Central Administrative Tribunal - Allahabad
Sanjay Singh vs Union Of India on 24 April, 2018
Reserved
(On 16.02.2018)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
Dated: This the 24th day of April 2018
Original Application No 330/01233 of 2010
Hon'ble Mr. Justice Dinesh Gupta, Chairman
Hon'ble Mr. Gokul Chandra Pati, Member - A
Sanjay Singh, S/o Lal Bahadur Singh, R/o 151 M.E. Single Storey,
Hemant Vihar, Barra-II, Kanpur.
. . .Applicant
By Adv: Shri Islam Ahmed
VERSUS
1. Commissioner, Kendriya Vidyayalay Sangathan,
18, Institutional Area, Shahid Jeet Singh Marg,
New Delhi.
2. Education Officer, Kendriya Vidyalaya Sangathan,
18, Institutional Area, Shahid Jeet Singh Marg,
New Delhi.
3. Asstt. Commissioner, Kendriya Vidyalaya Sangathan,
Regional Officer, Silchar. Assam -788001.
4. Sri T.N. Tiwari, Principal,
Kendriya Vidyalaya, Dinjan Distt. Dibrugarh Panitala.
. . . Respondents
By Adv: Shri D.P. Singh
ORDER
By Hon'ble Mr. Gokul Chandra Pati, Member (A) The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
"A. To issue a writ order or direction in the nature of certiorari, quashing the order dt. 19.8.09, 10.11.09, 15/18.6.2010 & 2.7.2010 (Annexure no.1, 2, 3 & 4 respectively) passed by the respondents.
B. To issue a further writ order or direction in the nature of mandamus commanding the respondents to reinstate the applicant as work experience teacher and permit him to work as such and grant him seniority, arrears of salary and other consequential benefits for which he is entitled for.
C. To pass any other suitable order or direction which this Hon'ble Tribunal may deem fit and proper under the circumstances of the case.
D. To award the cost of the present O.A. in favour of the applicant."2
2. Brief facts of the case as stated in the OA are that the applicant applied for the post of Work Experience Teacher and was selected and consequently, he was given an offer of appointment dated 19.11.2008 to join as Work Experience Teacher in the pay scale of Rs.5500-9000 at Kendriya Vidyayala, Dinjan (Assam) under Kendriya Vidyalaya Sangathan (in short KVS) and as per the said offer of appointment, two years probation period was prescribed. In pursuance of the aforesaid offer of appointment, the applicant reported for duty on 2.12.2008 and continued to work till 12.12.2008.
3. It is further stated in the OA that Dinjan being a very cold station and the applicant was short of warm clothes, he obtained due permission from the Principal to get his leave sanctioned with effect from 13.12.2008 onwards. On reopening of school on 1.1.2009, the applicant could not join as the train in which he got his reservation done, was cancelled due to a major accident between Allahabad and Kanpur Station and the applicant was compelled to extend his leave to enable him fresh reservation. Somehow or other, applicant managed to reach Dinjan on 7.1.2009 and he reported for duty on 8.1.2009 morning in the School.
4. It is stated that although the applicant had sent a request explaining the Principal the compelling circumstances which prevented him to join his duties on 1.1.2009, but the Principal did not permit the applicant to join duty on 8.1.2009 and he was not allowed to enter into the school campus. Applicant humbly pleaded the Principal to at least permit him to join his duty and assured him that it would not be repeated in future. But the Principal refused to consider the request made by the applicant. Similar incident followed on 9th and 10th January 2009 as the applicant was not permitted to join his duties. On 10th January 2009, the applicant 3 telephonically informed Asstt. Commissioner and apprised him of the entire situation followed by a representation dated 10.01.2009 (Annexure A-6), mentioning the entire facts and that he was not permitted to join his duties. He also submitted another representation dated 10.01.2009 (Annexure A-7) to the Principal. Since the applicant was not permitted to join his duties and the Principal was unnecessarily harassing him without any rhyme or reason, therefore, in order to make his presence at Dinjan and to bring it on record he also lodged an FIR at Police Station, Dinjan. Later on, having no alternative left, applicant returned to Kanpur on 11.1.2009. It is stated that on his return to Kanpur, the applicant fallen ill and was running very high fever due to mental trauma.
5. Thereafter, it is stated that the applicant received a letter dated 30.4.2009 purported to be issued by Asstt. Commissioner alleging therein that applicant is absenting himself from his duty and as such he was directed to join immediately or else disciplinary action will be initiated as per KVS Rules. Immediately, thereafter applicant reported for duty on 19.5.2009.
6. According to the applicant, this time applicant was assured by the Principal that since the college was closed due to vacation, applicant cannot join and he was instructed to join on 22.6.2009, i.e., the opening day of school after summer vacation. In order to show his presence, the applicant has annexed his journey ticket (Annexure A-12) along with receipt of certain grocery purchases by him in the Army Canteen. Thereafter, the applicant was shocked to receive another letter dated 28.5.2009 (Annexure A-13), purportedly issued under Article 81 (D) of Education Code, alleging therein that applicant has abandoned his services and thereby provisionally lost his lien and as such he was 4 directed to make a representation within 10 days otherwise applicant would be deemed to be removed from service.
