Central Administrative Tribunal - Delhi
Naresh Kumar vs Delhi Transport Corporation, Govt. Of ... on 29 January, 2016
OA 2548/13 1 Naresh Kumar v. Govt. Of NCT of Delhi & ors
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.2548 OF 2013
New Delhi, this the 29th day of January, 2016
CORAM:
HON'BLE SHRI SUDHIR KUMAR, ADMINISTRATIVE MEMBER
AND
HON'BLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
.............
Naresh Kumar,
S/o Sh.Ramphal,
R/o Village Savda,
Post Office Nizam Pur,
P.S.Kanjhawala, Delhi ........ Applicant
(By Advocate: Mr.Dharam Raj Ohlan)
Vs.
1. Govt. of NCT of Delhi,
(Through Chief Secretary),
Delhi Secretariat,
I.P.Estate, New Delhi
2. Chairman,
Delhi Transport Corporation,
Indra Prastha Depot,
New Delhi
3. The Depot Manager,
DTC Nangloi,
Delhi ........... Respondents
(By Advocate: Mr.N.K.Singh for Ms.Avnish Ahlawat)
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OA 2548/13 2 Naresh Kumar v. Govt. Of NCT of Delhi & ors
ORDER
RAJ VIR SHARMA, MEMBER(J):
In this Original Application, the applicant has challenged the order dated 5.7.2013 whereby the respondent-Delhi Transport Corporation has terminated his services under Clause 9(a)(i) of the D.R.T.A.(Conditions of Appointment and Service) Regulations,1952. The applicant has also prayed for a direction to the respondent-Delhi Transport Corporation to reinstate him in service from the date of termination of his services and to grant him all consequential benefits.
2. The brief facts of the case of the applicant are that consequent upon his selection by the DSSSB, he was appointed by the respondent-Delhi Transport Corporation, as a Driver on probation for a period of two years with effect from 9.7.2009. There was no criminal case registered/pending against him at the time of appointment. A false criminal case, vide FIR No.140/2009 dated 6.8.2009 under Section 307 IPC, P.S.Kanjhawala, Delhi, was registered against him. The Additional Sessions Judge, Outer (II) Rohini Court, Delhi, granted him anticipatory bail. The intimation regarding the said FIR and anticipatory bail was given by him to the respondent-Delhi Transport Corporation. The police, after completion of investigation, submitted the final report under Section 173 Cr.P.C. stating that no evidence was found against the applicant. Though he was discharging his duties satisfactorily, the respondent-Delhi Transport Corporation extended his probation period by one more year, i.e., up to 8.7.2012. The respondent- Page 2 of 12 OA 2548/13 3 Naresh Kumar v. Govt. Of NCT of Delhi & ors Delhi Transport Corporation again extended his probation period on second occasion for six months up to 8.1.2013, and on third occasion for six months up to 8.7.2013. Thereafter, the respondent-Delhi Transport Corporation, vide impugned order dated 5.7.2013, terminated his services under Clause 9(a)(i) of the D.R.T.A (Conditions of Appointment & Service) Regulations, 1952 with immediate effect. It is contended by the applicant that the respondent- Delhi Transport Corporation terminated his services without issuing any notice to him. There was no criminal case pending against him. Though during the period of probation, he was discharging his duties satisfactorily, the respondent-Delhi Transport Corporation, instead of confirming him in the service, illegally and arbitrarily terminated his services.
3. The respondent-Delhi Transport Corporation has filed a counter reply opposing the O.A. It is stated by the respondent-Delhi Transport Corporation that in the attestation form, the applicant specifically mentioned that no criminal case was pending against him, and that he was not involved in any criminal case. During verification of his character and antecedent, it was revealed that the applicant was involved in criminal case, FIR No.140/09 dated 6.8.2009, PS Khanjawala, Delhi, under Section 307 read with Section 34 of the Indian Penal Code. During the period of probation, the applicant was awarded punishment of 'Censure' for his unauthorized absence from duty with effect from 1.1.2010 to 24.1.2010. The appointment order stipulated that the applicant would be on probation for a period of two Page 3 of 12 OA 2548/13 4 Naresh Kumar v. Govt. Of NCT of Delhi & ors years. His performance for two years during the period of probation was taken into consideration. In paragraph 8 of the counter reply, the respondent- Delhi Transport Corporation has stated thus:
"The guidelines for Drivers, who are on probation, are as follows:
Drivers on probation (during the first year):
i) For Termination
a) If a driver is involved in a major accident case and is not acquitted by the Court or is considered at fault by the Accident Committee.
b) If a driver is involved in more than three minor accidents or four damage cases.
c) If the number of punishments on counts other than accidents exceeds eighty.
d) If the number of leave without pay exceeds 45 days on grounds other than illness or exceeds 60 days in all.
