 Annexure 16, passed by respondent no.2.
Any other relief or order that this Honble Court deems fit and proper be also granted to petitioner against respondent.
3. The main contention of Ms. Jyoti Singh learned counsel for the Applicant is that the order of termination is punitive and stigmatic and such termination was done without granting opportunity for him to defend his case and therefore the Tribunal should quash and set aside the order of termination. She submitted that the Applicant was issued warning and memos informing about blast that took place during the examination and the allegations of financial irregularities alleged to have been committed by the Applicant when he was Principal of Bhartiya Vidya Bhavan. Though the Applicant had submitted his clarification and explanation to the notice issued by the NVS authorities on BVB letter there was no necessity for NVS to issue such letters as the BVB Schools were not Government schools nor there is any link between NVS and BVB. She also drew our attention to the claims of gratuity etc. filed by the Applicant in the Consumer Forum against the BVB Management which was decreed in favour of the Applicant. This action of the Applicant seems to have angered the BVB Management which was reflected by alleging unjustified misconducts of the Applicant to the NVS Management. Further, she submitted that the inquiry conducted by two Assistant Directors which brought out certain financial irregularities and other misconducts which no doubt were the alleged misconducts against him which became the basis initially for extension of his probation and subsequently termination of the Applicants service from NVS. She submitted that the Tribunal should lift the veil by going into the records submitted by the Respondents which would clearly reveal that action of the Applicant though not reflected in the termination order but implicitly were stigmatic and punitive in nature. In this context, she laid her reliance on many judgments and the important being the orders passed by this Tribunal in OA No.2503/2008 between Deepak Kumar Versus Government of NCTD & Others decided on 8.12.2009; Shri Desh Raj Versus Government of NCTD & Another in OA No.266/2006 decided on 27.07.2007; Dr. B. M. Veerabhadraiah Versus Union of India & Others decided on 7.05.1996 by the Honble High Court of Guwahati. She also contended that though the termination order seems to be innocuous and simple but the counter affidavit filed by the Respondents clearly revealed three incidents in which the Applicant had been allegedly associated and those were in the nature of alleged misconduct for which the Applicant should have been given opportunity to defend himself to prove his innocence. The termination, she submits, is not based on assessment of Applicants performance as Principal, more specifically, about his suitability or otherwise as Principal but the Applicant has been the victim of the punitive steps taken by the Respondents behind his back and, therefore, she submitted that the TA should be allowed and the Applicant should be reinstated with all consequential benefits including the back wages.
4. Shri S. Rajappa, learned Counsel for the Respondents, very vehemently opposed the contention raised by Mrs. Jyoti Singh. He contends that the termination order of the Applicant is simple and not punitive as it does not indicate any of the alleged misconduct. Just because some of the incidents have been brought into record in the counter reply, Shri Rajappa contends, the impugned order cannot be termed as punitive. He also submitted that even if the background of the termination order is looked into by the Tribunal it would only reveal that the Applicant has not been performing well and, as such, his termination was necessary for the organization. Referring to the terms and conditions of appointment, Shri Rajappa submits that the conditions of appointment have clearly mentioned that if his performance is unsatisfactory, his services would be terminated. Therefore, the termination order is in compliance with the terms and conditions spelt out in the appointment order. He also highlighted that the Applicant was given two extensions in order to ensure that he would improve his performance but on the other hand his performance had been considered by the Departmental Promotion Committee as unsatisfactory and, therefore, the Applicant was found unsuitable to continue as Principal in NVS. He also submitted that it was inefficiency and misadministration of the School which necessitated Applicants termination not the maladministration. In this context, he relied on many judgments and the important judgement being that of Honble High Court of Delhi in Writ Petition (Civil) No.4447/2003 decided on 19.01.2006 in the case of Shri Dinesh Kumar Versus The Commissioner, Navodaya Vidyalaya Samiti. He drew our attention to Paragraph 21, 22, 23 and 24 of the said judgment to drive home that the parameters prescribed by the Courts to find whether a termination order is a simplicitor or stigmatic would be on the basis of the fulfillment of certain criteria laid down in those judgments. He drew our attention to the judgment of Honble Supreme Court in the case of Pavanendra Narayan Verma Versus Sanjay Gandhi PGI of Medical Sciences and Another reported in (2002) 1 SCC 520, where it has been held that where the order of termination is innocuous or punitive on the basis of averment made in the counter affidavit the termination order which is otherwise valid cannot just become invalid on the basis of averments made by the Respondents in any affidavit. Drawing our attention to Para 27 of the judgment of Honble High Court of Delhi in Shri Dinesh Kumar case (supra) he submitted that before an order of termination is to be termed as stigmatic, Courts first task would be to apply the form test to find whether the termination is stigmatic or punitive. The termination order may become stigmatic because of the language used in the order itself or in any document referred to in the order of termination. Shri Rajappa submits that no such language finds place in the termination order nor any document has been referred in the said order. Referring to the financial irregularities of the Applicant reported by the BVB Management, and a joint enquiry report of the Assistant Directors etc. Shri Rajappa submits that there was no full scale formal enquiry against the Applicant. The visit of two Assistant Directors to the Applicants School where he was Principal was a routine matter and should not be termed as an inquiry. No inquiry has so far been done against the Applicant behind his back on the allegations made by various Teachers and organizations. Therefore, the termination order is a termination simplicitor and cannot be called as stigmatic. Shri Rajappa, therefore, pleads that the order is sustainable in the eyes of law and, therefore, the TA is a fit case for dismissal.
