Central Administrative Tribunal - Delhi
Sudha Sharma vs Govt. Of Nctd on 30 April, 2025
1
Court II OANo.3648/2019
Central Administrative Tribunal
Principal Bench
OANo. 3648/2019
Reservedon: 24.03.2025.
Pronouncedon: 30 .04.2025.
Hon'ble Mr.R.N. Singh, Member(J)
Hon'bleMr.RajinderKashyap, Member (A)
Ms. Sudha Sharma, aged 41 years,
D/o Sh. Ramesh Chand Sharma,
House Mother (Terminated)
Department of Women & Child Development,
Govt. of NCT of Delhi.
R/o B-37, Street No. 1, 1st Pushta,
Usmanpur, Delhi-53
......Applicant
(ByAdvocate: Mr. Yogesh Sharma)
VERSUS
1. Govt. of NCT of Delhi,
Through the Chief Secretary,
New Secretariat, New Delhi
2. The Secretary,
Department of Social Welfare & Child Development,
Govt. of NCT of Delhi,
GLNS Complex, Delhi Gate, New Delhi-2
3. The Deputy Director (Admn),
Department of Women & Child Development,
Govt. of NCT of Delhi,
1, Canning Lane, K.G. Marg,
New Delhi.-1.
.......Respondents
(By Advocate: Mr. Girish C Jha)
[Type text]
2
Court II OANo.3648/2019
ORDER
By Hon'ble Mr. Rajinder Kashyap, Member(A): -
The applicant has filed present Original Application under Section 21 of the Administrative Tribunals Act, 1985. By way of this O.A., the applicant seeks the following relief: -
"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dt. 4.12.2019 (Annex.A/1) and order dated 3.1.2019 (Annex.A/2), declaring to the effect that the same are illegal, arbitrary and against the principle of natural justice and consequently pass an order directing the respondent to reinstate the applicant in service with all the consequential benefits including arrears of back wages and continuity in service for all purposes.
(ii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant."
BRIEF FACTS:
2. The applicant was initially appointed in the Department of Women & Child Development, Government of NCT of Delhi to the post of House Mother w.e.f. 03.01.2013 on contract basis after due selection from open market along with number of other employees and served the department till passing the impugned order. The respondents vide impugned order dated 03.01.2019 (Annexure A/2) terminated the service of the applicant on the allegedmisconduct of negligence, dereliction of duties and lack of devotion to duty. In the impugned order it is stated that Ms. Sudha(House mother) is an outsourced employee through ICSIL., and her service are not governed under the CCS rules.
The applicant submits that the ICSIL is a recruiting agency only and the applicant was appointed by the Department of Women [Type text] 3 Court II OANo.3648/2019 and Child Development, which is clear from the offer of appointment issued by the Department of Women and Child Development and the applicant contends that treating the applicant as a outsourced employee is totally wrong.
3. Against the impugned order, the applicant submittedher representation dated 18.4.2019 to the Chief Secretary and on 03.06.2019 to the Secretary, Department of Women and Child Development through proper channel, in which the applicant clearly stated that she is not an outsourced employee. She has not committed any mistake or misconduct and there was no fault or negligence on her part (Annexures A-3 & A-4). The respondents vide order dated 4.12.2019 rejected therepresentation of the applicant without considering the plea taken by the applicant and without disputing the fact that the applicant is not anoutsourced employee, only by stating that request of the applicant is devoid of merits, which is neither a speaking order not a reasoned order. (Annexure A-1).
4. It is the contention of the applicant that all the similarly situated persons who were appointed along with the applicant are still working and even after appointment of the number of fresh persons, meaning thereby that similarly situated as well as junior persons to the applicant are still workingand only the service of the applicant has been terminated not due to unsatisfactory services but on the alleged misconduct. Even in [Type text] 4 Court II OANo.3648/2019 cases, where a temporary Government employee or contract employee is terminated by an order of termination simplicitor on misconduct, it has been held by the judicial forums that such orders cannot be sustained, since the same is done without holding enquiry and while the order of termination of temporary appointee may be simplicitor in accordance with the terms of the appointment which casts no stigma on the person concerned, it is the substance of the order i.e. the attending circumstances as well as the basis of the order that have to be taken into consideration as held by the Hon'ble Supreme Court in the case of Jarnail Singh & Ors. versus State of Punjab and others(AIR 1986 SC 193).
5. The applicant contends that because the applicant has not committed any misconduct and the respondents failed to mention a single negligence on her part. She further contends that the failure on the part of the security guard does not mean that the applicant has committed any misconduct, however, she has been terminated from service without any reasons or fault on her part.
6. It is contended by the applicant that in an identical situation even in the same department,this Tribunal in the matter of contract employees in the case of Sandeep Kumar Versus GNCT of Delhi in O.A.No.1254/2013 vide judgment dated 09.09.2016 held as under: -
[Type text] 5 Court II OANo.3648/2019 "33. In the light of the aforesaid reasons, the OAs are allowed.
The impugned termination orders dated 15/18.02.2013 (Annexure A-1)(in both the cases) are hereby quashed and set aside. The respondents are directed to reinstate the applicants in service forthwith, with all consequential benefits. However, they would be entitled to 50% of amount of their back wages in view of the judgment of the Hon'ble Apex Court in Ratnesh Kumar Choudhary's case (supra). However, the parties are left to bear their own costs."
