Central Administrative Tribunal - Delhi
Vishalakshi Nigam vs M/O Culture on 22 December, 2023
(OA No.341-2020 & OA 1826-2019)
(1)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.341/2020
and
O.A. No.1826/2019
Reserved on :30.11.2023
Pronounced on : 22.12.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
O.A. No.341/2020
Vishalakshi Nigam
Age 38 years
Research Officer
Group "A"
D/o Anil Kumar Nigam
Resident of flat No.192
Samachar Apartments
Mayur Vihar, Phase-I
(Extension), Delhi - 110 091. ...Applicant
(By Advocate: Mr. Ajesh Luthra, Mr. Yogesh Kumar Mahur
with Mr. Harkesh Parashar)
Versus
1. Union of India
Ministry of Culture
Through it's Secretary
C-Wing Shastri Bhawan
Dr. Rajendra Prasad Road,
Rajpath Area, Central Secretariat
New Delhi, Delhi 110 001.
2. Lalit Kala Akademi
National Academy of Art
Rabindra Bhawan 35,
Firozeshah Road,
New Delhi - 110 001.
Through it's Secretary.
(OA No.341-2020 & OA 1826-2019)
(2)
3. Shri Uttam Pacharne
The Chairman,
Lalit Kala Akademi,
National Academy of
Art Rabindra Bhawan
35, Firozeshah Road
New Delhi - 110 001. ...Respondents
(By Advocate: Mr. Hanu Bhaskar with Mr. V.S. R. Krishna)
O.A. No.1826/2019
Vishalakshi Nigam
Age 37 years
Designation: Research Officer
Group "A"
D/o Anil Kumar Nigam,
Resident of flat No.192,
Samachar Apartments,
Mayur Vihar, Phase-I
(Extension), Delhi - 110 091. ...Applicant
(By Advocate: Mr. Ajesh Luthra, Mr. Yogesh Kumar Mahur
with Mr. Harkesh Parashar)
Versus
1. Lalit Kala Akademi
Through it's Secretary,
National Academy of Art
Rabindra Bhawan 35
Firozeshah Road
New Delhi - 110 001.
2. Shri Uttam Pacharne
The Chairman
Lalit Kala Akademi
National Academy of Art
Rabindra Bhawan
35, Firozeshah Road
New Delhi - 110 001.
3. Union of India
Ministry of Culture
Through it's Secretary
C-Wing Shastri Bhawan
(OA No.341-2020 & OA 1826-2019)
(3)
Dr. Rajendra Prasad Rd.
Rajpath Area
Central Secretariat
New Delhi, Delhi 110 001. ...Respondents
(By Advocate: Mr. Hanu Bhaskar with Mr. V.S. R. Krishna)
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
By way of this OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s):-
O.A. No.341/2020
"1. Quash the impugned order dated 13.1.2020, issued by Respondent no.3 whereby the applicant's services have been terminated forthwith.
2. Pass any other order that it deems fit and proper in view of the facts and circumstances of the case."O.A. No.1826/2019
"1. Quash the impugned order dated 06.05.2019, issued by Respondent no.1 whereby the applicant has been suspended from service.
2. Pass any other order that it deems fit and proper in view of the facts and circumstances of the case."
2. The brief facts of the case as indicated in the OA are that the applicant is a M.A. (History of Art) from National Museum Institute, National Museum, New Delhi. She has worked in various organizations from 2005 till 2012 on (OA No.341-2020 & OA 1826-2019) (4) different posts. During this period she undertook many responsibilities and performed all her duties excellently. She worked as research associate in National Museum Institute of History of Art, Conservation and Museology, New Delhi from July 2005 to July 2008. Thereafter from September 2008 to December 2009, she worked at Indira Gandhi National Centre for the Arts, New Delhi as Research Assistant. She also worked as Junior Research Fellow at Indira Gandhi National Centre for the Arts, New Delhi from January, 2010 to August 2012 and thereafter as Senior Research Fellow at the same institute.
3. On 15.12.2011, an advertisement was issued by Lalit Kala Akademi for direct recruitment to the post of Research Officer, at Lalit Kala Akademi, which is a selection post.
4. The Lalit Kala Akademi is India's national Akademi for the promotion of visual arts. It is an autonomous organization under Ministry of Culture, which was established in New Delhi in 1954 by Government of India to promote and propagate understanding of Indian art, in outside the country. It is guided by Central Civil Services (Classification, Control and Appeal) Rules, 1965; Service Bye-Laws of the (OA No.341-2020 & OA 1826-2019) (5) Akademi and the Constitution of the Organisation (Old and the 2018 Constitution).
5. The applicant, pursuant to the advertisement, applied for the post and participated in the selection process through Direct Recruitment mode. she was called for an interview on 17.08.2012 before the Selection Committee. On 17.08.2012, she participated in the interview along with other candidates.