Drivers on probation (during the second year):
During the extended period of probation, the same is formula as indicated above during the first year will be observed.
As the period of probation of the Drivers cannot be extended beyond two years, their services will be terminated, if they do not come up to the standard indicated above."
It is also stated that there being no provision under the D.R.A.T (Conditions of Appointment and Service) Regulations, 1952, for extension of the period of probation beyond two years, the services of the applicant have been terminated.
4. The applicant has filed a rejoinder reply controverting the stand taken by the respondent-Delhi Transport Corporation. Along with his rejoinder reply, the applicant has filed copies of salary slips for the period Page 4 of 12 OA 2548/13 5 Naresh Kumar v. Govt. Of NCT of Delhi & ors from October 2009 to January 2010, and from October 2010 to January 2011, and has contended that during the said period he was paid full salary and allowances, and, therefore, the statement made by the respondent-Delhi Transport Corporation that he was awarded the punishment of 'Censure' for his unauthorized absence from 1.1.2010 to 24.1.2010 is unfounded. The applicant has also filed copies of the order and judgment dated 7.8.2014 passed by the Additional Sessions Judge, NW-03, Rohini, Delhi, in Sessions Case No.80 of 2013 (FIR No.140/09), whereby he and other accused persons have been acquitted.
5. We have heard Mr.Dharam Raj Ohlan, the learned counsel appearing for the applicant, and Mr.N.K.Singh for Ms.Avnish Ahlawat, the learned counsel appearing for the respondent-Delhi Transport Corporation. During the course of hearing, Mr. N.K.Singh has produced before us the original Service Book of the applicant.
6. Clause 9(a)(i) of the D.R.T.A (Conditions of Appointment & Service) Regulations, 1952, stipulates that except as otherwise specified in the appointment order, the services of an employee of the Authority (now Delhi Transport Corporation) may be terminated without any notice or pay in lieu of notice during the period of probation and without assigning any reason therefor. Thus, the respondent-Delhi Transport Corporation is empowered to terminate the services of an employee during the period of probation without assigning any reason therefor.
Page 5 of 12 OA 2548/13 6 Naresh Kumar v. Govt. Of NCT of Delhi & ors 6.1 It is not the case of the applicant that the termination order was passed on any alleged misconduct on his part or that any enquiry was held behind his back.
6.2 From the final report submitted by the Investigating Officer on 2.9.2011 under Section 173 Cr.P.C. in Kanjhawala P.S. FIR No.140/09 dated 6.8.2009 (copy of which has been filed by the applicant as Annexure P/2 to the O.A.), it appears that after his appointment as Driver, the applicant was involved in the criminal case for alleged commission of offence punishable under Section 307 read with Section 34 of the Indian Penal Code. The charge sheet has been filed by the Investigating Officer against him and other accused persons. Therefore, the applicant is not correct to say that the police submitted final report stating that there was no evidence available against him.
6.3 In the said charge sheet, the Investigating Officer has also mentioned that FIR No.21/05 under Section 307/323/34 IPC was earlier registered against the applicant and others as accused. It is, therefore, clear that prior to his appointment, the applicant was involved in criminal case, and/or FIR in criminal case was registered against him. 6.4 It transpires from the Service Book of the applicant that during the initial period of probation for two years, and also during the extended period of probation, the applicant remained on EOL without pay on several occasions. Though the pay slips for some months show that the applicant Page 6 of 12 OA 2548/13 7 Naresh Kumar v. Govt. Of NCT of Delhi & ors was paid full salary, yet, solely on the basis of those pay slips, it cannot conclusively be said that the applicant performed his duties during the said period, and did not remain on EOL without pay. No other documentary evidence has been adduced by the applicant showing that he had performed duties during the period in question. Therefore, the applicant cannot be said to have substantiated his plea that he never remained absent/on leave without prior sanction of the competent authority, and that he performed his duties on those days which were marked as EOL without pay in his leave account/Service Book.
6.5 Taking into consideration the involvement of the applicant in the criminal cases initiated against him prior to and after his appointment, and his frequent unauthorized absence from duty, etc., during the initial period of probation and extended period of probation, the competent authority adjudged the suitability of the applicant for continuance in service. As the period of probation of the Drivers cannot be extended beyond two years, the respondent-Delhi Transport Corporation terminated the services of the applicant in terms of Clause 9(a)(i) of the D.R.A.T (Conditions of Appointment & Service) Regulations, 1952.