7. The applicant submits that in view of ratio of law laid down by the Hon'ble Apex Court in the case Anoop JaiswalVs. Government of India and Another (1984) 2 SCC 369, wherein, it was ruled that even in case of probationer, court can go beyond the formal order of discharge to find the real cause of action. Simple order of discharge of probationer on ground of unsuitability passed before his completion of probation period, which is based on report/recommendation of the concerned authority, indicating commission of alleged misconduct by the probationer, then order is punitive in nature, which in theabsence of any proper enquiry amounted to violation of Article 311(2) of the Constitution of India the same view was reiterated by Hon'ble Apex Court in case Andhra Pradesh State Federation of Coop.Spinning Mills Ltd. and Another Vs. P.V. Swaminathan (2001) 10 SCC 83, wherein it was held as under:-
"the legal position is fairly well settled that an order of termination of a temporary employee or probationer or even a tenure employee, simplicitor without casting any stigma may not be interfered with by court. But, at the same time, the court is not debarred from looking to the attendant circumstances, namely, the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the order of termination or formed the foundation for the same order. If the court comes to a conclusion [Type text] 6 Court II OANo.3648/2019 that the order was, in fact, simplicitor and without any motive, then obviously the order would not be interfered with, but if the court comes to a conclusion that the so called inefficiency was the real foundation for passing of order of termination, then obviously such an order would be held to be penal in nature and must be interfered with since the appropriate procedure has not been followed".
8. It is also contended that in an identical situation, the Hon'ble Apex Court in the case ofRatnesh Kumar Choudhary Vs.Indira Gandhi Institute of Medical Sciences, Patna,Bihar and Others JT 2015 (9) 363, having considered the ratio of law laid down in previous judgments of Hon'ble Supreme Court in cases Samsher Singh v. State of Punjab (1974) 2 SCC 831, Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and Another (1999) 2 SCC 21, State of U.P. vs. Kaushal Kishore Shukla (1991) 1 SCC 691, Triveni Shankar Saxena vs. State of U.P.(1992) Supp(1) SCC 524, State of U.P. vs. Prem Lata Misra (1994) 4 SCC 189, Samsher Singh (supra), Parshotam Lal Dhingra vs. Union of India AIR 1958 SC 36, State of Bihar vs. Gopi Kishore Prasad AIR 1960 SC 689, Stateof Orissa vs. Ram Narayan Das AIR 1961 SC 177, Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, Anoop Jaiswal vs. Govt. of India (1984) 2 SCC 369, Nepal Singh vs. State of U.P. (1980) 3 SCC 288, Commissioner, Food & Civil Supplies vs. Prakash Chandra Saxena (1994) 5 SCC [Type text] 7 Court II OANo.3648/2019 177, Commissioner, Food & Civil Supplies vs. Prakash Chandra Saxena (1994) 5 SCC 177, Chandra Prakash Shahi vs. State of U.P. and Others (2000) 5 SCC 152, Union of India and Others vs. Mahaveer C. Singhvi (2010) 8 SCC 220, Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences (1999) 3 SCC 60, Pavanendra Narayan Verma vs. 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, it was ruled by the Hon'ble Apex Court that if the termination order is stigmatic and based or founded upon misconduct, it would be a punitive order and court can lift the veil and declare that in the garb of termination simplicitor, 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 andwithout giving him 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 show cause notice was required to be issued and opportunity of being heard has to be provided to such employees in departmental enquiry before passing any adverse order. In the absence of which, the termination order would be inoperative and non-est in the eyes of law.
[Type text] 8 Court II OANo.3648/2019
9. The applicant states that the principles of natural justice are certain rules fundamental to dispensation of justice. The aim of these rules is to secure justice, or in other words, to prevent miscarriage of justice as observed by the Hon'ble Supreme Court in the case of A.K.Kraipak Vs. U.O.I. (AIR 1970 SC 150). The first and the foremost principle of natural justice is "Audi alteram Partem" which literally means that no one be condemned without affording adequate opportunity of hearing. The appellant has not been provided with any opportunity of hearing before terminating his services. Even in cases where the services of temporary government employees are terminated on some allegations of misconduct, it has been held by the Hon'ble Supreme court that the same is illegal if the allegations are not established. Without holding an enquiry into the allegations and without hearing the employee, resort to terms of offer of appointment as a short cut to terminate the services of the employees, is illegal.
REPLY BY THE RESPONDENTS:
10. In reply, the respondents state that the applicant was engaged on contract and the terms and conditions as prescribed in her offer letter were applied while taking decision for termination of her services which were based on the findings of the enquiry authority and recommendations. It would be also pertinent to submit that the initially the District Officer of the concerned [Type text] 9 Court II OANo.3648/2019 District and the Superintendent/ Person-in-Charge were placed under suspension. Subsequently, in compliance of the direction of the Hon'ble High Court in the matter of WP(CRL.) 2728/2018 titled Suku Lal Sunar Vs. State, enquiry was conducted by the duly constituted enquiry team consisting the District Officer and an Assistant Director in the Department into the incident of escape of nine girls from the protective custody. The fact finding inquiry report included the statements of the officials and witnesses present on duty on the intervening night of 1 st& 2ndDecember, 2018 when the incident of escape was reported. Concerned officials were issued memorandums individually,included the applicant, and their explanation was sought.
11. They further state that Rule 63 of the Juvenile Justice (Care & Protection of Children) Model Rules, 2016 clearly lays down that the House Mother is responsible for ensuring safety and security arrangements in the Child Care Institution besides other duties to take care of the children placed in protective custody. The applicant was the senior-most official in supervisory capacity present on duty during the relevant period of time. In her statement,she has admitted lapses on her part and the inquiry authority in its report also found her responsible alongwith other officials and security personnel for the unfortunate incident of escape of nine girls from protective custody.The enquiry [Type text] 10 Court II OANo.3648/2019 conducted was in adherence to the norms being followed in any other case of outsourced staff or officials engaged on contract basis and the decision was effected based on the findings and recommendations of the enquiry report and also the fact that the Applicant herself admitted lapse on her part. Merely because positions are lying vacant, it cannot be filled by reengaging the official who has been terminated from her services of contract on failure to perform her duties assigned as per relevant Rules under the Juvenile Justice (Care & Protection of Children) Model Rules, 2016.