6. A Memorandum of Appointment was issued to the applicant on 27.08.2012, vide Memorandum No.LK/3003/391/Adm. Intimating that the applicant has been selected for the post of Research Officer in Lalit Kala Akademi, New Delhi in the Pay Band Rs.15600-39100+Grade Pay Rs.5400.
7. On 03.10.2012, an appointment order was accordingly issued vide Office Order Part II No.187 dated 03.10.2012, appointing the applicant as Research Officer w.e.f. 3rd October, 2012 in the Pay band and grade pay of Rs.15600- 39100+5400 plus allowances on the terms and conditions as laid down in memorandum dated 27.8.2012. It was stated in the appointment order that the terms of service would be regulated in accordance with the Service Bye-laws of the (OA No.341-2020 & OA 1826-2019) (6) Akademi and CCS (Conduct) Rules. The post of Research Officer of Lalit Kala Akademi is a Group "A" post and the applicant is the senior most woman officer of the Lalit Kala Academy.
8. On 17th May 2019, Shri Uttam Pacharne, Respondent No.2 was appointed Chairman of the Lalit Kala Akademi. His tenure was of three years from the date of assuming charge. All of a sudden on 06.05.2019, the suspension order was issued by respondent no.3 which was served upon the applicant on 7.5.2019 around 5.30 PM in office whereby the applicant has been suspended with immediate effect without assigning any reason and in complete violation of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, Service Bye-Laws of the Akademi and Constitution of the Organisation. The copy of suspension order dated 6.5.2019 is annexed herewith as annexure A/10 and the copy of the order dated 02.08.2019 through which the suspension period was further extended upto 01.02.2020 is also annexed herewith as annexure A/11. The applicant filed the OA No.1826/2019 against the action of suspension by the Respondent No.3.
(OA No.341-2020 & OA 1826-2019) (7)
9. On 08.05.2019, the applicant gave a representation to the Chairman, with a copy to the Secretary, Lalit Kala Academy and to the Secretary and Joint Secretary (Academy), Ministry of Culture, Government of India, requesting the Chairman to withdraw the aforesaid suspension order issued against her. A copy of the representation dated 08.05.2019 was also sent through email to Hon'ble Culture Minister, Government of India on 16.05.2019 but to no avail.
10. The applicant sent a reminder correspondence on 16.05.2019 to the Chairman with copy to Secretary, Lalit Kala Akademi and to the Secretary, Joint Secretary (Akademi), Ministry of Culture, Government of India and to the Hon'ble Cultiure Minister, Government of India.
11. The OA states that the Respondent No.2 served an arbitrarily, illegal and vague charge sheet under rule 14 of CCS (CCA) Rules after extension of suspension order, which was duly replied with and the respondent no.2 admitted the receiving of the same but even after due examination of the same, did not proceed ahead with the enquiry categorically showing that the charge sheet was incorrect and could not be taken to its logical end. It is submitted that the applicant has (OA No.341-2020 & OA 1826-2019) (8) been illegally terminated with malafide motives. But suddenly the Respondent No.3 vide impugned order dated 13.01.2020 terminated her services forthwith. Therefore, the applicant made a representation dated 22.01.2020 to the Respondent No.1 no response was received, following which the instant OA No.341/2020 dated 03.02.2020 has been filed. It is submitted that the applicant has been illegally terminated with malafide motives. Applicant has also filed rejoinder and written statement, reiterating the claim made in the OA and bringing on record some additional facts in support of their contention.
12. Since during the pendency of the OA No.1826/2019 the impugned order of termination was passed which is under challenge in the present OA, this Tribunal vide order dated 05.03.2020 directed that the instant OA may be listed along with OA No.1826/2019. Hence, both the OAs have been heard together.
13. The respondents have filed Counter reply, followed by written submission stating that the applicant has sought to mix the issuance of charge sheet issued to her with the orders of termination. It is submitted that the charge sheet has been issued on specific charges of misconduct whereas (OA No.341-2020 & OA 1826-2019) (9) the orders of termination is on the ground of unsuitability and also because of not having the mandatory essential qualifications.
14. Respondents have further submitted that the applicant is suppressing material facts to the knowledge of the Tribunal and hence is not entitled to any relief. It may be submitted here that the applicant is aware of filing of a PIL numbered as WP (C) No.355 of 2018 [Mukeshwar Nath Dubey vs. Union of India and anr.] on which the Hon'ble Delhi High Court was pleased to issue notices to the Union of India and Lalit Kala Akademi. In the PIL case, reliefs have been sought for implementing the report of autonomous body cell dated 15.06.2016 set up by Ministry of Culture, Government of India and grave illegalities and irregularities pointed out in the said report against the officers of the Akademi including the applicant herein. As a matter of fact in the report dated 15.06.2019, the AB Cell pointed out a number of irregularities in appointment of various posts including the post of Research Officer held by the applicant. In respect of the applicant after considering the provisions of RRs, it was observed by the AB cell report that the applicant does not have requisite essential experience as required. It was further observed that the selection committee has (OA No.341-2020 & OA 1826-2019) (10) overlooked the fact that the incumbent was not in the regular channel in the parent organization and that she was working on contract basis.
