Central Administrative Tribunal - Delhi
Sher Bahadur vs North Delhi Municipal Corporation ... on 14 December, 2016
1 OA No.100/3654/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A No.100/3654/2015
New Delhi this the 14th day of December, 2016
Hon'ble Mr. Justice M. S. Sullar, Member (J)
Hon'ble Mr. P.K. Basu, Member (A)
Shri Sher Bahadur
S/o Shri Shanti Swaroop,
C-559, Village Nathupura,
Swaroop Nagar, Delhi
(Domestic Breeding Checker)
Aged 38 years. ..Applicant
(Argued by:Ms. Deepali Gupta, Advocate)
Versus
1. North Delhi Municipal Corporation
Through
The Commissioner,
Civic Centre, New Delhi.
2. North Delhi Municipal Corporation
Through
Municipal Health Officer,
Anti Malaria Operation (HQ),
E-1 Wing, 12th Floor, Civic Centre,
LJN Marg, New Delhi-110002.. ....... Respondents
(By Advocate: Shri R.V. Singh).
ORDER (ORAL)
Justice M.S. Sullar, Member (J) The contour of the facts and material, culminating in the commencement, relevant for deciding the instant Original Application (OA), and emanating from the record, is that, as per the draw of lots held on 09.07.1997, applicant, Sher Bahadur, was selected and placed in the waiting list Domestic Breeding Checker (DBC). In pursuance thereof, he 2 OA No.100/3654/2015 joined his duties, as such on 19.09.1997. Subsequently, his services were disengaged by the competent authority.
2. Thereafter, applicant was again re-engaged for a period of 2 months, on a consolidated salary of Rs.2500/- per month, vide Office Order dated 23.09.2004 (Annexure-B), issued by the competent authority.
3. The case set-up by the applicant, in brief, insofar as relevant, is that, he was falsely implicated in a murder case on accusation of having committed the offences punishable under Section 302/34 IPC by the police of Police Station, Rohini. As he was arrested and remained in police/judicial custody, so he could not attend his duties. After the trial, he was acquitted in the criminal case by Additional Sessions Judge, Rohini Courts, Delhi, vide judgment of acquittal dated 24.04.2012. Thereafter, the respondents did not permit him to join duty on the ground, that his services have already been terminated, vide order dated 25.08.2008 (Annexure-F), despite representations dated 24.07.2012 to the Lt. Governor, Delhi and dated 10.03.2014 to the North Delhi Municipal Corporation (for brevity "NDMC"). Even the termination order dated 25.08.2008 (Annexure-F), was stated to have never been communicated to him.
4. Aggrieved thereby, the applicant has preferred the instant OA, challenging the impugned termination order mainly on the grounds, that the action of the respondents is 3 OA No.100/3654/2015 illegal, arbitrary, discriminatory, whimsical, without any rational, unjustified & violative of the fundamental & legal rights and against the principles of natural justice. According to the applicant, although he has continuously worked with the respondents, but his services were terminated, without issuing any Show Cause Notice (SCN) or holding any enquiry, despite the fact that he was acquitted in a criminal case of murder. On the strength of the aforesaid grounds, the applicant seeks to quash the impugned termination order/action of the respondents, in the manner indicated hereinabove.
5. Sequelly, the respondents have refuted the claim of the applicant, and filed the reply, wherein it was pleaded as under:-
1. That I am working as Addl. MHO/VBD of the North Delhi Municipal Corporation, with the answering Respondents, North Delhi Municipal Corporation and as such am authorized to sign the present affidavit being well conversant with the facts and circumstances of the case in my official capacity.
2. At the outset the deponent denies each and every contention, allegation and averment as raised in the application by the applicant except to the extent specifically admitted by me herein. The deponent is hereby filing a short counter affidavit in reply to the application filed by the applicant with the liberty to file a detailed parawise reply affidavit if need arises or if so directed by this Hon'ble Tribunal. It is submitted that contentions made in the application are denied. Unless any averment or contention in the application is specifically admitted in this Affidavit, it shall be deemed to have been denied by the respondent the Respondent craves leave of this Hon'ble Tribunal to file its detailed reply to each paragraph of the application, if and when the need arises or if so directed by this Hon'ble Tribunal.
3. That all the DBCs were appointed with the terms and conditions served to them in which it is clearly mentioned that the engagement will be terminated if the candidate is foud absent continuously for 15 (fifteen) or more days without any prior permission/information and his name will be struck off from the roll of MCD as well as from the Joint Seniority List of DBC's without any further notice. Copy of format of office order 4 OA No.100/3654/2015 with terms and conditions being given at the time of engagement of DBC is annexed as Annexure A.
4. That Shri Sher Bahadur S/o Shri Shanti Swarup was working as DBC in civil line zone and his name was standing in the seniority list of DBC at Ser No. 453. This was a contractual post.
5. That the applicant was running absent from his duties w.e.f. 13.03.2008 as involved in a murder case and was under judicial custody.
Copy of FIR No. 144/2008 dated 12.03.2008 is annexed as Annexure B.