12. The respondents state that para 3 of the observation and conclusion of the fact finding Inquiry Report dated 17.12.2018 reads as under: -
"3. As per the statement of Ms. Sudha Sharma (House Mother), she stated that after taking a round in the Home she went to sleep around 2.30 am and came to know about the incident in the morning at the time of breakfast She has agreed in her statement that it is a mistake on her part and has assured that such incident will not occur in future Being the senior most amongst the night duty staff she should have been more responsible in overseeing the care and protection of children as well as to monitor the responsibility/behavior of the staff."
13. The respondents state that while hearing in the matter WP(CRL.) 2728/2018 titled Suku Lal Sunar Vs. State, Hon'ble High Court made the observation that simply because a couple of staff members i.e. District Officer and Superintendent of the Home have been suspended on the recommendation of the Delhi Commission for Women is not enough. We have enquired [Type text] 11 Court II OANo.3648/2019 if any disciplinary proceedings have been initiated against the delinquent staff of the Sanskar Ashram. Learned Standing Counsel states that he may be permitted to file a Status Report on this aspect, furnishing inter alia all the necessary details. A fresh status be filed well before the next date of hearing. REJOINDER AND ADDITIONAL AFFIDAVIT FILED BY THE APPLICANT:
14. The applicant has filed rejoinder and an additional affidavit and has reiterated her earlier stand. In para 4.3 of the rejoinder, the applicant states as under:
"Para No. 4.3 of the counter is wrong and hence same is denied. In reply it is submitted that as per the Manual of Directorate of Social Welfare, Delhi Administration, the duties and functions of House father/Matron i.e. mother are as under:
i) Be responsible for regular cleanliness and personal hygiene of the inmates.
ii) ensures proper upkeep and maintenance of inmates dormitories, their beds, lines, furniture and fixtures, etc.
iii) Ensure that school going children are in proper and clean dress and got to school with the requisite book, writing material, school, bag, etc.
iv) Supervise distribution of food including special diet of sick inmates.
iv) Arrange medical checkup and OPD reference of sick inmates.
v) maintain account of the properly, general, clothing and bedding matrices issued to inmates from time to time.
vi) Be responsible to maintain the TV, games/ sports material, encourage and assist the children to participates in sports and cultural activities."
15. In the additional affidavit filed by the applicant, she has stated that after her appointment till date, no notice or instructions has been issued/ communicated by the respondent [Type text] 12 Court II OANo.3648/2019 department to her or other similarly situated persons in the home, in respect of any revised duties and functions of house mother. She further states that without prejudice the above stated facts even in the Juvenile Justice (Care & Protection of Children) Model Rules, 2016 the duty is mentioned as to look after safety and securities arrangement in the child care institution. The competent authority made the arrangement in the home in question by deputing the Guards which is clear from the facts finding report of the department and the respondents only takes the benefit of statement of the applicant by saying that the applicant has admitted her lapse. She further submits that she has not admitted her lapses but explained the circumstances and stated that she had taken regular rounds at night, then this sad incident could have been stopped.Although these statements were taken from the applicant in compelling circumstances otherwise also, it is well settled principle of law in the departmental inquiry or cases if the charged officer given any statement with explanation, it should not be treated as admission on her part and therefore, the action of the respondents is totally illegal. The concerned authority without considering the actual record passed the impugned order only by treating the applicant as outsourced employee but the facts remain the applicant is not an outsourced employee and therefore, the impugned order is liable to be quashed on this sole ground.
[Type text] 13 Court II OANo.3648/2019 ANALYSIS:
16. Admittedly, the applicant was appointed in the respondents Department to the post of House Mother w.e.f. 03.01.2013 on contract basis where she continued to work till her termination vide impugned order dated 03.01.2019 (Annexure A/2) on the alleged misconduct of negligence, dereliction of duties and lack of devotion to duty. The representations submitted by the applicant were rejected by the respondents vide order dated 4.12.2019. It is the case of the applicant that similarly situated persons are still working in the Department under the respondents. Further, the termination order is stigmatic and is in violation to the principles of natural justice,issued without holding an enquiry into the allegations and without hearing the employee and as a short cut to terminate the services of the employees, therefore, illegal. The applicant has relied upon a catena of judgements of Hon'ble Courts. On the other hand, the respondents have also relied upon the judicial decisions of Hon'ble Courts in the support of their decision to terminate the services of the applicant. For facility of reference, it is appropriate to refer to the relevant portions of the judgements which are as follows: -
16.1. The Hon'ble Supreme Court in its judgement dated 06.11.2009 in the matter of Ashok Kumar Sharma Vs Oberoi Flight Services, reported in AIR SC 502, 2010 (1) SCC 142, the following was held in para 2, 6 & 7: -
[Type text] 14 Court II OANo.3648/2019 "2. In this appeal by special leave, the workman has challenged the judgment and order passed by the Division Bench of Delhi High Court on March 18, 2008 whereby monetary compensation of Rs.60,000/- has been ordered to be paid by the Management to him in lieu of reinstatement and back wages.
6. Not satisfied with the order of the Single Judge, the workman preferred Letters Patent Appeal. The Division Bench held that it was difficult to believe the contention of the Management that 30 KLM soup spoons could be put in a shoe and that workman walked with the said spoons in his shoe from the work area to the security check area. The Division Bench also noticed that Management having not conducted any enquiry, the dismissal of workman without issuing him charge- sheet or a show cause notice was unsustainable. However, the Division Bench vide his judgment dated March 18, 2008 did not deem it proper to order reinstatement of the workman and instead directed the Management to pay him Rs.60,000/- in full and final settlement of the claim. It is this part of the order which is under challenge in this appeal.
7. This Court in U.P. State Brassware Corporation Ltd. V. Uday Narain Pandey held thus:
"41. The Industrial Courts while adjudicating on disputes between the Management and the workman, therefore, must take such decisions which would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudication under the Industrial Disputes Act, it would be wholly improper on the part of the superior courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law.
42. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance.
xxxxxx
45. The Court, therefore, emphasised that while granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages, therefore, cannot be the natural consequence."
16.2. In the judgment of the Hon'ble Supreme Court in the matter of Swati Priyadarshini vs The State of Madhya Pradesh decided on 22.08.2024in Civil Appeal No. 9758 of 2024, the following was held in paras 4 to 9 and 34 to 37: -
"4. On 15.10.2012, the sole appellant was appointed by the [Type text] 15 Court II OANo.3648/2019 Respondent No.4 to the post of Assistant Project Coordinator (hereinafter referred to as "APC") under the Sarv Shiksha Abhiyan (hereinafter referred to as "SSA") on contract basis, initially for one academic session (1 year), renewable in subsequent years for two years each "subject to evaluation of work in the first year."
5. It was contended by the appellant that she received some information about alleged misconduct and immoral activity going on in the CWSN (abbreviation for "Children with Special Needs") Girls' Hostel, Sehore (hereinafter referred to as the "hostel") run by one Bright Star Social Society, a non- governmental organization (hereinafter referred to as "Bright Star"). The State Level Committee raided the hostel on a complaint made by the appellant. The State Level Committee found the allegations, made by the appellant to be true eventually leading to termination of the Memorandum of Understanding with Bright Star to run the hostel with effect from 08.01.2013.
6. On 09.01.2013, the appellant was made in-charge of the hostel. An order was issued by the Sub-Divisional Officer and Magistrate, Sehore on 10.01.2013 to the District Coordinator, State Education Centre, Sehore to lodge a First Information Report against the warden under whose supervision the alleged crime(s) was/were being committed in the hostel.
7. By order dated 14.01.2013, charge of the hostel was withdrawn from the appellant after 5/6 days of assigning the charge. The appellant received a Show- Cause Notice (hereinafter abbreviated to "SCN") issued by the Respondent No.5 which reads as under:
"The attendance register was perused by the District Project Coordinator District Education Centre, Sehoreunder the above subject. Absent was marked on 4th and 5th January, 2013 by me in the attendance register. (sic) Signatures were made by you in the said dates in the attendance register and your coming in the office at 12:00 hours For convenience, English translation is used. The original SCN was issued in Hindi.
on 14.02.13 is a negligence on your part towards duties and is violation of orders of officer. To the above, the appellant replied on 16.02.2013, stating that signatures have not been made by her on the attendance register. She stated that due to the arrival of her daughter from Bhopal on 14.02.2013, she was late on the said date. The appellant contended that whenever she comes late to work, she stays late in the office till evening 7-8 PM and completes all the work.
8. On 15.03.2013, another SCN was issued by the Respondent No.4 to the appellant with the following charges:
"i. Marking of disabled boys/girls and verification of the specified list prepared by Social Justice was to be done by you for the execution of several activities through Arushi Institution but marking and verification was not done by [Type text] 16 Court II OANo.3648/2019 you.
ii. The proceedings of appointing volunteers and MRC are prevalent in the Arushi Institution. You are also nominated therein as representative of District Education Centre but due to your in-cooperative, obstruction and negligent attitude, the appointment on the said posts could not be made and due to this reason, the other activities including education is adversely being affected.
iii. No report was submitted when the monitoring of CWSN hostel was done and what improvements were made. iv. Entry of unauthorized persons in the hostel is strictly prohibited and you being posted at a responsible post, it is your duty to ensure prohibition on the entrance of unwanted persons in the hostel but telling about this is very far and you yourself has tried to enter the hostel along with the crowd of outsiders. Further you put pressure on the senior officers to give entrance to the unauthorized persons in the hostel. The work done beyond your official duties, comes under the category of indiscipline.
v. Your head office is situated at Sehore, but you are not residing at the headquarter and come from Bhopal everyday vi. You do not come in the office at right time also and in spite of being late, you made signature on the attendance register. It is indiscipline on your part." (sic)
9. The appellant vide representation dated 20.03.2013 stated that all tricks were being adopted for removing her from the post of APC. She stated that SCNs were being issued to her even for small things. She alleged non-co-operation from other officers and that she was being harassed as she had complained about the hostel.
34. It is profitable to refer to what five learned Judges of this Court laid down in Parshotam Lal Dhingra v Union of India, 1957 SCC OnLine SC 5:
"28. The position may, therefore, be summed up as follows: Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. Union of India [(1953) 1 SCC 420: (1953) SCR 655]. Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311 ... " "12. It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is [Type text] 17 Court II OANo.3648/2019 challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee." punishment and does not attract Article 311(2), as has also been held by this Court in Shyam Lal v. State of Uttar Pradesh [(1955) 1 SCR 26]. In either of the two abovementioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under Rule 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C.J., has said in Shrinivas Ganesh v.Union of India [LR 58 Bom 673 : AIR (1956) Bom 455] wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with. As already stated if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Article 311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a [Type text] 18 Court II OANo.3648/2019 punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression "terminate" or "discharge" is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank, or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant."
(emphasis supplied)
35. We would only be adding to verbosity by multiplying authorities. In view of the above dictum, it is clear that the Respondents did not comply with Clause 4 - either the first part or the second part thereof. The order dated 30.03.2013 does visit the appellant with evil consequences and would create hurdles for her re further employment.
36. In view of the discussions made hereinabove, the Impugned Judgment is quashed and set aside. The judgment of the learned Single Judge dated 20.06.2017 stands revived, however with a modification to the extent that the appellant shall be entitled to all consequential benefits including notional continuation in service at par with other similarly- situated employees, but with the back wages restricted to 50%. Further, in view of the long passage of time, we deny liberty to the respondents to proceed afresh against the appellant as was granted by the learned Single Judge. However, this will not [Type text] 19 Court II OANo.3648/2019 preclude the respondents from taking action against the appellant in accordance with law in futuro apropos her official duties on the post in question, if the situation so arises. The exercise be completed within three months from the date of receipt of this judgment.