15. It is further submitted by the respondents that in its various orders especially order dated 07.08.2019 in Case No.16/2019 and WP (C) No.9447 of 2017 and WP (C) No.355 of 2018, the Hon'ble High Court directed the learned counsel for Union of India to take instructions on the issue of implementation of AB Cell report dated 15.06.2016 and wherein the applicant herself is arrayed as a respondent in the above contempt case. In spite of being aware of the illegal appointment having been pointed out by AB Cell the applicant for reasons best known to her has chosen to suppress this material fact to the knowledge of this Tribunal. It is also contended that the impugned order issued is a termination simplicitor on the grounds of unsuitability in service as seen from the ACR/APAR of the applicant as also from the fact that the applicant did not possess the mandatory essential qualifications and experience at the time of recruitment. Perusal of the impugned order would show that it is non stigmatic and has been issued under rules applicable to the applicant. The applicant being a temporary employee is covered under CCS (TS) Rules. The entire case of (OA No.341-2020 & OA 1826-2019) (11) the applicant is dependent upon the fact that she is a permanent employee which is not correct. The application being premature is liable to be dismissed since the applicant has not exhausted the remedies of appeal available to her.
16. We have perused the pleadings on record and also heard Shri Ajesh Luthra, Shri Yogesh Kumar Mathur and Shri Harkesh Parashar, learned counsel for the applicant and Shri Hanu Bhaskar with Shri V.S.R.Krishna, learned counsel for the respondents.
17. Both the parties, as already stated, have also furnished written statements and we have closely perused the submissions made therein. The learned counsels for the applicant has reiterated the issues raised in the pleadings. They have further added that the officials of the Akademy in an affidavit before the Tribunal in February 2020 had categorically stated that the applicant's services were terminated based on the observations of the A.B. Cell report which ultimately turned out to be fake. Following this, the respondent LKA revised their reply stating that they had inadvertently submitted the applicant's termination was based on A.B.Cell report and claimed that in fact the said termination was on the basis of Internal Audit Report of Chief (OA No.341-2020 & OA 1826-2019) (12) Controller of Accounts. We have perused the said Internal Audit Report which points out towards certain procedural lapses with regard to the appointment of Research Officer by the LKA but it has also been recommended that the services of the applicant should be regularized.
18. We also find that though the applicant was terminated from the services because her educational qualifications and work experience were not matching with the RRs and also her APAR was unsatisfactory but the applicant was never given any opportunity to clarify the doubts about her educational qualifications and work experience. The respondents have also placed on record the APARs of the applicant for the 7 years to prove her unsatisfactory performance during these years. However, it is not disputed that these APARs were never communicated to the applicant denying her any opportunity to respond.
19. Further, our attention has been drawn to RTI reply dated 15th September, 2020 wherein the respondents have themselves admitted that they had called only shortlisted candidates for the interview who fulfilled the requirement as per the RRs. After putting in 7 years of service when in regularisation of her performance she was given a number of (OA No.341-2020 & OA 1826-2019) (13) assignments including the Incharge Secretary of LKA, such ground for termination does not appear to in line with the principles of natural justice. Also, our attention is drawn to the submission made by the Ministry before the CIC wherein a high level enquiry was conducted consisting of Representative of Ministry of Culture submitted its report in July 2023 made the following observations:
"The Committee has observed that LKA has acted against of the directions of the Ministry and the observations of the audit report. As the termination; of Smt. Vishalakhi Nigam has been made without any valid reasons and justifications, the Committee is of the view that her reinstatement may be considered by LKA being the appointing authority.
As far as fixing the responsibility for presenting the fabricated report to the Hon'ble CAT, it is not feasible for the Committee to fix the responsibility against the responsible officers/officials of LKA as LKA is unable to provide the relevant file/documents even after verbal/written reminders which also made late submissions of the Report by the Committee. In this connection, the Committee is of the view to file a FIR against the custodian of the documents which are not traceable at present in LKA and initiate departmental deciplinary proceedings against the erring officers/officials of LKA under intimation to this Ministry."
