Central Administrative Tribunal - Delhi
Ms. Rominder Randhawa vs All India Council For Technical ... on 6 October, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.2169/2009 This the 6th day of October, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Ms. Rominder Randhawa, 198, Vaishali (Delhi University Teachers Colony) Pitampura, Delhi-34. Applicant ( By Shri R. K. Gupta, Advocate ) Versus 1. All India Council for Technical Education through its Acting Chairman. 2. Member Secretary, All India Council for Technical Education, Sr. No.1-2 of 7th Floor, Chanderlok Building, Janpath, New Delhi-110001. 3. Union of India through Secretary, Ministry of HRD, Department of Technical Education, Shastri Bhawan, New Delhi-110001. Respondents ( By Shri Chandra Shekhar with Shri Manoj Kumar, Advocate for Respondents 1 & 2; none for Respondent 3 ) O R D E R Justice V. K. Bali, Chairman:
Ms. Rominder Randhawa, aggrieved of the order dated 29.7.2009 vide which contract of her service has been terminated with immediate effect, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985, obviously calling in question the said order, and in consequence of setting aside the same, to reinstate her on the post of Deputy Director, All India Council for Technical Education (for short, AICTE).
2. Brief facts on which the main and consequential reliefs, as mentioned above, are sought to rest reveal that the applicant is M.E. and Ph.D in Engineering. She responded to an advertisement issued by AICTE in Employment News and other national newspapers for recruitment of ten posts of Assistant Director. In the month of January, 1994 the applicant was interviewed along with other candidates. She was selected by a duly constituted selection committee on the basis of her merits and appointed as Assistant Director on 29.4.1994, initially on a consolidated salary of Rs.4000/- + HRA on contract basis for three years against duly sanctioned vacant post. In the letter dated 24.3.1994, it was also mentioned that the applicant may be placed in the pay scale of Rs.2200-4000 after due assessment and review of performance as per criteria to be laid down by AICTE separately. She was appointed as Assistant Director in the pay scale of Rs.2200-4000 (subsequently revised to Rs.8000-13500) on 25.8.1995 after open advertisement for the post and interview by selection committee, in which, once again, several candidates appeared, and she joined on 28.8.1995. AICTE notified on 27.10.1995 its first recruitment regulations, wherein there was no provision for appointment on regular basis. The regulations provided for appointment either on contract basis or on deputation basis without mentioning any possibility of absorption. The applicant was once again selected for the said post through an open selection on all India basis on 5.9.1997, pursuant to her application in response to an advertisement in Employment News and national newspapers. On 27.12.1999 the applicant was placed in the revised pay scale of Rs.10000-15200 after due assessment and review of her performance as per AICTE criteria. On 21.5.2003, her contractual appointments since 29.4.1994 were renewed, maintaining continuity of her service with protection of all permissible service benefits up to 21.5.2003, after periodic open advertisements on all India basis of post/performance appraisal and interviews by successive selection committees as per recruitment regulations. She was, however, relieved of her services as Assistant Director on 21.5.2003. She was again appointed as Assistant Director on 6.6.2003, following open re-advertisement for the post and interview by duly constituted selection committee. She was granted the minimum basic pay in the scale of Rs.10000-15200. Once again, pursuant to her application in response to an open advertisement for the post of Deputy Director, the applicant was interviewed along with others on 3.5.2005 and was selected and appointed on 4.5.2005 for three years on contractual basis. AICTE notified recruitment regulations on 2.11.2007, wherein provision was made for absorption of various incumbents working on deputation basis, but no such provision was incorporated in the said regulations for absorption of the applicant who was discharging her duties since 1994. Advertisement for the post of Assistant Director/Deputy Director in AICTE was published in Employment News and other national newspapers in the month of November, 2007, as per the notified procedure of AICTE. The applicant applied for both the posts of Assistant Director and Deputy Director under protest, inasmuch as, in her view, there was no question of issuance of advertisement for the posts already held by her. On 19.11.2007 the applicant and other similarly situate persons made representation to respondents seeking regularization including service benefits as per rules and also requesting the respondents not to go ahead with the selection for the post of Assistant Director and Deputy Director. When the entreaties of the applicant and others made in that behalf brought no tangible result, the applicant along with similarly situate persons filed a writ petition bearing WP(C) No.2232/2008 before the Honble High Court of Delhi for regularization of their services and other consequential reliefs. The matter came up for hearing on 19.3.2008 before the High Court. The following order was passed on the said date:
Issue notice to the respondents to show cause why rule nisi be not issued. Mr. Jatan Singh enters appearance on behalf of the Respondents No.1 and 2 and Ms. Harvinder Oberoi enters appearance on behalf of respondent no.3 and accepts notice. They waive service. Counsel for respondents No.1 and 2 points out that the representations made by the applicant are also under consideration of the Respondent, and that the respondents do not intend to take any adverse action with regard to the service of the petitioner till the disposal of those representations which are being considered on merits. He further states that in the event that any adverse orders that come to be passed under the rules on these representations, they will not be implemented for a period of at least 15 days after intimation of such orders is given to the applicant. Mr. G.D.Gupta states that in view of the statement made by counsel for respondents No.1 & 2 before this Court, he does not wish to press his writ petition for the time being and seeks to withdraw the same with liberty to re-agitate his grievance, if any, as he may be advised. Liberty granted. The writ petition is dismissed as withdrawn. The representation of the applicant, however, came to be rejected on 5.5.2008. Constrained under the circumstances, the applicant along with others filed yet another writ petition bearing WP(C) No.3874/2008, wherein notice was issued on 20.5.2008. On 29.7.2008, the High Court passed an interim order to the effect that four posts of Deputy Director would not be filled up. During the pendency of the writ aforesaid, however, a complaint dated 29.8.2008 came to be made by Echelon Institute of Tech., Faridabad, which was sent to AICTE through Ministry of HRD for taking action. On receipt of the said complaint, AICTE asked the applicant to submit explanation. The applicant submitted her explanation to CVO. It is the case of the applicant that after submission of the explanation by her, the matter against her was not proceeded further. Meanwhile, the writ petition came to be transferred to this Tribunal for disposal, which is stated to be pending. On 8.7.2009, Shri K. N. Bansal, chairman of Echelon Institute of Technology filed a complaint to CBI against Shri R.A.Yadav, Chairman, AICTE; Prof. H.C.Rai, Shri Om Dalal and the applicant. The allegation made in the said complaint against the applicant was that she allegedly manipulated the records and delayed the proposal for increase of seats. It is the case of the applicant that in fact Shri K. N. Bansal collected the deficiency report prepared by the applicant and on that basis he submitted the compliance of deficiencies along with bank draft of Rs.40,000/- to AICTE and that on the basis of the compliance aforesaid, the seats were increased as requested (60 to 120). On the basis of the said complaint, a case u/s 120B IPC r/w S.7/8 Prevention of Corruption Act came to be registered. CBI conducted search of residence and office of the applicant, but nothing incriminating was found. Vide order dated 29.7.2009 Adviser (Administration), AICTE terminated the services of the applicant as Deputy Director with immediate effect on the ground that whereas a case against the applicant in respect of criminal offence is under investigation, in the event of her continuation in office there is every possibility of the investigations being influenced. Insofar as, R.A.Yadav is concerned, vide order of even date he was put under suspension, while H.C.Rai was repatriated to his parent department, and Om Dalal, Assistant Director, was also suspended on the same day.
3. The primary and in fact the only plea raised in support of the present Application is that the impugned order is punitive in nature and irrespective of the tenure of the applicant, even though the same was continuous from 1994 to 2003, but is considered to be on contractual basis, the applicant could not be visited with an order of penalty of dismissal without putting her to notice and proving the charges against her. In the circumstances as existing in the present case, i.e., registration of a criminal case, the applicant, at the most, could be put under suspension, similarly as some others have been, awaiting outcome of the criminal trial, and it is only on conviction of the applicant that she could be shown the exit door. Alternatively, the respondents could departmentally proceed against the applicant on the subject matter of criminal trial and ask her to quit only on proof of the said charges. In no circumstances, it is urged, the applicant could be dismissed from service on an out and out stigmatic order.