7. It is further submitted in the OA that the Principal did not inform the Asstt. Commissioner regarding reporting for duty by the applicant earlier on 19th May 2009 and as such Asstt. Commissioner had no idea to the facts that in pursuant to his letter dated 30.4.2009, applicant had already reported for duty on 19.5.2009. However, in response to the aforesaid letter dated 28.5.2009, the applicant made his detailed representation dated 5.6.2009 (Annexure A-14) addressed to Asstt. Commissioner (respondent No. 3).
8. It is stated that even from a perusal of order dated 30.4.2009 and 28.5.2009, it would be clear that applicant has reported for duty on 8.1.2009 and he is alleged to be absenting himself since 8.1.2009 but in fact even on 8.1.2009, Principal did not permit him to join his duties. On receipt of the letter dated 28.05.2009, the applicant went to Silchar to personally meet the Assistant Commissioner (respondent No.3) alongwith his representation dated 15.06.2009 (Annexure A-15) and apprised him of the entire situation with the applicant at Dinjan. Applicant also handed over a representation to him containing the details. The respondent no.3 assured him that he would talk to the Principal and directed him to join his service at Kendriya Vidyalaya, Dinjan on 22.6.2009.
9. It is stated in the OA that pursuant to aforesaid, the applicant reported for duty on 22.6.2009, but the applicant was not permitted to join his duties. But subsequently the Principal permitted him to join the duties and the applicant worked as such upto 25.6.2009. On 25.6.2009, Principal directed him to sign some blank pages and obtained his receipt on certain orders which were received from the office of respondent no.3. Principal 5 was also of the view that since applicant did not submit any reply to the order dated 28.5.2009 (Annexure A-13) passed by Assistant Commissioner (respondent No. 3), he has no right to be continued on the post of Work Experience Teacher and therefore in response to the order dated 28.5.2009, the services of the applicant stands terminated. The Principal cancelled the entire joining of the applicant from 22.6.2009 to 25.6.2009 on the ground that applicant was erroneously permitted to join though otherwise he was not entitled for it. It is stated that the Principal of the college also cancelled the attendance of the applicant from 22nd June to 25th June 2009 from the attendance register. However, at the same time, the Principal informed that the applicant did not make any reply to the letter dated 28.5.2009 issued by the Asstt. Commissioner. Thereafter, the applicant immediately preferred a representation dated 25.6.2009 in response to which the applicant was informed vide letter dated 14.7.2009 (Annexure A-16) issued by the Senior Administrative Officer of KVS, New Delhi, whereby applicant was directed to file an appeal against the order dated 28.5.2009 to the appellate authority.
10. Thereafter on 8.8.2009, applicant preferred an appeal to the appellate authority (Annexure A-17). He also received another letter dated 19.8.2009 (Annexure A-1), whereby he was informed that the services of the applicant stands terminated after completion of one month. It is stated that this is a non-speaking order, passed without considering the appeal of the applicant.
11. Against the aforesaid order dated 19.8.2009, the applicant preferred an appeal dated 9.9.2009 (Annexure A-18) to the appellate authority. Then the applicant received a letter dated 10.11.2009 (Annexure A-2) in response to his appeal dated 8.8.2009, wherein it was stated that no appeal is maintainable and as such the same was rejected. It is further 6 stated by the applicant, although in terms of provisions of Article 81(D) read with Para 7 of Education Code, appeal provision is available, yet his appeal dated 9.9.2009 has been rejected. As such the order passed by the appellate authority is liable to be rejected on this ground alone. Moreover, in the order dated 10.11.2009, no reasons have been mentioned by the appellate authority for rejection of his appeal. Thereafter, the applicant preferred a representation dated 12.5.2010 (Annexure A-21) to the respondents. However, the applicant received a letter dated 15/18.6.2010 (Annexure A-3) in response to his representation dated 6.3.2010, whereby the applicant was informed that against the termination order dated 19.8.2009, no appeal lies nor there is any provision of reconsideration of termination order during probation period.
12. The applicant also preferred a representation dated 6.3.2010 in the form of revision (Annexure A-19) under Schedule-II read with Appendix-III of K.V.S. Code. Thereafter, the applicant had preferred an OA No. 683/2010. The said OA was disposed of by this Tribunal vide Order dated 10.5.2010 (Annexure A-20), whereby the applicant was directed to file a representation / reply to the show cause notice dated 28.5.2009 and respondents were directed to decide the same by passing a reasoned and speaking order within two months. In response to his representation dated 12.5.2010, the applicant received a letter from the office of respondent no.3 dated 2.7.2010 (Annexure A-4), stating that the show cause notice was void ab-initio invalid which has been withdrawn vide order dated 19.8.2009 since the applicant being on probation was having no lien and that the respondents have considered the representation dated 12.5.2010 and found that the applicant had not given any convincing reasons for his absence for such a long time, rather he had put false allegation against the controlling officer, i.e., Principal, which are baseless and emphatically 7 denied. Accordingly, the said representation was rejected by the respondents vide order dated 2.72010 (Annexure A-4).