20. A copy of the report has also been placed in the pleadings which clearly states that the observations made by the AB Cell report is fabricated and false and the allegation has been made on the basis of distorted facts mentioned in (OA No.341-2020 & OA 1826-2019) (14) letter dated 05.11.2018 wherein recommendations made by the Special Audit Report of the Internal Audit Report makes a recommendation to the Ministry of Culture to regularisation of the appointment of the applicant as RO. Therefore, plea taken by the LKA that the action is pursuant to the Internal Audit Report does not appear to be acceptable. The Committee has also observed that the LKA has acted against the directions of the Ministry and the observations of the Special Audit Report. As the termination of applicant has been made without any valid reason and justification, the committee is of the view that her reinstatement may be considered by LKA being the appointing authority also. Since the relevant records pertaining to her could not be placed before the Committee, the Committee took a serious note and recommended that an FIR may be filed against the custodian of the documents which are not traceable at present in LKA and initiate departmental disciplinary proceedings against the erring officers/officials of LKA under intimation to this Ministry. It is also mentioned that the respondent LKA has not been able to take any action on the above report.
21. We have perused the following judgments cited by the applicant:
(OA No.341-2020 & OA 1826-2019) (15)
1) Madan Mohan Prasad vs. State of Bihar & Ors vide Writ Petition (Civil) No.121/1972 decided by the Hon'ble Supreme Court on 23.02.1973 that termination without enquiry is bad in law, particularly when the employee is permanent.
2) Viswesvarayya Industrial vs. Dilip Madavrao Vaidya [(1988) IILIJ 142 Bom] decided by the Hon'ble Bombay High Court on 31.07.1973 wherein termination on ground of unsatisfactory performance with a view to get rid of the employee was stuck down by court.
3) Anoop Jaiswal vs. GOI & Anr. 1984 AIR 636 decided by the Hon'ble Supreme Court on 24.01.19 wherein it was held that termination without inquiry is bad in law.
4) Varinder Hans vs. Union of India & Ors. [2019 SCC Online P&H 1343] decided by the Hon'ble Punjab & Haryana High Court on 31.07.2019 to the effect that if there was no misrepresentation by employee on the point of appointment on qualification etc. and he continued to work for long duration, he cannot be terminated.
5) Ms.Mudhol and Anr. vs. S.D.Halegkar & Ors. JT 1993 (4) SC 143 decided by the Hon'ble Supreme Court on 13.07.1993 wherein it was held that selection vis a vis qualification under question after a log gap is not tenable.
(OA No.341-2020 & OA 1826-2019) (16)
6) Akhilesh Verma & Anr. vs. UOI vide Writ Petition (Civil) No.11681 of 2015 decided by the Hon'ble Delhi High Court on 10.04.2017 to the effect that LKA works under the direction and control of GOI.
7) Tintu K vs. UOI vide Writ Petition (Civil) No.26934 of 2022 decided by the Hon'ble Kerala High Court on 02.12.2022 which decided that dismissal without show cause on the ground of unsatisfactory service is bad in law.
22. We have considered these judgments and though the factual matrix of the instant case may not be exactly same but the basic principles that emerge, more particularly the principle of natural justice hold the ground.
23. It is not in dispute that the applicant was appointed on 03.10.2012 as Research Officer in the pay band and grade pay of Rs.15600-139100+5400 plus allowances on the terms and conditions as laid down in the Memorandum dated 27.08.2012. It is also not in dispute that her period of probation was for two years which was extended from time to time.
24. The regulation is silent as to maximum period beyond which the period of probation cannot be extended. In the absence of this provision, even if the applicant completed two (OA No.341-2020 & OA 1826-2019) (17) years of probationary period successfully and without any blemish, the period of probation shall be treated to have been extended as permanent status can be acquired only by means of a specific confirmation.
25. Though the applicant's claim that after the completion of his probation period successfully of her initial two years period and thereafter successfully completing two subsequent extension of six months each i.e. up to October, 2015 and since thereafter there had not been any communication issued to her by the respondents either extending her probation period or stating that she is not a confirmed employee. Therefore, the applicant is a confirmed employee after successfully completing the probation period. However, the proposition of automatic confirmation on completion of period of probation has been ruled out by a catena of judgments and it has been held that the permanent status can be acquired only by a specific order confirming the employee under post held by him on probation, i.e. the decision in Pratap Singh Vs. Union Territory of Chandigarh and Municipal Corporation Raipur vs. Ashok kumar Mishra (1991 3 SCC
325) affirms this principle.
