Central Administrative Tribunal - Delhi
Amit Kumar Malik vs Delhi Transport Corporation (Dtc) on 2 August, 2023
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Item No. 35 (C-2) O.A. No. 67/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 67/2023 With O.A No. 68/2023
This the 2nd day of August, 2023
Hon'ble Mr. R. N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
(I) O.A No. 67/2023 :
Amit Kumar Malik, Age-39 years,
S/o. Lt. Sh. Satpal Malik,
Rz-48, A-Block, Deenpur Extn,
Nazafgarh, New Delhi - 110 043. ....Applicant
(By Advocate : Mr. Shreyas Balgi for Ms. Ankita
Chaudhary)
VERSUS
1. Delhi Transport Corporation,
Through it's Chairman
Delhi Secretariat, I.P. Estate, New Delhi-110 002.
2. The Depot Manager, Dwarka Sector-2, Depot
Delhi Transport Corporation
New Delhi - 110 075. ....Respondents
(By Advocate : Mr. Vaibhav Chawla for Mr. Vijay Chawla)
(II) O.A No. 68/2023 :
Amit Kumar, S/o. Zora Singh,
115, Z-Block, Gopal Nagar, Shyam Enclave, Nazafgarh,
New Delhi - 110 043. ....Applicant
(By Advocate : Mr. Shreyas Balgi for Ms. Ankita
Chaudhary)
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Item No. 35 (C-2) O.A. No. 67/2023
VERSUS
1. Delhi Transport Corporation,
Through it's Chairman
Delhi Secretariat, I.P. Estate, New Delhi-110 002.
2. The Depot Manager, Dwarka Sector-2, Depot
Delhi Transport Corporation
New Delhi - 110 075. ....Respondents
(By Advocate : Mr. Vaibhav Chawla for Mr. Vijay Chawla)
ORDER (ORAL)
Hon'ble Mr. R. N. Singh, Member (J) Learned counsels for the parties submit that the issue involved in the captioned OAs is identical. The facts are also common and the grounds raised by the parties in support of their claim are also same. Accordingly, with the consent of learned counsel for the parties, both the OAs have been heard together and are being disposed of by this common order.
2. The applicants have prayed for the following relief(s):-
"8A. Set aside/Quash the impugned order of Termination as S. No: DWS-2/AI(T)/2022/5728 dated 28.12.2022 issued by the Delhi Transport Corporation, Dwarka Sector-2 Depot, New Delhi- 110 075, by which service of the applicant has been terminated; and 3 Item No. 35 (C-2) O.A. No. 67/2023 B. Any such order (s) as may be deemed fit and appropriate may be also kindly be passed."
3. For writing the present order, the facts are being taken from OA No. 67/2023. The precise facts of the incident giving rise to the present OA may be taken from the assertion made by the respondents in para 6 of the counter reply which is reproduced herein below :-
"6. That on 01.12.2022, the Applicant along with Sh. Amit Kumar came to the depot of the Respondent Corporation. It is submitted that the Applicant along with Sh. Amit Kumar, driver were sitting in the rest room and consuming alcohol. When Sh. Deepak Tyagi Token No. 94028 went to the rest room, the Applicant along with Sh. Amit Kumar started beating him. Sh. Deepak Tyagi, contractual conductor P.T. No. 75869 informed to the duty officer Sh. Ved Prakash that the Applicant and Sh. Amit Kumar driver are fighting with Deepak Tyagi, Contractual Conductor P.T. No. 94028. Accordingly, Sh. Ved Prakash duty officer called the police by dialing the emergency number. Therefore, the Applicant along with Sh. Amit Kumar ran away from the depot. On the same day at about 12:10 Sh. Ved Prakash Assistant Traffic Inspection submitted the report against both the drivers i.e Applicant Sh. Amit Kumar Malik P. T. No. 115271 and Sh. Amit Kumar P.T. No. 79380."
4. It is undisputed that the inquiry was conducted by Mr. Ved Prakash, Traffic Assistant behind the back of the applicants. It is also undisputed that even after issuance 4 Item No. 35 (C-2) O.A. No. 67/2023 of show case notice by the respondents and reply to show cause notice, the contract of the applicants was renewed vide order dated 17.12.2022.
5. Learned counsel for the respondents by referring to the assertion made in para 7 of the counter reply argued that the applicants being contractual employees are not governed by the normal set of disciplinary rules, and that as per the terms of the contract entered into, the respondents are within their jurisdiction in taking coercive action against the applicants as conduct of the applicants referred to hereinabove falls under the category of serious misconduct. In support of their contention, the respondents have referred to the provisions of clauses 6 and 15 of the contract which are reproduced in para 7 of their counter reply, and the same are reproduced hereunder :-
"6. The 1st Party reserves the right to cancel the Agreement or to terminate the services of the 2nd Party without giving any notice/reason."
"15. The 1st Party shall terminate services of the 2nd Party on account of fatal accident or any other nature committal of offence/serious misconduct or not found to be competent or 5 Item No. 35 (C-2) O.A. No. 67/2023 found to be disorderly in the discharge of his duties."
6. Learned counsel for the applicants has placed reliance on the judgment of Hon'ble Apex Court in Basudeo Tiwary vs. Sido Kanhu University and Others [(1998) 8 SCC 194], decision of the Hon'ble High Court of Kerala at Ernakulam, titled as Tintu K. and Anr. vs. UOI & Ors. in WP(C) No. 26934 of 2022, and that of High Court of Orissa at Cuttack titled as Bichitrananda Barik vs. State of Odisha and Others in W.P. (C) No. 10146 of 2018.