37. The appeal is allowed and disposed of on the above terms while leaving the parties to bear their own expenses."
17. The respondents have issued orders dated 03.01.2019 (Annexure A-2) and terminated the services of the applicant. For facility of reference, the relevant portion of the is as follows: -
"Whereas, Ms. Sudha (House Mother) in her response to the aforementioned Memorandum dated 17.12.2018 have stated that "on 01.12.2018 was on duty from 08.00 PM to 08.00 AM (02.12.2018). I had taken up the round of the institution, when the inmates were in the kitchen hall. After that medicines were given to the concerned inmates and duty were assigned to the 06 security guards available on duty le. 03 security guards on the ground floor and 03 security guards on the first floor. The duties of the 02 caretakers available on duty was assigned for 01" and 02 dormitory. I was in the 1" Dormitory on the ground floor. After all the inmates of 1" dormitory had gone to sleep at about 11.45 PM counting of the inmates was done and as the count of inmates was correct, I had come back to the 1 dormitory. In the morning, during breakfast time, when I was distributing breakfast & medicines to the concerned, then Ms. Geeta, Caretaker informed me about the escape of the 09 female residents. I agree that there was lapse on my part, as had I taken regular rounds at night, then this sad incident could have been stopped."
Whereas, in the afore detailed backdrop, the reply of Ms. Sudha (House Mother) was considered and it is found that she being the incharge at the night time was primarily responsible for the upkeep of the inmates and ensure their security. Her acceptance for lapses on her part clearly show extreme negligence and lack of devotion to duty, which has resulted in the sad incident of escape of 09 female inmates of the institution. Considering, the factual aspects of the case and the material available on record, it is clear that Ms. Sudha (House Mother) is an outsourced employee through ICSIL, and her services are not governed under the CCS Rules. Even in her appointment letter, it has been clearly spelt out that as per terms and conditions of recruitment her services can be terminated anytime without prior intimation. Negligence, dereliction of duties and lack of devotion to duty are clearly established on her part, and there also seems to be a clear possibility of her playing part in the escape of 09 female inmates from the SAG. Hence, the services of Ms. Sudha, House Mother with DWCD, GNCTD are hereby terminated with immediate effect.
The Supdt. (SAG) shall make an immediate reference to the [Type text] 20 Court II OANo.3648/2019 ICSIL, for providing appropriate replacement and ensuring that Ms. Sudha, is not recommended for engagement with any other Institution of DWCD, even in future.
This issues with the prior approval of the competent authority.
(R. S. RUHIL) DEPUTY DIRECTOR (ADMN.)"
18. The respondents have conducted a fact-finding inquiry and submitted inquiry report. It is correct that statement of applicant and other staff has been recorded by the Inquiry Authority. The applicant was working as House Mother besides two caretaker staff, one Security Supervisor, five Guards and one cook in the said Child Care Institution. The observations and conclusions of the Inquiry Committee are as follows:
"Observation and conclusion: -
1 The Children Home for Girls. Dilshad Garden has been designated as Child Care Institution for housing children in need of care and protection under the age group of 06-18 yrs having all the facilities catering to the said age group including diet clothing, bedding, etc. Whereas these girls who are all above the age of 18 years should have been kept in Place of Safety housing persons above the age of 18 years and it is learnt that the deptt. has designated Place of Safety for Girls/CHG-Ill at Nirmal Chhaya Complex. Jail Road.
2. Ms Sudha Sharma (House Mother) being the senior among the night duty staff deployed 3 Guards namely Ms Bimla-ll Ms. Sudha Ms. Kaushal on the first floor on the night of incident
3. As per the statement of Ms. Sudha Sharma (House Mother), she stated that after taking a round in the Home she went to sleep around 2:30 am and came to know about the incident in the morning at the time of breakfast. She has agreed in her statement that it is a mistake on her part and has assured that such incident will not occur in future Being the senior most amongst the night duty staff she should have been more responsible in overseeing the care and protection of children as well as to monitor the responsibility/behavior of the staff
4. The 03 guards deployed on the first floor are supposed to be present in front of the gate of the each dormitory however as per the statements, after taking a round of the corridor they all sat together at one place One of the guard who was deployed at the dormitory of said girls informed that on the night of incident the girls had bolted the door from inside and on asking the same the girls replied that, don't intrude in our privacy. This act of girls should have been immediately brought to the notice of House [Type text] 21 Court II OANo.3648/2019 Mother which was not done by the guards as this was not done previous by the girls. This is a serious lapse on the part of the security guards
5. These girls were institutionalized since 25.11.17 ie more than a year They got the training of security guards during their stay at Catalyst Critical Children Home, Dwarka i.e. during the period from 15. 02. 18 to 04.05.18. Since then they were waiting for their placements/job opportunity. In spite of the efforts by the institution/deptt no concrete result was coming out regarding their placements. This might have led to their restless behavior and resulted in this unfortunate incident.
6. It is also observed that the O/o Child Welfare Committee and Distt. Child Protection Unit is located in the premises of Sanskar Ashram Complex yet no efforts have been made at any level regarding their intervention towards rehabilitation or repatriation of these girls it is not out of place to record that both CWC & DCPO meet with residents of institution every month in the Management Committee Meeting.
7 Here it is also informed that the statements of Superintendent and District Officer concerned could not be taken as both the officers were placed under suspension After interaction with the staff children and perusing of the record, it is concluded that the Superintendent designated as DDO/HOO Sanskar Ashram for Girls (SAG) had made several efforts for rehabilitation and repatriation of the girls and also facilitate them with additional accessories demanded during their stay like cold cream, face wash, ladies begs sandals etc.
8. It is stated that the District Officer concerned is the Administrative Head of all the scheme and services of the department running in their jurisdiction. However the District Officer has no role in the day to day functioning of the institution, ICDS Projects and other related services which is being run and monitored by respective Superintendents/CDPOs/DDOS/HOOs.
