Central Administrative Tribunal - Chandigarh
Deepali Age 26 Years Daughter Of Sh. ... vs Union Of India Through Its Secretary on 29 January, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH O.A.No.712-HR-2012 Order reserved on : 29.01.2012 Order pronounced on: 5.2.2013 CORAM : HONBLE MR. RANBIR SINGH, MEMBER (A) HONBLE MR. SANJEEV KAUSHIK, MEMBER (J). Deepali age 26 years daughter of Sh. Baljeet Singh R/o H.No. 674/29, Vikas Nagar, Near Sector 23, Sonepat. Applicant By : Mr. Jasbir Malik, Advocate. Versus 1.Union of India through its Secretary, Ministry of Human Resources and Development, Government of India, New Delhi. 2.Kendriya Vidyalaya Sangathan, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi through its Commissioner 3.Deputy Commissioner, Kendriya Vidyalaya Sangathan, Government Hospital Road, Gandhi Nagar, Jammu. 4.Kendriya Vidyalaya, BSF Campus, Amarkot, District Tarn Taran through its Chairman 5.Principal, Kendriya Vidyalaya, BSF Campus, Amarkot, District Tarn Taran. By : Mr. R.K. Sharma, Advocate. Respondents O R D E R
HONBLE RANBIR SINGH , MEMBER (A) This O.A. has been filed against the order No.F.24029/2163/2011-12/KVS(JR)3251 dated 15.06.2012 (Annexure A-9) vide which the services of the applicant working Primary Teacher, Kendriya Vidyalaya, BSF, Amarkot (Punjab) were terminated forthwith directing that she shall be entitled to claim a sum equivalent to the amount of her pay and allowances for the period of notice of one month.
2. The relief sought is as follows:-
The impugned termination order dated 15.06.2012 (ANNEXURE A-9) passed by respondent No. 3 may kindly be quashed and the respondents may kindly be directed to reinstate the applicant with all consequential benefits of back wages and continuity of service.
3. It has been pointed out in the O.A. that the applicant was appointed to the post of Primary Teacher on 15.12.2010 (Letter of appointment not filed) and she joined K.V. Amarkot on 24.12.2010. It was stated in the appointment letter that she was on probation for a period of two years.
4. On 1.11.2011, she had applied for 10 days HPL on medical grounds, which was sanctioned. However, on medical grounds she was unable to resume her duties and sought extension of HPA upto 30.9.2011 along with a copy of the medical certificate. On 29.9.2011, she submitted her joining report to respondent no.5. However, she was not permitted to join by respondent No.5. An ante-dated memorandum dated 28.9.2011 was sent to her by Respondent No. 3 which was received by the applicant on 3.10.2011. She was directed to show cause as to why her services may not be terminated on ground of absence from duty. On 5.10.2011 she submitted reply to the Memorandum stating that she was not absent without intimation; she was ill and the medical certificates were sent to office from time to time. She further stated that she came to join duty on 21.9.2011 but was not allowed to join by respondent no.5. After waiting for a long time on 6.1.2012, the applicant submitted a representation to the respondent no. 3 requesting that she may be allowed to join her duties as Primary Teacher in the respondent no. 5 school. On 5.3.2012 she submitted a representation to respondent no.5 enquiring about the status of her representation for joining duty. However, she did not receive any reply.
5. It is submitted in the O.A. that on 6.6.2012 the applicant had submitted another representation to respondent no. 3 requesting that she be allowed to join duty as Primary Teacher. Without taking into consideration the repeated requests of the applicant, respondent no. 3 has passed impugned order dated 15.6.2012 (A-6) terminating services of the applicant without complying with the provisions of Articles 311 of the Constitution of India.
6. Following grounds have been taken for the relief sought :-
(i)The impugned order is stigmatic.
(ii)The impugned order has been passed on the ground that applicant remained absent from duty without any intimation, which is factually incorrect.
(iii)After recovering from illness the applicant had submitted her joining report to respondent no. 5 who orally declined to let her join.
7. The respondents have filed a common reply statement in which attention has been drawn towards the provisions of the Kendriya Vidyalaya Sangathan, Appointment, Promotion, Seniority Rules, 1971. The applicant had accepted all the terms and conditions of her appointment letter when she joined duties on 24.12.2010. Para 4 and 5 of the appointment letter dated 15.12.2010 reads as follows :-
Para 4. He/she will be on probation for a period of 02 years which may be extended. Upon successful completion of probation he/she will be confirmed in his/her turn as per Kendriya Vidyalaya Sangathan rules.