13. It is further stated in the OA that the order dated 19.8.2009 was not a show cause notice as alleged in the order dated 2.7.2010 but it is an order of termination and further show cause notice under 81 (D) was issued to the applicant on 28.5.2009 against which appeal has also been rejected arbitrarily, without assigning any reason and as such it cannot be alleged to be issued erroneously and void ab-initio nor any such stand has ever been contended by the respondents and as such the order dated 2.7.2010 is liable to be quashed on this ground alone.
14. It is stated in the OA that the order dated 2.7.2010 is liable to be quashed inasmuch as it was erroneously mentioned therein that applicant attended the school only for nine days. In fact even after the dates mention in the said order, applicant went to Dinjan and reported for duty on 8.1.2009 onwards but he was not permitted by the Principal to attend the school. Further the applicant also attended the school from 22 nd June to 25th June 2009 and during these four days the applicant had also taken the classes but after four days, very unceremoniously and arbitrarily applicant was prevented from joining the school and literally he was thrown out of the school by the Principal for no reason.
15. It is further stated by the applicant that while passing the order dated 2.7.2010, respondent no.3 failed to consider that there is several other evidence on record which shows beyond doubt that applicant has every time went to Dinjan and Silchar and tried the school but he was illegally and unlawfully prevented by the Principal in doing so otherwise there was no reason for him to go to Dinjan from Kanpur. 8
16. Pursuant to notice issued, the respondents have filed their counter reply in which it is stated that applicant deliberately and wilfully left the station without any prior information/permission from the controlling officer, i.e., Principal. Question of sanction of leave to the applicant does not arise at all as the applicant did not even inform about his leaving the station. The respondents further stated that applicant was seen in the Vidyalaya on 8.1.2009, but he did not sign the attendance register nor reported for duty nor produced any joining report. After joining, he only attended school for 9 days upto 12.12.2008. The applicant was given temporary accommodation in the guest room of the Vidyalaya. It is further stated that applicant himself did not report for joining.
17. The respondents further stated that on receipt of information from the Principal, K.V., Dinjan that applicant was absconding from Vidyalaya, he was directed to join his duty immediately vide order dated 30.4.2009 but even then he did not join. Therefore, the competent authority issued show cause notice under Article 81 (d) of the Education Code for Kendriya Vidyalaya but the same was subsequently withdrawn vide order dated 19.8.2009 as his services were not governed by Article 81(d) of the Education Code, as he was a probationer. Further vide order dated 19.8.2009, the services of the applicant was terminated in terms of clause- 5 of his offer of appointment as at the relevant time he was a probationer. Since the show cause notice dated 28.5.2009 under Article 81(d) of Education Code was withdrawn vide order dated 19.8.2009, question of consideration of appeal against the show cause notice dated 28.5.2009 did not arise. The applicant being a probationer, his services were governed under the terms of offer of appointment. Article 81 (d) of the Education Code was not applicable in the case of applicant as the same is applicable to permanent employees of KVS only. Therefore, the question of filing of appeal under the said provision did not arise. 9
18. Respondents further stated in their Counter that the applicant being a probationer did not have any lien on his post. Therefore, the show cause notice dated 28.5.2009 was ab initio null and void which has since been withdrawn vide letter dated 19.8.2009. Without referring to the same, the applicant filed OA 683/2010 before this Tribunal. The representation submitted by the applicant dated 12.5.2010 was rejected as the competent authority did not find any convincing reason for his unauthorized absence for such a long period rather the applicant has put false allegation against the Principal to the effect that the Principal did not permit him to join duty which was totally incorrect, baseless.
19. The applicant has also filed his rejoinder affidavit in which besides reiterating the averments made in the OA and denying the averments made by the respondents in their counter affidavit, further stated that it is admitted by the respondents that applicant was seen in the Vidyalaya on 8.1.2009 and further the Principal, who had seen the applicant in the Vidyalaya, never issued any letter to the applicant or asked him to join duty or sign the attendance register on 8.1.2009.
20. It is further stated by the applicant that the distance between Kanpur and Dinjan is about 2000 Kms. and since admittedly the applicant was alleged to have been seen roaming in the school premises on 8.1.2009 he would not travel 2000 km for not joining the duty. This establishes beyond doubt that applicant reported on 8.1.2009, 9.1.2009 and 10.1.2009, but he was not permitted to join his duties for the reasons best known to respondent no.4. The applicant remained at Dinjan from 8.1.2009 to 10.1.2009 but was not permitted to join his duties, nor Principal had provided any accommodation to the applicant and having no alternative left, in spite of reporting the facts to Asstt. Commissioner on 10 10.1.2009 and in order to make presence at Dinjan and to bring it on record, he also complained to local police station through Regd. Post (Annexure RA-2 to the rejoinder).
21. It is also stated in the Rejoinder that it is admitted by the respondent that the applicant's service were terminated because of not reporting for duty. However, it is fact that Principal prevented him from joining and did not report the facts to the higher authorities as the applicant was at Dinjan and was sending letter to respondents. The applicant reported at KV Dinjan on 19.5.2009 in response to letter dated 30.4.2009 and asked to join on 22.6.2009 after re-opening of the School. The applicant again reported for duty on 2.6.209, but the Principal did not inform higher authorities. Then on 25.6.2009, his joining was cancelled by the Principal.
