Central Administrative Tribunal - Delhi
Dr. Punita K. Sodhi vs Union Of India on 6 January, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.1895/2009
CP No.408/2009
MA No.1371/2009
MA No.1560/2009
MA No.2194/2009
New Delhi, this the 6th day of January, 2010
HONBLE MR. JUSTICE V.K.BALI, CHAIRMAN
HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A)
Dr. Punita K. Sodhi,
W/o Shri Hardeep Sodhi,
R/o C-7/164, Safdarjung Development Area,
Hauz Khas,
New Delhi-110016 Applicant
(Appeared in person)
Versus
1. Union of India, through
The Secretary,
Ministry of Health and Family Welfare,
Nirman Bhawan,
Maulana Azad Road,
New Delhi-110011
2. The Secretary,
Department of Personnel & Training,
North Block, New Delhi.
3. The Secretary,
Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi Respondents
(Through Shri Parag P. Tripathi, ASG with Shri V.S.R. Krishna and Shri
Vaibhav Joshi, Advocates for respondents 1&2
Shri J.B. Mudgil, for respondent no.3)
ORDER
Mr. L.K.Joshi, Vice Chairman (A) While the Applicant, Dr. Punita Kumari Sodhi, was contesting the extension of her probation by 78 days, on which days she was on leave on medical ground, in OA number 1905/2007, the first Respondent, Ministry of Health and Family Welfare (hereafter MH&FW), discharged her from service by an order dated 15.07.2009 with immediate effect (Annex A-1). The same order was repeated by the Lady Hardinge Medical College (hereafter LHMC), where the Applicant was working as Assistant Professor of Opthalmology, on the same day. These orders are assailed in this OA and the following reliefs have been prayed for:
1. To quash the letter No. A. 12034/15/2009-CHS-III, dated July 15, 2007 from respondent Ministry and F. No. 6-10/2007-ADMN-I, dated July 15, 2009 from Lady Hardinge Medical College, which is conveying termination of services of Dr. (Smt.) Punita K. Sodhi, Assistant Professor (Opthalmology), LHMC, New Delhi and all its consequential actions and, allow the applicant to continue to work on the post of Teaching Specialist in Opthalmology, at Lady Hardinge Medical College.
2. To call for the records of the files of the applicant relevant to this document.
3. To modify the OM No. A 12025/6/2006-CHS III dated 30/03/2006 (appointment letter) in accordance with applicable rules.
To cancel the extension of probation of the applicant by 78 days at the post of TS.
5. To issue confirmation to the applicant in Central Health Services, MHFW w.e.f. Dec 22, 2005.
6. To initiate disciplinary action against the officers of the MHFW involved in arbitrary termination of the applicant and her incessant harassment.
7 To treat the intervening period from July 15, 2009 till date of reinstatement of applicant, as on service with all consequential benefits including salary and promotion.
8. To maintain lien for the applicant on previous post of NTS of the applicant.
9. Any other relief which this Honble Court may deem fit and proper in the facts and circumstances of the case. Facts of the Case
2. The Applicant was recruited to the post of Specialist Grade II (Opthalmology) in Non-Teaching Specialist (NTS) sub-cadre of the Central Health Service (hereafter CHS) by the Union Public Service Commission (hereafter U.P.S.C.) and was offered appointment to the aforesaid post by Office Memorandum (OM) dated 25.06.2004, issued by the first Respondent MH&FW. The OM, inter alia, contained the following condition:
(i) The post is temporary and she will be appointed on an officiating basis only. She will be on probation for a period of one year from the date of appointment which may be extended at the discretion of the competent authority. She will be considered for confirmation after she successfully completes the probation. During the period of probation she will be required to undergo such training as Government may prescribe. Failure to complete the period of probation to the satisfaction of the competent authority will render her liable to be discharged form service at any time without any notice and assigning any reason. After the satisfactory completion of the period of probation the termination of the appointment will be after giving one month notice on either side. The appointing authority, however, reserve the right of termination of her services forthwith or before the expiry of the stipulated period of notice by making payment to her of a sum equivalent to the pay and allowances for the period of notice or the unexpired portion thereof.
3. The Applicant was subsequently selected as Assistant Professor (Opthalmology) in the Teaching Sub-Cadre (TS) of the CHS, on the recommendation of U.P.S.C. and posted to JIPMER, Pondicherry by order dated 30.03.2006 (Annex R-I in the Counter Affidavit of the first Respondent). This OM, offering her the appointment to TS and posting her to JIPMER contained an identical condition as in the earlier OM, as quoted in the preceding paragraph. The Applicant gave technical resignation from the NTS post and joined as Assistant Professor in TS on 1.03.2007. The Applicant was given protection of pay, carry over of her earned leave/ half pay leave and counting of qualifying service of previous post in the new post, by virtue of her technical resignation from the previous post, by order dated 22.10.2007 (Annex 10). Meanwhile, by OM dated 28.09.2007, which is fully reproduced below, her probation was extended by 78 days by the first Respondent, i.e., MH&FW:
Subject: Dr. Punita Kumari Sodhi, Asstt. Professor (Opthalmology) Extension of Probation period.
