Central Administrative Tribunal - Delhi
Shri Santosh Kumar Verma vs The Secretary on 22 October, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. NO.2262/2007 New Delhi, this the 22nd day of October, 2008 HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Shri Santosh Kumar Verma, Ex-Staff Car Driver, Debts Recovery Tribunal-III, At present residing at H-1/158, Sultanpuri Delhi-110041 Applicant (By Advocate: Shri E.J. Verghese) Versus
1. The Secretary, Ministry of Finance, Economic Affairs, North Block, New Delhi-110 001
2. The Registrar, Debts Recovery Tribunal-III, 2nd Floor Sanskriti Bhawan, D.B. Gupta Road, Jhandewalan, New Delhi 110 055
3. Ms. Veena V. Gumber, The then Presiding Officer, Through, the Registrar Debts Recovery Tribunal-III 2nd Floor Sanskriti Bhawan D.B. Gupta Road, Jhandewalan New Delhi-110055. .Respondents.
(By Advocate: Shri Rajesh Katyal) O R D E R (ORAL) By Shanker Raju, Member (J) Heard the learned counsel for both sides.
2. It is trite law that the services of a probationary or temporary Government servant can be terminated under the statutory rules during the probation period as per the service rules and also as agreed to at the time of appointment. It is also trite that on unsatisfactory performance of a probationer when such performance is clearly a motive, prerogative of the Respondents to dispense with the services is not amenable in judicial review. However, it is clear that services of a Government servant appointed even temporarily on probation cannot be terminated on a foundation of a misconduct under Article 311(2) of the Constitution of India without following due process of law, which inter alia, stipulates that a reasonable opportunity to show cause is must in order to comply with the principles of natural justice as a pre-decisional bearing.
3. A simple order of termination when passed against the Government servant during his probation or temporary service has to be, in the judicial review, probed on lifting the veil as ruled by the Honble Apex Court in the case of V.R. Saboji vs. State of Maharashtra. However, while examining whether the alleged misconduct/unsatisfactory performance is a motive or foundation, it varies on the individual facts and circumstances of the case. Merely because in the counter reply there has been a reference to the alleged misdemeanor or misconduct on the part of the Government servant would not amount to a stigma cast upon the concerned as ruled in Union of India vs. A.K. Bajpai, 2003 (1) SCSLJ 202.
4. In the above backdrop, applicant, a Staff Car Driver in Debts Recovery Tribunal, Delhi, assails an order passed by the Respondents on 29.4.2005 dispensing his services under Rule 5(1) of Central Civil Services (Temporary Service) Rules, 1965 (hereinafter referred to as CCS Rules. Also assailed is an order passed by the respondents on 2.11.2007 whereby the representation preferred by the applicant has been turned down.
5. The applicant was appointed temporarily on the post of Staff Car Driver in Group-C vide offer of appointment letter dated 10.11.2004. Clause 2 of the terms and conditions of appointment empowers the Government to terminate the services of the applicant on one months notice either side in accordance with the CCS (T.S.) Rules, 1965. Admittedly the appointing authority of the applicant is the Presiding Officer. On the ground of unsatisfactory performance whereby the Presiding Officer was late in attending Court, inappropriate and wrongful driving, technical defects, lack of petrol in the vehicle etc. led to issuance of show cause notices to the applicant. The applicant in response has given his version but by way of abundant caution, has sought pardon of the act and there after the matter was closed. However, on termination, a representation preferred was not disposed of, which led to filing OA No.201/2006 wherein a direction was issued on 9.5.2006 to dispose of the representation/appeal. Contempt Petition No. 24/2007 in OA 201/2006 filed was also disposed of on 16.3.2007.
6. However, vide order dated 2.11.2007 passed by the respondents, the representation of the applicant has been rejected on the ground of alleged misconduct of the applicant whereby he was found negligent towards his duties insofar as on two occasions he lost the way, forgot to fill the petrol tank of the car causing inconvenience to the Presiding Officer, but also his driving had been found inappropriate on several occasions, and incorrect behaviour and forgetfulness. Such misdemeanor on the part of the applicant was found to be non-tolerable and his services were terminated.