22. It was denied in the rejoinder that the applicant was absconding from duty rather he was always eager and wanted to perform his duties sincerely but he was not permitted to do so by the Principal of the Vidyalaya due to his ulterior motives and his biased attitude for the reasons best known to him. The Principal did not give any reply to the applicant's representation dated 5.06.2009 (Annexure A-14), which was sent through speed post by him and postal receipt is attached in the O.A. As such there was no justification for the respondents to terminate the appointment of the applicant under Clause 5 vide letter dated 19.08.2009 (Annexure A-1) and the same is arbitrary and unjustified.
23. Applicant further stated that from the action of the respondents, it is established that initially the removal order was issued under 81(D) of Education Code for unauthorised absence but as soon as entire case reached before the respondents, it was found that such termination is 11 made by the Asstt. Commissioner after show cause notice. After issue of notice by this Tribunal, Assistant Commissioner stated that the show cause notice was wrongly issued to the applicant. It is stated that Article 81(D) is applicable for the probationers also.
24. The respondents have also filed their supplementary counter reply in which, besides reiterating the averments made in the counter affidavit and denying the contents of the rejoinder affidavit, it was stated that no leave application has been received from the applicant for sanction of leave and station leaving permission. Nothing has been concealed or tempered. It is further stated that Dinjan is not a very cold station. The applicant left the station on 12.12.2008 without any information or permission from the authority whereas the school was going to be closed on 23.12.2018 for winter vacation, which shows that applicant was least interested in his job. Further, after inquiry/verification, it was found that there is no such FIR or complaint lodged by the applicant in Police Station. The statement of the applicant that he was present on 8.1.2009, 9.1.2009 and 10.1.2009 in the Vidyalaya is denied as he neither reported to the Principal for joining nor submitted any joining report before the Principal. The allegation that the Principal, K.V. Dinjan did not permit him to join is baseless, since the applicant did not approach the Principal for providing him accommodation, the question of providing accommodation to the applicant does not arise at all.
25. The respondents further stated that the copy of Railway Tickets and receipt from canteen for purchase of grocery do not prove that the applicant reported to the Vidyalaya on 22.6.2009. It was further averred that applicant did not report to the Vidyalaya on the opening of the school on 22.6.2009. He neither produced any medical report of his illness nor fitness certificate on 22.6.2009 after opening of school. The railway tickets 12 etc do not prove that he had come to school. Further, reporting to Regional Office, Purchasing SIM Card and staying at Kushumananda Hotel at Silchar do not prove his willingness to join his duties at Kendriya Vidyalaya, Dinjan on 22.6.2009 after the summer vacation. The applicant was given opportunity to join his duty vide this office order dated 30.4.2009 but he did not turn up for duty and considering his negligence in duty and irreparable academic loss to the children of the Vidyalaya, his services were terminated under Clause 5 of the offer of appointment of the applicant.
26. Lastly, it was submitted by the respondents that although applicant joined in KVS on 2.12.2008 and worked for only 09 working days for which he was paid, but he has annexed two days teaching diary only, i.e., for 4th and 5th December 2008 whereas he has claimed that he had continuously reported and attended the Vidyalaya. The allegations allegation of the applicant that he had signed the attendance register on various dates and his signatures were scored out and his joining on 25.6.2009 has been cancelled by the Principal are baseless. The respondents further submitted that applicant in his representation dated 12.5.2010 has not given any convincing reason for his absence for such a long time, rather he had put false allegations against his controlling officer, i.e., Principal. As such applicant's representation dated 12.5.2010 was rejected and was disposed of vide order dated 2.7.2010.
27. We have heard learned counsels for the parties and have carefully perused the materials placed on record. Learned counsels by and large reiterated the respective stands taken in the pleadings. Applicant's counsel submitted copy of a judgment of Hon'ble Supreme Court in the case of Anoop Jaiswal vs. Government of India and Another reported in 13 1984 AIR 636. Learned counsel for the respondents also submitted copy of the judgments in the following cases in support of their case:-
i. 2005 (105) FLR 66 - Municipal Committee, Sirsa vs. Munshi Ram ii. (2005) 5 SCC 569 - State of Punjab and others vs. Sukhwinder Singh iii. WP (Civil) No. 18599 of 2005 - Vijay Rajpal vs. Union of India & Anr.
(Hon'ble Delhi High Court)
28. The applicant's allegation is that he was not allowed by the Principal to join duty from 8.1.2009 - 10.1.2009 and on subsequent dates. The respondents allege that the applicant went on leave without prior permission and he did not submit joining report although he was found in the Vidyalaya on 8.1.2009 and that the applicant; being on probation, his services are rightly terminated as per the terms and conditions of his appointment order. In this context, the relevant question to be decided in this case is:-
(i) Given the circumstances of the case, whether the action taken by the respondents to terminate the services of the applicant who was on probation, is in accordance with the law?
