Central Administrative Tribunal - Delhi
Mange Ram vs M/O Finance on 27 February, 2020
Central Administrative Tribunal
Principal Bench, New Delhi
OA No. 469/2017
This the 27th day of February, 2020
Hon'ble Mr. R.N. Singh, Member (J)
Sh. Mange Ram
Aged about 36 years
S/o Sh. Shyam Lal
R/o Village Shawaly, Post Nai Mandi
Muzaffarnagar, UP.
(By Advocate : Mr. S.K. Gupta)
...Applicant
Versus
Union of India
1. The Secretary
M/o Finance, Department of Revenue
North Block, New Delhi.
2. Chairman
Central Board of Direct Taxes
Ministry of Finance
Department of Revenue, North Block
New Delhi.
3. Pr. Chief Commissioner of Income Tax (CCA)
UP West Region
Aaykar Bhawan, 16/69, Civil Lines, Kanpur.
4. Commissioner of Income Tax
Aaykar Bhawan, Meerut Road
Muzaffarnagar, UP-251002.
5. Ms. Reena Sinha Puri
Pr. Commissioner of Income Tax
Aaykar Bhawan, Meerut Road
Muzaffarnagar, UP-251002.
Also at :
R/o D-2/156, Kaka Nagar, New Delhi - 110003.
(Respondent No. 5 to be served at her residence address as referred
above i.e. D-2/156, Kaka Nagar, New Delhi - 110003)
.... Respondents
(By Advocate : Mr. Manjeet Singh Reen)
2
ORDER (ORAL)
Mr. R.N. Singh :
Heard the learned counsels for the parties.
2. The applicant has filed the present Application under section 19 of the Administrative Tribunals Act, 1985 against the verbal order of his termination/disengagement from the services of the respondents on 09.11.2015.
3. The brief facts, leading to the filing of the present OA are that the applicant has been working as casual labour/contingency staff w.e.f 19.12.2002 under the respondents. The applicant along with others was granted the benefit of minimum wages vide order dated 07.02.2011 (Annexure A-3), and such benefits were further increased and paid to the applicant and similarly situated persons by the respondents vide office order dated 18.07.2014 (Annexure A-4) in purported compliance of directions of the Chandigarh Bench of this Tribunal in OA No. 456/CHD/2012 etc.
4. The applicant along with various similarly placed persons approached this Tribunal earlier vide OA No. 1846/2013 claiming the regularisation and other service benefits and this Tribunal disposed of the said OA vide order/judgment dated 22.05.2014. The operative portion of the said order/judgment reads as under :-
".....Therefore, the general statement of CIT (Vigilance), CBDT that the CCITs/DGITs have violated any of the aforesaid Office Memoranda in the case of the Applicants are not factually correct and it has been made without any application of mind. Further, it is seen, as observed earlier, that the Applicants have been working with the Respondents for fairly long 3 time. Suddenly issuing a direction to CCITs/DGITs that they should ensure that none of the DDOs working in this region make any payments to the directly deployed casual workers in contravention of the Government/DOP&Ts orders and the judgments of the Supreme Courtand bringing the Applicants in this OA under the said direction is nothing but arbitrary and illegal. We, therefore, quash and set aside the aforesaid impugned letters dated 09/13.05.2013 and 22.05.2013. We also make the stay granted against the operation of the aforesaid orders given on 11.06.2013 absolute. Further, we direct the Respondents to continue to disburse payments/ remuneration/ wage/ payments to the Applicants against their employment as per the standard terms and conditions prevalent and being followed at present.
13. We also make it clear that the Applicants who are still working as daily wagers/casual employees shall not be replaced by another set of daily wagers/casual labourers directly or through any other mode unless the disengagement is resorted to on the ground of unsuitability. As regard the prayer of the Applicants for regularization is concerned, we may profitably refer to the judgment of the Apex Court in Uma Devis case (supra), the relevant part of which is reproduced as under:-
44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N.NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not undercover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
14. With the aforesaid directions/observations, this OA is disposed of. There shall be no order as to costs.
3. In view of the above position, both these OAs are disposed of with the same directions/observations as above. There shall be no order as to costs."
5. It is the case of the applicant that the applicant has been continuing under the services of the respondents and performing the 4 duties assigned to him to the best satisfaction of the authority concerned. However, when the applicant on 09.11.2015, after discharging his duties left the office and reached his village, was in receipt a call from the Caretaker in the office of the respondent no. 5, and though the applicant was suffering with cough and cold, in view of the instructions received, he reached the office of respondent no. 5 at around 7.30 pm. He was taken to the District Hospital (Male), Muzaffarnagar, U.P. for his medical examination. The applicant contends that he was not put to any test and only clinically examined by the Doctor on duty. The Doctor vide his report dated 09.11.2015 reported that the applicant had consumed alcohol. The said report indicates that „consumed alcohol but not intoxicated‟ (Annexure A-5). The applicant contends that without issuing any notice or order, the applicant was disengaged from the services of the respondents w.e.f. 10.11.2015 and, therefore, the present OA. He further submits that since his such illegal termination, the applicant is without any kind of gainful employment.
