Central Administrative Tribunal - Delhi
Kusum Lata vs Gnctd on 31 May, 2024
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Item No.41 / C-2 OA No.2776/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.2776/2016
Reserved on : 14.05.2024
Pronounced on : 31.05.2024
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Anil Thomas, aged 30 years,
Ex M.T. Driver,
Indian Military Academy, Dehradun,
C/o Shri Shubash Rawat,
59/15, 3rd Floor, Ashok Nagar,
Near Tilak Nagar Metro Station,
New Delhi-110018. ...Applicant
(By Advocate : Shri B.L. Wanchoo with Shri V.K.
Chaturvedi)
Versus
1. Union of India,
Through the Secretary,
Ministry of Defence,
South Block, New Delhi-110011.
2. The Vice Chief of Army Staff,
Government of India,
Integrated HQ of Ministry of Defence (Army),
General Staff Branch,
Directorate General of Military Training/
MT-7, New Delhi-110011.
3. The DCOAS (IS&T),
Government of India
Integrated HQ of Ministry of Defence (Army),
General Staff Branch,
Directorate General of Military Training/
MT-7 New Delhi-110011.
4. The Commandant,
Indian Military Academy,
Chakrata Road,
Dehradun-248007. ...Respondents
(By Advocate : Ms. Geetanjali Sharma )
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Item No.41 / C-2 OA No.2776/2016
ORDER
By Hon'ble Mrs. Pratima K. Gupta, Member (J) :-
The factual matrix of the case is that the applicant on appointment was put on probation basis for a period of two years vide appointment letter dated 02.04.2012 as an M.T. Driver in the Indian Military Academy, Dehradun.
However, vide the impugned order dated 21.10.2013, the applicant was removed from service w.e.f the date of the order.
2. Learned counsel for the applicant states that the applicant submitted an appeal dated 26.05.2014 against the impugned order dated 21.10.2013 to the Appellate Authority. However, the Appellate authority upheld the impugned order vide its order dated 24.10.2014. Thereafter, the applicant preferred a revision petition dated 06.01.2015 which too was rejected by the Revisionary Authority.
3. Learned counsel for the applicant states that the applicant was under probation w.e.f. 02.04.2012 for two years but he was discontinued from service on 3 Item No.41 / C-2 OA No.2776/2016 21.10.2013. During this period the applicant may have been issued various warnings with respect to his conduct, his habit of drinking in between office hours and unauthorized absence from duty and may have also reprimanded orally for the same.
4. Learned counsel for the applicant states that the impugned order dated 21.10.2023, which takes cognizance of the fact that the applicant was reprimanded in time, is arbitrary in nature and the applicant should have been subjected to disciplinary proceedings instead of being discontinued from service unilaterally. He states that the applicant has agitated precisely the same ground that the impugned order dated 21.10.2013 is in violation of principles of natural justice and Article 13 of the Constitution of India. He draws attention to para 6 of the order dated 24.10.2014 which reads as under:
"6.Whereas the appellant authority is empowered to remove a probationer in terms of the Appointment Order and Rules and Orders applicable to probationers on ground of general unfitness such as unsatisfactory performance."4
Item No.41 / C-2 OA No.2776/2016
5. Learned counsel for the applicant states that the respondents have invoked the rules and orders applicable to the provisions without applying their mind. He further states that the applicant was medically unfit at the relevant time and he has preferred appropriate medical certificates before the competent authority which is being ignored by the respondents.
6. Learned counsel for the applicant also draws strength from the DoP&T OM dated 11.03.2019. He states that the applicant being on probation could only be removed from service for want of satisfactory performance. As the order is clearly stigmatic and punitive, the principles of natural justice ought to have been followed by the respondents in terms of the DoP&T OM.
7. Learned counsel for the respondents vehemently opposes the OA. He draws attention to the paras iii & iv of the counter reply, which are reproduced herein below:
(iii) That as per Para 2 of Appointment Letter No. 2303/Appt/C/AT/Est-1 dated 02 Apr 12, it has clearly been specified that during probationary period, he was liable for termination of service without any reason or notice of discharge (Annexure A-4 of OA). As 5 Item No.41 / C-2 OA No.2776/2016 stated above, during probationary period, the applicant was found in intoxicated state at several occasions during duty hours and also willfully absenting himself from bonafied Govt duties without any prior intimation or sanction of leave at several occasions. Despite numerous written and verbal warnings, the individual showed no sign of improvement in his conduct and behavior. Having found him a perpetual defaulter, the MTO being Officer Incharge recommended for action against the applicant.
