Central Administrative Tribunal - Delhi
Sunil Kumar vs The Chairman on 30 March, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.3750/2011 Order reserved on 28th March 2012 Order pronounced on 30th March 2012 Honble Shri M.L. Chauhan, Member (J) Honble Shri Shailendra Pandey, Member (A) Sunil Kumar, age 27 years s/o Shri Krishan Kumar E-145, Yadav Nagar, Samey Pur Badli Delhi-9 ..Applicant (By Advocate: Shri Sachin Chauhan) Versus 1. The Chairman IP Depot, DTC New Delhi 2. The Manager (Per) Delhi Transport Corporation Govt. of NCT of Delhi IP Estate, New Delhi 3. The Depot Manager Delhi Transport Corporation Rohini Depot II, Delhi-89 ..Respondents (By Advocate: Ms. Shweta Garg for Shri Manish Garg) O R D E R
Shri M.L. Chauhan:
The applicant has filed the present OA, thereby praying for the following reliefs:
(i) To set aside the Memorandum dated 10.3.2011 at A-1 and to further direct the respondents to engage the service of the applicant on contract as Conductor at par with his batch-mate with all consequential benefits.
(ii) Any other relief which this Honble court deems fit and proper may also be awarded to the applicant.
2. As can be seen from the relief clause, the grievance of the applicant is regarding the memorandum dated 10.3.2011, which is a show cause notice whereby he was granted opportunity to submit the explanation as to why his services should not be removed from the Corporation in accordance with terms and conditions of the contractual contract, as the criminal case under Sections 308/323/34 IPC is under trial in Rohini Courts, Delhi and this fact has been concealed by the applicant. Pursuant to the said show cause notice, which was received by the applicant on 15.3.2011, he submitted the reply on 17.3.2011, thereby stated that in the form supplied to him at the time of engagement to the post of Conductor on short term basis for a period of 89 days, there was no such column or requirement in the said form regarding any pendency of criminal case, so the same fact was not mentioned in the form. It was further stated that the applicant vide letter dated 1.3.2011 had already communicated the fact of involvement of criminal case to the authorities prior to the issuance of the impugned memorandum/show cause dated 10.3.2011. It was on the basis of these facts the applicant has filed the present OA, thereby praying for the aforesaid reliefs.
3. Notice of this application was given to the respondents and they have filed their reply affidavit. Along with it, the respondents have also annexed a copy of the termination order dated 28.3.2011 whereby the services of the applicant were terminated w.e.f. 28.3.2011. It may be stated here that the applicant has not challenged the validity of the said termination order.
4. The applicant has filed the rejoinder affidavit, thereby reiterating the submissions made in the OA.
5. We have heard the learned counsel for the parties and perused the material placed on record.
6. Admittedly, the applicant was engaged as Conductor on short term contract basis for a period of maximum 89 days from 2.2.2011 to 20.5.2011, which letter has been placed on record by the respondents along with reply affidavit (page 33 of the paper book). It is also not disputed that the services of the applicant were terminated vide order dated 28.3.2011 before the expiry of the contract period. It may be stated that before passing the termination order dated 28.3.2011, the applicant was issued the memorandum/show cause dated 10.3.2011 (Annexure A-1) and it is after considering the reply of the applicant the respondents have passed the said termination order, which is in the following terms:-
A case of criminal involvement vide FIR No.902 dated 23.11.2005 under Section 308/323/34 is under trial in the Rohini courts, Delhi and you have not intimated the same to the Corporation till date & hence you have concealed the facts of criminal case pending against you in the Court which is against the terms & conditions of the appointment.
Accordingly the appointment short term contract is hereby terminated with effect from 28.3.2011, hence removed from the services of the Corporation as per terms & conditions of the appointment.
He is required to deposit all the DTC article in his possession within 24 hours of the receipt of this memo, otherwise he is liable to pay penalty of Rs.2/- per day as per rules.
7. Thus, the basis for terminating the services of the applicant were that the applicant is involved in a criminal case under Sections 308, 323 and 34 IPC, which is under trial in the Rohini Courts, Delhi. The respondents have also placed on record along with the reply affidavit a copy of the FIR as well as the charge framed by the trial court. The charge so framed is in the following terms:
Charge I, R.P. Pandey, ASJ (02), Rohini Courts, Delhi, do hereby charge you (1) Smt. Kalawati wife of Krishan Kumar (2) Sunil Kumar son of Krishan Kumar and (3) Anil Kumar son of Krishan Kumar as under:-
That on 23.11.05 at about 5.50 p.m. at house No.E-145, in front of Yadav Nagar, Delhi within the jurisdiction of PS S.P. Badli you all alongwith Fufa of accused Anil (not arrested so far) in furtherance of our common intention assaulted on the persons of Banarasi Dass and Naveen and caused injuries on their person with such intention or knowledge that if you would have caused their death you all would have been guilty of culpable homicide not amounting to murder and you all thereby committed an offence punishable under section 308/34 IPC and within the cognizance of this court.
And I hereby direct that you be tried by this court for the aforesaid offences.
8. Thus, as can be seen from the charges framed against the applicant and other two accused, it is evident that the applicant has been found prima facie guilty of assaulting Shri Banarasi Dass and Naveen and had caused injuries, which would have caused their death and has been held prima facie guilty of culpable homicide not amounting to murder.
9. From the material placed on record, it is also evident that on an earlier occasion also, the applicant was engaged as Driver for 89 days vide (Annexure A-10) but when the fact regarding involvement of the applicant in the aforesaid case came to the notice of the authorities, the applicant was removed from service from Narela Depot on 9.12.2010 prior to the contract period on the ground of pending criminal case. If the matter is seen in the perspective of his removal from service from 9.12.2010 on the ground of pendency of criminal case, it was incumbent upon the applicant to disclose his involvement in the criminal case when he was given subsequent appointment as Conductor and executed contract agreement as well as affidavit, which led to his subsequent appointment w.e.f. 2.12.2011.
11. The contention so raised by the learned counsel for applicant by drawing our attention to the declaration in the application form that the only requirement, as stated in the declaration, was regarding having been convicted by the court of law and there was no requirement regarding pendency of criminal case/lodging of FIR, as such he is not guilty of suppressing any material information, though attractive, but we are not inclined to accept such submission made by the learned counsel for applicant for the reason that the applicant was aware that on previous occasion also when he was engaged as Driver for a short period of 89 days on contract basis w.e.f. 28.10.2010 to 24.1.2011, he was removed from service on 9.12.2010 on the ground of his involvement in the aforesaid criminal case prior to the expiry of the contract period. Thus, the applicant was aware that his involvement in the aforesaid criminal case is an impediment for his engagement by the respondents even on contract basis. Hence it was incumbent upon the applicant to disclose this fact before the authorities before signing contract agreement as well as affidavit pursuant to which he was offered appointment as Conductor on contract basis for a period of 89 days.
12. Accordingly we are of the view that the applicant has not made out any case for grant of relief and no direction can be given to the respondents to engage him on contract basis as Conductor at par with his batch mate, with all consequential benefits, more particularly, when the contract period was subsisting upto 20.5.2011, which period has already expired. Thus, no mandamus can be issued to the respondents to reengage the applicant on contract basis as Conductor, as prayed for by him in the OA.
13. Yet for another reason, the applicant is not entitled to any relief. The applicant has only made challenge to the memorandum dated 10.3.2011, which is a show cause notice. He has not challenged the termination order dated 28.3.2011, as such the validity of the termination order cannot be gone into. That apart, the appointment of the applicant was contractual for a period of 89 days commencing from 2.2.2011 to 20.5.2011, which contractual appointment has been terminated prior to the expiry of the contract period w.e.f. 28.3.2011. Thus, according to us, in exercise of power of judicial review, especially when the order of termination is not under challenge, it cannot be said that the termination order is vitiated by any legal infirmity to call for interference by us when there is a specific condition in the terms of contract executed between the parties that the 2nd party shall compensate in full or in part as decided by the 1st party the loss sustained by the Corporation on account of loss resulting from any damage/fraudulent tactics put to corporation by 2nd party in case of concealment of facts regarding age, imprisonment/fine by the court of law etc.
14. For the foregoing reasons, we are of the view that the applicant is not entitled to any relief. The OA is bereft of any merit and is accordingly dismissed without any order as to costs.
( Shailendra Pandey ) ( M. L. Chauhan ) Member (A) Member (J) /sunil/