5. Having heard the learned counsel representing the parties, with their assistance, we examined the pleadings and records of the case. We may refer the settled position in law relating to the both the issues as they are inter linked and inter twined issues. Whether the form and the nature of the termination are conclusive to decide the same as simple or punitive termination and for the said purpose whether this Tribunal can lift the veil to find out the reasons behind the termination order and adjunct to the above issue whether the services of the employee on probation can be terminated if he is alleged to have committed misconduct, without holding an enquiry?
6 It is a settled proposition of law that when the order terminating services of an employee is punitive, the employee shall have the right to be heard in the matter. Whether the employee is on probation, temporary, on contract or on ad hoc basis, or may be a regular employee, would make no difference. Number of judgments have been cited during the course of hearing which deal with the employees at the relevant time being on probation or having been appointed on temporary/contract/ad hoc basis and there would be no need to make reference to all of those as it would burden the judgment. However, we may mention that this Tribunal while deciding the matter of Desh Raj versus Government of NCT of Delhi & Others (OA No.2663/2006 decided on 27.7.2007 where one of us Honourable Mr. Justice V. K. Bali, Chairman, was part of the Bench), dealt with the case of a person who was a temporary employee and whose services were terminated under sub-rule (1) of rule 5 of CCS (Temporary Service) Rules, 1965, when he was, after his selection, undergoing training at Police Training College, Jharoda Kalan, Delhi. This judgment also deals with the issue of lifting the veil to find out the real reason behind terminating services of an employee. It was held that if the order of termination is founded on allegation of misconduct, then the same would be punitive and stigmatic.
7. A Coordinated Bench of this Tribunal dealt with the same issue in three connected Applications bearing OA Nos.1970/2007, 1971/2007 and 1994/2004 in the matter of Dr. Nitin Kumar & Others versus Government of NCT of Delhi & Others which were decided vide judgment dated 3.1.2008. The employees in the said cases were Medical Officers. Their services were being extended from time to time, and it is during the period of extension only that their services were terminated. One of the pleas raised in seeking to set aside the impugned orders was that the same was punitive in nature. It was admitted in the written statement filed on behalf of the Respondents that when the case of the Applicants therein along with others similarly situated doctors for extension was under consideration, certain development transpired, namely, that they had not acted in responsible manner and were involved in a serous altercation with a Senior Resident. There was an internal enquiry and the matter having come to the notice of the Appointing Authority, it was decided not to extend their services beyond 30.9.2007. The impugned orders were set aside being punitive in nature by lifting the veil, primarily based upon the contents of the reply admitting that the applicants were asked to quit because of their misbehaviour with a Senior Resident. We may refer to the observations made in the said order, which read as follows:
Now that discreetly it has been conceded that a decision has been taken adverse to the applicants because of certain incidents which had taken place in the Hospital sometime in June, 2007, we necessarily have to hold that unless the version of the applicants had been properly invited about their involvement or their culpability, simply for the reason that the appropriate authority had decided that they became undesirable, could not have been permissible as a reason for them to impose a decision, which adversely affected the civil rights of the applicants In the said order, the Coordinated Bench placed reliance upon the observations made by the Honble Supreme Court in Babu Lal versus State of Haryana & Others [(1991) 2 SCC 335], which is reproduced below:
Moreover, from the sequence of facts of this case the inference is irresistible that the impugned order of termination of the service of the appellant is of penal nature having civil consequences. It is well settled by several decisions of this Court that though the order is innocuous on the face of it still then the Court if necessary, for the ends of fair play and justice can lift the veil and find out the real nature of the order and if it is found that the impugned order is penal in nature even though it is couched with the order of, termination in accordance with the terms and conditions of the order of appointment, the order will be set aside. The Bench has taken into consideration other decisions of the Honble Supreme Court as well. This order was challenged by the Respondents in the Honble High Court of Delhi, wherein, however, a consented order came to be passed on 9.1.2008, as per which the impugned order of termination was to stand quashed, but the Respondents were given liberty to hold enquiry in respect of the allegations against the employees. The employees were also held to be entitled to emoluments for the period from 23.10.2007 till the date of their reinstatement, and after reinstatement it was to be open to the Government to suspend them, but the employees were to be entitled to subsistence allowance in the event they were to be placed under suspension.
