Central Administrative Tribunal - Delhi
Shri Satish vs Govt. Of Nct Of Delhi Through on 4 May, 2012
Central Administrative Tribunal Principal Bench OA No.3482/2011 Order reserved on 26.04.2012 Order pronounced on 04.05.2012 Honble Mr. G. George Paracken, Member (J) Honble Dr. Veena Chhotray, Member (A) Shri Satish, S/o Shri Ram Narain, R/o H.No.237, V.P.O., Qutubgarh, Delhi-110039. Applicant. (By Advocate : Shri M.K. Bhardwaj) Versus Govt. of NCT of Delhi through 1. The Chief Secretary, Govt. of NCT of Delhi, New Secretariat, I.P. Estate, New Delhi. 2. The Director of Education, Directorate of Education, National Capital Territory of Delhi, Old Secretariat, Delhi. 3. The Additional Director of Education, Directorate of Education, National Capital Territory of Delhi, Old Secretariat, Delhi. 4. The Deputy Director of Education, Distt. North West (B), F.U. Block, Pitampura, Delhi-110088. 5. The Vice Principal, Govt. Sarvodaya Co. Ed., Senior Sec. School, C. Block, Mangol Puri, Delhi-110083. Respondents (By Advocate : Shri B.N.P. Pathak) ORDER Dr. Veena Chhotray, Member (A) :
The applicant, an ex-Assistant Teacher under the GNCTD has challenged the orders dated 18.05.2011 and 13.09.2011, respectively extending his period of probation for another year and terminating the services under sub-rule (1) of Rule-5 of the CCS (Temporary Service )Rules, 1965 after one months notice. By way of relief, the OA has sought quashing the aforesaid impugned orders along with declarations regarding the action of the respondents in this regard as illegal and a declaration for the applicant to be treated as a confirmed teacher.
2. The learned counsels Shri M.K. Bhardwaj and Shri B.N.P. Pathak would appear respectively for the applicant and the respondents.
3. The brief facts are that the applicant on being selected as Assistant Teacher (Primary) under the GNCTD had been issued the offer of appointment dated 31.12.2008. This was on temporary basis for two years, though likely to be made regular . It had also been stipulated that the applicant was to be on probation for a period of two years, further extendable at the discretion of the Appointing Authority. There was a provision for termination of appointment at any point of time by one months notice given by either side, without assigning any reason.
3.1 The applicant was appointed in the above capacity vide the order dated 27.05.2009. His probation was extended for another year w.e.f. 19.05.2011 to 18.05.2012 vide the office order dated 18.05.2011 (Annexure-A-1A). During this extended period of probation, the services of the applicant were terminated vide the impugned order dated 13.09.2011 (Annexure-A1).
4. The text of the order dated 18.05.2011 in respect of extension of probation is reproduced below :-
1. Whereas Sh. Satish Kumar was appointed as Asstt. Teacher vide letter no.DE-4/(6)307/AT/E-IV/2008/Pt. File IV/15541 posting ID No.20090090 dated 27.5.2009 and joined the school on 19.05.2009. His appointment is temporary and provisional basis for two years.
2. Whereas Sh. Satish Kumar, AT is involved in criminal case registered by crime branch vide FIR no.35/2010 dated 21.03.2010 U/S 420/419/120-B IPC, PS Crime Branch, which is pending in trial court.
3. Whereas Sh. Satish Kumar, AT had been absent from his duties w.e.f. 27.03.2010 to 18.04.2010 without sanctioning any kind of leave or information. Further he was absent from the duties on 26.4.10 & 27.04.10 (the period of arrest).
4. Now I am directed to convey approval of competent authority for extension of probation period in r/o Sh. Satish Kumar, AT for another year w.e.f. 19.5.2011 to 18.5.2012.
5. The termination order ran as hereunder :-
In pursuance of sub-rule (1) of Rule-5 of the Central Civil Service (Temporary Service) Rules, 1965, I, Devi Singh, Dy. Director of Education, DNWB, hereby give notice to Sh. Satish (D.O.B. 05.11.1978). Empl. I.D. 20091695, Asstt. Teacher Sarvodaya (Co-ed) Vidyalaya, C-Block Mangolpuri, Delhi, that his services shall stand terminated with effect from the date of expiry of a one month from the date on which this notice is service on or, as the case may be tendered to him.
6. The case of the applicant as per the averments in the OA broadly is : (i) The applicant had been implicated falsely in the said criminal case, which had pertained to his identity card being found in possession of another person allegedly helping a candidate in an examination for appointment to the post of Driver. Para 4.4 mentions about the applicant lodging a police report about the loss of his identity card on 10.03.2010. (ii) The absence of the applicant during the period 27.03.2010 to 18.04.2010 is stated to be due to family reasons (emergency situation of his wife who was in the family way). (iii) Submission of a representation dated 29.04.2010 explaining the facts of his arrest. (iv) The extension of probation period merely on registration of the aforesaid criminal case is contended to be unjustified. This is coupled with the assertion that the applicants performance as a teacher had been found up to the mark since he had never been issued any memo, warning or advisory note (para 4.10). (v) As legal grounds, the competence of the Deputy Director of Education to pass the termination order has been questioned (para 4.14). (vi) Para 4.15 also avers about the respondents having wrongly resorted to Rule 5 of the CCS (Temporary Service) Rules, since the applicant got deemed confirmed in May, 2011 itself. (vii) The application of the Rule 5 is also contended to be wrongly done citing the MHA OM No.4/10/66-Ests.(C) dated 26.08.1967 (Ground C). (viii) The termination order under Rule 5 can only be on ground of suitability and cannot be based on stigma or allegations (Ground D). (ix) As a related argument, it is argued that in this case the basis of foundation is the criminal case, as is evident from the show cause notice itself. As per the settled law, a stigmatic order of termination cannot be passed without giving opportunity of hearing by holding proper inquiry. Violation of Article 311 of the Constitution of India and the CCS (CCA) Rule 14 have been alleged.
7. Shri M.K. Bhardwaj, the learned counsel for applicant would mainly argue : (i) The CCS (Temporary Service) Rule 5(1) cannot be evoked because of the offer of appointment itself having a specific clause regarding termination. The MHA instruction dated 30.03.1967 (Annexure-10) would be highlighted. (ii) It is not the case of the respondents themselves that the termination has been done on account of unsatisfactory services of the applicant. Besides, non issue of warning, notice or advisory memo, the provision regarding probationary reports as per the executive instructions would also be cited. (iii) The main thrust would be that the termination order in this case was stigmatic and punitive, as was evident from the show cause notice and even from the respondents stand in the counter reply. Making protestations about the innocence of the applicant, the learned counsel would submit that this had amounted to pre-judging the issue by the respondents while the criminal case was still subjudice. (iv) Underplaying the form of the termination order, it would be submitted that in fact, it was not termination simpliciter and there was a requirement on the part of the Tribunal to lift the veil to determine its true character.
8. The learned counsel, Shri Bhardwaj would cite some judicial rulings in support of his contentions. The issue raised in the present OA would be submitted to be squarely covered by the Apex Courts decision in Deepti Prakash Banerjee v. Satender Nath Bose National Centre for Basic Science, Calcutta & Ors {(1999) 3 SCC 60} would be cited to contend that the material which amounts to stigma need not be contained in termination order of a probationer but might be contained in an order or proceeding referred to in termination order or in an annexure thereto. The Apex Courts judgment in the case of Nehru Yuva Kendra Sangatan v. Mehboob Alam Laskar {(2008) 2 SCC 479} would be referred with the submission that if the discharge is based on misconduct or if there is live connection between the allegation of misconduct and discharge, then the same, even if couched in language which is not stigmatic, would amount to a punishment for which a departmental inquiry would be imperative.
The learned counsel would also refer to the case of Purshottam Lal Dingra vs Union of India {1958 SCR 828} where it was held that the entire object can be seen by the Court after lifting the veil. Further, the case of Prakash Rattan Sinha vs State of Bihar & Ors {(2010) 1 SCC (L&S) 443} would be relied upon with the contention that an administrative decision which has far reaching consequences is subjected to judicial review and where it is found that such action/decision is not based on natural justice and fair play, the necessary orders can be passed.
9. The claims in the OA have been contested by the respondents. (i) Para 4.5 of the counter reply narrates the sequence of events on 27.3.2010, when the applicant had left the school without information to the HOS, before arrival of SI Crime Branch at 10.00 a.m. The incorrect entry in the attendance register mentioning his departure time as 2.00 p.m. has also been mentioned. (ii) Para 4.7 mentions how on issuance of a Memo dated 29.3.2010, the reply received was not found to be satisfactory. Whereas, the applicant had taken the plea of his having to leave the school in hurry because of emergency condition of his wife on 27.3.2010, the enclosed OPD slips did not support such a contention. It is also stated that vide another Memo dated 9.4.2010, despite being advised to report in the school or in case of illness to produce himself before the authorized medical attendant of any Government hospital and submit necessary documents , he had failed to do so. As per the respondents, the applicant had been continuously absent from duties from 27.3.2010 to 18.4.2010 without sanctioning of leave. (iii) Para 4.9 also mentions about no information having been received from the applicant during the arrest period. (iv) Para 4.14 denies the rival contention of want of competence of the Deputy Director to pass the impugned order of termination. (v) Ground - K asserts about the termination of the applicant being simplification and without assigning any reason, hence inquiry not required as per Rules and the Law.
9.1 Shri B.N.P. Pathak, the learned counsel for the respondents would reiterate the submissions made in their counter affidavit. The learned counsel would also plead that the OA was without merit and deserves to the dismissed.
10. On the subject of extension of probation, the settled law on the subject was reiterated by the Honble Apex Court in Ajit Singh Versus State of Punjab [1983] 2 SCC 217. It was observed that the period of probation gives time to watch and if not found suitable employer has a right to dispense with the services. The applicants contention of deemed confirmation is not permissible in the present case considering the enabling provision in the Offer of Appointment regarding its extension and the factum of the extension order having been passed before the completion of the two years period of probation. It is also noted that the relevant order is a speaking and a reasoned order. Hence, the prayer for quashing aside the order dated 18.5.2011 and declare the applicant as a confirmed teacher is not found to be tenable.
11. The basic premise in service jurisprudence is that a person acquires a lien on a post only on being confirmed and made permanent and not earlier. As regards the termination of services, the general law is that the services of a temporary Government servant or a probationer can be terminated under the rules of employment, which does not attract the provisions of Article 311 of the Constitution. Further, as a logical corollary, the requirement of a regular inquiry under the disciplinary rules is mandated only after expiry of the period of probation. However, a distinction has been made between a simple order of termination i.e. termination simpliciter and a stigmatic or a punitive order. Whereas in the former, a regular inquiry is not a necessity; in the latter it is even in cases of temporary employees/probationers.
11.1 We may at this point indicate the development of law on the subject through a catena of judgments by broadly summing up the following principles:-
(a) The determining test whether it is a termination simpliciter or stigmatic and punitive is whether the alleged misconduct formed a mere motive or the foundation of termination (State of Bihar and Anothers Versus Shiva Bhikshuk Mishra; 1973 SLR 863 SC).
(b) The form of the order is not conclusive and may be a camouflage. It is open to the court/ the Tribunal to go behind the form and determine the true character of the termination order. This has been described as lifting the veil (Union of India Versus Raj Kumar Gujral; 1973 SLC 82) .
(c) To determine the true character of a termination order, the entirety of circumstances must be considered. (S.R. Tiwari Versus District Board Agra and Another; 1964 3 SCR 555).
(d) As regards the application of the principles of natural justice, different views have been held. In Union of India and Others Versus Bipad Bhanjan Gayen 2008 (3) AISLJ 281, while dealing with summary termination of a RPF constable on the ground of involvement in a criminal case in attestation form, the Honble Apex Court reversed the view taken by the High Court. Upholding the validity of the termination order, it was opined that considering the tenuous nature of appointment and provisions under the statutory rules reading of principles of natural justice in such a situation, cannot be countenanced.
However, in Nehru Yuva Kendra Sangathan Versus Mehboob Alam Laskar; 1 SCC L&S 457, (also cited by he applicants learned counsel) dealing with termination of a probationers services on the basis of certain prima-facie allegations of financial irregularities, it was held if unsatisfactory performance manifests itself in overt acts amounting to misconduct, opportunity for hearing is imperative before terminating a probationers service. A similar view was also taken in Union of India and others Versus V.S. Mahavir C. Singhvi; 2010 (7) SCALE 623.
11.2 As regards the judgments referred on behalf of the applicant, these would be considered a little more in detail in the subsequent paragraphs.
12. After carefully considering the facts and circumstances of the case, the respective averments and the law on the subject we do not find the applicants claims questioning the validity of the termination order as acceptable either. The reasons are stated below:-
12.1 The judicial rulings cited by the applicants counsel are found to be distinguishable from the factual gamut and the issues in the present case and thus cannot be pressed in support.
12.1.1 Deepti Prakash Banerjees case also had pertained to termination of services during the extended period of probation. However, prior to the termination order dated 30.4.1997, the applicant had been informed about deficiencies in work vide the letters dated 11.12.1995, 15.4.1996, 30.4.1996 and 17.10.1996. These letters had been referred in the termination order. Under the circumstances, coming to the conclusion that the termination order was stigmatic, the Honble Apex Court had reiterated the proposition of law:
.. the material which amounts to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its annexures. Obviously, such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular enquiry was conducted. . 12.1.2 In Nehru Yuva Kendra Sangathans case, the termination of the probationer had been on the basis of allegations of certain financial irregularities. In this case an enquiry had been made where the respondent had been found guilty of the alleged irregularities. However, the enquiry had been conducted at his back and no opportunity had been given to the concerned employee for presenting his case. Besides, the fact of the enquiry had been informed in reply to the respondents representation against the non-speaking termination order. Under these circumstances, the Honble Apex Court had held:
.. Only in the event of unsatisfactory performance by the employee, the termination of probation would have been held to be justified. It is, however, well known that when the foundation for such an order is not an unsatisfactory performance on the part of the employee but over acts amounting to misconduct, an opportunity of hearing to the employee concerned is imperative. 12.1.3 Prakash Rattan Sinhas case pertained to a different subject altogether. In the instant case decision of the Chief Engineer to cancel change of nomenclature of appellant employee from daily wager to Accounts Clerk was under challenge. The Honble Apex Court was seized with the fact that it was an administrative decision likely to have far-reaching civil consequences to the appellant, including adversely affecting his right to continue in the promotional post. In this context, the well established principles of all administrative decisions by the State and its instrumentalities being subject to doctrine of equality and fair play had been reiterated.
12.1.4 As regards Purushottam Lal Dhingras case, this reiterates the settled principle of law that in such matters in judicial review the veil can be lifted; which of course would depend upon the facts and circumstances of each case.
12.2 To support the contention of the CCS (Temporary Service) Rules having been wrongly evoked in the present case, the learned counsel for the applicant has mainly placed reliance on the executive instructions dated 30.3.1967. It has been argued that since in the present case, there was a specific provision for termination after a notice, the CCS (Temporary Service) Rules will not be applicable. The relevant extracts from the MHA OM No.4/1/65-Ests.(C) dated 30.03.1967 are as below :-
The position is that the CCS (TS) Rules do not specifically exclude probationers or persons on probation as such. However, in view of the specific condition regarding termination of service without any notice during or at the end of the period of probation (including extended period, if any), it has been decided, in consultation with the Ministry of Law, that in cases where such a provision has been specifically made in the letter of appointment, it would be desirable to terminate the services of the probationer/person on probation in terms of the letter of appointment and not under Rule 5(1) of the CCS (TS) Rules, 1965. (emphasis supplied) The use of the word desirable shows the non mandatory nature of these executive instructions.
It would also be apt to note at this point that in terms of the provisions of the CCS Rules 5(1), the impugned order does give a one month notice. Thus, this legal ground is not tenable.
12.3 The other legal ground regarding the competence of the authority has been rebutted by the respondents in their counter affidavit. For want of any further agitation of this issue in the rejoinder or during the oral submissions by the applicants counsel, this aspect also is not found to be relevant.
12.4 The argument about the termination order being stigmatic rests on the plea of the same having been done on the ground of registration of the criminal case. Hence, it is argued that the criminal case was not a mere motive but foundation of the termination. However, the documents produced before us reveal that not to be the sole ground. The conduct of the applicant on 27.3.2010 regarding leaving the school much earlier while making an entry for departure for a subsequent point of time; the unsatisfactory explanation to the absence on 27.3.2010 and nonreporting to office despite the directions; the unauthorized absence from 27.3.2010 to 18.4.2010 besides, 26.4.2010 and 27.4.2010 are some of the other circumstances revealed. Therefore, we are unable to agree with the applicants contention of his having been condemned by way of pre-judging the issue of the criminal case.
12.5 The other aspect of the above argument would be to negate the contention about the services of the applicant being satisfactory. Even the documents enclosed with the OA would suffice to corroborate the fact of several communications to the applicant indicating to the contrary.
12.6 As per the settled law, the opportunity for representing the case of the affected employee is necessary even in such cases. The same is also found to have been done in the present case on more than one occasions.
13. To conclude, having carefully considered the issues raised in the OA, we have not found it justified to interfere with the order extending the probation or terminating the services of the applicant. Considering the entirety of the circumstances, the present case is not held as one of stigmatic or punitive order necessitating a regular inquiry under the CCS (CCA) Rules. On the other hand, we find it a case of termination simpliciter in accordance with the terms stipulated in the Offer of Appointment and the provisions of Rule 5(1) of the CCS (Temporary Service) Rules, 1965. Resultantly, the OA is dismissed. The parties would bear their own costs.
( Dr. Veena Chhotray ) ( G. George Paracken )
Member (A) Member (J)
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