29. The applicant has stated that he proceeded on leave after approval of the Principal, which the respondents deny. The applicant has not produced any document in support of his contention that he obtained Principal's approval before proceeding on leave. No document has also been produced by the respondents to issue a suitable instruction/ memorandum to the applicant as to the reason for which he had left the Vidyalaya after 12.012.2008 without obtaining required permission. It is noted that the respondents had the home address of the applicant in Kanpur, the address in which the appointment letter was issued (Annexure A-5). Efforts, if any, made by the Principal or the authorities to contact the applicant through a letter or telephone immediately after he failed to report for duty after 12.12.2008 have not been mentioned in the pleadings. There is no evidence furnished by the respondents to indicate if action was taken 14 by the Principal when he found that the applicant is not reporting for duty after 12.12.2008. Even if no effort was made by the Principal to contact the applicant after 12.12.2008, when the applicant was seen in the Vidyalaya on 8.1.2009 as stated in para 8 of the Counter, no effort was made by the Principal to find out why he was not joining and if he was having some problem. From the pleadings of the respondents it would appear that no such effort was made by the respondents till a letter was issue on 30.04.2009 instructing the applicant to join. If an employee remains absent without leave in unauthorized manner, the immediate, superior authority generally issues a warning to rectify his conduct, before proceeding to take coercive action as per the rules.
30. If the applicant continued to remain absent without written permission or leave as contended by the respondents, no action was taken by the Principal as the pleadings of the respondents do not indicate if the Principal had initiate any action till 30.04.2009 i.e. after more than four months of alleged unauthorised absence. Further, there is nothing on record to show that the Principal has submitted any report about unauthorised absence of the applicant to his superior authority i.e. Assistant Commissioner (respondent No.3). The contention of the applicant is that he was not allowed to join duty on 08.01.2009 and was denied entry into the school campus to the applicant as stated by him in his representation dated 10.01.2009 to the respondent No. 3 (Annexure A-
6). The applicant made a representation dated 10.01.2009 (Annexure A-
7) to the Principal also on which the Principal did not submit any report to respondent No. 3. Submission of these representations by the applicant has not been specifically denied by the respondents, although the contentions in the concerned para in the OA have been generally denied. These facts alongwith the contention in the counter that the applicant was seen in the School premises on 08.01.2009, imply that the contention of 15 the applicant that he was not allowed to join duties from 08.01.2009 to 10.01.2009. Further, in response to the letter dated 30.04.2009, the applicant stated that he went to the school on 19.05.2009 to join immediately. He met the Principal, who asked him to come after re- opening of the school after summer vacation on 22.06.2009. This contention about the meeting the Principal on 19.05.2009 has not been specifically denied in the pleadings of the respondents. Then the letter dated 28.05.2009 (Annexure A-13) was issued by the respondent No. 3 to the applicant under Article 81(D), which states as under:-
"KENDRIYA VIDYALAYA SANGATHAN Regional Office, Silchar (Ministry of HRD, Department of Education) Govt. of India Captain N.M. Gupta Sarani (Near Lion's Eye Hospital) SILCHAR, ASSAM - 788001 Website :www.kvsroslichar.com No. F29064/2009-KVS (SR)/ 1957 - 61 Dated: 28.5.2009 SPEED POST Sub: Order of Provisional loss of Lien on post held show- cause notice under Article 81 (D) of the Education Code of Kendriya Vidyalaya for confirmation thereof.
Shri Sanjay Singh, WET, KV, Dinjan is hereby informed that he remained absent from 08.01.2009to till date without sanctioned leave or beyond the period of leave originally granted or subsequently extended. As Shri Sanjay Sing, WET, has neither reported for duty within the period of 15 calendar days nor satisfactorily explained the reasons for his absence in terms of sub clause (1) of clause (D) of article 81 of the Education Code, he is deemed to have Voluntarily abandoned his service and thereby provisionally lost lien on his post.
As required under sub-cause (3) of clause (D) of Article 81, of the Education code this order is hereby made recording the factum of Voluntary Abandonment of Service by Shri Sanjay Singh, WET, and provisional loss of his lien on the post held by him and the same is hereby communicated to him accordingly.
As further required under sub-cause (3) of clause (D) of Article 81, Shri Sanjay Singh, WET, is hereby given the opportunity to Show Cause as to why the aforesaid order of provisional loss of lien should not be confirmed.
Shri Sanjay Sisngh, WET, KV, Dinjan may make written representation to the under-signed within 10 (ten) days of the receipt of this order failing which an order shall be passed confirming loss of lien on the post held by him and, in that case, he shall be deemed to have been removed from the service of the Kendriya Vidyalaya Sangathan as per the provisions of Article 81 (D) of the Education Code for Kendriya Vidyalayas.
Sd/-
(K.J SUBBA) ASSISTANT COMMISSIONER To Shri Sanjay Singh, WET, S/o Shri Lal Bahadur Singh, House No. 151, ME Singh Story, Hemant Bihar Bara-2, Kanpur, U.P. 208027"
16
31. In the case of Municipal Committee, Sirsa (supra) cited by the learned counsel for the respondents, s Hon'ble Supreme Court has held as under:-
"9. This law laid down by a three Judges bench of this Court also shows that if an employer discharges the services of a probationer on the ground that his services are unsuitable, it does not cast any stigma on the employee nor it is punitive, in such cases even the principle of natural justices does not apply and there is no need for formal proceedings of inquiry before making such order. In Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences & Anr. this Court again considering a similar case held;
"One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld."