8. It is no longer res integra that even if an order of termination of probation including the period of extended period of probation as the case in this OA, refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. In the latest judgment of Honourable Supreme Court pronounced on 12.1.2010 in Chaitanya Prakash Versus H. Omkarappa [2010-2-SCC-623] a catena of judgments were referred to identify the possible facts which would term a termination simplicitor or stigmatic. We would take into account some of those decisions here as those are very relevant for determination of the issue of probation termination as stigmatic or simplicitor. We may refer to the decision of the Honourable Supreme Court in Abhijit Gupta Versus S. N. B. National Centre, Basic Sciences [JT 2006 (5) SC 12], wherein a letter was issued to the concerned employee intimating him that his performance was unsatisfactory and, therefore, he is not suitable for confirmation. Letters were earlier issued to the concerned employee to improve his performance in the areas of his duties and that despite such communications the service was found to be unsatisfactory and letter was issued to him pointing out that his service was found to be unsatisfactory and that he was not suitable for confirmation and, therefore, his probation period was not extended and his service was terminated, which was challenged on the ground that the same was stigmatic for alleged misconduct. The Supreme Court negatived the said contention and upheld the order of termination as an order simplicitor. Honble Supreme Court in Union of India versus A. P. Bajpai & Others [(2003) 2 SCC 433] held that when there may be no other material to support the plea that the order of termination was punitive and this fact may simply have been mentioned only in the reply, the services of a temporary employee can be dispensed with.
9. In Mathew P. Thomas Versus Kerala State Civil Supply Corpn. Ltd., [JT 2003 SC (2) 162] the concerned employee was kept on probation for a period of two years, during which period he was informed that despite being told to improve his performance there is no such improvement and consequently by order dated 16.01.1997 his services were terminated, wherein also a reference was made to his unsatisfactory service. In the said judgment, the Honourable Supreme Court held that on the basis of long line of decisions it appears that whether an order of termination is simplicitor or punitive has ultimately to be decided having due regard to the facts and circumstances of each case.
10. In Abhijit gupta case (supra), it was considered as to what would be the real test to be applied in a situation where an employee by an innocuous order of termination i.e. whether he is discharged as unsuitable or he is punished for his misconduct. In order to answer the said question, the Honourable Supreme Court relied and referred to the decision of the Apex Court in Allahabad Bank Officers Assn. Versus Allahabad Bank [(1996) 4 SCC 504]; where it is stated thus:-
14.As pointed out in this judgment, expressions like want of application, lack of potential and found not dependable when made in relation to the work of the employee would not be sufficient to attract the charge that they are stigmatic and intended to dismiss the employee from service.
11. In Pavanendra Narayan Verma Versus Sanjay Gandhi PGI of Medical Sciences ((2002) 1 SCC 520] Honourable Apex Court had the occasion to determine as to whether the impugned order therein was a letter of termination of services simplicitor or stigmatic termination. After considering various earlier decisions of Apex court in paragraph 21 of the judgment it crystallized a 3-set parameters to test an order as stigmatic or not and it was stated 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 allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. It 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.