(OA No.341-2020 & OA 1826-2019) (18)
26. In view of the above, the applicant contention that she had acquired permanent status cannot be accepted. Her status was that of a probationer. However, this is evident from relevant records that during the seven years of her service no memo, no inquiry, no show cause or warning in any form was given to her. It was only on 08.05.2019 that she was given a charge memo Annexure (A/14) as under:-
"Article-I That the sald Smt. Vishalakshi Nigam while functioning as Head of Women Cell of the Lalit Kala Akademi deliberately delayed and deferred Inquiry proceedings of ICC (Internal Complaint Committee) against Shri N.K. Arora, working as House Keeper in the Akademi in the case of Sexual Harassment of an Artist from Agartala, Tripura. Smt. Nigam failed to conduct the inquiry proceedings as per Vishakha Guidelines, promulgated by Supreme Court in 1997, and were further broadens by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. She favoured Shri N.K. Arora by keeping the Inquiry In limbo by her dilly dally actions and deferring the further proceedings. Thus, by the above acts, Smt. Vishalakshi Nigam failed to maintain absolute Integrity and acted in a manner unbecoming of a Government servant and violated Rule 3 (1) (i), (il) (iii) and Rule 3-A of CCS (Conduct) Rules, 1964 and Rule 47 (1), (2), (3), (8) of the Service Bye Laws of the Akademi.
Article-II That the sald Smt. Vishalakshi Nigam while functioning as Secretary Incharge flouted Service Bye Laws of the Akademi in the Disciplinary Proceedings against Shri P. Jayaprakash, Supdt (now retired), at (OA No.341-2020 & OA 1826-2019) (19) Chennal Regional Centre of the Lalit Kala Akademi. She deliberately made changes to the approval taken from the authorities and Inquiry Report by falsely representing 8 articles of charges as held proved contrary to Inquiry Report where only 7 articles of charges were shown as proved. Smt. Nigarn did not follow rule 51 of Service Bye Laws of the Akademi which stipulates opportunity for appeal by the Charged Officer against penalty. She did not specify against which charge the penalty is imposed in the Order Issued.
It is apparent from records that Smt. Nigam showed personal bias against Shri P.Jayaprakash, ignored the rules and took actions contrary to decisions taken by the authorities. Thus, by the above acts, Smt. Vishalakshi Nigam failed to maintain absolute integrity and acted in a manner unbecoming of the Government servant and violated Rule 3 (1) (i), (ii), (iii), (viii) of CCS (Conduct) Rules, 1964 and Rule 47 (1), (2), (3), (8) and 51 of the Service Bye Laws of the Akademi.
Article-III That the said Smt. Vishalakshi Nigam, Research Officer, Lalit Kala Akademi while looking after the financial assistance scheme of the Akademi has failed to apprise the authorities the approved payment to be paid to Nav Siddhartha Art Group, Delhi for organizing a Bronze Casting Camp and processed additional sum of Rs. 2.25 lakhs. As a senior officer she has failed to protect public exchequer by releasing more than the due amount to Nav Siddhartha Art Group.
Thus, by the above acts, Smt. Vishalakshi Nigam failed to maintain absolute integrity and acted in a manner unbecoming of a Government servant and violated Rule 3 (1) (i),(ii), (iii), (viii) of CCS (Conduct) Rules, 1964 and rule 47 (Clause 1, 2, & 8) of Service Bye Laws of the Akademi.
Article-IV (OA No.341-2020 & OA 1826-2019) (20) That the sald Smt. Vishalakshi Nigam while working as Research Officer remained absent and missed important lectures for a short term course in which she was nominated by the Akademi at Centre for Cultural Resources and Training (CCRT). She was denled the certificate for attending the course by the CCRT due to her repeated absence. Thus, Smt. Vishalakshi Nigam did not maintain absolute Integrity, nor maintained devotion to duty and acted in a manner unbecoming of a Government Servant and violated Rule 3 (1) (i) (ii) & (ill) and Rule 3-A of CCS (Conduct) Rules, 1964 and Rule 47 (1), (2), (3), (8) of the Service Bye Laws of the Akademi."
27. But the departmental proceedings initiated against her under Rule 14 were not proceeded ahead by the authority.
28. It is also not disputed that during the period she held several portfolios in the Organisation and she even discharged duties as Secretary Incharge of the Organisation, senior-most administrative position in the Organisation of Respondent No.2 and was also bestowed with financial powers attached to the post of Secretary for effective discharge of her duties as Secretary Incharge which is a testimony to her above par performance.
29. The learned counsel for the respondents have argued that the order is a termination simpliciter on the grounds of unsuitability in service as seen from the ACR/APAR of the applicant as also from the fact that the applicant did not (OA No.341-2020 & OA 1826-2019) (21) possess the mandatory essential qualification and experience at the time of recruitment and since the applicant was a temporary employee covered under CCS (Temporary Service) Rules, the termination order passed is perfectly justified and is in accordance with the rules.
30. It is also asserted by the learned counsel for the respondents that the purported charge-sheet which was issued on specific charges has nothing to do with the termination, which was done on the grounds of inefficiency and she did not possess the essential qualification and education educational qualification and experience. In this connection they have placed reliance on an Inspection report regarding service matters of the employees of Lalit Kala Academy, New Delhi for period 31.05.2016 to 15.06.2016 known as AB Cell report. In the purported AB Cell report irregularities have been observed in respect of appointment of applicant as Research Officer contending that the post was filled up on direct recruitment basis without making any efforts to fill up the promotion/transfer on deputation as required under Recruitment Rules.