10. From the above, it is seen that in the absence of the three facts as mentioned therein, namely,
(a) a full-scale formal enquiry;
(b) into allegations involving moral turpitude or misconduct which;
(c) culminated in a finding of guilt the termination cannot be held to be bad.
11. This Court in the said case of Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences & Anr. (supra) further held:
"It cannot be held that the enquiry held prior to the order of termination turned the otherwise innocuous order into one of the punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A charge-sheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. None of the three factors catalogued above for holding that the termination was in substance punitive exists in the present case.
An affidavit cannot be relied on to improve or supplement an order. Equally, an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order."
12. From the above, it is clear assuming that there was some sort of misconduct, as noticed in the evidence of the witnesses of the management in the cross-examination, the same could not be used as evidence by the Labour court or by the Appellate court for coming to the conclusion that an order of termination which is otherwise simplicitor in nature is motivated by any consideration other than the decision of the management as to the satisfactory nature of the workman concerned." In this OA, the respondents had initiated action against the applicants under Article 81(D) of the Education Code by issuing show cause notice dated 28.05.2009 on the allegation of abandonment of service. Article 81 17 (D) of the Education Code is punitive provision. The applicant was advised in the letter dated 14.07.2009 (Annexure A-16) to file appeal against the show cause notice dated 28.05.2009 to him. Thereafter, the action under Article 81(D) against the applicant was dropped on 19.08.2009 as stated by the respondents in their pleadings and on the same day, the impugned order dated 19.08.2009 terminating of applicant's services was issued (Annexure A-1). No such background of initiation of penal proceedings was there in the cited case. Hence, the findings in the case will not be applicable to the present case. Other two judgments cited by the learned counsel for the respondents are distinguishable on facts from the present case. In the case of State of Punjab and others v Sukhwinder Singh (supra), the employee concerned was dismissed after 22 days of continuous absence. In the case of Vijay Rajpal (supra), no allegation of any misconduct was made against the employee, whose service was terminated on the ground of unsatisfactory performance.
32. Learned counsel for the applicant has submitted the judgment of Hon'ble Supreme Court in the case of Anoop Jaiswal vs. Government of India & Anr reported in 1984 AIR 636. In this case, the employee was a probationer whose services were terminated. But prior to termination, a show cause notice was issued alleging a specific misconduct. Hon'ble Supreme Court held as under:-
"In the instant case, the period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the Gymansium acting as one of the ring leaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries- were made behind the back of the appellant, only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ring leaders were not seriously taken note of. Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the' file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If. On reading the two 18 together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided ill Article 311(2) of the Constitution.
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A narration of the facts of the case leaves no doubt that the alleged act of misconduct on June 22, 1981 was the real foundation for the action taken against the appellant and that the other instances stated in the course of the counter affidavit are mere allegations which are put forward' only for purposes of strengthening the defence which is otherwise very weak. The case is one which attracted Article 311(2)of the Constitution as the impugned order amounts to a termination of service by way of punishment and an enquiry should have been held in accordance with the said constitutional provision. hat admittedly having not been done, the impugned order is liable t be struck down. We accordingly set aside the judgment of the High Court and the impugned order dated November 5, 1981 discharging the appellant from service. The appellant should now be reinstated in service with the same rank and seniority he was entitled to before the impugned order was passed as if it had not been passed at all. He is also entitled to all consequential benefits including the appropriate year of allotment and the arrears of salary and allowances upto the date of his reinstatement. The appeal is accordingly allowed."
33. It is seen that in this case prior to issue of the termination order dated 19.08.2009, the respondents had initiated action against the applicants under Article 81(D) of the Education Code by issuing show cause notice dated 28.05.2009. Article 81(D) is a punitive provision leading to termination of services, which states as under:-
"(D) VOLUNTARY ABANDONMENT OF SERVICE
1. If an employee has been absent/ remains absent without sanctioned leave or beyond the period of leave originally granted or subsequently extended, he shall provisionally lose his lien on his post unless:-
a) He returns within fifteen calendar days of the commencement of the absence or the expiry of leave originally granted or subsequently extended , as the case may be : and
b) Satisfies the Appointing Authority that his absence or his inability to return on the expiry of the leave, as the case may be , was for reasons beyond his control. The employee not reporting for duty within fifteen calendar days and satisfactorily explaining the reasons for such absence as aforesaid , shall be deemed to have voluntarily abandoned his service and would , thereby , provisionally lose lien on his post.
......................................................................
5. The Appointing Authority may, on receipt of the representation, if any, and on perusal of materials available on record as also those submitted by the employee, grant, at his discretion, an oral hearing to the employee concerned to represent his case.