12. The learned counsel representing the Respondents would, however, seek dismissal of this Application on the basis of judgment of the Honourable High Court of Delhi in Shri Dinesh Kumar versus The Commissioner, Navodaya Vidyalaya Samiti (Writ Petition ( C) No. 4447/2003 decided on 19th January 2006) where eight principles were envisaged to test whether the termination order was punitive or not. Shri Rajappas contention is that on the basis of those principles the impugned order can safely be termed as simplicitor. Taking the cue from the said contention we extract below the said 8 principles to conduct the litmus test of the administrative decision by lifting the veil behind the termination order. The following principles can be culled out from this decision and other decisions of the Supreme Court:-
a probationer has no right to a post or a rank;
employer has right to assess the work of the probationer and come to the conclusion whether the appointee is suitable or unsuitable for the job on account of inadequacy or for any departmental or similar grounds not involving moral turpitude;
whenever a probationer challenges his termination, the courts first task will be to apply the form test to find whether termination is stigmatic/punitive;
A termination order may be stigmatic because of the language used in the order itself or any document referred to in the order of termination. However reasons and grounds given for termination mentioned or stated in the affidavit filed in the court are irrelevant and do not change the nature and character of order of termination.
Discharge by stating that the appointee was not fit or the appointees performance was not satisfactory does not cast any stigma. A termination order which explicitly states what is implicit in every order of termination of a probationers appointment is not stigmatic. In order to amount to a stigma, the termination order should use language, which imputes something over and above mere unsuitability for the job.
A termination order is stigmatic when an appointe is vested with evil consequences which have the effect of tarnishing the reputation so as to render him unfit for service elsewhere and not in relation to post temporarily occupied by him.
Mere adverse remarks in confidential report or records will not on its own make the termination stigmatic or punitive;
In some cases the courts can lift the veil and go to the substance of termination. A termination order is in substance punitive when prior thereto there has been:
(i) a full scale formal enquiry
(ii) looking into allegations involving moral turpitude or misconduct and
(iii) the enquiry has culminated in finding of guilt.
All the three conditions have to be satisfied. In such cases foundation of termination order is punitive. However, holding of a mere preliminary enquiry will not necessarily make order of termination of a probationer punitive.
13. In view of the above judgments, it is well settled position that this Tribunal can lift the veil to find out the reasons behind the termination order and the form and the nature of the termination order can be closely scrutinized by us to decide whether the same is simple or punitive termination. Hence, there should be no doubt that the Tribunal can always lift the veil to find out the real reason leading to order terminating the services of the Applicant even if he is under probation, even though the order as such may be innocuous. We may only make reference to the observations of the Honble Supreme Court in its judgment in Chandra Prakash Sahi versus State of UP & Others [(2000) 5 SCC 152] that the benefit and protection of Article 311(2) of the Constitution of India is available not only to regular and temporary employees but also to a probationer and the Court in an appropriate case would be justified in lifting the veil to find out the true nature of the order by which the services were terminated. Thus, the employee even under probation including the extended period of probation cannot be terminated by a stigmatic/punitive order without holding an enquiry and providing the opportunity to the employee to defend himself to prove his innocence.
14. In the back drop of the above position in law in the issues, we may delve deep into the facts of the case, go behind the termination order to find out whether the parameters prescribed by the judgments are fulfilled to term the termination order as punitive or not.
15. The facts admittedly reveal the Applicant earlier working as the Principal in Bharatiya Vidya Bhavan School was selected and appointed by Navodaya Vidyalaya Samiti (NVS) as Principal vide letter dated 20.8.1992 which he joined as Principal of NVS School at Gumla, Bihar after reporting to the Regional Office of NVS at Lucknow on 23.12.1992. His probation period was for 2 years and he was expected to complete the same on 22.12.1994, but the Applicants probation period with NVS was extended for a period of 6 months vide letter dated 21.12.1994 and again the probation was second time extended for a period of 37 days only i.e. up to 1.8.1995 vide letter dated 5.6.1995. Three DPC meetings were held on 15.11.1994; 02.6.1995; and 04.7.1995 to assess the Applicants performance during the said probation period. It is on the basis of the 3rd DPC meeting recommendations that the termination order of the Applicant was issued vide order dated 05.7.1995, which the Applicant received only on 28.9.1995 and was relieved on the same day. The delay is alleged to be due to the order sent to wrong address. Be that as it may, we take the extract of both the impugned orders for scrutiny with the help of the records produced by the Respondents. The orders read as follows:
I. Applicants termination order dated 5.7.1995 ORDER Shri Ramesh Chandra Dubey was appointed as Principal in NVS on probation for a period of two years from the date of his appointment i.e. 23.12.92 (FN) which could be extended at the discretion of the Competent Authority. The offer of appointment, No.2-5/91-NVS(Estt.) dated 20.8.92, made in his favour stipulated that failure to complete the period of probation to the satisfaction of Competent Authority would render him liable to be discharged from the service at any time without any notice and without assigning any reason thereto. (para 2 of the offer of appointment).
