Central Administrative Tribunal - Delhi
The Union Of India vs Brij Mohan on 9 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI R.A. NO.228/2011 IN O.A. NO. 3542/2011 New Delhi, this the 9th day of August, 2011 CORAM: HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) HONBLE MR. A.K. BHARDWAJ, MEMBER (J) 1. The Union of India (Through Secretary) Ministry of Defence, South Block, New Delhi 2. The Chief of Army Staff Sena Bhawan, AHQ DHQ, PO New Delhi 3. The Controller General of Defence Accounts Ulan Batar Marg, Palam, Delhi Cantt. 4. The Director General of RVS (RV-1) QMGs Branch AHQ IHQ of MOD (Army) West Block-III, R.K. Puram, New Delhi 5. Brigadier N.S. Kanwar Commandant Equine Breeding Stud Babugarh Cantt. Distt. Ghaziabad (UP) .. Review Applicants Versus 1. Brij Mohan, S/o Late Shri Chet Ram, R/o Village Atuta, Post Babugarh Cantt., Distt. Ghaziabad (U.P.). 2. Ashok Kumar, S/o Late Shri Chanderbhan, R/o Village Habispur Bigas, Post Babugarh, Distt. Ghaziabad (U.P.). 3. Bundu, S/o Late Shri Chhidda, R/o Village Habispur Bigas, Post Babugarh, Distt. Ghaziabad (U.P.). 4. Hari Chand, S/o Late Shri Narain Singh, R/o Village Simrauli, Post Babugarh Cantt., Distt. Ghaziabad (U.P.). 5. Dharambir, S/o Late Shri Gange, R/o Village Habispur Bigas, Post Babugarh, Distt. Ghaziabad (U.P.). 6. Jai Prakash, S/o Late Shri Ved Ram, R/o Village Atuta, Post Babugarh, Distt. Ghaziabad (U.P.). 7. Kanti, S/o Late Shri Budhhu, R/o Village Atuta, Post Babugarh, Distt. Ghaziabad (U.P.). 8. Sant Pal, S/o Late Shri Malkhan Singh, R/o Village Atuta, Post Babugarh, Distt. Ghaziabad (U.P.). .. Review Respondents ORDER (By Circulation) By A.K. Bhardwaj, Member (J):
Seeking a review of the order dated 23.3.2011 passed in OA 3542/2010, the applicants have filed the present Review Application raising the following grounds:-
The fact that the respondents had served upon the applicants in OA a notice dated 25.8.2010 calling upon them to show cause was ignored by the Tribunal while deciding the OA;
The show cause notice dated 25.8.2010 was in terms of the provisions of Para 7 of the OM dated 10.9.1993;
Only after consideration of the reply filed by the applicants to show cause notice, their services were terminated;
The Tribunal overlooked the fact that the applicants had levelled allegations against superior officials, which has resulted into conducting a Board of Inquiry;
Proceedings of the Board of Inquiry were ignored by the Tribunal while passing the order under review;
The Tribunal ignored the fact that the show cause notice dated 25.8.2010 was issued under authority of Para 7 of DOP&T OM dated 10.9.1993.
Even if the termination order was issued under CCS (TS) Rules, the Tribunal should have treated the same as an order issued in terms of Para 7 of OM dated 10.9.1993;
The Tribunal overlooked the principle as laid down by the Honble Apex Court in the case of Nar Singh Pal vs Union of India & Ors, 2000 (2) ATJ 644;
The Tribunal benefited the applicants by directing their reengagement even though they had misbehaved with superior officials;
The termination of services of the applicants was as per rule and was ordered after following the principles of natural justice;
During the intervening period the applicants did not work, thus they are not entitled to back wages.
2. As far as the contention of the Review Applicants that the Tribunal has overlooked the fact that before termination of services of the applicants, they had served show cause notice upon them is concerned, the same is entirely incorrect. The fact of issuance of show cause notice had not been ignored. The show cause notice dated 25.8.2010 is noted and reproduced in Para 4 of the order of which review is sought. However, it is found that in view of the decision of the Honble Apex Court in Nar Singh Pal vs Union of India & Ors (supra), once a Board of Inquiry was convened and on the basis of the findings of the Board of Inquiry, show cause notice was issued to the applicants, their services could not be terminated without holding a regular enquiry against them. As is noted in the order passed in the OA, in the case of Nar Singh Pal vs Union of India & Ors, the Honble Apex Court had categorically ruled that the order of termination based on allegation cannot be treated to be a simple order of retrenchment and has to be treated as an order of dismissal and need not be passed without holding a regular departmental inquiry. For the sake of convenience, relevant excerpts of the said Judgment are reproduced here under:
6. The appellant, no doubt, was a casual labour but as observed by the Tribunal, he had acquired temporary status with effect from 1-10-1989. Once an employee attains the 'temporary' status, he becomes entitled to certain benefits one of which is that he becomes entitled to the constitutional protection envisaged by Article 311 of the Constitution and other Articles dealing with services under the Union of India. A perusal of the impugned order by which the services of the appellant were terminated indicates that since the appellant had beaten one Mahender Singh with iron rod and had also bitten him with teeth on 20-4-1992 at 8.00 p.m. while the said Mahender Singh was on duty as Gateman, Tax Bhawan, Agra, therefore, his services were terminated with immediate effect. Thus the services were termianted on account of the allegation of assault made against the appellant. This Court on 24-1-2000 passed the following order:-
"Learned counsel appearing for the respondents is granted six weeks' time to seek instructions whether regular departmental proceedings were taken in this matter or not."