31. It is also stated in the said report that though five years Research Experience in Documentation of Rural and Tribal (OA No.341-2020 & OA 1826-2019) (22) Crafts was essential qualification, the applicant did not possess the requisite experience and the experience certificate produced by her was not to be considered as a regular experience as the period mentioned in the certificate did not match the date with each other. Moreover, the certificate produced by her for attending workshops could not be considered as regular experience. Some more discrepancies have been pointed out in the manner of her recruitment with the recommendations that experience certificate furnished by the candidate should be verified from the respective employer to prove genuineness or otherwise. This report (AB Cell report) dated 15.06.2016 was apparently placed before the Hon'ble High Court of Delhi in the context of PIL along with report of Director General of Audit (Central Expenditure) dated 17.05.2016 and it was submitted by the counsel that Govt. of India has accepted the audit report as well as the AB Cell report following which the counsel also submitted that he was seeking instructions whether the said reports are to be implemented by UOI or not. The Internal Audit Report stated that there were deviation from the recruitment and procedural lapses on the part of Lalit Kala Academy in appointment of RO but it also recommended the regularisation of the appointment of the petitioner as RO. It (OA No.341-2020 & OA 1826-2019) (23) also emerges from the pleadings that through an affidavit filed subsequently the Respondent No.1 admitted that the two pages of the report wherein the aspersions has been cast on the appointment of RO are not the part of AB Cell report. The relevant portion of the said submissions signed by the Under Secretary, Ministry of Culture reads as under:-
"1. That the Respondent No.4 through the Application under reply, has contended that Autonomous Body Cell (ABC) Report upon which action against her is taken is fabricated & forged. It is contended that additional pages i.e. from page 71-76 (Annexure P9 of writ Petition) were not a part of ABC Report dated 15.06.2016.
2. It is submitted that, as per the records available in Akademi Division, Ministry of Culture, original Autonomous Body Cell Report dated 15.06.2016 has been forwarded to respondent 2/Lalit Kala akademi vide Ministry's letter dated 21.02.2017. Letter dated 21.02.2017 is annexed as annexure-R1/1.
3. It is submitted that the pages 71-76 of annexure P9 of original writ petition are not part of the Autonomous Body cell report dated 15.06.2016 which was sent to respondent no.1/LKA."
32. We do not consider it necessary to go into the merit of AB Cell report or its genuineness, as this is not the issue before us but the facts remain that the foundation of the termination order of the applicant was the AB Cell report.
(OA No.341-2020 & OA 1826-2019) (24)
33. Therefore, though the impugned termination order appears to be an order simpliciter, however, the same is based on the findings of AB Cell Committee pointing out a number of anomalies not only in the manner of recruitment of the applicant but also with regard to her qualification/experience. Therefore, the applicant was apparently punished for an act of misconduct, which amounts to removal from service within the meaning of Article 311(2). Hence, the regular departmental inquiry was required to be conducted before passing any adverse/such order.
34. After considering the law laid down by the Hon'ble Apex court in a catena of cases, the Tribunal held in 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 as under :-
"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, ruled that if the termination order is stigmatic and based or founded upon misconduct, 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 regular (OA No.341-2020 & OA 1826-2019) (25) departmental enquiry was required to be conducted before passing any adverse order. In the absence of which, the termination order would be inoperative and non-est in the eyes of law. The relevant paragraph of the said judgment reads as under:-
"28. In the case at hand, it is clear as Crystal that on the basis of a complaint made by a member of the Legislative Assembly, an enquiry was directed to be held. It has been innocuously stated that the complaint was relating to illegal selection on the ground that the appellant did not possess the requisite qualification and was appointed to the post of Chest Therapist. The report that was submitted by the Cabinet (Vigilance) Department eloquently states about the conduct and character of the appellant. The stand taken in the counter affidavit indicates about the behaviour of the appellant. It is also noticeable that the authorities after issuing the notice to show cause and obtaining a reply from the delinquent employee did not supply the documents. Be that as it may, no regular enquiry was held and he was visited with the punishment of dismissal. It is well settled in law, if an ex parte enquiry is held behind the back of the delinquent employee and there are stigmatic remarks that would constitute foundation and not the motive. Therefore, when the enquiry commenced and thereafter without framing of charges or without holding an enquiry the delinquent employee was dismissed, definitely, violation of principles there is clear of natural justice. It cannot be equated with a situation of dropping of the disciplinary proceedings and passing an order of termination simpliciter. In that event it would have been motive and could not have travelled to the realm of the foundation. We may hasten to add that had the appellant would have been visited with minor punishment, the matter possibly would have been totally different. That is not the case. It is also not the case that he was terminated solely on the ground of earlier punishment. In fact, he continued in service thereafter. As the report would reflect that there are many an allegation subsequent to the imposition of (OA No.341-2020 & OA 1826-2019) (26) punishment relating to his conduct, misbehaviour and disobedience. The Vigilance Department, in fact, had conducted an enquiry behind the back of the appellant. The stigma has been cast in view of the report received by the Central Vigilance Commission which was ex parte and when that was put to the delinquent employee, holding of a regular enquiry was imperative. It was not an enquiry only to find out that he did not possess the requisite qualification. Had that been so, the matter would have been altogether different. The allegations in the report of the Vigilance Department pertain to his misbehaviour, conduct and his dealing with the officers and the same also gets accentuated by the stand taken in the counter affidavit. Thus, by no stretch of imagination it can be accepted that it is termination simpliciter. The Division Bench has expressed the view that no departmental enquiry was required to be held as it was only an enquiry to find out the necessary qualification for the post of Chest Therapist. Had the factual score been so, the said analysis would have been treated as correct, but unfortunately the exposition of factual matrix is absolutely different. Under such circumstances, it is extremely difficult to concur with the view expressed by the Division Bench".