6.6 The judgment dated 7.8.2014 passed by the Additional Sessions Judge-03, NW, Rohini, Delhi, in Sessions Case No.80/13 (FIR No.140/09, P.S. Kanjhawala, u/s 307/34 IPC), does not, in any way, advance the case of Page 7 of 12 OA 2548/13 8 Naresh Kumar v. Govt. Of NCT of Delhi & ors the applicant. In paragraph 6 of the judgment, learned Additional Sessions Judge concluded as follows:
"6. Keeping in view the above facts & circumstances and the fact that PW 2/injured and PW3 to PW5 being the eye witnesses are not supporting the case of prosecution, no useful purpose would be served by examining the remaining witnesses. Therefore, the prosecution evidence has been closed. No incriminating evidence has come on record against the accused persons, therefore, statements of accused persons have also been dispensed with. Accordingly, accused Yogesh Dabas, Pale Ram, Ramphal, Naresh Kumar, and Rakesh Kumar are acquitted because of lack of evidence on behalf of prosecution. The bail bonds of accused Yogesh Dabas, Pale Ram, Ramphal, Naresh Kumar, and Rakesh Kumar are cancelled. Their sureties are discharged. Documents of sureties, if any, be returned to them against proper acknowledgement. File be consigned to Record Room."
6.6.1 From the above judgment passed by the learned Additional Session, it is seen that by the date the impugned order dated 5.7.2013 was issued by the respondent-Delhi Transport Corporation, the criminal case was pending against him, and that he and other accused persons, who were involved in offence punishable under Section 307 read with Section 34 of the Indian Penal Code, were acquitted by the learned trial Judge because of lack of evidence on behalf of prosecution. No finding was recorded by the learned trial Judge that the criminal case was falsely foisted against the applicant and other accused persons. Thus, the applicant cannot call in question the impugned order dated 5.7.2013 on the ground of his acquittal in the criminal case, as ordered by the learned trial Judge, vide judgment dated 7.8.2014, ibid, more so when the termination of the services of the applicant Page 8 of 12 OA 2548/13 9 Naresh Kumar v. Govt. Of NCT of Delhi & ors was ordered by the respondent-Delhi Transport Corporation under Clause 9(a)(i) of the D.R.T.A (Conditions of Appointment & Service) Regulations, 1952, and when the involvement of the applicant in the said criminal case did not form the sole basis of termination of his services under Clause 9(a)(i) of the D.R.T.A. (Conditions of Appointment & Service) Regulations, 1952.
7. In State of Punjab and Others v. Sukhwinder Singh, 2005 (5) SCALE 451, while the respondent was on probation, he was discharged from service under Rule 12.21 of the Punjab Police Rules, which is analogous to the aforesaid Clause 9(a)(i) of the DRTA (Conditions of Appointment & Service) Regulations, 1952. The Civil Suit filed by him was decreed by the learned trial court in his favour. The appeal filed by the Department against the judgment and decree passed by the trial court was dismissed by the learned first appellate court. The second appeal filed by the Department was also dismissed by the Hon'ble High Court. While affirming the judgments passed by the trial court and also by the first appellate court, the Hon'ble High Court held that the respondent was thrown out of job on the ground of absence from duty, and that the punishment was imposed upon him without holding a formal inquiry. Allowing the Civil Appeal and setting aside the judgments passed by the trial court, and also by the first and second appellate courts, the Hon'ble Apex Court 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 Page 9 of 12 OA 2548/13 10 Naresh Kumar v. Govt. Of NCT of Delhi & ors 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 Page 10 of 12 OA 2548/13 11 Naresh Kumar v. Govt. Of NCT of Delhi & ors 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 give s 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."
8. Further, in Union of India & Others v. Mahaveer C. Singhvi, 2010 (7) SCALE 623, the Hon'ble Apex Court has held that if a finding against a probationer was 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. 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 of a probationer without giving him an opportunity of hearing, the same would be valid.
9. After having given our anxious consideration to the facts and circumstances of the case, and the rival contentions, in the light of the Page 11 of 12 OA 2548/13 12 Naresh Kumar v. Govt. Of NCT of Delhi & ors decisions cited supra, we find no substance in any of the contentions of the applicant. Thus, there is no infirmity in the order impugned in the O.A.
10. Resultantly, the O.A., being devoid of merit, is dismissed. No costs.
(RAJ VIR SHARMA) (SUDHIR KUMAR)
JUDICIAL MEMBER ADMINISTRATIVE MEMBMER
AN
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