2. On completion of normal period of probation, the case of Sh. R. C. Dubey was considered for satisfactory completion of his probation by a duly constituted committee which having regard to all the aspects, did not find him fit for removal from probation and was warned to show improvement in his performance during the extended period of probation (vide office order No.2-4/94-NVS(Pers) dated 21.1294). He was further warned that in the event of failure to do so, his services are liable to be terminated on expiry of extended period of probation.
3. On expiry of the extended period of probation, the case of Sh. R. C. Dubey was considered again for satisfactory completion of his probation by a duly constituted committee, which taking into account all the aspects, once again did not find him fit for removal from probation and further extended his period of probation up to 01.8.95 vie No.s-4/95-NVS(Pers.) dated 05.6.95 repeating the warnings of para 2 above.
4. The case of Sh. R. C. Dubey was once again considered for satisfactory completion of extended probation by a duly constituted committee on 4th July, 1995 which having gone into all the aspects for the said purpose did not find him fit for the job of a Principal in Navodaya Vidyalaya which is a residential coeducational school.
Accordingly, as per terms and conditions of appointment of Sh. R. C. Dubey and in accordance with the G.I. M.H.A. O.M. No.44/1/59-Ests(A) dated 14th April, 1959, I, Ms. Neeru Nanda, Director, Navodaya Vidyalaya Samiti, after having gone into all the above mentioned facts and having given ample opportunity to Sh. R. C. Dubey to show improvement, hereby terminate the service of Sh. Ramesh Chandra Dubey with immediate effect and direct him that he shall handover complete charge of the post as per the directions of the Dy. Director, NVS, Regional Office Shillong. II. Relieving order of the Applicant ORDER Consequent on the order of termination of services issued by the Samiti, New Delhis order No.F.No.D-16/92-NVS (Estt) dated 5.7.95 addressed to him, Shri R. C. Dubey, Principal, JNV, Ramkrishna Nagar, Karimganj, Assam, temporarily attached to N.V.S. Regional Office, Shillong is hereby relieved of his duties w.e.f. 28th Sept 95 (A.N.) with a direction to hand over the charge, if any, to the undersigned immediately.
16. Number of grounds have been taken challenging the impugned order, but what is strenuously urged before this Tribunal during the course of arguments is that even though, the order purports to be innocuous, yet in reality it is stigmatic and punitive in nature and as such before such an order was to be passed the Applicant ought to have been provided opportunity to represent his case. In order to know what has influenced the authority concerned, on our direction, the Respondent NVS submitted the following records for our perusal: (1) ACR/SPR (Shri R. C. Dubey-R.45-File No.149; (2) File on Confirmation DPC dated 4.7.1995; and (3) Personal File No.D-/6/92-NVS(Estt)Unit-I of R. C. Dubey.
17. We perused the file dealing with the meeting of DPC to consider the successful completion or otherwise of the Probation of the Principals of NVS. On 15.11.1994, 7 - Member DPC headed by Ms. Neeru Nanda, Director, NVS considered the performance, overall capability in managing the coeducational residential Schools as reflected in the ACRs / SPRs, Audit Reports and other related documents available on record, and in case of the Applicant, the DPC recommended extension of his probation period for a duration of 6 months. The next meeting of the DPC took place on 2.6.1995, where his probation was further extended up to 1.8.1995. In case of the Applicant, 3rd DPC of NVS met on 4.7.1995 to take a decision pertaining to completion of extended period of probation. The copy of the minutes of the 3rd DPC of NVS meeting held on 4.7.1995 shows that 5 were present (Chairperson, 3 Members and Member Secretary) but the minutes were signed by only two of them viz, a Member (C.A.S Raghavan) and Member-Secretary (O. P. Kumar). Three others including Chairperson have not signed the minutes. We have gone through the records placed before us by the Respondents but we could not find the minutes of the DPC meeting held on 4.7.1995 duly approved by the Chairperson and other Members. In the absence of duly approved minutes of the DPC meeting held on 4.7.1995, it leaves a doubt in our mind as to whether the minutes placed before us are the correct minutes or not. If that was the correct minutes, non approval of the same by all participating officers, more specifically the Chairperson of DPC would make the minutes incomplete and not acceptable / sustainable in the eyes of law. The Applicants termination being based on such incomplete minutes which is improper administrative process for the competent authority to pass order of termination would make the termination irregular and hence illegal. On the basis of this ground alone we would have quashed the termination order. But we would move forward to lift veil to find whether there were reasons which triggered the termination of the Applicant.