35. In the present case, admittedly the respondents conducted an enquiry against the applicant, in respect of his alleged unauthorised absence and awarded him a written warning for the said misconduct. Further, though the impugned termination order has not given any reasons, but the facts preceding the termination order and the averments of the respondents in the counter clearly establishes that the misconduct of the applicant indeed constitutes the foundation (OA No.341-2020 & OA 1826-2019) (27) and not motive of the action taken, the same amounts to be in violation of the principles of natural justice and hence liable to be set aside.
36. Further, as the respondents have already awarded the written warning to the applicant for his proved misconduct of unauthorised absence, they cannot impose another punishment for the same misconduct, i.e. termination from service."
37. Recently, the coordinate Bench of this Tribunal vide Order/Judgment dated 8.2.2013 in OA No.2470/2015, titled Capt. Yashraj Tongia vs. Union of India and another, has considered the similar issue, paras 10 & 11 thereof read as under :-
"10. The Apex Court in Mathew P. Thomas v Kerala State Civil Supply Corpn. Ltd. & others [(2003) 3 SCC 263], in para 11 held as follows:
"... From a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue (OA No.341-2020 & OA 1826-2019) (28) in service. If the form and language of the so- called order of termination simpliciter of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. In cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simpliciter, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct."
38. The above observation of the Apex Court makes it clear that while deciding whether the termination of a probationer is a termination simpliciter or punitive, the Tribunal can travel beyond the order of termination to find out what in reality is the background and what weighed with the employer to terminate the services of the probationer. It is evident that (OA No.341-2020 & OA 1826-2019) (29) the impugned order of termination has stemmed out from the so called AB Cell report wherein the documents pertaining to her quantification/experience have been questioned. It is also relevant to mention here that it transpired that the papers which the LKA utilized and put before the Tribunal were forged and fabricated. The stand taken by the respondents is also contrary to the report of the Ministry of Culture of July 2023 wherein LKA was directed to reinstate the applicant and to file FIR against those officials of LKA because of whom her appointment was not traceable. Since the respondents during the hearing have also placed reliance on the audit report headed by the Accounts Officer of 2018 there is a recommendation to regularise the applicant.
39. The Hon'ble Supreme Court in Dipti Prakash Banerjee v Satyendra Nath Bose National Centre for Basic Sciences, Calcutta & others [(1999) 3 SCC 60), laid down the criterion for differentiating as to when a simple order of termination is to be treated as founded on the allegations of misconduct, and when complaints could be only as a motive" for passing such an order of termination. The Hon'ble Supreme Court held that to determine as to whether the termination of services is punitive or simpliciter would depend upon the (OA No.341-2020 & OA 1826-2019) (30) stigma in the order of termination. It was held that stigma may be inferable from the references quoted in the termination order, though the order itself may not contain anything offensive. It was further held that termination order would be bad if it contains stigma but no regular Inquiry has been held. In para 21 the Apex Court made the following observations;
"21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as founded" on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."
40. From the aforesaid, it is evident that while deciding as to whether the termination of a probationer is termination simpliciter or punitive, the Tribunal can travel beyond the order of termination to find out what is the reality or the background and foundation of the order of the termination.
(OA No.341-2020 & OA 1826-2019) (31) The averments made in the counter reply stating that the applicant was terminated because of unsatisfactory performance, which is contrary to the fact that she was given several sensitive assignments including Secretary In-charge of LKA.It also does not stand to reason as to why the APARs which were a testimony to lacklusture performance of the applicant were not communicate to her and what led the concerned respondent to assign many important responsibilities to the applicant during the same period. The second claim that termination was based on the recommendation of certain reports which pointed out that she did not possess the requisite qualification/experience was not established, as no regular inquiry to prove the same was conducted.
