Central Administrative Tribunal - Delhi
Yashraj Tongia vs M/O Civil Aviation And Tourism on 8 February, 2023
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.2470/2015
MA No.3798/2022
Order reserved on : 02.02.2023
Pronounced on : 08.02.2023
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
Capt. Yashraj Tongia S/o Capt. Bharat Tongia,
89, Shrinagar Main,
Indore-452001. ... Applicant
(By Mr. Vivek Tankha, Sr. Advocate assisted by Mr. Vipul Tiwari and
Mr. Inder Dev Singh, Advocates)
Versus
1. Union of India through Secretary,
Ministry of Civil Aviation,
Opp. Safdarjung Airport,
New Delhi.
2. Director General Civil Aviation,
Ministry of Civil Aviation,
Opp. Safdarjung Airport,
New Delhi. ... Respondents
(By Mr. Hilal Haider with Ms. Butul Khan, Advocate)
ORDER
Justice Ranjit More, Chairman :
Heard Shri Vivek Tankha, Sr. Advocate assisted by Shri Vipul Tiwari and Shri Inder Dev Singh, learned counsel for the applicant, OA-2470/2015 2 and Shri Hilal Haider with Ms. Butul Khan, Learned counsel for the respondents.
2. By filing this OA, the applicant is challenging the impugned order dated 22.07.2014 (Annexure A-1), passed under sub- rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, terminating his services. The applicant is also seeking a direction to the respondents to reinstate him with all consequential benefits, including interest on the delayed payment of salary and allowances, etc.
3. The applicant is an MBA and is also holder of Ph.D degree in Aviation subject. He is holder of commercial pilot licence issued by the Director General Civil Aviation (DGCA), respondent No.2, and claims to have clocked more than 6000 hours of experience as pilot in command. In pursuance of the advertisement issued by the UPSC inviting applications for one post of Director of Flying Training (for short DFT) in DGCA, respondent No.2, the applicant having fulfilled the eligibility conditions, applied for the said post. On 20.01.2011, the UPSC, after considering various applications received, conducted their own short-listing of eligible candidates, and finding the applicant eligible, called him for interview for the post of DFT in respondent No.2 organisation. The applicant was OA-2470/2015 3 duly selected for the aforesaid post and accordingly, the UPSC issued letter dated 18.02.2011 intimating him that he had been recommended for appointment to the post of DFT.
4. At this stage, it is relevant to mention that prior to his selection for the post of DFT, the applicant had been working as DGCA-approved Chief Flying Instructor at Centaur Aviation Ltd. (formerly Yash Air Ltd.), and after his selection the applicant duly submitted his resignation from the post he was holding, in order to join his new assignment.
5. Despite recommendation of the name of the applicant by UPSC to the respondent No.2 for appointment to the post of DFT, the respondent did not issue appointment letter/order, even though a lot of time had elapsed, and especially when the post of DFT was lying vacant. In these circumstances, the applicant was constrained to move the Principal Bench of this Tribunal by filing OA No.2229/2011, seeking a direction to the respondents to consider issuing letter of appointment to him without any further delay, in pursuance of the recommendation of the select committee of UPSC vide letter dated 18.02.2011. Apart from DGCA (respondent No.2), Secretary, UPSC was also party respondent to the aforesaid OA. That OA was disposed of by the Tribunal on 01.03.2012, thereby directing OA-2470/2015 4 the respondents to issue offer of appointment to the applicant to the post of DFT in which he had been regularly selected, within a period of four weeks from the date of receipt of a certified copy of the order.
6. In pursuance of the Tribunal‟s order referred to above, the respondent issued letter of appointment dated 12.06.2012 to the applicant appointing him on probation for a period of two years. It is the case of the applicant that he was harassed ever since he joined duties on the basis of the orders passed by this Tribunal. It is stated that he was even denied short leave to look after his aged father who was unwell and hospitalised, etc., and, therefore, he was forced to submit letter of resignation dated 04.06.2014. It appears that this letter of resignation was not acted upon by the respondent, and on 09.06.2014 the respondent issued a letter extending the period of probation of the applicant by another one year. Within the period of one and a half month thereafter, the respondent on 22.07.2014 issued the impugned order terminating the services of the applicant with effect from 17.07.2014 under the provision of Rule 5(1) of the CCS (Temporary Service) Rules, 1965.
