Central Administrative Tribunal - Delhi
Satya Prakash Shukla vs Delhi Transport Corporation, Govt. Of ... on 27 October, 2016
1 OA No.100/1626/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A No.100/1626/2014
New Delhi this the 27th day of October, 2016
Hon'ble Mr. Justice M. S. Sullar, Member (J)
Hon'ble Mr. P. K. Basu, Member (A)
Shri Satya Prakash Shukla,
Aged about 38 years,
Driver (Badge No. 24949),
S/o. Sh. H. K. Shukla
R/o. H. No. 175, Gali No. 2,
Ghazipur, Delhi-110 092. .....Applicant
(Argued by: Mr. Rishi Prakash, Mr. Sameer Bhatnagar
and Mr. Manish, Advocates)
Versus
1. The Delhi Transport Corporation,
Through its Chairman/Principal Officer,
I.P. Estate,
New Delhi.
2. The Depot Manager (GDP)
Delhi Transport Corporation,
Govt. of NCT Delhi
Ghazipur Depot,
Delhi. ....Respondents
(Argued by: Mr. Hitesh Kumar Bagh, Advocate)
ORDER (ORAL)
Justice M. S. Sullar, Member (J) The contour of the facts and material, relevant for deciding the instant Original Application (O.A,) and emanating from the record, is that, having successfully cleared the recruitment process conducted by Delhi Subordinate Services Selection Board (for brevity "DSSSB"), the applicant, Sh. Satya Prakash Shukla, was appointed as a Driver in the year 2008, in Delhi Transport Corporation (DTC). He was holding a valid driving 2 OA No.100/1626/2014 license and passed the skill test of drivers conducted by the respondents. He underwent medical examination by DTC Medical Board, but some vision defects were found.
2. In the wake of representations of similarly situated drivers, the DTC has taken a decision on 22.12.2009, to call for a second medical opinion from Guru Nanak Eye Centre (GNEC). The applicant was found medically fit in all respects. Consequently, he was offered an appointment on the post of Driver, initially on probation for a period of two years, vide letter dated 11.05.2009 (Annexure A-3). He performed his duty as Driver in DTC satisfactorily and there was no complaint of any kind against him. Accordingly, he successfully completed his 2 years of period of probation and was duly confirmed, vide order dated 14.12.2011 (Annexure A-5) by the competent authority.
3. According to the applicant, that the DTC has illegally and arbitrarily prevented him from performing his duties, without assigning any reason, with effect from 15.04.2013 and directed the applicant to get himself again medically examined. It was pleaded that, all of a sudden, he was served with an absolutely illegal, arbitrary and discriminatory impugned Show Cause Notice (SCN) dated 26.09.2013 (Annexure A-2), on the alleged ground that he has been declared medically unfit due to defective eyes vision. Further, it was alleged therein that applicant has got appointment as Driver by deceitful means. 3 OA No.100/1626/2014
4. In pursuance thereof, the applicant filed reply dated 20.10.2013 (Annexure A-6) to SCN, but, the same was not duly considered and Depot Manager passed the impugned termination order dated 08.01.2014 (Annexure A-1) in a very casual manner.
5. Aggrieved thereby, now, the applicant has preferred the instant O.A. challenging the impugned SCN and termination order (Annexure A-1), invoking the provisions of Section 19 of the Administrative Tribunals Act, 1985.
6. The case set up by the applicant, in brief, insofar as relevant is, that, impugned SCN and termination order are illegal, arbitrary, mala fide, misconceived, without any basis, discriminatory and against the rules and principles of natural justice. It was pleaded that the applicant was duly selected after completing the recruitment process by DSSSB. He was duly appointed on the post of Driver, having valid driving license and passed the skill test. He has successfully completed his period of probation and was confirmed by the competent authority on the substantive post of Driver. In that eventuality, his services could not have been terminated without holding any regular Departmental Enquiry (DE). On the strength of aforesaid grounds, the applicant seeks to quash the impugned SCN and termination order, in the manner indicated herein above.
7. The respondents have refuted the claim of the applicant and filed short reply/affidavit, wherein it was pleaded that the 4 OA No.100/1626/2014 medical board of the respondents corporation is the final authority to decide, as to whether a person is competent to continue as a Driver with the corporation or not. Since he was not eligible to be retained in service, in view of the opinion of the medical board, so his services were rightly terminated. That being so, the respondents have prayed for dismissal of the O.A.