MTO also did not recommend him for retention in service in the Assessment Report initiated for the probation period for the period for 02 Apr 2012 to 03 Apr 2013 (AnnexureA-12(viii) of OA).
(iv). That as per policy, an employee may be considered for completion of probation on satisfactory performance or extension of probation after two years assessment reports. An employee may be considered for extension of probation for one year additional and no employee should be kept in probation for more than double the normal period. The ample time and opportunity have been given to the applicant for improvement and mend in conduct and overall performance but his conduct was found grossly unsatisfactory. The case of Applicant, he himself worked adversely knowing the Rule position and repeated written and verbal warnings which resulted to an action from the Competent Authority as per terms of appointment letter. An employee who has successfully completed the probation may be considered for confirmation, and hence it was imperative to take action against the defaulting employee who is found disinterested to continue in service as per Rules and termination of service of the defaulting employee is ultimate averting of burden on Govt exchequer.
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Item No.41 / C-2 OA No.2776/2016
8. Learned counsel for the respondents states that the habits of the applicant render him incorrigible. The applicant is in the habit of drinking during duty hours and remaining absent from duty from time to time. As the applicant has been admittedly reprimanded several times by the respondents without it being of any effect on him, his services could not be extended and the impugned order has been issued rightly.
9. Learned Counsel for the respondents further states that the applicant was bound by the appointment letter annexed at Annexure A-4. He states that once the applicant was not satisfactorily performing his duties in terms of paras 3 (b), (c), (d) & (e), the applicant was removed from service, invoking the provisions, which read as under:
"3(b) Your temporary appointment may be terminated at any time by one month notice given by either side viz the appointee or appointing authority. The appointing authority, however, reserves the right of terminating the service of the appointee forthwith or before the expiry of the stipulated period of notice by making payment to you of a sum equivalent to the pay land allowances for the period of notice or the un- expired portion there of.7
Item No.41 / C-2 OA No.2776/2016
(c) You will be subject to conditions of service as applicable to temporary civilian Government servants paid from Defence Service Estimates in accordance with the orders issued by the Government of India from time to time.
(d) You will he required to serve anywhere in India and liable for posting any where within Indian territory, you will be required to work in any section of Indian Military Academy.
Dehradun or any work allotted to you.
e) You will be required to take oath/affirm in the following form:-
"I do swear/solemnly affirm that I will be faithful be faithful and bear allegiance to India and to the Constitution of India ay by Law established and that I will uphold the Sovereignty and integrity of India and that I will carry out the duties of my Office loyally, honestly and with impartiality (so held me God)".
10. Learned counsel for the respondents further draws attention to para 1 of the appointment order which stipulates that the appointment of the applicant as MT Driver is provisional, subject to decision of Hon'ble High Court of Nainital (UK) in WP No. 283/2012 (S/S) Shri Amarjeet Singh & Others Vs IMA Dehradun.
11. Learned counsel for the respondents states that the DoP&T OM relied upon by the applicant only comes to the rescue of the applicant in the absence of rules and 8 Item No.41 / C-2 OA No.2776/2016 instructions on the subject. Once the rules and instructions governing the subject are clear, the DoP&T OM may not be applicable to the present facts. He reiterates that the removal of the applicant is consequent upon established misconduct and invoking Temporary Civil Government Rules.
12. Learned counsel for the respondents draws attention to the prayer made in the OA, which reads as under:
i) To issue- a suitable order or direction quashing the order dated 21.10.2013 through which the Respondent No. 4 removed the applicant from service, setting aside the order dated 24.10.2014 through which the order dated 21.10.2013 was upheld by the Respondent No. 3 (appellate authority) and setting aside the order dated 14.10.2015 through which the
(ii) To issue a suitable order directing the Respondent No. 4 to re-instate the applicant in to service with all consequential benefits.