6. If the Appointing Authority is satisfied after such hearing that the employee concerned has voluntarily abandoned his service in terms of the provisions of sub- clause (1) of this Article, he shall pass an order confirming the loss of employee's lien on his post, and in that event, the employee concerned shall be deemed to have been removed from the service of the Kendriya Vidyalaya Sangathan with effect from the date of his remaining absent. In case, the Appointing Authority is satisfied that the provisions of sub- clause (1) of clause (D) of this Article are not attracted in the facts and circumstances of the case, he 19 may order re- instatement of employee to the post last held by him, subject to such directions as he may give regarding the pay and allowances for the period of absence.
................................................................................................................." Further, the applicant was advised in the letter dated 14.07.2009 (Annexure A-16) to file appeal against the show cause notice dated 28.05.2009 to him. The applicant had filed an appeal dated 8.08.2009 (Annexure A-17). In reply to the appeal, the letter dated 10.11.2009 (Annexure A-2) was issued to the applicant stating as under:-
"...............In terms of the Article 81(D) read with para 7 of Education Code provides the opportunity to the aggrieved employee to prefer an appeal to the Appellate Authority under sub clause (6) of the Article 81(D) of Education Code. As such, under the provision, the appeal of said Shri Sanjay Singh ex-Music Teacher KV Dinjan (Silchar) against the show cause notice does not lie."
Thereafter, the action under Article 81(D) against the applicant was dropped on 19.08.2009 as stated by the respondents in their pleadings and on the same day i.e. on 19.08.2009, the impugned order dated 19.08.2009 for termination of applicant's service was issued (Annexure A-
1) stating as under:-
"Shri Sanjay Singh, WET is hereby informed that his services stand terminated on completion of one month hereof in terms of offer of appointment vide Memorandum No. F-29053(Misc)/2008/KVS(SR)/188- 72-74 dated 19.11.2008."
The action taken by the respondents to drop the proceedings under Article 81(D) has been explained in the para 13 of the Counter reply, which states as under:-
"13. That content of paragraph no. 4.11 of the OA are not admitted hence denied. In reply it is submitted that on receipt of information from the principal K.V. Dinjan that Sanjay Singh (applicant) was absconding from vidyalaya, he was directed to join his duty immediately vide order dated 30.4.2009 but even then he did not join. Therefore, the competent authority issued show cause notice under Article 81 (d) of the Education Code for Kendriya Vidyalayas but same was subsequently withdrawn vide order dated 19.08.2009 as his services were not governed by Article 81(d) of the Education Code being a probationer."
In this case, as per the order dated 10.05.2010 of this Tribunal in OA No. 683/2010 (Annexure A-20), the applicant had submitted a representation dated 12.5.2010 which was rejected vide the order dated 2.7.2010, which 20 referred to non-applicability of Article 81(D) to the applicant. The order dated 2.7.2010 states as under:-
""KENDRIYA VIDYALAYA SANGATHAN Regional Office, Silchar (Ministry of HRD, Department of Education) Govt. of India Captain N.M. Gupta Sarani SILCHAR, ASSAM - 788001 Website :www.kvsroslichar.com No. F29064/2009-KVS (SR)/ 2820 - 24 Dated: 02.07.2010 SPEED POST MEMORANDUM Whereas, Shri Sanjay Singh was appointed as WET w.e.f. 02.12.2008 vide memorandum No F. 29053 (Misc)/2008/KVS (SR)/18872/74 dated 19.11.2008 at Kendriya Vidyalaya Dinjan;
Whereas, the said Shri Sanjay Singh attended the Kendriya Vidyalaya Dinjan only on 09 days on the following dates from the date of his joining till his services were terminated vide order No. F. 294/2009-KVS (SR)/5376-79 dated 19.08.2009 under Clause 5 of the Officer of Appointment;
02.12.2008, 03.12.2008, 04.12.2008, 05.12.2008, 06.12.2008, 08.12.2008, 10.12.2008, 11.12.2008 & 12.12.2008.
Whereas, the aforesaid Shri Sanjay Singh remained absent unauthorisedly for the remaining period w.e.f. his appointment till his termination.
Whereas, the said Shri Sanjay Singh was inadvertently treated as permanent / confirmed employee and a Show Cause Notice dated 19.08.2009 under Article 81(D) of the Education Code was issued to him to show cause as to why the order of provisional loss of lien on his post should not be confirmed against him;
Whereas, the said Shri Sanjay Singh was a probationer. Hence he did not have any lien on his post as such the said Show Cause Notice has been ab-nitio null and void which has since been withdrawn vide order No. F.29064/2009-KVS(SR)/5380-81 dated 19.08.2009 without referring the same the said Shri Sanjay Singh filed an O.A. No 683/2010 before the Hon'ble CAT, Allahabad Bench;
Whereas, misleading the Hon'ble CAT, he succeeded to get the order dated 10.05.2010 passed, the operative part of which is reproduced below:
"It is seen from the record that against the show cause notice dated 28.05.2009 (annexure A-10), applicant has not filed any reply. Learned counsel for the applicant submitted that the applicant may be given short time to file reply against the show cause notice, and concerned authority in the respondents' establishment be directed to decide the same within the stipulated period. Accordingly applicant is directed to file reply against the show cause notice within a period of two weeks from the date of receipt of a certified copy of this order, and if the reply is filed within the stipulated period, the competent authority in the respondents' establishment is directed to decide the same by passing a reasoned and speaking order within a period of two months after receipt of reply along with certified copy of this order".