8. Controverting the allegations pleaded in the reply of the respondents and reiterating the grounds contained in the O.A, the applicant filed the rejoinder. That is how we are seized of the matter.
9. After hearing the learned counsel for the parties, going through the records with their valuable help and after considering the entire matter, we are of the considered opinion that the instant OA deserves to be partly accepted for the reasons and in the manner mentioned hereinbelow.
10. As is evident from the record, that having successfully completed the recruitment process by DSSSB, the applicant was initially recruited on the post of Driver in the year 2008 in the DTC. He was holding a valid driving license and passed the skill test of driver conducted by the respondents. He was medically examined and was found fit in all respect by the doctors of GNEC. He successfully completed his 2 years of probation and was confirmed on substantive post of Driver, vide order dated 14.12.2011 by the competent authority. This factual matrix has 5 OA No.100/1626/2014 been fairly acknowledged by the learned counsel for respondents.
11. Suddenly, the applicant received the impugned SCN (Annexure A-2) and he filed the reply (Annexure A-6) to the SCN, raising a variety of issues. The Depot Manager did not duly consider & deal with the issues raised by the applicant and passed the impugned termination order dated 08.01.2014 (Annexure A-1). Thus, it would be seen, that the facts of the case are neither intricate nor much disputed and falls within a very narrow compass.
12. That being the position on record, now the sole controversy arises for determination in this case, is as to whether the services of the applicant (confirmed Driver), can be terminated on the ground of his alleged misconduct for giving false information of his eyes vision at the time of initial recruitment, without holding any regular DE, in the facts and circumstances of the case or not?
13. Having regards to the rival contention of the learned counsel for the parties, to us, the answer must obviously be in the negative in this regard.
14. Article 311 (2) of the Constitution postulates that no person who is a member of a civil service and holding a civil post, shall be dismissed or removed or reduced in rank after an enquiry, in which he has been informed of the charges against 6 OA No.100/1626/2014 him and given a reasonable opportunity of being heard in respect of those charges.
15. Moreover, it is not a matter of dispute that the services of the applicant, who is a confirmed employee, is governed by the Delhi Road Transport Authority (Conditions of Appointment & Service) Regulations, 1952 (hereinafter to be referred as "relevant rules"). Rule 15 postulates the procedure for impositions of penalties of removal and dismissal etc. According to Rule 15(c), no order of dismissal, removal, or any other punishment except Censure, shall be passed against an employee unless he has been informed in writing of the grounds on which it is proposed to take action, it shall be reduced to the form of a separate charge or charges, which shall be communicated to the person charged and of any other circumstances which it is proposed to take into consideration in passing orders on the case by the competent authority. Then the employee shall be required, within a specified time to submit a written reply to the charges and to state whether he desires to be heard in person also. If he so desires and if the competent authority so directs, an oral enquiry shall be held. The officer conducting the enquiry may record facts brought out in such enquiry and may utilise them for coming to a finding on the truth or otherwise of the charge or charges levelled against the employee. At the same time, if any Welfare Officer is employed with the Authority, may attend such enquiry to watch the 7 OA No.100/1626/2014 interest of the employees. The proceedings shall contain a statement of the finding and grounds thereof.
16. A conjoint and meaningful reading of these provisions would reveal that a regular DE is must before terminating the services of a confirmed employee for his misconduct and enquiring/Disciplinary Authority are required to observe the statutory rules and principles of natural justice as well, which is totally lacking in the present case, which is not legally permissible. This matter is no more res integra and is now well settled.
17. An identical question came to be decided by Hon'ble Apex Court in case Kamal Narayan Mishra Vs. State of M.P. (2010) 2 SCC 169. Having considered the rights of an employee on probation and confirmed employee, it was ruled that a confirmed Government servant is the holder of a civil post entitled to the benefits of safeguard provided by Article 311 of the Constitution.
18. Again, a three Judge Bench of Hon'ble Supreme Court has recently reiterated the same view in a celebrated judgment in case Avtar Singh Vs. U.O.I. & Others in SLP (C) No.20525/2011 decided on 21.07.2016, having considered the distinction of status of the probationer & confirmed employee and various previous judgments, it was authoritatively ruled that in case the employee is confirmed in service, holding departmental enquiry would be necessary before passing order 8 OA No.100/1626/2014 of termination/removal/dismissal on the ground of suppression of submitting false information in verification form and before the person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributed to such confirmed employee.