After incident of 9 girls leaving the institution without permission an FIR was logged vide no FIR No 388/2018 dt. 02 12 2018 at PS GTB Enclave Uis 363 IPC (Annexure-IX).
On the basis of the facts, records and statements collected during the FactFinding Inquiry the same is placed for kind consideration and further necessary action as deem fit. In addition to this the team has observed during the course of Fact Finding Inquiry that no evidence reflects the role of the District Officer (N-E) & the Superintendent. Sanskar Ashram for Girls in the said unfortunate incident.
However, the lapses and negligence during the night hours is the sole responsibility of the night staff especially House Mother and Security Guards deployed on the first floor of the institution All have admitted in their statements that there were-lapses on their part."
19. The Hon'ble Supreme Court in its judgment dated 28.03.2000 [Type text] 22 Court II OANo.3648/2019 in the matter of Nar Singh Pal Vs. Union of India & Ors. held as under:
"We may, at this stage, refer to the observations of Krishna Iyer, J. in Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha, (1980) 2 SCC 593, 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) xxx ....The appellant was a casual labour who had attained the 'temporary' status after having put in ten years' of service. Like any other employee, he had to sustain himself, or, may be, his family members on the wages he got. On the termination of his services, there was no hope left for payment of salary in future. The retrenchment compensation paid to him, which was only a meagre amount of Rs.6,350/-, was utilised by him to sustain himself. This does not mean that he had surrendered all his constitutional rights in favour of the respondents. Fundamental Rights under the Constitution cannot be bartered away. They cannot be compromised nor can there be any estoppel against the exercise of Fundamental Rights available under the Constitution. As pointed out earlier, the termination of the appellant from service was punitive in nature and was in violation of the principles of natural justice and his Constitutional rights. Such an order cannot be sustained. For the reasons stated above, the appeal is allowed. The judgment dated 4.12.1997, passed by the Tribunal as also the judgment dated 30.10.1998, passed by the High Court, are set aside and the claim petition of the appellant is allowed with costs throughout. The order dated 20.5.1992, by which the services of the appellant were terminated, is quashed with the direction that the appellant shall be put back on duty on the post which he held on 20.5.1992 and shall be paid all the arrears upto date and other [Type text] 23 Court II OANo.3648/2019 consequential benefits admissible under the rule."
20. The Hon'ble High Court of Judicature at Allahabad in the judgment dated 23.05.2018 in the matter of Dr. Meenakshi vs State of U.P. and 3 Ors and Singh Pal Vs. Union of India & Ors has stated in paras 35 and 60 as under:
"35. In Nar Singh Pal Vs. Union of India and others, AIR 2000 SC 1401, the employee, who was working as a casual labour in the Government department for more than ten years, was terminated after a preliminary enquiry of an incident of assault by the employee upon some other worker. After having the record of the preliminary enquiry, the Court found that the evidence was recorded proving guilt of the employee concerned and, therefore, was a case where he was terminated on the alleged misconduct without holding any regular enquiry. The order of termination, therefore, was set aside.
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60. From the above discussions, the principles discernible to find out whether a simple order of termination/discharge of a temporary employee or probationer is punitive or not, broadly, may be stated as under:
(a) The termination of services of a temporary servant or probationer under the rules of his employment or in exercise of contractual right is neither per se dismissal nor removal and does not attract the provisions of Article 311 of the Constitution.
(b) An order of termination simplicitor prima facie is not a punishment and carries no evil consequences.
(c) Where termination simplicitor is challenged on the ground of casting stigma or penal in nature, the Court initially would glance the order itself to find out whether it cast any stigma and can be said to be penal or not. If it does not, no further enquiry shall be held unless there is some material to show certain circumstances, preceding or attending, shadowing the simplicitorness of the said order.
(d) The Court is not precluded from going beyond the order to find out as to whether circumstances, preceding or attending, makes it punitive or not. If the circumstances, preceding or attending, show only the motive of the employer to terminate, it being immaterial would not vitiate the order unless it is found that order is founded on such act or omission constituting misconduct.
(e) If the order visits the public servant with evil consequences or casts aspersions against his character or integrity, it would be an order by way of punishment irrespective of whether the employee was a mere probationer or temporary.
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(f) "Motive" and "foundation" are distinct, though the distinction is either very thin or overlapping. "Motive" is the moving power, which impels action for a definite result, or to put it differently.
"Motive" is that which incites or stimulates a person to do an act. "Foundation", however, is the basis, i.e., the conduct of the employee, When his acts and omissions treated to be misconduct, proved or founded, it becomes a case of foundation.
(g) If an order has a punitive flavour in cause or consequence, it is dismissal, but if it falls short of it, it would not.
(h) Where the employer is satisfied of the misconduct and the consequent desirability of termination, it is dismissal even though the order is worded innocuously. However, where there is mere suspicion of misconduct and the employer does not wish tobother about it, and, instead of going into the correctness of guilt, feel like not to keep the employee and thus terminate him, it is simpliciter termination and not punitive.
(1) Where the termination simplicitor is preceded by an enquiry, preliminary or regular, the Court would see the purpose, object of such enquiry as also the stage at which, the order of termination has been passed.
(1) Every enquiry preceding the order of termination/discharge, would not make it punitive. Where an enquiry contemplated in the rules before terminating an probationer or temporary employee is held, it would not make the order punitive.
(k) If the enquiry is to find out whether the employee is fit to be confirmed or retained in service or to continue, such an enquiry would not render termination punitive.
(l) Where the employer hold a formal enquiry to find out the correctness of the alleged misconduct of the employee and proceed on the finding thereof, such an order would be punitive, and, cannot be passed without giving an opportunity to the concerned employee.
m) If some formal departmental enquiry commenced but not pursued to the end. Instead a simple order of termination is passed, the motive operating in the mind of the authority would be immaterial and such an order would be non punitive.