Whereas, in compliance of the Hon'ble CAT's order referred to above, his representation dated 12.05.2010 has been considered;
Whereas, it has been observed that the said Shri Sanjay Singh in his representation dated 12.05.2010 has not given any convincing reason for his absence for such a long time rather the said Shri Sanjay Singh has put false allegation against his Controlling Officer i.e. Principal which are baseless and emphatically denied;
21
Now, therefore, the representation dated 12.05.2010 submitted by the said Shri Sanjay Singh is rejected and the same stand disposed of in terms of the said order of the Hon'ble CAT, Allahabad Bench.
Sd/-
(K.J. SUBBA) ASSISTANT COMMISSIONER To Shri Sanjay Singh Ho. No. 151, ME Single Storey, Hemant Vihar, Barra - 2 Kanpur - 208027"
34. It is contended by the applicant that he met the respondentNo.3 at Silchar and based on the representation dated 15.06.2009 submitted by him to the respondent No. 3, he was allowed to join duty by the Principal on 22.06.2009, but his joining was subsequently cancelled on 25.06.2009 by the Principal without communicating any order to the applicant. These contentions of the applicant including his meeting the respondent No.3 with the representation dated 15.06.2009 have not been specifically denied by the respondents, although his joining duty on 22.06.2009 has been denied by the respondents who are silent about the representations dated 5.6.2009 and 15.6.2009 etc. sent by the applicant on which no reply was sent to the applicant. It is also a fact that the applicant did not submit any joining letter formally as contended by the respondents. But as the applicant was appointed for the first time, and given the circumstances of the case, the applicant cannot be faulted for failure to formally submit a joining report, as he was physically present in the school on 8.1.2009 as stated in the Counter. Further, the show cause notice dated 28.05.2009 (Annexure A-13) issued to the applicant mentions unauthorized absence of the applicant from 8.1.2009, not from 12.12.2008 as stated in the Counter. Hence, there are internal contradictions in the pleadings of the respondents. In view of above, we are inclined to consider the contention of the applicant that he had gone to Vidyalaya on 8.1.2009, 9.1.2009 and 10.1.2009, but he was not allowed to join the duty and his joining on 22 22.06.2009 and cancellation of his joining on 25.06.2009 as claimed by the applicant to be reliable and correct.
35. Clearly, there was a background of alleged misconduct of the applicant in this case, on which action was initiated under Article 81(D) of the Education Code, but subsequently, such action was dropped on 19.8.2009 and the termination order was issued on the same day, i.e. 19.08.2009 treating the applicant as a probationer. Applying the principles laid down by Hon'ble Apex court in the case of Municipal Committee, Sirsa (supra), for the termination order to be punitive, as quoted in para 31, we find that in this case there is initiation of proceedings to establish the allegation of voluntary abandonment service with show cause notice under Article 81 (D) and finding on the charge was there as would be clear from para 13 of the Counter and order dated 02.07.2010 (a extracted in para 34) reiterating the charge of unauthorized absence / voluntary abandonment of service and no inquiry was required to be conducted before such findings under Article 81(D) of the Education Code. Further, the judgment in the case of Anoop Jaiswal (supra) cited by the learned counsel for the applicant would cover the case of the applicant in this case. Hence, considering the facts and circumstances of this case, we are of the view that the action taken against the applicant is punitive in terms of the ratio of the judgments of Hon'ble Supreme Court as referred above.
36. From above discussions, since the impugned order dated 19.08.2009 terminating the service of the applicant is found to be punitive, there has been violation of the Article 311 of the Constitution of India as the applicant's service has been terminated without following the procedure as laid down under the law. Further, as the sequence of events would show, the action under Article 81 (D) of Education Code was not sustainable, since the applicant was not allowed to join duty on 23 08.01.2009 and his joining on 22.6..2009 was cancelled by the Principal (respondent No. 4) without communicating any order to the applicant. Hence, the termination of the service of the applicant vide the impugned order dated 19.08.2009 is not in accordance with the law and hence it is illegal. The question No. (i) of para 28 is answered accordingly.
37. In the circumstances, the action taken by the respondents against the applicant to terminate his services is illegal and the impugned order of termination the applicant's service and related orders are liable to be set aside and quashed. Accordingly, the impugned orders dated 19.08.2009 (Annexure A-1), dated 15/18.6.2010 (Annexure A-3) and dated 2.7.2010 (Annexure A-4) are set aside and quashed. We are also of the view that relief is similar to the relief extended by Hon'ble Apex Court in the case of Anoop Jaiswal (supra). Therefore, the respondents are directed to reinstate the applicant in service as per his appointment order with all consequential benefits of service to which the applicant is entitled as per the rules, within three months from the date of receipt of a copy of this order.
38. The OA is allowed as above. There shall be no order as to costs.
(G o k u l C h a n d r a P a t i ) (Justice Dinesh Gupta)
Member (A) Chairman
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