19. This is not the end of the matter. A similar question in case of similarly situated Drivers of DTC came to be considered by the Hon'ble High Court of Delhi, in a bunch of Writ Petitions decided on 14.07.2014 along with main case Suresh Chand and Another Vs. DTC W.P. (C) No.4212/2014. That was also a case of recruitment of post of Drivers in a selection process conducted by DSSSB in the year 2008. All of them underwent medical examination. Consequently, appointment letters were issued and the petitioners (therein) took charge of the post of Drivers. They were confirmed after completion of the probation period by DTC. Subsequently, they were directed to report to an independent Medical Board constituted by GNCTD. After receipt of the reports, presumably adverse to the petitioners (therein), show cause notices were issued asking the drivers as to why their appointments should not be terminated. In the backdrop of these facts, it was held as under:-
"6. It is evident that certain facts are undeniable - (i) the petitioners were appointed through properly constituted recruitment process and underwent the procedure in accordance with the prescribed rules; (ii) they were medically examined and also subjected to further medical examination by Guru Nanak Eye Centre, GNCTD in 2009 itself; (iii) there are no allegations against the petitioners of dereliction in duty, or causing any accident and, most important, (iv) all of them were confirmed in the service for the post of driver after successfully completing their period of probation. In these circumstances, the appropriate method of terminating the petitioner's/employee's services will be after conclusion of duly constituted disciplinary proceedings through departmental enquiries. In 9 OA No.100/1626/2014 the present case, the petitioners, or at least some of them, were issued show cause notice in that regard. There is no formal enquiry as to their alleged misconduct involving fraud till date. In these circumstances, the respondent's submissions that the initial appointments were void because the petitioners, or some of them, were guilty of practising fraud is meritless. In order to detect fraud, it is essential for the respondent - the employer, to allege the elements of fraud, call upon the delinquent or such of the petitioners which are culpable to answer the charges and after examination of the materials placed on record as well as the defence, ensure that the enquiry report is made based upon which any penalty order, including that of dismissal, can be made. There is no shortcut for such procedure. Once the employer alleges misconduct - even though it relates to the initial stage of appointment - departmental proceedings are mandatory. The course suggested by the DTC of presuming that the subsequent medical report obtained in 2013, in effect, establishes the charge of fraud against the petitioners and others cannot be accepted. The sequitter, therefore, is that the respondents have to necessarily hold an enquiry into the allegations against the petitioners
- both in respect of the fraud allegedly played on them, as well as the alleged participation or complicity of the petitioners in it. It is only thereafter that the question of penalty can arise.
7. As far as Section 47 is concerned, the question of its application would arise where the employee suffers a disability after securing employment. In the facts of the present case, its application, in the opinion of the Court, is pre-mature. When the employer DTC is alleging fraud against the petitioners at the stage of their obtaining employment, and that fact is under a cloud, it is not open to the petitioners to contend or establish their innocence by taking cover under Section 47 of the Disability Act. It is only in the event of the petitioners being exonerated, and the DTC seeking to use the subsequent report of 2013 to either terminate them or pass appropriate orders against them, that they would be in a position to invoke Section 47 of the Disability Act and not otherwise.
8. In view of the above, respondents may, if they so choose, initiate and continue with the enquiry into the charges alleged against the petitioners in the show cause notice after receiving their explanation and thereafter W.P.(C)4212, 4214, 4237, 4240, 4243 & 4244/2014 Page 6 proceed in accordance with law, having regard to the final report received from the Enquiry Office. However, it shall not be open to the respondent DTC to terminate or dismiss the petitioners on the basis of the alleged fraud, merely by giving a show cause notice and calling for a reply."
20. Still DTC did not feel satisfied and the Special Leave to Appeal (C ) No.361/2015 titled DTC Vs. Suresh Chand and Another filed by it was dismissed on 16.01.2015 by the Hon'ble Supreme Court. Thus, the said judgment of the Hon'ble High Court has already attained the finality.