(iii) To issue a suitable order directing Respondent No. 4 to treat the period from the date of removal of applicant from service to the date of his re- instatement as on duty with all consequential benefits.
(iv) To issue a suitable order or direction for Respondent No.4 to resume subscription to the N.P.S. Account of the applicant and make it up by doubling the monthly contribution towards it for the interrupting period i.e. from the removal from service up to the re-instatement for the security 9 Item No.41 / C-2 OA No.2776/2016 he was entitled to had he not been illegally removed from service.
(v) To issue such other further order or directions as the Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case in favor of applicant.
13. Learned counsel for the respondents states that in fact prayer 8(iv) cannot be made along with prayer 8(i).
14. In rejoinder, learned counsel for the applicant states that he does not press for prayer 8(iv) and, therefore, the objection raised may not come in the way of deciding the OA.
15. Heard the learned counsel for the parties and perused the material available on record.
16. To summarize, the respondents advertised the posts of MT Driver. The applicant had applied and was extended the offer of appointment. In terms of this appointment, he was placed under probation for a period of two years. The applicant's appointment has been terminated on the ground of misconduct, particularly, that he is in the habit of consuming alcohol during working hours and he is a regular absentee, which has been construed as 10 Item No.41 / C-2 OA No.2776/2016 unsatisfactory performance. During the probation period, he has been issued certain warnings and he represented against the same.
17. The contention of the learned counsel for the respondents that the applicant would be bound by the conditions of offer of appointment (Annexure-A/4) is misplaced. In sum and substance, it runs contrary as on the one hand, it says that the probation of the applicant could be extended for a period of two years and on the other hand it states that his services would be liable to be terminated without any notice or further reasons. The condition is clearly in violation of the principles of natural justice. Though we are in conformity with the learned counsel for the respondents that his services could be terminated for unsatisfactory performance, while in the present case, the applicant is a Driver and in the impugned order it does not find mention that he was not performing his duties satisfactorily.
18. Further, there are several reasons cited in the impugned order which goes on to establish that the alleged misconduct inspired the respondents to pass the 11 Item No.41 / C-2 OA No.2776/2016 orders. Even the Appellate Authority while deciding the appeal, has reproduced that it was the conduct of the applicant that inspired the respondents to pass the termination order. According to us, the services of the applicant could only be terminated for the reason of unsatisfactory performance as a driver and not misconduct during the probation period without following the principles of natural justice. We may refer to the Master Circular on Probation/Confirmation in Central Services issued through OM dated 11.03.2019 by the DOP&T. Relevant paras 15 to 17 of the said Circular read thus :-
"15. If during the period of probation, a probationer has not undergone the requisite training course or passed the requisite departmental examinations prescribed (proficiency in Hindi, etc.), if any, the period of probation may be extended by such period or periods as may be necessary, subject to the condition that the total period of probation does not exceed double the prescribed period of probation.
16. If the Appointing Authority thinks it fit, they may extend the period of probation of a Government servant by a specified period but the total period of probation should not exceed double the normal period. In such cases, periodic reviews should be done and extension should not be done for a long period at a time.12
Item No.41 / C-2 OA No.2776/2016
17. Where a probationer who has completed the period of probation to the satisfaction of the Central Government is required to be confirmed, he shall be confirmed in the Service/Post at the end of his period of probation, having completed the probation satisfactorily."
19. The impugned order is not only stigmatic but punitive in nature and cannot be sustained. We reiterate that the offer of appointment extended to the applicant, clearly mentioned that he would be on probation for a period of two years and the same may be extended at the discretion of the competent authority for unsatisfactory performance during the period of probation. This confirms that in the event of unsatisfactory performance, the applicant's services would be liable to be terminated at any time without any notice
20. For the reasons explained hereinabove, the OA is disposed of. The impugned order dated 21.10.2013, removing the applicant from the services is quashed and set aside. The respondents are directed to reinstate the applicant within a period of eight weeks from the date of 13 Item No.41 / C-2 OA No.2776/2016 receipt of a certified copy of this order. However, respondents shall be at liberty to proceed against the applicant for alleged misconduct, as per the rules and law.
There shall be no order as to costs.
( Chhabilendra Roul) (Pratima K. Gupta )
Member (A) Member (J)
/rk/