7. It is the specific case of the applicant that the impugned order of termination is not termination simpliciter, but is an order based on alleged misconduct without conducting due inquiry. The OA-2470/2015 5 applicant alleges that the impugned order has been issued as a short- cut to dispense with his services instead of conducting a detailed inquiry on the allegations imputed against him, and, therefore, the same is stigmatic in nature and cannot be sustained in law. It is also the case of the applicant that since his probation period was extended by one year beyond 11.06.2014, his suitability for the post has to be considered on the basis of record up to 11.06.2015. The applicant asserted that his abrupt termination is not due to his unsuitability, but on account of unspecified acts of misconduct alleged against him.
8. The Application is opposed by the respondents by filing counter affidavit. The respondents have flatly denied that the impugned order is not a termination simpliciter. It is further denied that the services of the applicant have been terminated illegally or arbitrarily. The stand of the respondents is that they are well within their rights in terminating the services of the applicant under Rule 5(1) of the CCS (Temporary Service) Rules, 1965 during probation, and, therefore, no interference is called for in this Application, and the same deserves to be dismissed.
9. Thus, the short issue this Tribunal is called upon to decide is about the legality of the impugned order of termination of the applicant. The stand of the applicant is that it is punitive in OA-2470/2015 6 nature and is not a termination simpliciter during probation period. The respondents, on the other hand, claim that the impugned order is not punitive or stigmatic. In the light of these assertions by the rival parties, before going into the factual aspect of the matter, we would discuss the law in this regard settled by the Hon‟ble Supreme Court.
10. The Apex Court in Mathew P. Thomas v Kerala State Civil Supply Corpn. Ltd. & others [(2003) 3 SCC 263], in para 11 held as follows:
"....From a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. If the form and language of the so-called order of termination simpliciter of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. In cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simpliciter, but the real OA-2470/2015 7 face behind it is to get rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct."
The above observation of the Apex Court makes it clear that while deciding whether the termination of a probationer is a termination simpliciter or punitive, the Tribunal can travel beyond the order of termination to find out what in reality is the background and what weighed with the employer to terminate the services of the probationer.
11. The Hon‟ble Supreme Court in Dipti Prakash Banerjee v Satyendra Nath Bose National Centre for Basic Sciences, Calcutta & others [(1999) 3 SCC 60], laid down the criterion for differentiating as to when a simple order of termination is to be treated as „founded‟ on the allegations of misconduct, and when complaints could be only as a „motive‟ for passing such an order of termination. The Hon‟ble Supreme Court held that to determine as to whether the termination of services is punitive or simpliciter would depend upon the stigma in the order of termination. It was held that stigma may be inferable from the references quoted in the termination order, though the order OA-2470/2015 8 itself may not contain anything offensive. It was further held that termination order would be bad if it contains stigma but no regular inquiry has been held. In para 21 the Apex Court made the following observations:
"21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as „founded‟ on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."
12. In Chandra Prakash Shahi v State of U.P. & others [(2000) 5 SCC 152] the Apex Court laid down the test to determine whether the termination is simpliciter or punitive. The Hon‟ble Supreme Court held that while determining this aspect, one must go into the „motive‟ or „foundation‟ of termination. Their Lordships held that termination motivated by the employee‟s general unsuitability is valid. If, however, there are allegations of serious misconduct for which preliminary inquiry is conducted behind the back of the employee to ascertain the truth and then termination is brought OA-2470/2015 9 about, such termination, having regard to other circumstances of a case, has to be taken as founded on misconduct, and is, therefore, to be treated as punitive. In short, the Apex court held that in regard to termination of a probationer it has to be seen whether the inquiry was for the purpose of determining his suitability for retention/confirmation in service, or for the purpose of finding out the truth in the allegations against him. Former would be a case of termination simpliciter, while the latter would be case of punitive termination funded on allegations of misconduct. In para 29, the Hon‟ble Supreme Court made following observations:
"29. "Motive" is the moving power which impels action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry."
13. In the light of the settled position of law referred to above, we now proceed to consider the rival assertions of the parties to this Application.