6. That contractual engagement of Shri Sher Bahadur S/o Shri Shanti Swarup was terminated under the order of Addl. Commissioner (Health) vide order dated 25.08.2008, copy annexed as Annexure C, but was under status quo order of Hon'ble Delhi High Court in CWP No. 8825/2007 titled Salekh Chand & Ors. Vs. MCD & Ors. and since he was under judicial custody (Jail), he could not join his duties under the status-quo order where as other DBC who were under status quo order have joined their duties. Shri Sher Bahadur S/o. Shri Shanti Swarup has been acquitted by Hon'ble Court for the offence under section 302/34 IPC and under section 25 Arms Act 1959 after giving the benefit of doubt.
7. That it is clear that the acquittal of Shri. Sher Bahadur was not on merits and also the same is not beyond reasonable doubt. In such circumstances, Shri Sher Bahadur S/o. Shri Shanti Swarup may not be re-engaged."
6. Virtually acknowledging the factual matrix & reiterating the validity of the impugned termination order/action, the respondents have stoutly denied all other allegations and grounds contained in the OA and prayed for its dismissal.
7. Controverting the pleadings in the reply of the respondents and reiterating the grounds contained in the OA, the applicant filed his rejoinder. That is how we are seized of the matter.
8. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after considering the entire matter, we are of the firm view that there is no merit and the instant OA deserves to be dismissed, for the reasons mentioned hereinbelow.
5 OA No.100/3654/2015
9. Ex-facie, the argument of learned counsel that, no doubt, applicant was a contractual employee, but since his services were terminated without issuing any SCN and without holding any enquiry, despite his acquittal in criminal case, so impugned termination order is illegal, is not only devoid of merit, but misplaced as well.
10. As is evident from the record, that applicant was appointed as DBC on contract basis for a period of 2 months, from the date of joining on a consolidated amount of Rs.2500/- per month, vide offer of appointment letter dated 23.09.2004 (Annexure-B). As per clause (1), the post of the applicant was purely temporary and his services shall be terminated after the expiry of 2 months from the date of his joining. It was also stipulated that his engagement can be terminated at any time, without assigning any reason, and in the event of such termination, he shall not claim any emoluments for the remaining period of services, as per contract.
11. Having accepted all the terms and conditions of the offer of appointment, the applicant joined the services of the MCD. During the course of his employment, a criminal case of murder was registered against him and other co-accused, on accusation of having committed the offences punishable under Section 302/34 IPC of Police Station, Rohini. After extending the benefit of doubt, he was acquitted by the 6 OA No.100/3654/2015 criminal court in the criminal case, but he has not placed on record, the main judgment of acquittal and has only produced the interim order dated 24.04.2012 of the Trial Court (Annexure-C Colly). On the contrary, the positive case of the respondents, is that, since he was acquitted, having extended the benefit of doubt and not on merit, so his acquittal pales into insignificance, as regards his misconduct and suitability is concerned, who was appointed on contract/purely temporary basis. Therefore, he did not have any claim on the post of DBC.
12. Moreover, it is not a matter of dispute, that applicant was arrested in the criminal case of murder registered against him and his co-accused, vide FIR No.144 dated 12.03.2008. He remained in custody, during the course of the trial. As a consequence thereof, he remained absent from duty for a long period. So taking into consideration his undesirable and unsuitable retention in job, his services were rightly terminated in terms and conditions of offer of appointment dated 23.09.2004 (Annexure-B), vide impugned termination order dated 25.08.2008 (Annexure-F), by the competent authority. The mere fact, that he was acquitted in a criminal case, having extended the benefit of doubt by the criminal court, ipso facto, is not a ground, much less cogent, to reinstate the applicant in service, as he has no claim over the post. Hon'ble Apex Court in case Ratnesh Kumar 7 OA No.100/3654/2015 Choudhary Vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Others JT 2015 (9) 363 has ruled, 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. The competent authority has to decide the suitability of the employee on contract basis or otherwise.
13. Again, it was reiterated by Hon'ble Supreme Court in case State Bank of India and Others vs. Palak Modi and Another (2013) 3 SCC 607 that "The ratio of the abovenoted judgments is that a probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive."
14. As indicated hereinabove, the competent authority has rightly considered the grave misconduct, leading to the involvement of the applicant in a very serious murder case and correctly terminated his services, vide simpliciter impugned termination order (Annexure-F), in terms of offer of appointment (Annexure-B). In that eventuality, the 8 OA No.100/3654/2015 respondents were not legally obliged to hold a regular departmental enquiry against the applicant, who was engaged purely on contract and temporary basis. Hence, keeping in view the grave misconduct of the applicant, leading to registration of a murder case, his reinstatement in service is not otherwise, at all desirable, in the obtaining circumstances of the case. Thus the contrary arguments of the learned counsel for the applicant, stricto sensu deserves to be and are hereby repelled. The ratio of law laid down in the indicated judgments is mutatis mutandis applicable to the present controversy and is a complete answer to the problem in hand.
15. Therefore, it is held that the impugned order of termination is simpliciter and has been passed in terms of clauses of the offer of appointment letter. The respondents have rightly terminated the services of the applicant, by passing the impugned order dated 20.05.2015 (Annexure-P).
16. No other point, worth consideration, has been urged or pressed by learned counsel for the parties.
17. In the light of the aforesaid reasons and thus seen from any angle, there is no merit and hence the OA deserves to be and is hereby dismissed, as such. However, the parties are left to bear their own costs.
(P.K. BASU) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
14.12.2016
Rakesh