7. When the case was next taken up, the entire papers relating to the enquiry were placed before us by the counsel for the respondents which indicate that a regular departmental enquiry was not held and only a preliminary enquiry was held against the appellant on the basis of which his services were terminated. The letter dated 21st of April, 1992, from Assistant Engineer Trunks, T.M.X. Tax Bhawan, Agra-3, to Shri Shital Din, Divisional Engineer, Phones (Planning and Administration) Agra, recites, inter alia as under:-
"Shri Nar Singh Pal, Ty. Mazdoor of this unit assaulted on Shri Mahendra Singh, Gate Man who was on duty at Main gate of Tax Bhawan, Agra and was performing 14.00 to 22.00 hrs duty on 20-4-1992. This mishappening occurred at 20.00 hrs. on 20-4-1992. At the time of incident, I was in Trunk Exchange, Agra, when Shri Mahendra Singh, Gate Man approached to the undersigned in injured condition for help. I rushed to the gate of Tax Bhawan for spot verification and making detailed enquiry of the case. I found that the culprit Shri Nar Singh Pal was abusing Shri Mahendra Singh, Gateman, Shri Nar Singh Pal, Ty. Mazdoor not only assaulted on Shri Mahendra Singh, Gateman but he also threatened to kill me when I was making spot enquiry. As per my observation Shri Nar Singh Pal, Ty. Mazdoor was under drunk condition. I immediately informed to you thereafter S.O. Rakabga Police Station on phone regarding this incidence."
The letter further recites as under:-
"I shall be grateful if you may kindly take a suitable action against Shri Nar Singh Pal, Ty. Mazdoor who has created hindrance in government work, damages of the government property and created the terror and horror amongst the staff due to his gunda activities and has threatened the undersigned."
8. The documents which have been placed before us pertain to the preliminary enquiry made against the appellant in which the statement of certain persons who had seen the incident was recorded. The services of the appellant were, thereafter, terminated by paying him the retrenchment compensation through a cheque along with the order dated 20-5-1992. The order having been passed on the basis of preliminary enquiry and not on the basis of regular departmental enquiry without issuing a chargesheet or giving an opportunity of hearing to the appellant, cannot be sustained.
9. We may, at this stage, refer to the observations of Krishna Iyer, J. in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, (1980) 2 SCC 593 : (AIR 1980 SC 1896 : 1980 Lab IC 1004) in which the learned Judge observed as under:-
"53. Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If, thus scrutinised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. To put it slightly differently, a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used."(Emphasis supplied)
10. Applying the above principles, the order in the instant, case, cannot be treated to be a simple order of retrenchment. It was an order passed by way of punishment and, therefore, was an order of dismissal which having been passed without holding a regular departmental enquiry, be sustained.
11. Learned counsel for the respondents contended that the appellant was involved in a criminal cases having assaulted Mahendra Singh, Gateman, at the Tax Bhawan, Agra and, threfore, his services could be terminated in terms of Section 25-F of the Industrial Disputes Act by a notice in writing together with retrenchment compensation which admittedly was paid to him through the cheque regarding which the Tribunal has recorded a finding that it was encashed by the appellant.
12. The fact that the appellant was involved in a criminal case is not disputed by the appellant. What is contended by him is that he was ultimately acquitted by the Court of Chief Judicial Magistrate, Agra and, therefore, involvement of the appellant in a criminal case could not have been made the basis for terminating his services. Since the appellant was acquitted, and it was a clean acquittal, the stigma attached to him of having been prosecuted in a criminal case should have been treated to have disappeared and no argument can be allowed to be raised for justifying the order of dismissal on the ground of appellant's involvement in a criminal case. As in the case of Nar Singh Pal, the order of termination of petitioner was stigmatic, also in the present case, the respondents have taken a stand in the counter reply that the applicants were not performing duty, arguing with civil staff and threatening to implicate them in criminal cases.
3. As far as the contention of the applicants that the show cause notice was issued in terms of para7 of the OM dated 10.9.1993 is concerned, a perusal of the said para would reveal that there is no provision in the same for issuance of show cause notice. In terms of Para-7 of the OM dated 10.9.1993, an employer can disengage the services of casual labours by giving one months notice or giving salary in lieu thereof.