(n) When an order of termination is assailed on the ground of mala fide or arbitrariness, while defending the plea of mala fide, if the authority has referred certain facts justifying the order of discharge relating to misconduct, negligence or inefficiency of the employee in the appeal or in the affidavit filed before the Court, that would not make the order founded on any misconduct.
(0) Sometimes when some reason is mentioned in the order, that by itself would not make the order punitive or stigmatic. The following words mentioned in the order have not been held to be punitive.
i. "want of application", ii. "lack of potential", iii. "found not dependable", iv. "under suspension", v. "work is unsatisfactory", [Type text] 25 Court II OANo.3648/2019 vi. "unlikely to prove an efficient officer".
(p) Description of background facts also have not been held to be stigmatic.
(q) However, the words "undesirable to be retained in Government service", have been held stigmatic.
(r) If there is (i) a full scale formal enquiry, (ii) in the allegations involving moral turpitude or misconduct, (iii) which culminated in a finding of guilt; where all these three factors are present, the order of termination would be punitive irrespective of the form. However, if any one of three factors is missing, then it would not be punitive."
21. This Tribunal in OA No. 100/1254/2013 with OA No. 100/1252/2013 decided on 09.09.2016 has held the following in para 20 to 26 and 29 to 33: -
"20. Indeed, we cannot accept this contention of learned counsel for the respondents, in view of ratio of law laid down by the Hon'ble Apex Court in case Anoop Jaiswal Vs. Government of India and Another (1984) 2 SCC 369 wherein it was ruled that even in case of probationer, court can go beyond the formal order of discharge to find the real cause of action. Simple order of discharge of probationer on ground of unsuitability passed before his completion of probation period, which is based on report/recommendation of the concerned authority, indicating commission of alleged misconduct by the probationer, then order is punitive in nature, which in the absence of any proper enquiry amounted to violation of Article 311(2) of the Constitution of India.
21. Sequelly, the same view was reiterated by Hon'ble Apex Court in case Andhra Pradesh State Federation of Coop. Spinning Mills Ltd. and Another Vs. P.V. Swaminathan (2001) 10 SCC 83, wherein it was held that "the legal position is fairly well settled that an order of termination of a temporary employee or probationer or even a tenure employee, simplicitor without casting any stigma may not be interfered with by court. But, at the same time, the court is not debarred from looking to the attendant circumstances, namely, the circumstances prior to the issuance of order of termination to find out whether the connected OA alleged inefficiency really was the motive for the order of termination or formed the foundation for the same order. If the court comes to a conclusion that the order was, in fact, simplicitor and without any motive, then obviously the order would not be interfered with, but if the court comes to a conclusion that the so called inefficiency was the real foundation for passing of order of termination, then obviously such an order would be held to be penal in nature and must be interfered with since the appropriate procedure has not been followed".
22. Therefore, once it is proved on record that the services of the applicants were terminated by virtue of impugned stigmatic and punitive orders, on the basis of misconduct, then the protection under Article 311 (2) of the Constitution of India, is available to him and his services cannot be terminated on speculative grounds, without holding any enquiry. Even such delinquent officials are helpless & unable to plead and prove the disproportionality of penalty imposed vis-à-vis, his misconduct, inculcating and perpetuating unbearable injustice to the applicant, which [Type text] 26 Court II OANo.3648/2019 is not legally permissible. Moreover, this matter is no more res integra and is now well settled.
23. An identical questions came to be decided by the Hon'ble Apex Court in the Ratnesh Kumar Choudhary Vs. Indira Gandhi Institute of Medical Sciences, Patna, connected OA Bihar and Others JT 2015 (9) 363, wherein having considered the ration of law laid down in previous judgments of Hon'ble Supreme Court in cases Samsher Singh v. State of Punjab (1974) 2 SCC 831, Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and Another (1999) 2 SCC 21, State of U.P. vs. Kaushal Kishore Shukla (1991) 1 SCC 691, Triveni Shankar Saxena vs. State of U.P.(1992) Supp (1) SCC 524, State of U.P. vs. Prem Lata Misra (1994) 4 SCC 189, Samsher Singh (supra), Parshotam Lal Dhingra vs. Union of India AIR 1958 SC 36, State of Bihar vs. Gopi Kishore Prasad AIR 1960 SC 689, State of Orissa vs. Ram Narayan Das AIR 1961 SC 177, Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, Anoop Jaiswal vs. Govt. of India (1984) 2 SCC 369, Nepal Singh vs. State of U.P. (1980) 3 SCC 288, Commissioner, Food & Civil Supplies vs. Prakash Chandra Saxena (1994) 5 SCC 177, Commissioner, Food & Civil Supplies vs. Prakash Chandra Saxena (1994) 5 SCC 177, Chandra Prakash Shahi vs. State of U.P. and Others (2000) 5 SCC 152, Union of India and Others vs. Mahaveer C. Singhvi (2010) 8 SCC 220, Dipti Prakash Banerjee vs. Satyendra Nath Bose National connected OA Centre for Basic Sciences (1999) 3 SCC 60, Pavanendra Narayan Verma vs. 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, it was ruled by the Apex Court 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 simplicitor, 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 show cause notice was required to be issued and opportunity of being heard has to be provided to such employees in departmental enquiry before passing any adverse order. In the absence of which, the termination order would be inoperative and non-est in the eyes of law.
24. Again, the same view was followed by this Tribunal in cases Jaibir Antil Vs. Director, Department of Women and Child Development, Govt. of NCT of Delhi and Others in OA No.100/1232/2014 decided on 10.08.2016 connected OA and Mahvir Singh Vs. DTC and Others in OA No.100/2903/2013 decided on 08.09.2016.