7. Learned counsel of the applicant at the outset states that the order passed by the Registrar is not in accordance with the rules as being an incompetent authority, the order lacks jurisdiction and has to be set aside. Referring to G.I., M.H.A. O.M. dated 26.8.1967, it is stated that even on a temporary post, the incumbent is on probation, Rule 5 (1) of CCS (TS) Rules cannot be invoked.
8. Another argument of the applicants counsel is that the order passed is founded on the alleged misconduct for which neither reasonable opportunity was afforded nor departmental enquiry was held which makes the order punitive and violative of Article 311 of the Constitution. The learned counsel rely upon the decision of the Apex Court in Nehru Yuva Kendra Sangathan v. Mehbub Alam Laskar, 2008 (2) SC 301 to contend that if the misconduct is the foundation for termination, which is effected by an innocuous order, enquiry must be held. He also relied upon the decision of the Division Bench of the Tribunal in Dr. Nitin Kumar & Ors vs. Government of NCT of Delhi & Ors, 2008 (2) AISLJ 248 to contend that when discreetly it is decided that the decision is taken on some adversity of the applicant pertaining to peculiar instance, in such an event the stigma lies on the face of it and the order would not only be stigmatic and violative of Article 311 but also without giving him an opportunity of hearing before passing the termination order.
9. On the other hand, the learned counsel for respondents vehemently opposed the contentions and stated that the order passed by the Presiding Officer, who is the appointing authority of the applicant and while referring to the terms and conditions, it is stated that even on probation, respondents can terminate the services of a probationer by invoking Rule 5(1) of CCS (TS) Rules, which has rightly been invoked in the present case. As regards the misconduct of the applicant is concerned, it is stated that though the order passed terminating the services of the applicant does not cast any stigma as there were no references to the annexures or attached documents on the basis of which stigmatic a stigma can be inferred in the order issued to the applicant. In so far as the Memorandum dated 2.11.2007 is concerned, it is stated that once there is a specific direction of the Tribunal to pass speaking order, non-passing of a reasoned order would have entailed contempt against the Respondents (as such the reasons assigned therein would not indicate the intent and motive of the respondents to dispense with the services of the applicant. It is only way of a demonstration that the applicant has rightly outlived his utility and due to his unsatisfactory performance for which resorting to termination under Rule 5 of CCS (TS) Rules is not only the prerogative of the Respondents but also is legally correct.
10. Learned counsel relying upon the decision of the Apex Court in State of UP vs. Vikram, 1997 (2) SCC 111, stated that even the order was made in the background of allegations the same not being the foundation of the order but a decision of the authority not to proceed departmentally against the applicant for a misconduct as a Govt. servant on the basis of unsatisfactory service record would not attract Article 311 (2). Another decision of the Apex Court in State of UP vs Bhoop Singh Verma, JT 1979 (2) SCC 111, has been relied upon to say that there is no requirement to hold an enquiry under Article 311 of the Constitution when the services of a probationer are dispensed with on account of unsatisfactory performance.
11. The decision of the Apex Court in Secretary, Ministry of Works &Housing Government of India & Ors. vs. Shri Mohinder Singh Jagdev & Ors, JT 1996 (8) SC 46, has also been relied upon wherein it is ruled that when the courses are open to the employer to take action in terms of order of appointment, resorting to terminate the services by a simple order is not valid in law. Lastly, the decision of the Honble High Court of Delhi in Vijay Kumar vs. Union of India & Anr. in CM No. 3390/2003 and CM 5812/2003 decided on 19.5.2003 has been relied upon where dispensation of service on account of unsatisfactory performance has been found bad in law.
12. We have carefully considered the rival contentions of the parties and perused the material on record.
13. While taking a decision in the context of performance and more particularly an unsatisfactory performance, it is very difficult to segregate between a performance not apt for continuation and a specific misconduct and thereafter to exercise their option and prerogative to dispense with the services as per the terms and conditions of appointment. Every act of a Government servant, which is against the laid down norms or an act against morality and corruption would have to be viewed as per the CCS (CCA) Conduct Rules as a misconduct on the part of the Government servant. Negligence in duty though is a misconduct, yet only when it is established to be a culpable negligence. A mere negligence which does not entail as per its repercussion any cascading effect over the interest of the Government would not have to be viewed a misconduct contrary to the Rules. Though a misconduct cannot be precisely defined yet it depends on the facts and circumstances of each case.