6. Mr. S.K. Gupta, learned counsel for the applicant submits that in view of the directions of this Tribunal in order dated 22.05.2014, the applicant was required to be considered by the respondents for regularisation keeping in view the judgment of the Hon‟ble Apex Court in the case of Secretary, State of Karnataka & others Vs. Umadevi & Others (2006) 4 SCC 1, and also to extend the benefits as admissible to him under the relevant rules, till such regularisation. However, instead of considering his case for regularisation, the respondents have disengaged the applicant by oral order, and that too on the ground of misconduct which is estimated and without any basis. He 5 further contends that once the applicant has not been put to any medical test to ascertain as to whether he had consumed alcohol or not, the certificate referred and relied by the respondents cannot be the basis for his disengagement. He further argued that even, if the applicant has been working under the respondents as a casual employee, the principles of natural of justice were mandatorily required to be complied with before disengaging, and the same have been violated. In this regard he places reliance upon the judgment of the Hon‟ble Apex Court in MCD vs. Praveen Kumar Jain & others (1998) 9 SCC 468. The relevant para 4 of the said judgment reads as under :-
"4. ...... Unfortunately, for the appellant the impugned order of termination extracted above does not show that it was passed after a departmental enquiry wherein the disciplinary authority was satisfied about the said misconduct. On the contrary, it seeks to terminate the services of respondent No. 1 by way of a simple discharge and not by way of any penalty. It is only during the proceedings before the Labour Court that a different stand was taken that it was by way of penalty. This stand was obviously taken by the appellant because the order of simpliciter termination would have remained still-born as Section 25-F of the Industrial Disputes Act was admittedly not complied with by the appellant. With this difficulty stating in the face, a stand was taken that it was by way of penalty. If it was by way of penalty then atleast a regular departmental enquiry had to be conducted. It was also required to be followed by enquiry officer's report resulting in adverse finding against respondent No. 1 and its acceptance by the disciplinary authority. Nothing of this sort was done. There is neither enquiry officer's report holding respondent No. 1 guilty of charge which in fact was never framed against him nor is there any acceptance of such a finding of the enquiry officer by the disciplinary authority. In fact the disciplinary authority has never held respondent No. 1 guilty of any charge of misconduct. It is also interesting to note that while challenging the award of the Labour Court in writ petition the appellant clearly stated in para 3 of the writ petition that "since respondent No. 1 and Sh. Mahender Kumar were merely on casual engagement/muster roll employees and were not regular employees of the petitioner corporation or that of DDA, they were not entitled to a departmental inquiry as is required for the regular employees of the petitioner-Corporation." As such a stand was taken, it is obvious 6 that the termination order based on misconduct is not the result of any departmental enquiry against respondent No. 1. Consequently, the impugned order of termination would fail even on that ground. If it is a simpliciter discharge order it is violative of Sec. 25 of the Industrial Disputes Act and if it is a penalty order, as contended by the appellant, it would fail on merits as not having following the procedure of departmental enquiry. In either view of the matter, the impugned order must be held to be rightly set aside by the Labour Court and the said decision was also rightly confirmed by the High Court."
7. He has further placed reliance upon order/judgment of this Tribunal dated 18.01.2018 in OA No. 1775/2016 titled Poonam Singh vs. Govt. of NCTD & Anr., wherein the issue before the Tribunal was as to whether the services of a contractual employee can be terminated without giving any notice, especially, when it is alleged by the applicant that the termination of his/her contractual employment was stigmatic. After considering the law laid down by the Hon‟ble apex Court in a catena of cases, the Tribunal answered the issue. The operative portion of the order/judgment dated 18.01.2018 reads as under :-
"8. An identical question came to be decided by the Hon‟ble Apex Court in the Ratnesh Kumar Choudhary Vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Others JT 2015 (9) 363, wherein having considered the previous judgments of Hon‟ble Supreme Court in cases Samsher Singh v. State of Punjab (1974) 2 SCC 831, Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and Another (1999) 2 SCC 21, State of U.P. vs. Kaushal Kishore Shukla (1991) 1 SCC 691, Triveni Shankar Saxena vs. State of U.P. (1992) Supp (1) SCC 524, State of U.P. vs. Prem Lata Misra (1994) 4 SCC 189, Samsher Singh (supra), Parshotam Lal Dhingra vs. Union of India AIR 1958 SC 36, State of Bihar vs. Gopi Kishore Prasad AIR 1960 SC 689, State of Orissa vs. Ram Narayan Das AIR 1961 SC 177, Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, Anoop Jaiswal vs. Govt. of India (1984) 2 SCC 369, Nepal Singh vs. State of U.P. (1980) 3 SCC 288, Commissioner, Food & Civil Supplies vs. Prakash Chandra Saxena (1994) 5 SCC 177, Commissioner, Food & Civil Supplies vs. Prakash Chandra Saxena (1994) 5 SCC 177, Chandra Prakash Shahi 7 vs. State of U.P. and Others (2000) 5 SCC 152, Union of India and Others vs. Mahaveer C. Singhvi (2010) 8 SCC 220, Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences (1999) 3 SCC 60, Pavanendra Narayan Verma vs. Sanjay Gandhi P.G.I. of Medical Sciences and Another (2002) 1 SCC 520] and State Bank of India and Others vs. Palak Modi and Another (2013) 3 SCC 607, it was ruled by the Apex Court that if the termination order is stigmatic and based or founded upon misconduct, it would be a punitive order and court can lift the veil and declare that in the garb of termination simpliciter, the employer has punished an employee, for an act of misconduct. It was also held that if a probationer is discharged on the ground of misconduct or inefficiency or for similar reason, without a proper enquiry and without his getting a reasonable opportunity of showing cause against the termination, it may amount to removal from service within the meaning of Article 311 (2). Hence, a show cause notice was required to be issued and opportunity of being heard has to be provided to such employees in departmental enquiry before passing any adverse order, in the absence of which, the termination order would be inoperative and non-est in the eyes of law.