25. Therefore, such impugned stigmatic and punitive orders of termination, passed on account of above mentioned misconduct and fault against the applicants by the competent authority, would be inoperative and cannot legally be sustained. Thus, the contrary arguments of the learned counsel for the respondents stricto sensu deserve to be and are hereby repelled. On the other end the ratio of law laid down in the indicated judgments of Hon'ble Apex Court and this Tribunal, is mutatis mutandis applicable in the present controversy and is a complete answer to the problem in hand.
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26. There is yet another aspect of the matter which can otherwise be viewed entirely from a different angle.
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29. Exhibiting the necessity of passing of speaking orders, the Hon'ble Apex Court in the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and Others (2009) 4 SCC 240 has in para 8 held as under:-
"8. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in the case of S.N.Mukherjee vs. Union of India reported in (1990) 4 SCC 594, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimizes chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation".
30. An identical question came to be decided by Hon'ble Apex Court in a celebrated judgment in the case of M/s Mahavir Prasad Santosh Kumar Vs. State of U.P. & Others 1970 SCC (1) 764 which was subsequently followed in a line of judgments. Having considered the legal requirement of passing speaking order by the authority, it was ruled that "recording of reasons in support of a decision on a disputed claim by a quasi-judicial authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the connected OA appellate authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just". It was also held that "while it must appear that the authority entrusted with the quasi- judicial authority has reached a conclusion of the problem before him: it must appear that he has reached a conclusion which is according to law and just, and for ensuring that he must record the ultimate mental process leading from the dispute to its solution". Such authorities are required to pass reasoned and speaking order. The same view was again reiterated by Hon'ble Apex Court in the case of Divisional Forest Officer Vs. Madhuusudan Rao JT 2008 (2) SC 253.
31. Thus, seen from any angle, the impugned orders cannot legally be sustained in the obtaining circumstances of the case.
32. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
33. In the light of the aforesaid reasons, the OAs are allowed. The impugned termination orders dated 15/18.02.2013 (Annexure A-1)(in both the cases) are hereby quashed and set aside. The respondents are directed to reinstate the applicants in service forthwith, with all consequential benefits. However, they would be entitled to 50% of amount of their back wages in view of the connected OA judgment of the Hon'ble Apex Court in Ratnesh Kumar Choudhary's case (supra). However, the parties are left to bear their own costs."
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22. It is apparent that the order dated 20.7.2018 issued by the respondents after approval of the Hon'ble Lt. Governor of Delhi extending the period of engagement of the applicant for the period from 01.4.2018 to 31.3.2019. Therefore, it is clear that respondents have appointed the applicant and given extension of engagement from time to time.
23. After initial appointment of applicant w.e.f. 03.01.2014, she continued to work till the date of incident i.e. on 01.12.2018 for almost five years. The fact has also been acknowledged by the respondents in Para 4.1 of their reply dated 22.01.2022. Child Care Institution, named Sanskar Ashram for Girls, opposite GTB Hospital, Dilshad Garden, Delhi was the institution where the above-mentioned incident happened. The above institution has considerable staff, the details of which is given in the Inquiry Report dated 17-18.12.2018. It is also a fact that services of the applicant were terminated after an inquiry, in which, she was not given an opportunity to defend herself. The respondents have taken stand that since the applicant was not a regular employee she was given opportunity to depose in the said inquiry in which she accepted her fault. The respondents while terminating the services of applicant vide order dated 03.01.2019 (Annexure A-2) have used expressions viz. negligence, dereliction of duties and lack of devotion to duty and have further gone on to state that there also seems to be a clear possibility of her playing part in the escape of 09 female inmates from the SAG. The above assertion of respondents [Type text] 29 Court II OANo.3648/2019 while issuing termination order is the basis and makes this order of termination of services of the applicant a stigmatic order. We hold a firm view that such act of respondents cannot curtail / surrender constitutional rights of the applicant. They cannot be compromised nor can there be any estoppel against the exercise of Fundamental Rights available under the Constitution. As pointed out earlier, the termination of the applicant from service was punitive and stigmatic in nature and thus in violation of the principles of natural justice, therefore, hampering her Constitutional rights. Such an order cannot be sustained. Hence, such impugned stigmatic and punitive orders of termination passed on account of above mentioned misconduct against them, including the present applicant by the competent authority, would be inoperative and cannot legally be sustained. Thus, the contrary arguments of the learned counsel for the respondents stricto sensu deserve to be and are hereby resisted.
24. On the other hand, the ratio of law laid down in the above cited judgments of the Apex Court and this Tribunal is mutatis mutandis applicable in the present matter and provides comprehensive answer to the controversy involved in the present original application.
25. It is well settled position of law that if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, [Type text] 30 Court II OANo.3648/2019 negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with. In this case, the perusal of the proceedings and documents connected with the formal order of termination reveal the true nature of the termination. After going through the above mentioned order, we find that the order is afflicted with a punitive flavour in cause or consequence. To put it slightly differently, a termination effected because the respondents are satisfied of the misconduct and of the consequent desirability of terminating the service of the applicant, is a dismissal, even if they had the right in law to terminate the applicant with an innocent order under the standing order or otherwise. In such a case whether 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 respondents abandon the enquiry and proceed to terminate. Therefore, we hold that 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.
26. In view of the discussions made hereinabove, The Original Application is allowed with the following directions: -
(a) the Impugned orders dated 4.12.2019 (Annex. A/1) and order dated 3.1.2019 (Annex. A/2) are quashed and set aside.
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(b) The respondents are directed to reinstate the applicant in service with all consequential benefits, including arrears of back wages and continuity in service for all purposes including notional continuation in service but with the back wages restricted to 50%.
(c) In view of the long passage of time, we deny liberty to the respondents to proceed afresh against the applicant. This exercise be completed within three months from the date of receipt of this judgment.
(d) Pending MAs, if any, stand closed. No order to cost.
(Rajinder Kashyap) (R.N.Singh) Member(A) Member(J) /mk/ [Type text]