18. However, we may look into the observations made on the Applicant in the said minutes of the DPC meeting held on 4.7.1995. The relevant part relating to the Applicants is as follows:-
II) In respect of (i) Sh. R. C. Dubey and (ii) Sh. Sadhu Saran Sinha the committee has deliberated at length and after taking into consideration their overall performance, conduct and their suitability to head residential co-educational institutions as depicted in their ACRs, special performance reports, audit reports, and such other documents as available in their files, has decided as follows:
(a) Shri R. C. Dubey: He has failed to acquit himself even at minimum satisfactory levels in every aspect of the Vidyalaya administration. The committee therefore, felt that no purpose would be achieved by extending his probation period as he totally lacked application and understanding of the system. In view of his incapacity to fit into the Navodaya set up, the Committee decided to terminate his services with immediate effect.
19. In the background of the above observations by the DPC that ACRs, special performance reports, audit reports, and such other documents as available in their files on the Applicant were looked into, to come the informed conclusion to terminate his probation/service we perused the relevant records as well. Perusal of his ACR/SPR reveals that for the year up to end of June 1993 (eight months), the Deputy Director NVS/RO Lucknow (the Reporting Officer) has found him effective, capable and proper in respect of 7 attributes under the heading 13. Control and Management of staff (teaching and non teaching), but against the Column 15 Honesty and Integrity, the RO has recorded Under special watch based on record with his parent deptt. The Reviewing Officer has recorded against the Column 21 To be watched. Bharatiya Vidya Bhavan had complained about a financial irregularity / embezzlement case against him in their department. For the year ending 30.6.1994 the Reporting Officer has recorded No reason to doubt. The Reviewing Officer while rating the Applicant as Average and Not fit has remarked against Column 19 Yes, except that there is reason to doubt integrity since there is a defalcation case against him in B. Vidya Bhavan, some behavioural disorder among female staff have also been endorsed. It is noted that the remark of the Reviewing Officer was triggered by the observations made by the Reporting Officer dated 8.11.1994 in Part III of the Special performance which read as follows:
PART-III Recommendations of the Deputy Director Questions Observations/Remarks Is fit for absorption It is a fit case of reversion in view OR of his behaviour with the staff, Should be watched for another specially with one lady teacher months, by extending deputation (Annexure-I) and gross financial period, if possible. Irregularities as reported by the OR joint report of two ADs Mr. Mehta, May be reverted back to his Mr. Gaud (Annexure-II) but while parent organization immediately/ considering the recommendation, on completion of deputation period a regular incumbent to be posted as the Vidyalaya is at a difficult Place.
/sd/-
(Signature of the Dy. Director) There was one more special performance Report dated 27.4.1995 given by the Deputy Director where the Applicant was found to be not a fit case for promotion/confirmation and against the general appraisal of the Applicants performance in Item VII the following recording was made by the Deputy Director.
VII.General appraisal of the He is rated as Average.I consider Officers good and bad qualities him as an officer not clean in the from particularly those related discharge of his responsibilities to his integrity and ability to students unrest ,financial irregu-
correct himself it his faults larities, Confrontation with staff are pointed put to him. Members are the common way Of his functioning. Audit is being Conducted. Report by 5.7.95.
20. The ACR folder also contains a copy of the Joint Visit Report of JNV Gumla by Shri S. P. Mehta and H. K. B. Goud Assistant Directors on 25.10.1994 which reports about the financial irregularities, unhealthy relationship. With regard to the Applicants relationship with School staff they have recommended that the Principal should be warned. The ACR file has copy of some complaints received against the Principal. The financial irregularities detected in the cited Report includes (a) money collected from guardians Rs.7150 (b) splitting up of bills to avoid the counter signature of Chairman; (c) purchase procedure not followed; and (d) higher rates approved for purchases with baseless remarks. These, in our opinion, are misconducts which cannot be brushed aside by the Respondents.