14. In the instant case, the unsatisfactory performance of the applicant has been viewed by the Respondents not from any attending or preceding circumstances but the particular acts of the applicant i.e the duties discharged as Staff Car Driver when attached with the Presiding Officer of the DRT, non-filling of petrol, going late, failure to locate place and absence from duty on several occasions has been viewed to be an unsatisfactory performance of the applicant and ultimately entailed to have an effect of dispensation of his service. Before such a misconduct is probed into, explanations had been sought on each and every occasion by the Respondents when such performance has been reported on complaint by the Presiding Officer. The applicant not only responded with a justification but by way of abundant caution sought pardon not to repeat such an act which, according to him, was not a misconduct but on account of certain mitigating circumstances and technical fault in the vehicle which were beyond the control of the applicant. It is pertinent to note that the above acts of the applicant culminated into an immediate action against the applicant and that too without initiating disciplinary proceedings for his alleged misconduct, dispensed with his services as per Rule 5(1) of CCS (TS) Rules. It is only after a specific complaint made by the Presiding Officer to the Registrar the services of the applicant were terminated as per the conditions of service.
15. We are conscious of the view that though the Tribunal had earlier directed the respondents to dispose of the representation of the applicant by passing a speaking order, this would not be implied and considered as a mandate on respondents to even record the reasons and disclose the foundation being the misconduct while terminating services of the applicant. They may have recorded reasons, which certainly may not have in any manner communicated or given a proof as foundation of misconduct and could have satisfied simultaneously the requirement of law. Taking a pretext now and on justification that reasons assigned in the representation is the outcome of the direction of the Tribunal, cannot be countenanced.
16. As regards stigma is concerned, it is trite that a stigma has to be apparent on the face of it but once the order is silent, the stigma can be inferred from any documents referred to in the termination order or on an incidental reference. In Nehru Yuva Kendra Sangathan (supra) the facts are identical on a legal issue i.e. the Respondent therein, who was the petitioner before the Honble High Court, was terminated from service during probation and once a representation has been preferred, directions passed by the Honble High Court to dispose of the representation as per the decision earlier taken by the High Court entailed a reasoned order passed by the Respondents whereby his termination was assailed. While examining what constitutes stigma, the reasons assigned in the representation had been found to be as an answer to the order of termination indicating misconduct as a foundation for an order passed for terminating the services. It is not that in judicial review Courts are helpless or without jurisdiction to go into the legality of the order and for that purpose to probe by lifting the veil. An order of termination may not be punitive or stigmatic, as the order is simple and innocuous but when the instances of the respondents and their bent of mind as to what prompted them to dispense the services with a view to find out whether it is the overall unsatisfactory performance or a specific incident of alleged misconduct which has been the basis of termination, the foundation part has to be accepted on establishment.
17. We are not precluded from relying upon the order passed on the representation to find out whether there existed a foundation for misconduct to dispense the services of the applicant. From the order passed on the representation, we feel necessary to reproduce the stand taken by the respondents, which is as follows:
2. Shri Santosh Kumar Verma has submitted a representation dated 2.2.2007 against the termination of his appointment and for the reinstatement in service. Shri Verma in his representation has stated that his services were terminated as the Presiding Officer did not like him on account of ignorable lapse and because of the interest of the Presiding Officer to replace him with another person of her liking. He has further mentioned that the termination order dated 29.04.2005 was not signed by the Appointing Authority.
3. I have perused the original records of the case and found that on many occasions Shri Santosh Kumar Verma was found negligent towards his duties. On 14.02.2005 he forgot to fill the petrol tan of the Car. As a consequence the Car had to be pushed for about a kilometer causing delay in the Tribunal proceedings commencing and avoidable embarrassment. On 23.2.2005 while going to DRT Chandigarh, he lost the way. After entering Chandigarh town at 10.20 hours, he could reach the DRT premises only by 12.30 hours. Similarly on 1.3.2005 he again lost the way to the residence of the Presiding Officer, causing inconvenience.