4. As far as the submission made on behalf of the review applicants that before issuance of order of termination, show cause notice was served upon the applicants is concerned, the said contention has been dealt with in the order passed in the OA. In fact, the order of termination based on the report of Board of Inquiry/ show cause notice was stigmatic and could not have been issued in the absence of holding regular inquiry (see judgment in the case of Nar Singh Pal vs UOI 2000 (2) ATJ 664). It is contended on behalf of the respondents/review applicants that the applicants had levelled allegations against superior officials vide their letter dated 26.11.2010 which led to holding a Board of Inquiry/COI. Thus, it is admitted that the order of termination of the applicants has been issued as a result of fact finding inquiry. Therefore, in view of the judgment of the Honble Supreme Court in the case of Nar Singh Pal (supra) the respondents could not have issued the order of termination without holding a regular inquiry. The reference made by the review applicants to the Board of Inquiry, which was the foundation of the order of termination of the applicants supports the contention of the applicants that their services could not have been brought to an end without holding a regular inquiry.
5. As far as the contention of the applicants that the show cause notice dated 25.8.2010 was issued in terms of Para 7 of OM dated 10.9.1993 is concerned, the same is totally misconceived. Para 7 of the OM does not provide for issuance of show cause notice for disengagement but provides for giving notice of one month in writing before termination of service. The respondents/review applicants need to appreciate the difference between show cause notice and notice of termination. As we note from the order passed in OA 3542/2010, which is sought to be reviewed by the applicants in the RA, the respondents had issued show cause notice dated 25.8.2010 alleging that the applicants had levelled allegations against superior officers, did not perform duties, indulged in arguments with the civil staff and threatened them to falsely implicate them in Court cases. Para-7 of the aforesaid OM does not envisage termination in view of stigmatic allegations. Such proposition is dealt by the Honble Supreme Court in the case of Nar Singh Pal (supra).
6. In view of what has been noted above and in view of the aforesaid judgment of the Honble Supreme Court, the order of termination based on the report of the Fact Finding Inquiry and show cause notice cannot be considered as termination simplicitor and cannot be issued without holding regular inquiry. As far as the contention of the applicants regarding non-provision of specific format for issuance of notice under Para 7 of the OM dated 10.9.1993 is concerned, the respondents are expected to appreciate and understand that the OM dated 10.9.1993 is applicable to casual labourers who are given temporary status and the CCS (TS) Rules are applicable to regular employees, who are employed in accordance with the rules. In order to issue a notice under Para-7 of the OM dated 10.9.1993 no specific format needs to be followed. The way, the respondents have referred to OM dated 10.9.1993 in para H of the Review Application, it appears that they have filed the present RA without caring to study the same. As far as the contention of the applicants that by issuing show cause notices to the applicants before terminating their services they had followed the principle laid down by the Honble Supreme Court in the case of Nar singh Pal is concerned, same is misconceived. In the case of Nar Singh Pal, the Honble Apex Court had noted the fact that a fact finding inquiry was held before issuing order of termination, but the Lordships of Honble Supreme Court had categorically held that the termination based on the report of fact finding inquiry was not justified and amounted to dismissal. Thus the same could not be issued without holding regular inquiry.
7. As far as the argument of the respondents that the Tribunal benefited the applicants despite the fact that they had misbehaved with superior officials, the same cannot be appreciated. In order to substantiate the allegations of misbehaviour with senior officials, the respondents were expected to hold a regular inquiry. The Review Application does not indicate any error much less an error apparent on the face of the order passed in the OA. Otherwise also, as has been held by the Honble Supreme Court in the case of Union of India vs Tarit Ranjan Das {2004 SCC (L&S) 160}, the Review Application cannot be heard as an appeal against the order under review. The RA is accordingly dismissed by circulation. While dismissing the RA, it is made clear that the regular inquiry before retrenchment of applicants is required to be held by the respondents only because they have made allegations against them casting stigma upon them and holding of such inquiry would not change their status as casual labourers in any manner. In other words, even after their re-engagement the applicants would be continued as casual labourers (CLTS) and the respondents would be free to discontinue their services like any other casual labourer following the procedure laid down in Para-7 of OM dated 10.9.1993, but not by making allegations, casting stigma upon them. See Secretary, State of Karnataka & Ors vs Uma Devi & Ors {JT 2006 (4) 420}, wherein the Honble Supreme Court ruled that the appointment or engagement on daily wages or on casual basis comes to an end when it is discontinued. Relevant excerpts of the judgment read as under:
11. In spite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently. This right of the Union or of the State Government cannot but be recognized and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the State Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognized and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme.
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34. While answering an objection to the locus standi of the writ petitioners in challenging the repeated issue of an ordinance by the Governor of Bihar, the exalted position of rule of law in the scheme of things was emphasized, Chief Justice Bhagwati speaking on behalf of the Constitution Bench in Dr. D.C. Wadhwa & Ors. v. State of Bihar & Ors stated:
The rule of law constitutes the core of our Constitution of India and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the constitutional limitations and if any practice is adopted by the Executive which is in flagrant and systematic violation of its constitutional limitations, petitioner no.1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. It is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of court, which we have described as litigious employment in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it do mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
8. In other words, it would be open to respondents not to press the allegations made by them against the applicants and discontinue their services in terms of law laid down by Honble Supreme Court in the case of Secretary, State of Karnataka vs Uma Devi (supra).
(A.K. BHARDWAJ) (DR. RAMESH CHANDRA PANDA) MEMBER (J) MEMBER (A) /pkr/