The undersigned is directed to say that Dr. Punita Kumari Sodhi was appointed as Asstt. Professor in the speciality of Opthalmology in the teaching sub-cadre of Central Health Service and was posted at JIPMER Pondicherry. She joined JIPMER Pondicherry on 1.3.2007. Subsequently, on her request for her posting in Delhi and in view of the directions of the Honble CAT Principal Bench, New Delhi, she was given personal hearing and on that basis, her request was considered by the appropriate authority and she was temporarily deployed at VMMC & Safdarjang Hospital, New Delhi by temporarily diverting one post from JIPMER Pondicherry till such time a vacancy arises in Delhi in the speciality vide this Ministrys Order of even number dated the 9th July, 2007. In this order, it was stated that her temporary deployment would, however, be without prejudice to the disciplinary action to be initiated against her on account of her misconduct. Moreover, since she has not been attending to her duties at JIPMER Pondicherry, her probation period shall also stand extended to the extent of her absence on leave. The period of extended probation would be intimated separately.
As per records made available by Director, JIPMER Pondicherry. Dr. Sodhi remained on leave for a total period of 78 days (5 days Earned leave and 73 days Half pay leave) during her posting at JIPMER Pondicherry from 1.3.2007 to 12.7.2007. Accordingly, her period of probation of one year from 1.3.2007 stands extended by 78 days. Her completion of probation of one year from 1.3.2007 stands extended by 78 days. Her completion of probation of one year after taking into account the extended period shall be based on her performance during that period. The Applicant challenged the above quoted order of extension of probation in OA number 1905/2007. During the pendency of the OA number 1905/2007, her services were terminated by the impugned orders.
The Issues
4. During the course of submissions by both the parties in the OA, the following issues emerged for consideration:
(i) Would the Applicant be deemed to be automatically confirmed after one year of her appointment as Assistant Professor, TS on 30.03.2006, in the absence of any order extending her period of probation?
(ii) Would it be necessary to confirm the Applicant for the second time in her service after she had been confirmed in the Non-Teaching Sub-cadre (NTS) of the CHS, in which she was working before joining the Teaching Sub-cadre (TS) of the CHS and in which she had been confirmed by the first Respondent on 23.12.2005? Is there any need for repeated confirmation, even though she had only tendered technical resignation from that post? Would she be `on probation in the post in the Teaching Sub-cadre or a `probationer in that Sub-cadre?
(iii) Could the Respondent have extended the period of her probation, when her Annual Confidential Reports for the period pertaining to her probation were Very Good/Good and with several national as well as international research papers to her credit?
(iv) Is the order of termination illegal and against the mandate of Article 311 (2) of the Constitution of India, in as much as the Applicant has not been given any opportunity to defend herself? Was the first Respondent justified in placing the proposal for termination of the Applicants case before the Minister for the Health and Family Welfare, when the same proposal had been placed before the Minister of State, who was working in independent charge at that time, when the Cabinet Minister had resigned, and who had only extended her probation upto 28.02.2009 only? Could the filing of Original Applications before the Tribunal and Writ Petitions before the Honourable High Court, to protect her legitimate interests, be held against her in considering her termination of her service.
Arugments of the Applicant
5. The Applicant, who appears in person, has in her manifold arguments, contended at the outset that she had joined in the Teaching Sub-cadre of CHS as Assistant Professor on 1.03.2007. She was placed under probation for one year by the offer of appointment and logically her probation should have come to an end on 28.02.2008. Even if the extension by 78 days were to be considered to be legal, though the matter was under challenge in OA 1905/2007, her probation would end on 17.05.2008. The Applicant would be deemed to have completed her probation, at the most, by 17.05.2008. As per the instructions issued by the Department of Personnel & Training (DoP&T), the period of probation of an employee cannot be extended beyond twice the length of period of probation. The Applicant had completed more than two years of service, even if extension by 78 days were to be reckoned to be legal, on 15.07.2009, when the order of termination was passed. The Respondent MH&FW has not been able to cite any instruction from the Government in this regard. The Applicant had taken leave validly, as per the rules. However, in both the scenarios, the Applicants probation would have been completed and she would be deemed to have been confirmed before the order of termination dated 15.07.2009. It is contended by the Applicant that the decision to extend the probation should be taken soon after the expiry of the initial probationary period, that is within six to eight weeks, giving reasons for extension. Rule 10 of the Central Health Services Rules, 1996 reads thus:
10. Probation :
(1) Every officer appointed to the Service by direct recruitment shall be on probation for a period of one year except in the case of Medical Officer appointed in the grade of Rs.2200-75-2800-EB-100-4000/- who shall be on probation for a period of 2 years :
Provided that the Controlling Authority may extend the period of probation in accordance with the instructions issued by the Government from time to time in this behalf:
Provided further that any decision for extension of the period of probation of an officer shall be taken immediately after the expiry of initial period of probation and ordinarily within eight weeks and communicated in writing to the concerned officer together with the reasons for so doing within the said period.