5. During the probation and thereafter, until he/she is confirmed, the services of the appointee are terminable by one month notice on either side without any reason being assigned therefore. The appointing authority, however, reserves the right to terminate the services of the appointee before expiry of the stipulated period of notice by making payment of such equivalent to the pay and allowances for the period of notice of the unexpired portion thereof.
8. The respondents have further furnished the details of her unauthorized absence from time to time which was without prior intimation. It has been pointed out that since the applicant had remained absent for a long time, she was directed by the Principal to report to the Regional Officer, where she never reported.
9. The respondents contend that in a recent judgment entitled Pandurang Vithal Kevne Versus Bharat Sanchar Nigam Limited (BSNL) and Union of India it has been held that habitual absence from the workplace without sanctioned leave for a long period amounts to misconduct on the part of the employee, making him/her liable for dismissal from service. The High Court had placed reliance on decision in the case of Delhi Transport Corporation Vs. Sardar Singh, in which it was held that where an employee absents himself from duty, without sanction, for a long period, it prima facie reflects habitual negligence in duties and lack of interest in work. The track record of the applicant since her joining the respondent organization on initial appointment is indicative of her habitual negligence in duties and lack of interest in work.
10. The respondents have also placed reliance on 1974 SCC (L&S) 550 (Shamsher Singh vs. State of Punjab) in which the Honble Apex Court had held as follows :-
Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved, in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2) he can claim protection. In Gopi Kishore Prasad v. Union of India A.I.R. 1960 S.C. 689 it was said that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment. Instead of taking the easy course the Government chose the more difficult one of starting proceedings against him and branding him as a dishonest and incompetent officer.
11. The respondents have also drawn our attention towards 2000 (5) SCC 152 (Chandra Prakash Shahi Vs. State of U.P. & Others), in which the Honble Apex Court had held as follows :-
The important principles which are deducible on the concept of "motive" and "foundation", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive".
12. The respondents have also drawn our attention to SLP (Civil) No.17458-17459/2009 (Rita Kumari Vs. UOI & Ors) in which it was held as follows :-
Although, the order terminating her services used the word conduct in conjunction with the expression adverse work, in our view, that cannot make the order impugned in the writ petition stigmatic. The view taken by the High Court is consistent with the judgment of the Constitutional Bench in State of Orissa and another Vs. Ram Narayan Das AIR 1961 SC 177.
13. We have heard the learned counsel for the parties and perused the pleadings.
14. The learned counsel for the applicant has placed reliance on 1999 (1) SCT, 861 (Dipti Prakash Banerjee Vs. satvendra Nath Bose National Centre for Basic Sciences, Calcutta (SC), in which it was held that stigmatic order of termination of probationer based on formal enquiry by a show cause notice, without holing regular enquiry into the allegations of misconduct was vitiated.
15. The impugned order dated 15.6.2012 reads as follows :-
In pursuance to the Para 5 of the appointment letter No. F.24053/PRT/2010-KVS (JR) / dated 15.12.2010, the undersigned being the appointing authority hereby terminated forthwith the services of Ms. Deepali, Primary Teacher, K.V. BSF, Amarkot (Pb), and direct that she shall be entitled to claim a sum equivalent to the amount of her pay and allowances for the period of notices of one month at the same rates at which he was drawing them immediately before the termination of her service.
16. There is nothing stigmatic in the order. The order was passed in terms of Para no. 5 of the appointment order, quoted in para 7 (supra) which finds support from the view taken by Honble Apex Court in the case of Rita Kumari (supra).
Even otherwise, there is considerable gap between the issue of show cause notice No. F.24029/2163/2011-12/KVS (JR)7573 dated 28.9.2011 (A-4) and the issue of impugned order dated 15.6.2012 (A-9). The two cannot be related.
17. Since the order of termination has been passed in terms of the appointment order, during the period of probation, without assigning any reason, there is no justification for judicial interference in this case.
18. Accordingly, being devoid of merit, this O.A. is dismissed.
19. No costs.
(RANBIR SINGH) MEMBER(A) (SANJEEV KAUSHIK) MEMBER (J) Place: Chandigarh Dated: 05.02.2013 HC*