21. This matter can be viewed entirely from a different angle. The impugned termination order dated 08.01.2014 (Annexure A-1) reads as under:-
"DELHI TRANSPORT CORPORATATION 10 OA No.100/1626/2014 GHAJIPUR DEPOT, DELHI-96 Ref.No.14/24/35 Dated:08.01.2014 Mr. Staya Prakash Shuka, S/o Shri H.K. Shukla, Driver Badge No.24949, Token No.66939 was appointed in Delhi Transport Corporation on 07.12.2009 vide PLD Office Order No.PLD-3(DSSSB)/Driver/Other State/appointment/09/4064 dated 02.12.2009. You were referred to Medical Board, Guru Teg Bahadur Hospital for medical examination. The Medical Board declared you unfit for defective eye vision. In this regard SHOW CAUSE NOTICE No.DS/GPD/DSSSB/Driver/2013/2103 dated 26/09/2013, was served upon you. You submitted your reply to the show cause notice. The undersigned considered the whole matter carefully but found your reply as unsatisfactory. Accordingly confirming the proposed punishment, your services are hereby terminated with immediate effect under clause 9(b) of the conditions of appointment and service and letter No.ADMI-3(18)/53 dated 05.08.1955.
So it is expected that you shall deposit the Identity and Medical Card etc. in the office of undersigned within 24 hours, of the receipt of this letter. If you fail to do so, you will be charged a penalty of Rs.50 per day, for the time for which the said articles remain with you according to order No.03/ADMIN-7(42)2013/109 dated 08.02.2013, if you lodge FIR in this regard the amount of Rs. 5000/- will be recovered from you.
DEPOT MANAGER".
22. Thus it is apparent on record, that the services of the applicant were terminated only on the misconduct, allegedly committed by him, at the time of his initial appointment. Not only that the respondents have so admitted in their short reply.
23. Therefore, even if the contents/substance of the impugned order, indicating attending circumstances pleaded in the short reply and the basis of termination order is taken into consideration and put together, then conclusion is inevitable, not only that the impugned termination order is smeared with stigma, but also passed on the alleged misconduct of the applicant. Thus, the impugned termination order is held to be stigmatic and punitive in nature. Naturally, such stigmatic and punitive order should not have been passed by the competent authority without following the due procedure of holding regular DE as per statutory rules and by observing the principles of 11 OA No.100/1626/2014 natural justice. The Hon'ble Apex Court in case Anoop Jaiswal Vs. Government of India and Another (1984) 2 SCC 369 has ruled that even in case of a 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 the 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.
24. Again, the same view was reiterated by Hon'ble Apex Court in case Andhra Pradesh State Federation of Company Operative Spinning Mills Ltd. and Another Vs. P.V. Swaminathan JT 2001(3) 530 wherein it was held that 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 as to whether the alleged misconduct 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, stigmatic and punitive in nature, then it must be interfered with since the procedure has not been followed.
25. Therefore, once it is proved on record that the services of the applicant were terminated for the above mentioned misconduct by virtue of the impugned stigmatic and punitive 12 OA No.100/1626/2014 order, then the protection under Article 311 of the Constitution of India is available to him and his services cannot be terminated on speculative grounds, without holding an enquiry in view of law laid down by Hon'ble Apex Court in case Ratnesh Kumar Choudhary Vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Others JT 2015 (9) 363, wherein having considered the previous judgments of Hon'ble Supreme Court, 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 simpliciter, the employer has punished an employee, for an act of misconduct. It was also held that if a probationer is discharged on the ground of misconduct or inefficiency or for similar reason, without a proper enquiry and without his getting a reasonable opportunity of showing cause against the termination, it may amount to removal from service within the meaning of Article 311 (2). Hence, a 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.
26. Thus such impugned stigmatic and punitive order of termination, passed on account of indicated misconduct against the applicant by the competent authority would be inoperative and cannot legally be sustained. Thus, the contrary arguments of 13 OA No.100/1626/2014 the learned counsel for the respondents stricto sensu deserve to be and are hereby repelled. The ratio of law laid down in the indicated judgments of Hon'ble Apex Court & Hon'ble High Court is mutatis mutandis applicable in the present controversy and is a complete answer to the problem in hand.
27. It is not a matter of dispute that the respondents have issued impugned SCN and terminated the services of the applicant on the ground of pointed misconduct at the time of initial appointment. On the contrary, the applicant claimed that he was medically found fit by doctors of Guru Nanak Eye Centre. As to whether the applicant has committed any indicated misconduct or his services are liable to be terminated in this regard, or not, inter alia, would be the moot points to be decided during the course of enquiry by the competent authority. Such intricate questions can only effectively be decided by holding regular DE and not otherwise. Above all, the statutory rule and natural justice require that adequate opportunity should be granted to the applicant to prove his innocence before snatching his livelihood by means of impugned termination order. Even if the charge is proved against the delinquent official during the enquiry, he would have an opportunity to plead for proportionality of the punishment vis-à-vis the charge of misconduct.
28. This is not the end of the matter. The impugned order of termination passed by the Depot Manager is sketchy and unreasoned. As mentioned hereinabove, the applicant has raised 14 OA No.100/1626/2014 very important issue of his medical fitness in his reply to the SCN. Such authority exercises quasi judicial functions and is required to consider the entire matter in right perspective and then to pass speaking and reasoned order to decide the matter in dispute between the parties, which is totally missing in this case.
29. What cannot possibly be disputed here is that Central Vigilance Commission in its wisdom has taken a conscious decision and issued instructions vide Office Order No.51/09/03 dated 15.09.2003, which reads as under:-
"Subject: - Need for self-contained speaking and reasoned order to be issued by the authorities exercising disciplinary powers.
Sir/Madam, It was clarified in the Department of Personnel & Administrative Reforms' OM No. 134/11/81/AVD-I dated 13.07.1981 that the disciplinary proceedings against employees conducted under the provisions of CCS (CCA) Rules, 1965, or under any other corresponding rules, are quasi-judicial in nature and therefore, it is necessary that orders issued by such authorities should have the attributes of a judicial order. It was also clarified that the recording of reasons in support of a decision by a quasi-judicial authority is obligatory as it ensures that the decision is reached according to law and is not a result of caprice, whim or fancy, or reached on ground of policy or expediency. Such orders passed by the competent disciplinary/appellate authority as do not contain the reasons on the basis whereof the decisions communicated by that order were reached, are liable to be held invalid if challenged in a court of law.
2. It is also a well-settled law that the disciplinary/appellate authority is required to apply its own mind to the facts and circumstances of the case and to come to its own conclusions, though it may consult an outside agency like the CVC. There have been some cases in which the orders passed by the competent authorities did not indicate application of mind, but a mere endorsement of the Commission's recommendations. In one case, the competent authority had merely endorsed the Commission's recommendations for dropping the proposal for criminal proceedings against the employee. In other case, the disciplinary authority had imposed the penalty of removal from service on an employee, on the recommendations of the Commission, but had not discussed, in the order passed by it, the reasons for not accepting the representation of the concerned employee on the findings of the inquiring authority. Courts have quashed both the orders on the ground of non-application of kind by the concerned authorities.
3. It is once again brought to the notice of all disciplinary/appellate authorities that Disciplinary Authorities should issue a self-contained, speaking and reasoned orders conforming to the aforesaid legal requirements, which must indicate, inter-alia, the application of mind by the authority issuing the order."15 OA No.100/1626/2014
30. 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".
31. 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 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 16 OA No.100/1626/2014 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.
32. Thus, seen from any angle, indeed impugned SCN and order are sketchy, non-speaking, arbitrary, discriminatory, against the statutory rules & principles of natural justice, smeared with stigma, punitive, deserve to be set aside and cannot legally be sustained in the obtaining circumstances of the case.
33. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
34. In the light of the aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of regular DE, the OA is hereby partly accepted. The impugned SCN and termination order are set aside with all consequential benefits. The applicant is ordered to be reinstated in service forthwith with 50% of back wages in view of judgment of Hon'ble Apex Court in Ratnesh Kumar Choudhary's case (supra). However, nothing observed hereinabove, would reflect on merits in regular DE as the same has been so recorded for a limited purpose of deciding the pointed limited question. The parties are left to bear their own costs. 17 OA No.100/1626/2014
35. Needless to mention, the DTC would be at liberty to initiate and conduct regular departmental enquiry against the applicant for his alleged indicated misconduct, in accordance with law, before imposing any punishment on him. At the same time, since the validity, genuineness or otherwise of the eye vision of the applicant is very much questionable, so the DTC would be at liberty to suspend him in contemplation of the regular Departmental Enquiry, subject to the payment of admissible subsistence allowances. In case the DTC chooses not to suspend the applicant, then it (DTC) will not assign him the duty of Driver in public interest and safety. He may be deputed on some other job except Driver, during the pendency of the regular DE.
(P.K. BASU) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
27.10.2016
Rakesh