41. We fail to understand that if there was doubt about the qualification and experience of the applicant why no attempt was made to verify the authenticity of the documents through a proper enquiry. In Roop Singh Negi Vs. Punjab National Bank & others vide CA No.7431 of 2008 dated 19.12.2008, the Hon'ble Supreme Court held the following :-
"The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be (OA No.341-2020 & OA 1826-2019) (32) evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence."
42. The allegation of lack of requisite qualification/experience was based on merely ipse dixit. This contention was not supported by any evidence and the concerned persons were never examined. A decision was taken behind the back of the applicant. No show cause/memo was issued to the applicant indicating deficiency in performance of duties given nor the APARs containing adverse notings about her appraisal were ever communicated. No enquiry was conducted nor any charge was made out against the applicant on the issue of lack of qualification/experience. The applicant had no occasion to have his say thereupon. In Chandra Prakash Shahi vs. State of U.P. and Others (2000) 5 SCC 152, it was held by the Hon'ble Supreme Court as under:
"12. Now, it is well-settled that the temporary Government servants or probationers are as much entitled to the protection of Article 311 (2) of the Constitution as the permanent employees despite the fact that temporary government servants have no right to hold the post and their services are (OA No.341-2020 & OA 1826-2019) (33) liable to be terminated at any time by giving them a month's notice without assigning any reason either in terms of the contract of service or under the relevant statutory rules regulating the terms and conditions of such service. The courts can, therefore, lift the veil of an innocuously worded order to look at the real face of the order and to find out whether it is as innocent as worded."
43. The applicant also relies upon the judgment of this Tribunal in OA No.4134/2015 decided on 05.12.2023 in Anand Singh vs. Union of India & Ors. The relevant paras of said judgment read as under:
"9. Having heard the learned counsel for the parties and perused the pleadings available on record as well as the Order/Judgment of this Tribunal in Manjeet Singh case (supra), we find that similar short question arises in the instant case also for adjudication is whether the impugned order of termination is an order simpliciter or ex-facie stigmatic?
10. The aforesaid issue is no more res integra as the same had been adjudicated and decided by the this same Division Bench in Manjeet Singh case (supra), the relevant paras of the same read as under:-
"8. The decision of the Hon'ble Supreme Court in Dr. Vijayakumaran C.P.V. (supra) has further been considered by the Hon'ble High Court of Delhi in a recent decision in Nina Lath Gupta v. Union of India, 2023:DHC:2944. The relevant part of the judgment reads as follows:
"29. Another judgment, which needs a mention and is close on facts, is in the case of Dr. Vijayakumaran C.P.V. v. Central University of Kerala and Others, (2020) 12 SCC 426, wherein the Supreme Court observed that the termination order was issued in the backdrop of Internal Complaints Committee Report and going by the terms and tenor of the order, it was incomprehensible to (OA No.341-2020 & OA 1826-2019) (34) construe such an order to be an order simplicitor when the report of the Inquiry Committee was the foundation. The Supreme Court also reiterated the position of law that the material which amounts to stigma need not be contained in the termination order and may be in any document referred to therein, which reference will inevitably effect the future prospects of the incumbent and if so, the order must be construed as an ex facie stigmatic order of termination."
44. In view of the above discussions, more particularly in the light of judgments cited and considered above, we find that in the in the instant case even if the order of termination of the applicant appears to be innocuous and or order simpliciter, however, if the attending circumstances, more particularly the stand taken in the counter-affidavit, the conclusion was irresistible that the order was punitive in nature and since the penalty was imposed without affording an opportunity to meet the charge, the order is not sustainable in the eyes of law.
45. The same being passed without holding an enquiry and without following the principles of natural justice is not sustainable in the eyes of law. We, therefore, hold that the impugned termination order is not an order simpliciter but stigmatic, keeping in view the stand taken by the respondents in the counter-reply and written statement.
46. In the result, for the foregoing reasons, the impugned order dated 13.01.2020 whereby the services of the applicant (OA No.341-2020 & OA 1826-2019) (35) has been terminated is quashed and set aside. The respondents are directed to reinstate the applicant in service on the post she was holding, as expeditiously as possible, and preferably within six weeks of receipt of a certified copy of this order. The applicant shall be entitled to consequential benefits in accordance with the relevant rules and instructions on the subject. Her suspension period will be decided in view of the above, in accordance with law. However, the respondents shall be at liberty to initiate disciplinary enquiry and or to take action in accordance with the relevant rules, if they so decide.
47. The OA stands partly allowed in the aforesaid terms. However, in the facts and circumstances of the case, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh) Member (A) Member (J) /kdr/