OA-2470/2015 10
14. While dealing with the facts, we have already referred to the decision dated 01.03.2012 in OA No.2229/2011 passed by this Tribunal. The applicant was constrained to file this OA against the respondents being aggrieved by the actions of the respondents in not issuing appointment order to him pursuant to the recommendation of the UPSC for the post of DFT in the office of respondent No.2. Perusal of this decision makes it clear that the appointment of the applicant despite recommendation of UPSC was delayed on account of issue of conflict of interest, inasmuch as the applicant‟s father was managing M/s Yash Air Ltd., and conducting flying training. The Tribunal relied upon the sworn affidavits of the applicant and his father that they had no interest in M/s Yash Air Ltd., as they had already resigned therefrom, coupled with the fact that the respondent had no material to substantiate the allegations, and directed the respondent to issue offer of appointment to the applicant. In this regard, observations in para 9 are reproduced for ready reference:
"9. However, at the stage of offering of the appointment letter, the DGCA has brought in the issue of conflict of interest and has informed that the applicant‟s father is managing Yash Air Pvt. Ltd. and conducting Flying Training. This aspect has been very emphatically denied by the applicant and his father through sworn Affidavit filed by them. As the alleged conflict of interest has been fully denied by the applicant and his father, question of conflict of interest does not exist. Further, the respondents have no material to OA-2470/2015 11 substantiate the so called conflict of interest by showing that father of the applicant has any connection with Yash Air Pvt. Ltd. It would, therefore, be appropriate to direct the respondents to issue offer of appointment to the post of Director of Flying Training in which the applicant has been regularly selected, within a period of four weeks from the date of receipt of a certified copy of this order. It goes without saying that if the applicant is found eligible in all other respects, like, if he is found medically fit and if his character and antecedents are found to be positive, his case for offering him the appointment should be done as directed above."
15. The applicant has brought on record the following documents by filing separate misc. applications:
(1) Enquiry Report regarding the complaints against M/s Yash Air Ltd/M/s Centaur Aviation Academy Ltd & Capt. Yash Raj Tongia, Director Flying Training, DGCA;
(2) Reply to RTI application dated 14.08.2014 seeking particulars of official note sheets pertaining to applicant‟s termination; and (3) Certified copy of Form 32 dated 06.07.2009 obtained by the applicant on 14.12.2022 from the Deputy Registrar of Companies, Madhya Pradesh.
16. The report referred at Sl. No. (1) above is prepared by Prabhat Kumar, Chief Vigilance Officer, Pawan Hans Ltd., the Inquiry Officer. The inquiry was initiated on the basis of communication dated 01.04.2014 from Under Secretary, office of Minister of Civil Aviation, wherein representation received from one Anupam Verma was forwarded to the inquiry officer. This inquiry was initiated because of the complaint against M/s Yash Air Ltd.
OA-2470/2015 12 (Centaur Aviation Ltd.), by the said Anupam Verma. Though we have gone through the entire report, we will deal with the same in context of the present Application. In para 37 of the report, the inquiry officer has given findings of the inquiry. Clause (g) is relevant for our purpose, which reads as follows:
"g) The enquiry also clearly establishes the fact that there exists conflict of interest as Shri Yash Raj Tongia had close association with M/s Yash Air Ltd/M/s CAAL."
In para 38 recommendations are made. For our purpose clause (f) of the recommendations is necessary to be reproduced, which reads as follows:
"f) The enquiry has established the issues of conflict of interest and absence of security clearance from IB/MHA in case of Capt Yash Raj Tongia at the material time. Therefore, the appointment of Capt Tongia as DFT in DGCA does not appear to be proper. Further, the enquiry has established tempering of documents in the case of appointment of Ms Pooja Porwal as PII in M/s CAAL. Therefore the continuation of Capt Yash Raj Tongia in DGCA may be reviewed by MOCA as he is still under probation."
17. We have perused the official note sheets pertaining to the applicant‟s termination. These documents have been obtained by the applicant by way of reply to his query under RTI Act, 2005. The note OA-2470/2015 13 sheets reveal following remarks of JS (AK) and Secy. (A) on the file pertaining to the applicant‟s termination:
"JS(AK) The report of CVO, PHL establishes allegations of moral turpitude on the part of the officer and therefore, provides enough grounds for termination of the services of the officer by following the due process."
"Secy. (A) As proposed para XIII on pre page be approved and services of the official be terminated as per rules cited above as the official is under probation. Submitted for orders."