7. On the other hand, learned counsel for the respondents has argued that the respondents are well within their jurisdiction to terminate the contract of the applicants even without a regular inquiry keeping in view the provisions of the contract, particularly those referred to hereinabove. In support of his argument, the learned counsel has placed reliance upon the judgment of the Hon'ble Delhi High Court in Sandip Thakur Vs. Government of NCT of Delhi reported in 2022 SCC 6 Item No. 35 (C-2) O.A. No. 67/2023 Online Del 4241. The learned counsel for the respondents submits that if this Tribunal finds any illegality in the impugned order, the respondents may be accorded liberty to proceed in the matter afresh by following principles of natural justice.
8. We have considered the submissions made by the learned counsels for the parties, and also gone through the judgments referred and relied upon by the learned counsels appearing for the parties.
9. The Hon'ble Apex Court in para 12 of their decision in Basudeo Tiwary (supra), held as under :-
"12. The said provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, statutes, rules or regulations or in any irregular or unauthorised manner. The condition precedent for exercise of this power is that an appointment had been made contrary to Act, Rules, Statutes and Regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act, statutes, rules or regulations etc. a finding has to be recorded and unless such a finding is recorded, the termination cannot be made, but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc. If in a given case such exercise is absent, the condition precedent stands 7 Item No. 35 (C-2) O.A. No. 67/2023 unfulfilled. To arrive at such a finding necessarily enquiry will have to be held and in holding such an enquiry will the person whose appointment is under enquiry will have to be issued to him. If notice is not given to him then it is like playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected, is not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable as noticed by this Court in D.T.C. Mazdoor Sabha‟s case. In such an event, we have to hold that in the provision there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the Act, statute, rule or regulation etc. and it is only on such a conclusion being drawn, the services of the person could be terminated without further notice. That is how Section 35(3) in this case will have to be read.
13. Admittedly in this case notice has not been given to the appellant before holding that his appointment is irregular or unauthorised and ordering termination of his service. Hence the impugned order terminating the services of the appellant cannot be sustained."
10. The Hon'ble High Court of Kerala in the case of Tintu K. (supra) held that even though the petitioners therein were contractual employee, they were entitled to a notice with regard to unsatisfactory nature of their service, and their services could have been terminated only on a finding being recorded in that behalf.
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Item No. 35 (C-2) O.A. No. 67/2023
11. In the case of Bichitrananda Barik (supra), the Hon'ble High Court of Orissa in para 9 of the judgment ruled as under :-
"9. A perusal of the impugned notice under Annexure-5 shows that the findings of the enquiry have been relied upon and apparently form the basis for issuing the impugned notice of disengagement. This Court is not impressed with the argument that being a contractual employee no rules or procedure are required to be followed before disengaging him. It is rather the settled position of law that even in case of a contractual employee the rules of natural justice are required to be followed to the hilt. In the instant case, as already stated, the enquiry was conducted entirely behind the back of the petitioner, inasmuch as he was not given any opportunity to participate and to have his say therein."
12. From the aforesaid, it is evident that even in the case of contractual employee, an inquiry is necessary before the respondents could arrive at a conclusion with regard to misconduct committed by the applicant(s).
13. Hon'ble High Court of Delhi in para 19 in the case of Sandeep Thakur (supra) ruled as under :-
"19. It is clear that the contract of employment itself envisages and provides for termination of Petitioner‟s services „without assigning any reason‟, if there is a misconduct or dereliction of duty. Petitioner had entered into the contract with open eyes and had accepted all the terms 9 Item No. 35 (C-2) O.A. No. 67/2023 and conditions, on which he has continued to work since the year 2013 and thus, cannot assert that a show cause notice ought to be given. As far as holding a full-fledged departmental inquiry is concerned, which is a procedure followed for a regular employee in case of delinquency, no law or term of the contract has been shown to this Court by the Petitioner, which requires the applicability of this procedure to a contract employee."
14. From the judgment of the Hon'ble High Court it is evident that a full-fledged departmental inquiry as is required in the case of regular employees to determine the delinquency of the contractual employee, is not necessary keeping in view the terms of the contract. However, the Hon'ble High Court has, in no manner, held that the employer shall be at liberty to conclude the delinquency of the contractual employee without any inquiry.
15. In the present case, it is admitted fact that the inquiry was conducted by the respondents behind the back of the applicants. It is also admitted that even after issuance of the show cause notice as regards the delinquency of the applicants, the contracts of the applicants were renewed by the respondents. In such 10 Item No. 35 (C-2) O.A. No. 67/2023 facts and circumstances and keeping in view the judgments of the Hon'ble Apex Court and the Hon'ble High Courts referred to hereinabove, we are of the considered view that the OAs deserve to be allowed, and the same is accordingly allowed with following orders :-
(1) The impugned order dated 28.12.2022 Annexure A-1 is set aside. The respondents are directed to reinstate the applicants as expeditiously as possible and preferably within two weeks of receipt of a certified copy of this order.
(2) The applicants shall be entitled for all consequential benefits. However, they shall not be entitled for back wages.
(3) The respondents shall be at liberty to inquire into the allegations leveled against the applicants under rules and instructions, following the principles of natural justice and pass appropriate orders in accordance with the relevant rules and instructions.11
Item No. 35 (C-2) O.A. No. 67/2023 16. The OAs are allowed in terms of the aforesaid. No costs.
A copy of this order be placed in O.A No. 68/2023 also.
(Sanjeeva Kumar) (R. N. Singh) Member (A) Member (J) /Mbt/