4. Pursuant to notice issued by this Tribunal, the respondents have entered appearance, and by filing their counter reply, contested the cause of the applicant. Insofar as, the basic facts are concerned, there is no dispute on the same. We may, however, mention that the case of the respondents is that the applicant after completion of her term of contract applied afresh and was appointed by the Council and her term of contract was extended from time to time, and further that her term of contract was also liable to be terminated even prior to expiry thereof. It is pleaded that the applicant is facing serious criminal charges of corruption and CBI has registered a case under Sections 7 and 8 of Prevention of Corruption Act as also under Section 120B IPC, wherein the applicant has been named as an accused. Insofar as, others against whom also action was taken on the same date when the orders of termination of services of the applicant were passed, are concerned, it is stated that whereas Shri R. A. Yadav was appointed by the Government of India on the tenure post of Chairman of the Council and his appointment and service conditions are regulated by the rules framed by the Government in exercise of powers under rule 10(1) of the CCS (CCA) Rules, 1965, the appointments of Shri Dalal and Shri Rai were on deputation basis, while the applicant was on contract basis, and, therefore, no case of discrimination against her would be made out.
5. The applicant has filed rejoinder, by and large reiterating her pleas raised in the Application.
6. We have heard the learned counsel representing the parties and with assistance examined the records of the case.
7. That the impugned order came to be passed because of involvement of the applicant in a criminal case is not in dispute. In fact, that is the only reason for terminating her services. We are of the considered view that be it a case of a probationer, a temporary employee or one appointed on contract basis, if the order may be punitive having been passed because of the employee indulging in misconduct, the same cannot be passed unless proper hearing is given to the employee concerned and he/she is held guilty of the alleged misconduct, as otherwise it would be violative of Articles 14 and 16 of the Constitution. There is plethora of judgments on the issue as mentioned above, but we may refer to only some of the judgments, as otherwise it would be unnecessarily burdening the judgment. The Honble Supreme Court in Anoop Jaiswal v Government of India and Another [(1984) 2 SCC 369], in the case of a probationer, held that court can always go behind the formal order of discharge to find the real cause of action, and if the order is actually based upon report/recommendation of the concerned authority indicating commission of misconduct by the probationer, it would be punitive in nature, which, in absence of proper enquiry, would amount to violation of Article 311(2) of the Constitution. The facts of the case aforesaid reveal that the order of discharge was passed in the midst of the probation period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving at the gymnasium and acting as one of the ringleaders. There were others also from whom explanation was called for, but it is only in the case of the appellant that the order discharging him from service was passed. On facts, it was found that even though the order of discharge may be non-committal, it could not stand-alone. The recommendation of the director was held to be the basis or foundation for the order. In Nepal Singh v State of U.P. and Others [(1985) 1 SCC 56, the Honble Supreme Court held that mere allegations regarding unsuitability were not enough. In the case aforesaid, disciplinary enquiry to verify charge of contracting a second marriage in violation of the conduct rules was dropped. The real reason for terminating the services of the appellant who was a temporary SI of Police was found to be the delinquency of contracting a second marriage. In Jagdish Prasad v Sachiv, Zila Ganna Committee, Muzaffarnagar and Another [(1986) 2 SCC 338], in the case of a temporary employee when his services were terminated for concealment of the fact of his removal from previous service in another department, it was held that the order of termination would be illegal and in violation of audi alteram partem rule, if the same came to be passed without holding any enquiry. In State of Haryana v Jagdish Chander [(1995) 2 SCC 567], in the case of an employee whose services could be terminated under rule 12.21 of Punjab Police Rules, by virtue of which if a constable was found unlikely to be an efficient police officer, he may be discharged at any time within three years of enrollment, it was held by the Supreme Court that order under such a provision passed without affording opportunity on the basis of findings which would disentitle future employment, would be bad.
8. In view of the settled position in law as mentioned above, the order dated 29.7.2009 terminating services of the applicant has to be set aside. We order accordingly. Inasmuch as, the applicant has been involved in a criminal case, the respondents will be well within their right to place her under suspension, and either await the decision of the criminal court or else hold a regular departmental enquiry against her before terminating her services. The status of the applicant would be restored to what it was immediately before the impugned order was passed.
9. The Application is accordingly allowed. There shall, however, be no order as to costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/