18. We have also perused the certified copy of Form 32 referred at Sl. No.3 hereinabove.
19. We will first deal with the document at Sl. No. (3), which pertains to the claim of the applicant that he has no relation with M/s Yash Air Ltd. It is the specific case of the applicant that he had resigned from the Directorship of M/s Yash Air Ltd. by letter dated 26.06.2009. Even his father also severed relationship with M/s Yash Air Ltd. In support of this contention, the applicant has placed reliance on the extract of Form 32 under the Companies Act. The applicant‟s father is no more, having expired long before the applicant‟s selection as DFT with the respondent No.2. Be that as it may, there is already finding of the competent Court, namely, this Tribunal, in OA No.2229/2011 to the effect that there is no conflict of OA-2470/2015 14 interest between the applicant or his father and said Yash Air Ltd. The issue of conflict of interest was raised by the respondents even prior to the appointment of the applicant. However, the said issue was put to rest by this Tribunal by passing a speaking order.
20. The complaint of Anupam Verma and the report of the inquiry officer Prabhat Kumar, CVO, Pawan Hans Ltd., is also mainly regarding the conflict of interest of the applicant with Yash Air Ltd. We have already referred to the finding of the inquiry officer. A clear cut finding is given that the applicant has a conflict of interest with Yash Air Ltd., and it was also recommended that the continuation of the applicant may be reviewed by the respondent, as the applicant was still on probation. What is pertinent to note is that the entire report was prepared behind the back of the applicant. Though the inquiry was initiated to enquire into the alleged misconduct of the applicant, neither any notice was served upon the applicant nor principles of natural justice were followed, and the report was prepared and submitted behind his back. The official notings referred to above do disclose the mind of the respondents inasmuch as the same contain the remark to the effect that report of the inquiry officer established the allegations of moral turpitude against the applicant and, therefore, provided enough ground for OA-2470/2015 15 termination of his services. Thus, the documents relied upon by the applicant, in our opinion, unequivocally show that the termination of the applicant is not a termination simpliciter, but is punitive/stigmatic.
21. At this stage, at the cost of repetition, it is worthwhile to note that this Tribunal has already held that there is no conflict of interest between the applicant or his father and M/s Yash Air Ltd., and this finding is supported by the Form 32 referred to above, which would show that the applicant had resigned long back from the Yash Air Ltd. The issue as to whether the applicant‟s termination is a termination simpliciter or punitive/stigmatic is put to rest by the respondents themselves. The respondents have filed counter reply to MA No.429/2018 filed by the applicant for production of additional documents. In para 8, following averments are made:
"8. That in reply to para 8, it is submitted that the Vigilance Clearance dated 14.7.2014 was issued by Ministry of Civil Aviation after receiving the feedback from the Vigilance Section of DGCA. The Vigilance Section in its letter dated 11.7.2014 (Annexure R-1) has clearly mentioned that on the basis of the findings in the enquiry report submitted by the CVO, Pawan Hans Ltd., the disciplinary action was being contemplated against the applicant. However, as the instant case was not falling under any of the three categories mentioned under DOPT OM dated 14.9.1992 (Annexure R-2) for which the vigilance clearance can be denied, the vigilance clearance was issued by the Ministry of Civil Aviation as the applicant was not under suspension, OA-2470/2015 16 secondly no charge sheet had been issued to the applicant and thirdly, there was no ongoing prosecution for criminal charge against the applicant. Thus as per DOPT OM dated 14.9.1992, the „Conflict of interest‟ is not included as a ground for rejection of vigilance clearance and therefore, vigilance clearance was issued. However the issue of vigilance clearance does not in any way absolve the applicant from the conflict of interest which was clearly established through the enquiry. Hence, the vigilance clearance dated 14.7.2014 is inconsequential and applicant has intentionally concealed the material information by not submitting the letter of DGCA vigilance section dated 11.7.2014. Thus, it is submitted that the letter dated 14.7.2014 is liable to be disregarded."
22. In the light of the discussion made hereinabove, we are of the considered opinion that the applicant‟s termination during probation period is punitive/stigmatic, which is not at all permissible in the absence of a regular departmental inquiry. The impugned order, therefore, cannot stand scrutiny of law. Same is accordingly quashed and set aside. The applicant shall be reinstated in service expeditiously, and, in any case, not later than four weeks from the date of receipt of a copy of this order. So far as the applicant‟s claim for back wages is concerned, there is nothing on record to show that from the date of his termination till today, he was not gainfully employed. Therefore, applying the principle of no-work-no-pay, the applicant shall not be entitled for the back wages. However, the applicant will be entitled for other consequential benefits flowing from the order of his reinstatement in service.
OA-2470/2015 17
23. The OA is allowed in the above terms. There shall be no order as to costs.
24. Pending misc. applications also stand disposed of.
( Mohd. Jamshed ) ( Justice Ranjit More ) Member (A) Chairman /as/