21. On perusal of the personal file of the Applicant, in which his appointment and entire probation period correspondence are available, we get to find that some of the factors which have influenced the mind of the competent authority. Those are (i) the incident of bomb blast which took place during the Board examination on 23.3.1995; (ii) the Report of financial irregularities submitted by the Executive Magistrate on behalf of the D. C. Gumla (who was the Chairman of Navodaya Vidyalaya); (ii) the complaint of physical assault and misbehaviour of a Lady TGT (Oriya) teacher (Bharati Tripathi) against the Applicant; (iv) the letter of Bharatiya Vidya Bhavan informing NVS management about the Applicants financial irregularities while he was working with BVB; and (v) academic and school administration problems and financial irregularities reported by two Assistant Directors of NVS in their joint report of 25.10.1994. It is noted that the Applicants claim for gratuity and other dues from the Bharatiya Vidya Bhavan initially through representation and later on through the Consumer Forum which awarded against the Bharatiya Vidya Bhavan, had angered the Bharatiya Vidya Bhavan Management who had sent spate of letters to the NVS Management. Though no direct link can be established between the Bharatiya Vidya Bhavan allegations and termination of the Applicant, the files reveal that the NVS authorities views on the Applicants performance has been to some extent influenced by the correspondence of the Bharatiya Vidya Bhavan.
22. On our examination and analysis of the facts of the case by lifting the veil of the termination order and testing the same on the touch stone of parameters outlined by the Honourable High Court of Delhi in Shri Dinesh Kumar versus The Commissioner, Navodaya Vidyalaya Samiti (supra) and Honourable Apex Court in Pavanendra Narayan Verma Versus Sanjay Gandhi PGI of Medical Sciences (supra] we find that the Applicant being a probationer did not have right to the post of Principal and NVS had the right to assess his performance to decide whether he was suitable or unsuitable for the job on account of inadequacy in his performance but he assailed the order of termination on the ground it was stigmatic/punitive and he was not accorded an opportunity to defend himself. This termination, in our opinion has evil consequences as the Applicants image and reputation has been tarnished which has impacted his service elsewhere. Further, the impugned order of termination of services/probation is stigmatic termination, as prior to the termination there was an enquiry made by two Assistant Directors jointly which inter alia looked into the allegations involving the Applicants misconduct with a lady teacher and their report revealed financial irregularities which were misconducts on the part of the Applicant. All these have culminated into a finding that Applicant was guilty as indicated in the ACRs and SPRs. As all three factors are present in the records which are the basis of his termination, the impugned order cannot by any fits of imagination be termed as termination simplicitor. We therefore, hold the termination of the Applicant to be punitive irrespective of the simple form of the termination order.
23. In view of the totality of the facts and circumstances of the case, well settled legal position on the issues, our discussion made above, we are of the considered view that when services of an employee may have to be terminated on alleged misconduct, there has to be an enquiry into the matter giving proper opportunity to the employee to defend himself. It would not make any difference if the employee is on probation. We are further of the view that the court can always lift the veil to find out the real reason leading to order terminating the services of the employee, even though the order may seem to be innocuous. As stated within, the protection of Article 311(2) of the Constitution is available even to a probationer and the Court can be justified in lifting the veil to find out the true nature of the order by which the services were terminated.
24. In the result, the TA is allowed in the following terms:
(i) The impugned order dated 5.7.1995 are quashes and set aside and we direct the Respondents to reinstate the Applicant as principal of one of the Navodaya vidyalayas in the same rank and grade he was holding when his services were terminated.
(ii) The respondents would, however, be at liberty to initiate departmental enquiry against the Applicant for the alleged misconducts, if so advised.
(iii) With regard to the consequential salary benefits, it is noted that between 1995 and 2010, the Applicant has lost his prime service period of about 15 years and deprived of his salary and associated allowances. During the hearing, Counsel for Applicant informs that during the said period, the Applicant has to eke out his livelihood by taking tuitions of students and was earning something but not to the extent that he would have got from his salary and allowances. In this peculiar circumstances of the case, it is not possible to direct the Respondents to pay the full back wages to the Applicant. We, therefore, direct the Respondents to pay a lump sum amount of Rs.3 lakhs, which in our considered opinion, the Applicant would be entitled to.
(iv) The Respondents are directed to implement the above directions (i) and (iii) within a period of 6 weeks from the date of receipt of the certified copy of this order.
25. There shall, however, be no order as to costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj