Central Administrative Tribunal - Delhi
Krishan Kumar vs Comptroller And Auditor-General Of ... on 16 January, 2025
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Item No. 36- (C-II)
O.A. No. 1553/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1553/2021
This the 16th day of January, 2025
Hon'ble Mr. R. N. Singh, Member (J)
Hon'ble Mr. B. Anand, Member (A)
Krishan Kumar
S/o Sh. Rajender Singh
R/o Village Guwani
P.O. Sarai Bahadur Nagar
District Mahendar Garh, Haryana.
Aged about 35 years
(Terminated Data Entry Operator)
(Group - C)
...Applicant
(By Advocate: Mr. Ajesh Luthra assisted by Mr. Samarth Luthra)
Versus
1. Comptroller & Auditor General of India
Pocket 9, Deen Dayal Upadhyay Marg
New Delhi.
2. Principal Accountant General (Audit), Delhi
DGACR Building, IP Estate
New Delhi - 110002.
3. Senior Deputy Accountant General (Admn.), Delhi
DGACR Building, IP Estate
New Delhi - 110002.
... Respondents
(By Advocate : Dr. S.S. Hooda with Mr. Aayushman Aeron and Ms.
Rashmi Rawat)
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Item No. 36- (C-II)
O.A. No. 1553/2021
ORDER (ORAL)
Hon'ble Mr. R. N. Singh, Member (J) In the present O.A. filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the order bearing no.11 dated 26.06.2019 whereby he has been terminated by the respondents from service by invoking the provisions of Rule 5(1) of Central Civil Services (Temporary Service) Rules, 1965 (hereinafter called as the Rules) w.e.f. 26.06.2019. The applicant has also challenged the notice dated 25.05.2019 stated to have not been served upon him.
2. In the present O.A., the applicant has prayed for the following relief(s) :-
"(a) Call for the records of the case and;
(b) Quash and set aside the impugned orders dated 26.06.2019 and
25.05.2019;
(c) Direct the respondents to reinstate the applicant in service
forthwith;
(d). Accord all consequential benefits including monetary, back-wages
and seniority benefits;
(e) Any other relief which this Hon'ble Tribunal deems fit and proper
in favour of the applicant."
3. In response to notice, the respondents have filed counter reply, wherein they have disputed and denied the claim of the applicant and have also stated that the present O.A. does not warrant any 3 Item No. 36- (C-II) O.A. No. 1553/2021 indulgence by this Tribunal. The applicant has filed rejoinder and has reiterated his claim and the grounds urged in support thereof.
4. We have heard the learned counsels for the parties and with their assistance have also perused the pleadings available on record.
5. The undisputed facts as flowing from the pleadings available on record are that the applicant was given offer of appointment to the post of Data Entry Operator vide letter dated 01.02.2013, wherein it has been provided that the period of probation will be of two years which may, however, be increased and/or decreased at the discretion of the appointing authority and during the period of probation, the appointment of the applicant will be purely temporary and governed by the aforesaid Rules. It was also provided that on satisfactory of completion of probation, he will be eligible for confirmation in the Data Entry Operator cadre. Such offer of appointment of the applicant was accepted by him on 07.02.2013 by submitting acceptance letter in the prescribed form. As required, he has also furnished his address(s).
6. The applicant has asserted that while travelling from Delhi to his home district, he met with a serious accident and in this connection a Police Report was lodged, a copy of which is enclosed as Annexure A-4 to the O.A. The said accident resulted into permanent overall disability to the extent of 63% to the applicant. Out of such 4 Item No. 36- (C-II) O.A. No. 1553/2021 disability, 50% was as locomotive disability and 30% on account of low vision. In support of such assertions, the applicant has annexed a copy of certificate furnished by a team of 3 Doctors, which is marked as Annexure A-5. It is further asserted by the applicant that the said accident also resulted into various complications compelling him not to regularly attend his office duties, however, whenever circumstances allowed, he attended the office physically.
7. It is the case of the of applicant that vide impugned order dated 20.06.2019 by invoking the provisions of the Rule 5 (1) of the Rules, he has been terminated from service. The impugned notice was also not served upon him and, thus, the impugned termination order is not only contrary to the Rules but also in violation of the principles of natural justice. It is also contended that the applicant is entitled to protection as provided under the Rights of persons with Disabilities Act, 2016 (RPWD) inasmuch as Section 20 of such Act mandates that no establishment can dispense with or reduce rank of an employee, who acquires disability during his service. If the employee acquires disability during course of his service and he is not found suitable for the post he was holding, he is required to be shifted to some other post with the same scale of pay and service benefits and if the employee cannot be adjusted against any post, a supernumerary post is required to be created until a suitable post becomes available or he attains the age of superannuation.
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8. On the other hand, the respondents in their counter reply have stated that the applicant started absenting himself from his duties without any intimation or permission with effect from 04.02.2014 onwards and due to his unauthorized and uninformed absence, they issued a letter dated 25.02.2014 and 25.04.2014 asking the applicant about his whereabouts. However, the said memorandums were returned unserved even though they were sent to the permanent address of the applicant as informed by them. Various subsequent memorandums were also stated to have been issued to the applicant regarding his unauthorized absence from duty and such memorandums have been brought on record by the respondents as Annexure R-4 (colly.). It is further asserted by the respondents that the applicant availed un-sanctioned leave on multiple occasions, when he initially reported for duties on a few days. However, it was observed by the respondents that adequate medical documents were not submitted by the applicant, though, he continued to be on leave. Despite that, the respondents did not take any disciplinary action, purely due to sympathetic consideration and vide office order dated 08.05.2017, the respondents declared the unauthorized absence from 04.02.2014 till 13.02.2014 as Extra Ordinary Leave (EOL) with medical certificate and absence period from 14.02.2014 till 28.02.2017 as dies-non under the provisions of FR-17A. It is the case of the respondents that the applicant has absented himself from 6 Item No. 36- (C-II) O.A. No. 1553/2021 duties at his own and the same is apparent from biometric attendance sheet from 04.02.2017 till 25.06.2019. The same further shows that he came only for a few days and left unannounced and during his entire service with the respondents there were only few days, when he reported to office and that too on irregular basis.
9. Keeping in view inconsistent absence of the applicant from duty, notice of termination was issued on 31.08.2018 on the given address of the applicant. When the applicant's case was sympathetically considered and he was allowed to join the duty, he had submitted an explicit undertaking on 05.12.2018, wherein he has stated that:-
"Whatever mistake I have done in the past, I will make sure not to repeat in the future, if my behavior find in same way in past, Authority can take action as per rule. I will be punctual in Attendance and obey order of Superior Authority. Will not take unauthorized absence."
10. However, in complete violation of all rules and his own undertaking, the applicant remained absent from duty from 05.12.2018 till 25.06.2019 barring a few days. The notice of termination was stated to be published by the respondents in the Gazette notification. It is categorical assertion of the respondents, particularly, in para 5 that the applicant has been terminated on account of his long unauthorized and uninformed absence from the period from 04.02.2014 till the date of termination. It is further 7 Item No. 36- (C-II) O.A. No. 1553/2021 stated in the said para by the respondents that the applicant was given last chance to continue his service on sympathetic consideration and in view of his undertaking dated 05.12.2018, which too was flouted by the applicant. In this view of the matter, the applicant cannot be permitted to seek the benefit of the provision of the Section 20 of the RPWD Act.
11. Learned counsel for the applicant has argued that though on face of it, the impugned order dated 26.06.2019 appears to be an order simplicitor, however, from the assertions of the respondents in their counter reply itself, it is apparent that the very foundation of the impugned order 26.06.2019 is in violation of the Rules, violation of the undertaking given by the applicant and also unauthorized absence. He has argued that once it is admitted case that impugned termination order is founded on the mis-conduct of the applicant, the impugned order is in violation of the provisions of the Rules as well as the law settled on the subject. He further adds that it is trite law that in such cases even Courts and Tribunals are having jurisdiction to lift the veil to find out as to whether reasons for the order of the termination passed by invoking jurisdiction under 5 (1) of the Rules are foundation of the mis-conduct determined by the employer and/or the mis-conduct so founded is only a motive. He submits that the counter reply on fact of it reflects the admission of respondents 8 Item No. 36- (C-II) O.A. No. 1553/2021 that the earlier period of absence i.e. from 14.02.2014 till 28.02.2017 of the applicant was sympathetically considered by the respondents as dies non under provisions of FR-17A and 04.02.2014 till 13.02.2014 was treated as EOL. However, the respondents have found such period as well as the subsequent unauthorized period in violation of the Rules, in violation the undertaking given by the applicant dated 05.12.2018. Violation of rules being unauthorizedly absent from duty and violation of undertaking given to the employer is nothing but a mis-conduct and the same is required to be enquired into by giving adequate opportunity to the delinquent before passing a final order.
12. In this regard, learned counsel for the applicant has placed reliance upon an order/judgment dated 23.05.2023 of a coordinate Bench of this Tribunal consisting one of us [Hon'ble Mr. R.N. Singh, Member (J)] in O.A. No. 660/2017 titled R/Const. Devender Singh vs. Govt. of NCTD.
13. In support of the claim of the applicant and entitlement in view of the provisions of Section 20 of the Disability Act, learned counsel for the applicant has placed reliance upon the judgment of Hon'ble Apex Court in Kunal Singh vs. Union of India and Anr., reported in (2003) 4 SCC 524.
9Item No. 36- (C-II) O.A. No. 1553/2021
14. In response, the learned counsel for the respondents has argued that admittedly the impugned order is an order simplicitor. It is not disputed by the applicant that he has been absent from duty without sanction of the leave on various occasions and he has attended the office only on a few occasions during the relevant period. It is also not disputed by the applicant that the respondents have initially considered his unauthorized absence for the period from 04.02.2014 till 28.02.2017 sympathetically and in light of his undertaking dated 05.12.2018 have allowed him to resume duty. Despite applicant's assurance given through undertaking and being given another opportunity to join and work, he has chosen to remain unauthorizedly absent after rejoining the duties and in such facts and circumstances, the respondents had no option left except to pass the impugned order and, therefore, there is no illegality or irregularity in the impugned order. Thus, the same does not warrant any interference by this Tribunal by exercising the power of judicial review. In support of his arguments, he has placed reliance upon a judgment of the Hon'ble Apex Court in Civil Appeal No. 5551/2004 titled Abhijit Gupta vs. S.N.B. National Centre, Basic Sciences and Others, reported in (2006) 4 SCC 469. He has invited out attention to para 11, 12 and 17 of the said judgment.
10Item No. 36- (C-II) O.A. No. 1553/2021
15. In rejoinder, learned counsel for the applicant submits that it is wrong at the end of the respondents to say that the applicant has never informed about the unfortunate accident which he had met. He submits that the respondents in their counter reply have stated that the applicant has sent an intimation in this regard and taking into account the facts and circumstances of the applicant, the respondents have themselves considered the case of the applicant sympathetically and passed the order of EOL and for dies non for the aforesaid relevant period and has allowed him to join the duties. He further submits that once the respondents have themselves taken a final decision with regard to the initial absence of the applicant by passing an order dated 08.11.2017 and have allowed him to rejoin, the only subsequent unauthorized absence and alleged violation of CCS (Leave) Rules, 1972 and his own undertaking which are found to be mis-conduct on the part of the applicant, the respondents have passed the impugned orders. He has argued that when the Courts and Tribunals are having the jurisdiction to even lift the veil to arrive at a finding as to whether the misconduct behind an order passed under Rule 5 (1) of the Rules is foundation and/or motive. When it is admitted case of the respondents that in view of the indiscipline of the applicant, he has been terminated, the impugned order is bad in law inasmuch as the respondents lack jurisdiction to pass the order of termination without a regular inquiry.
11Item No. 36- (C-II) O.A. No. 1553/2021
16. The respondents in counter reply particularly in para 1-2 have stated that the applicant continued to flout the CCS (Leave) Rules, 1972 and the only reason why disciplinary proceedings were not initiated against the applicant is due to sympathetic consideration.
17. We have considered the submissions made by the learned counsels for the parties. We have also gone through the judgments referred to and relied upon by them.
18. From aforesaid facts, it is undisputed that the initial absence of the applicant has been decided by the respondents as EOL and dies non. The applicant submitted an undertaking on 05.12.2018 and in the facts and circumstances, taking a sympathetic view, he was allowed to join and after he resumed the duties, of course, he remained absent thereafter as well. The respondents have categorically stated that in view of violation of CCS (Leave) Rules as well as the undertaking given by the applicant on 05.12.2018 and his unauthorized absence, the impugned order of termination has been passed. The Tribunal after considering law laid down by the Hon'ble Apex Court in catena of cases has ruled in para 10 to 16 in the case of R/Const. Devender Singh (supra) as under:-
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Item No. 36- (C-II) O.A. No. 1553/2021 "10. In the case of Const. Yudhveer Singh (supra), under challenge was the order of termination passed by the respondents therein of a recruit Constable undergoing basic training, who absented himself from training on various occasions. After considering the law laid down by the Hon'ble Apex Court in a catena of cases, the Tribunal held in paras 7 to 9 as under:-
"7. In Ratnesh Kumar Choudhary Vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Others JT 2015 (9) 363, where a probationer Chest Therapist was terminated from his 5 OA No.893/2013 service, by stating that his appointment on the post of Chest Therapist was illegal in terms of investigation done by the Cabinet (Vigilance) Department and the explanation furnished by the appellant in pursuance of the show cause notice had been found unsatisfactory. The Hon'ble Apex Court while examining the contention of the appellant that his termination order was punitive and in violation of the principles of natural justice, after considering the various judgments of Hon'ble Supreme Court in Samsher Singh v. State of Punjab (1974) 2 SCC 831, Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and Another (1999) 2 SCC 21, State of U.P. vs. Kaushal Kishore Shukla (1991) 1 SCC 691, Triveni Shankar Saxena vs. State of U.P.(1992) Supp (1) SCC 524, State of U.P. vs. Prem Lata Misra (1994) 4 SCC 189, Samsher Singh (supra), Parshotam Lal Dhingra vs. Union of India AIR 1958 SC 36, State of Bihar vs. Gopi Kishore Prasad AIR 1960 SC 689, State of Orissa vs. Ram Narayan Das AIR 1961 SC 177, Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, Anoop Jaiswal vs. Govt. of India (1984) 2 SCC 369, Nepal Singh vs. State of U.P. (1980) 3 SCC 288, Commissioner, Food & Civil Supplies vs. Prakash Chandra Saxena (1994) 5 SCC 177, Commissioner, Food & Civil Supplies vs. Prakash Chandra Saxena (1994) 5 SCC 177, Chandra Prakash Shahi vs. State of U.P. and Others (2000) 5 SCC 152, Union of India and Others vs. Mahaveer C. Singhvi (2010) 8 SCC 220, Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences (1999) 3 SCC 60, Pavanendra Narayan Verma vs.Sanjay Gandhi P.G.I. of Medical Sciences and Another (2002) 1 SCC 520] and State Bank of India and Others vs. Palak Modi and 13 Item No. 36- (C-II) O.A. No. 1553/2021 Another (2013) 3 SCC 607, ruled 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 regular departmental enquiry was required to be conducted before passing any adverse order. In the absence of which, the termination order would be inoperative and non-est in the eyes of law. The relevant paragraph of the said judgment reads as under:-
"28. In the case at hand, it is clear as crystal that on the basis of a complaint made by a member of the Legislative Assembly, an enquiry was directed to be held. It has been innocuously stated that the complaint was relating to illegal selection on the ground that the appellant did not possess the requisite qualification and was appointed to the post of Chest Therapist. The report that was submitted by the Cabinet (Vigilance) Department eloquently states about the conduct and character of the appellant. The stand taken in the counter affidavit indicates about the behaviour of the appellant. It is also noticeable that the authorities after issuing the notice to show cause and obtaining a reply from the delinquent employee did not supply the documents. Be that as it may, no regular enquiry was held and he was visited with the punishment of dismissal. It is well settled in law, if an ex parte enquiry is held behind the back of the delinquent employee and there are stigmatic remarks that would constitute foundation and not the motive. Therefore, when the enquiry commenced and thereafter without framing of charges or without holding an enquiry the delinquent employee was dismissed, definitely, there is 14 Item No. 36- (C-II) O.A. No. 1553/2021 clear violation of principles of natural justice. It cannot be equated with a situation of dropping of the disciplinary proceedings and passing an order of termination simpliciter. In that event it would have been motive and could not have travelled to the realm of the foundation. We may hasten to add that had the appellant would have been visited with minor punishment, the matter possibly would have been totally different. That is not the case. It is also not the case that he was terminated solely on the ground of earlier punishment. In fact, he continued in service thereafter. As the report would reflect that there are many an allegation subsequent to the imposition of punishment relating to his conduct, misbehaviour and disobedience. The Vigilance Department, in fact, had conducted an enquiry behind the back of the appellant. The stigma has been cast in view of the report received by the Central Vigilance Commission which was ex parte and when that was put to the delinquent employee, holding of a regular enquiry was imperative. It was not an enquiry only to find out that he did not possess the requisite qualification. Had that been so, the matter would have been altogether different. The allegations in the report of the Vigilance Department pertain to his misbehaviour, conduct and his dealing with the officers and the same also gets accentuated by the stand taken in the counter affidavit. Thus, by no stretch of imagination it can be accepted that it is termination simpliciter. The Division Bench has expressed the view that no departmental enquiry was required to be held as it was only an enquiry to find out the necessary qualification for the post of Chest Therapist. Had the factual score been so, the said analysis would have been treated as correct, but unfortunately the exposition of factual matrix is absolutely different. Under such circumstances, it is extremely difficult to concur with the view expressed by the Division Bench".15
Item No. 36- (C-II) O.A. No. 1553/2021
8. In the present case, admittedly the respondents conducted an enquiry against the applicant, in respect of his alleged unauthorised absence and awarded him a written warning for the said misconduct. Further, though the impugned termination order has not given any reasons, but the facts preceding the termination order and the averments of the respondents in the counter clearly establishes that the misconduct of the applicant indeed constitutes the foundation and not motive of the action taken, the same amount to be in violation of the principles of natural justice and hence liable to be set aside.
9. Further, as the respondents have already awarded the written warning to the applicant for his proved misconduct of unauthorised absence, they cannot impose another punishment for the same misconduct, i.e. termination from service." In view of finding hereinabove, about the impugned order being founded on indiscipline concluded by the respondents, however, without a regular inquiry. We find force in submissions of the applicant that the impugned order is vitiated.
11. In S.S. Mota Singh. Jr. Model School (supra), before the Hob'ble High Court of Delhi, under challenge was the Order passed by the learned Delhi School Tribunal vide which the learned Delhi School Tribunal has concluded that the misconduct was the ground for terminating the services of the respondent No.1 therein and the petitioner/School ought to have conducted Domestic Enquiry in terms of the procedure laid down under the rules and further held that the words "Dereliction of Duty" and "Violation of Decorum" of the school, referred to in the impugned order, are stigmatic in nature. The Hon'ble High Court after considering the law laid down by the Hon'ble Apex Court in a series of cases has held in para 12 of the Order/Judgment that 'In so far as the conclusion of the Tribunal that the order of termination is stigmatic is concerned, the same would depend upon the nature/words mentioned, which, depicts the foundation of the order of termination'. The Hon'ble High Court has further noted in para 12 of the Order/Judgment that the Constitution Bench of the Hon'ble Supreme Court in Parshotam Lal Dhingra vs. Union of India, reported in AIR 1958 SCR 826, has ruled 16 Item No. 36- (C-II) O.A. No. 1553/2021 that 'it is not the form of the termination order but the substance thereof, which would determine the real reason behind the termination order.' Further in para 14 of the Order/Judgment in S.S. Mota Singh. Jr. Model School (supra), the Hon'ble High Court of Delhi has held that in the decision of the Constitution Bench in Shamsher Singh v. State of Punjab reported in AIR 1974 SC 2192, it was held that where the order of termination of services of a probationer is motivated by misconduct, negligence, inefficiency or any other disqualification, the same is not punitive. However, where the order terminating the services of a probationer is founded on misconduct, negligence, inefficiency or any other like disqualification, the same is punitive. In para 19 of the said Order/Judgment, the Hon'ble High Court of Delhi has observed as under:-
"19. In a judgment in S.B.I & Ors vs. Palak Modi &anr. 2013 (3) SCC 607, the Supreme Court while considering an issue related to termination of a probationer, after summing up the position of law right from Parshotam Lal Dhingra's case (supra) has held that if a final decision, taken by the competent authority to dispense with the services of the probationer albeit by a non stigmatic order, the Court can lift the veil and declare that in the garb of termination simplicitor, the employer has punished the employee for a matter of misconduct."
12. Recently, the coordinate Bench of this Tribunal vide Order/Judgment dated 8.2.2013 in OA No.2470/2015, titled Capt. Yashraj Tongia vs. Union of India and another, has considered the similar issue, paras 10 and 11 thereof read as under:-
"10. The Apex Court in Mathew P. Thomas v Kerala State Civil Supply Corpn. Ltd. & others [(2003) 3 SCC 263], in para 11 held as follows:
"....From a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be 17 Item No. 36- (C-II) O.A. No. 1553/2021 difficult either to categorize or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. If the form and language of the socalled order of termination simpliciter of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. In cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simpliciter, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct."
The above observation of the Apex Court makes it clear that while deciding whether the termination of a probationer is a termination simpliciter or punitive, the Tribunal can travel beyond the order of termination to find out what in reality is the background and what weighed with the employer to terminate the services of the probationer.
11. The Hon'ble Supreme Court in Dipti Prakash Banerjee v Satyendra Nath Bose National Centre 18 Item No. 36- (C-II) O.A. No. 1553/2021 for Basic Sciences, Calcutta & others [(1999) 3 SCC 60], laid down the criterion for differentiating as to when a simple order of termination is to be treated as „founded‟ on the allegations of misconduct, and when complaints could be only as a „motive‟ for passing such an order of termination. The Hon‟ble Supreme Court held that to determine as to whether the termination of services is punitive or simpliciter would depend upon the stigma in the order of termination. It was held that stigma may be inferable from the references quoted in the termination order, though the order itself may not contain anything offensive. It was further held that termination order would be bad if it contains stigma but no regular inquiry has been held. In para 21 the Apex Court made the following observations:
"21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as „founded‟ on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."
13. Now the issue, which arises for adjudication as to whether the order of termination of the services of the applicant in the case in hand is an order of termination simpliciter or punitive/stigmatic, is put to rest by the respondents themselves through the appellate authority's order which is admittedly final order of the respondents in respect of termination of the applicant's services in as much as it is recorded in para 3 that 'Recruit Constable Devender Singh, No.30598/PTC was a habitual absentee and absenteeism in a disciplined force like Delhi Police amounts to a serious misconduct as availability of such 19 Item No. 36- (C-II) O.A. No. 1553/2021 type of personnel always remains doubtful...... Absenteesim in the force is a very serious matter as it cripples the entire administration of the police department. It is a serious misconduct on the part of delinquent recruit constable which calls for an exemplary punishment.' Further in para 2 of the counter reply, the respondents have asserted as under:-
"2. That he was directed to join Police Training School, Wazirabad, Delhi for his basic induction course with the ongoing batch No.96. During his short span of training since 04.10.2012 to the date of termination of his services i.e. 11.01.2013 he remained absent from his basic training on 05 occasions. This act of the above Recruit Constable was amount to highly indisciplined, un-devoted trainee and not likely to become a good Police officer. He was not considered fit to be retained in the Police force being a habitual absentee as retention of this type of incompetent persons in the Police Force creates bad impression amongst the other fellow trainees."
14. From the aforesaid, it is evident that while deciding as to whether the termination of a probationer is termination simpliciter or a punitive, the Tribunal can travel beyond the order of termination to find out what is the reality of the background and foundation of the order of termination.
15. In view of the aforesaid, it is undisputed that the impugned order of termination has merged into the appellate authority's order dated 22.5.2013 and the appellate authority's order is apparently stigmatic & punitive and the same is not permissible in the absence of a regular departmental enquiry in accordance with the law. So far the Judgment of the Hon'ble Apex Court in Rajesh Kohli (supra) relied upon by the learned counsel appearing for the respondents is concerned, in the said case, the petitioner was recommended by the Hon'ble High Court of Jammu and Kashmir for appointment as District and Session Judge on temporary basis and on acceptance of such recommendations by the Government, an order of appointment was issued to him. In the said case, two orders were challenged, one which was the order of the Hon'ble High Court passed on the basis of resolution of the Full Court and other one issued 20 Item No. 36- (C-II) O.A. No. 1553/2021 by the Government of Jammu and Kashmir, on the ground that they were stigmatic ones. In para 23, the Hon'ble Apex Court ruled that the order of termination is a fall out of his unsatisfactory service adjudged on the basis of his overall performance and the manner in which he conducted himself. The Hon'ble Apex Court ruled that such satisfaction even if recorded that his service is unsatisfactory would not make the order stigmatic or punitive as sought by the petitioner. Nowhere in the said Judgment, the Hon'ble Apex Court has ruled that even if foundation of the order of termination passed under Rule 5 of the Central Civil Service (Temporary Service) Rules, 1965, is a misconduct, interference by the Court(s) and Tribunal(s) is not warranted.
16. In view of the aforesaid facts and discussion, the impugned orders dated 11.01.2013 (Annexure A-1) and 22.5.2013 (Annexure A-2) are set aside. The applicant shall be reinstated in service subject to his medical fitness as expeditiously as possible and in any case, not later than six weeks from the date of receipt of a copy of this Order. The applicant shall be entitled for consequential benefits, i.e.., seniority, fixation of pay, however, only on notional basis and the respondents shall pass necessary order(s) in this regard and release the benefits, if any, as expeditiously as possible and preferably within eight weeks. However, the respondents shall be at liberty to initiate enquiry proceedings and conclude the same in accordance with the relevant rules and instructions, if they so decide.
17. The present OA is allowed in the aforesaid terms. However, in the facts and circumstances, there shall be no order as to costs."
19. However, at the same time, we find that applicant has never submitted before the respondents that during the employment of the respondents, the applicant has attained the aforesaid disabilities and, therefore, he is entitled to the benefits which arise in view of the provisions of the disabilities Act. In this view of the matter, we are of 21 Item No. 36- (C-II) O.A. No. 1553/2021 the considered view that we are not required to make any comment at least at this stage in this regard.
20. So far as the judgment of the Hon'ble Apex Court in the case of Abhijit Gupta (supra) referred and relied upon by the learned counsel for the respondents is concerned, we find that in such judgment, the Hon'ble Apex Court has considered a few judgments including in the case of Dipti Prakash Banerjee, which has already been considered/referred/relied upon by this Tribunal while allowing the O.A. in the case of R/Const. Devender Singh. (supra).
21. Moreover, in para 1-2 of the reply, it is specific averment of the respondents that the applicant continued to flout CCS (Leave) Rules., 1972 and the only reason why disciplinary proceedings were not initiated against him was due to sympathetic consideration.
22. Further, in para 17 of the judgment of Hon'ble Apex Court in Abhijit Gupta (supra), the Hon'ble High Court has carefully considered all the circumstances placed before it and have arrived at the conclusion that the work of the employee was under observation during the probation period and that too he was given repeated opportunities to improve his performance for which purpose his 22 Item No. 36- (C-II) O.A. No. 1553/2021 probation was extended from time to time. The fact that the authority did not find him fit for confirmation was also brought to his notice several times and yet he was given opportunity of improving by extending his probationary service. In such facts and circumstances, the Hon'ble Apex Court has found that the Hon'ble High Court has correctly held the impugned letter not to be of punitive in nature.
23. However, in the present case, it is own case of the respondents that the impugned termination order is passed in view of the violation of CCS (Leave) Rules, 1972, his own undertaking on 05.12.2018 and unauthorized absence at the end of the applicant despite being given opportunity after suitably considering and disposing of his earlier unauthorized absence. Thus, when misconduct determined by the respondents is without a regular enquiry as foundation for the impugned order of termination, the impugned termination order despite appearing an order simplicitor is not found to be sustainable in law and the judgment referred to and relied upon by the learned counsel for the respondents is found to be of no help to the respondents.
24. In view of the aforesaid, the present OA is partly allowed with the following orders:-
(1) The impugned orders dated 26.06.2019 and 25.05.2019 are set aside;23
Item No. 36- (C-II) O.A. No. 1553/2021 (2) The applicant shall be reinstated in service from the date of his termination and in this regard, respondents shall pass an order and allow the applicant to join the duty. (3) The applicant shall be entitled to all the consequential benefits in accordance with the relevant rules and instructions for which the respondents shall pass an order and release the same.
(4) The respondents shall comply the aforesaid directions as expeditiously as possible and preferably within 8 weeks of receipt of a copy of this order.
(5) The applicant shall be at liberty, if he is so advised, to approach the respondents for seeking benefits as provided under Rights to Disabilities Act by way of a representation along with necessary documents in support thereof and the respondents shall consider the same in accordance with relevant rules and instructions on the subject and dispose of the same by passing a reasoned and speaking order as expeditiously as possible and preferably within 8 weeks of receipt of copy of such representation from the applicant.
24Item No. 36- (C-II) O.A. No. 1553/2021
25. However, in the facts and circumstances, there shall be no order as to costs.
(B. Anand) (R. N. Singh)
Member (A) Member (J)
/ anjali/