4. On several instances his driving of the Car has been very inappropriate. He has also absented himself repeatedly without permission. When queried he ascribes his incorrect behaviour to forgetfulness. Such misdemeanor on the part of a driver is not tolerable.
5. Therefore I have come to the conclusion that the services of Shri Verma as Staff Car Driver was not satisfactory and the termination of appointment is for valid and proper reasons and there is no reason for the Ministry to intervene in the matter.
18. Respondents referred to the above specific instances which, according to them, have constituted negligence on the part of the applicant for which a justifiable explanation was tendered by the applicant wherein he sought by way of abundant caution a pardon. Several instances have also been found to weigh the applicants performance as inappropriate. We do not find, apart from the particular from the explanation sought from the applicant, any immediate advisory note, warning or explanation sought for his inappropriate driving or absence without permission. A reference in the counter reply that virtually the applicant has been warned is no proof in law. In such view of the matter, the Honble Apex Court in Jaswant Singh vs. Rajkot Municipal Corporation 2007 (12) SCALE 115, ruled that when the termination is founded on a specific misconduct without affording an opportunity of being heard is in violation of the principles of natural justice, the order passed cannot be sustained in law. A similar view has also been taken in State of Uttar Pradesh Vs. Ram Bachan Tripathi, 2005 (2) SC SLJ 311. In our considered view though the Respondents are at their prerogative on their option of not holding the enquiry for dispensing the services of the applicant, but it cannot be allowed on a blanket authorization to dispense with the services just to avoid holding of an enquiry on a misconduct which had already been satisfactorily explained by the employee and against which a reasonable opportunity to show cause under Article 311 has been deprived.
19. We are not doubting the right of the Respondents to exercise jurisdiction under Rule 5 (1), but this has to be done on a simple order of termination. There may be instances that only on the basis of unsatisfactory service without referring or on a casual referral of unsatisfactory performance by citing instances would have been within the ambit of simple order of termination without casting a stigma. But once the applicants performance for which he has not been put to notice and was not given a prior reasonable opportunity is an act on us the instances of inappropriate driving, absence from duty etc for which no explanation has been sought from the applicant. Such an act of the Respondents is not only misuse of their power under Rule 5 (1) but also come in the category of victimization of the employee which under the Constitution of India is not approved of as protection under Article 311 (2) is available in such cases.
20. The applicants services have been terminated specifically on an alleged misconduct of which circumstances have been laid down as foundation of the act of the respondents. It is not disputed that before resorting to Rule 5 (1) no prior reasonable opportunity in the form of a pre-decisional hearing has been accorded to the applicant. This makes the order not only violative of Article 311 (2) of the Constitution, but also a punitive one in derogation of principles of natural justice.
21. Another aspect of the matter is that though the termination is covered under Rules but when an administrative authority decides to take a decision which ensues civil consequences upon a Government servant, it is obligatory as a condition precedent to afford reasonable opportunity. It is not only a rule of law, but also a requirement of fairness and reasonability in the action of the Government. Merely one cannot be thrown out of the service without even having his say an act which according to him does not amount to misconduct and as per the Government being a misconduct establishes ones as unsatisfactory in performance. A decision of the Government to terminate services of a temporary Govt. servant on account of misconduct can never be a one sided decision, but it has to be after a conscious decision is taken on the explanation of the employee. We have also quoted earlier that the explanation tendered by the applicant from time to time has not entailed any penal action against him. But once the applicants performance for which he has not been put to notice and was not given a prior reasonable opportunity is an act on the whims and fancies of the Presiding Officer, who had found the working of applicant as non-congenial.
22. In the result, for the foregoing reasons, the OA is allowed. Impugned orders are set aside. The applicant is directed to be reinstated back in service with due seniority, continuity of service and back wages. However, respondents, if so advised, are at liberty to probe into the alleged misconduct following due process of law. Directions are to be complied with within a period of two months from the date of receipt of the copy of this order. No costs.
(Veena Chhotray) (Shanker Raju) Member (A) Member (J) pkr