9. Therefore, such impugned stigmatic order of termination, against the applicants by the competent authority would be inoperative and cannot legally be sustained. Thus, the contrary arguments of the learned counsel for the respondents stricto sensu deserve to be and are hereby repelled. On the other end the ratio of law laid down in the indicated judgments by Hon‟ble Apex Court is mutatis mutandis applicable to the facts of the present case and is a complete answer to the problem in hand.
10. Thus, seen from any angle, the impugned orders cannot legally be sustained in the obtaining circumstances of the case.
11. In the circumstances, the OA is allowed, in view of the fact that applicant should not have been removed without following the process described above in the judgment of Ratnesh Kumar Choudhary (supra). The impugned order dated 11.09.2015 (Annexure-A/1) being a stigmatic one is set aside. As applicant‟s contractual employment was to end on 30.09.2015, she is entitled to wages upto that period. Further, in future, if she applies for any appointment, no stigma will be held against her for termination of her contract prematurely. No costs."
8. In response to the notice issued by the Tribunal, the respondents have filed counter reply. The applicant has also filed rejoinder. With the assistance of the counter reply filed on behalf of the respondents, Mr. Manjeet Singh Reen, learned counsel for the 8 respondents vehemently argues that the applicant was not disengaged from the services of the respondents merely for consuming alcohol but for various reasons of his unsuitability for the post, and inasmuch as the applicant was habitual in consuming Alcohol during working hours and on various occasions he was found in an inebriated state, he was orally warned by the caretaker and Income Tax Officer (HQ), Muzaffarnagar. Keeping in view such facts coupled with the fact of his being found to have consumed alcohol on 09.11.2015, the applicant was terminated by the respondent no. 5 orally. He further contends that the applicant had himself admitted that he had consumed Corex syrup.
9. I have perused the pleadings and records and have also considered the submissions made by the learned counsels for the parties. It is not in dispute that the applicant has been working under the respondents since 19.12.2002. It is also not in dispute that this Tribunal in its order/judgment dated 22.05.2014 made the interim order qua the services of the applicant absolute and further directed the respondents to consider his claim for regularisation of his services, keeping in view the law laid down by the Hon‟ble Apex Court in the case Uma Devi (supra). The Division Bench of this Tribunal has ruled in the case of Poonam Singh (supra) that even a contractual employee, if being terminated on the ground of misconduct or the termination is stigmatic, he is entitled for a regular enquiry. The judgment of the Division Bench being binding for this Court, I am of the view that termination of the applicant after 09.11.2015 without conducting an enquiry and even without issuance of a show cause notice, is bad in the eyes of law. Such 9 view is further strengthened in view of judgment of the Hon‟ble Apex Court in Praveen Kumar Jain (supra).
10. The plea of the learned counsel for the respondents that the termination of the applicant is not a stigmatic or is contradicted by the submissions of the respondents themselves, inasmuch as the respondents have averred in the counter reply that the applicant was disengaged keeping in view his being found in the habit of consuming alcohol in the office of the respondents.
11. Keeping in view the fact that the applicant has always been willing and eager to perform his duties, however, he has been deprived of working under the respondents because of the aforesaid illegal disengagement by the respondents, and also taking in view the fact that being disengaged, the applicant is without any gainful employment, I am of the view that the applicant shall be entitled for 50% of the admissible salary.
12. In view of the aforesaid facts, discussion and law, the OA is partly allowed with the following directions :-
a. The oral termination of the applicant w.e.f. 10.11.2015 is held to be bad in the eyes of law.
b. The respondents are directed to restore the services of the applicant as he was prior to 10.11.2015.
c. The respondents shall make the payment of backwages at the rate of 50% of the admissible salary to the applicant.10
d. The aforesaid exercise shall be completed by the respondents as expeditiously as possible, and in any case, within six weeks of receipt of certified copy of this order.
13. However, in the facts and circumstances, there shall be no order as to costs.
(R.N. Singh) Member (J) 'anjali'