(2) On completion of the period of probation or any extension thereof, officer shall, if considered fit for permanent appointment, be confirmed in terms of the extant order of the Government.
(3) If, during the period of probation or any extension thereof, as the case may be, Government is of the opinion that an officer is not fit for permanent appointment, Government may discharge the officer or revert him to the post held by him prior to his appointment in the Service, as the case may be. The probationer should be informed about her inadequacies. Since this was not done in the case of the Applicant, her probation would be deemed to have been confirmed. The OM of the Ministry of Home Affairs, (MHA) [earlier DOP&T was part of the MHA] number 44/1/59-Ests(A) dated 15.04.1959 has been cited in support of the above arguments, the relevant portion whereof have been reproduced below:
(vi) It would be desirable to have uniformity as regards the period of probation in different services and it is therefore recommended that the period of probation should normally be two years, but where there are any special reasons for prescribing a longer or shorter period, a suitable period may be fixed in consultation with the Cabinet Secretariat (Dept. of Personnel).
In some services, those appointed thereto by promotion are not kept on probation. Since performance in a lower service can only indicate an employees potentialities for a higher service, it is necessary that his suitability should be judged before he is confirmed in the higher service. It is, therefore, recommended that those promoted as well as the fresh entrants to a service should be kept on probation for a period of two years. The controlling authority may, however, have the discretion to count the period of successful officiation in the service as probationary period.
While the normal probation may certainly be extended in suitable cases, it is not desirable that an employee should be kept on probation for years as happened occasionally at present. It is, therefore, suggested that, save for exceptional reasons, probation should not be extended for more than a year and no employee should be kept on probation for more than double the normal period.
The decision whether an employee should be confirmed or his probation extended should be taken soon after the expiry of the initial probationary period, that is originally within six to eight weeks, and communicated to the employee together with the reasons in case of extension. A probationer who is not making satisfactory progress or who shows himself to be inadequate for the service in any way should be informed of his shortcomings well before the expiry of the original probationary period so that he can make special efforts at self-improvement. (emphasis supplied)
6. The Applicant, however, would further contend that she had already been deemed to have been confirmed earlier on 23.12.2005 in the non-Teaching Sub-cadre (NTS) of the CHS. The Applicant had only tendered technical resignation from the NTS and had been given the benefit of past service of the NTS. She was appointed to NTS by OM dated 25.06.2004. She has placed on record an assessment report from 23.12.2004 to 23.12.2005, containing remarks and recommendations to the reviewing Board, comprising Deputy Director General (M), Joint Secretary of the MH&FW and Secretary of the MH&FW. The Board has held her to be fit for confirmation (P. 526 of the paper book). The Applicant has also placed on record the letter dated 29.11.2006 from the first Respondent MH&FW, informing the Medical Superintendent of Lal Bahadur Shastri Hospital of Government of NCT of Delhi, that the Applicant had completed her probationary period satisfactorily on 23.12.2005. It is stated that she found the letter on the relevant file, which she was permitted to examine on the direction of the Central Information Commission (CIC). The letter reads thus:
No.A.28012/21/2006-CHS.IV Government of India Ministry of Health and Family Welfare (Department of Health) Nirman Bhawan, New Delhi-110011 Dated the 29th Nov. 2006 To The Medical Superintendent, Lal Bahadur Shastri Hospital, Govt. of NCT of Delhi, Delhi-110091.
Subject:- Completion of probation period in respect of Dr. (Mrs.) Punita Kumari Sodhi, Specialist Grade-II (Opthalmology) of the Non-Teaching Specialist Sub-
Cadre of CHS.
Sir, I am directed to certify that Dr. (Mrs.) Punita Kumari Sodhi, Specialist Grade-II (Opthalmology) of the Non-Teaching Specialist Sub-Cadre of CHS presently posted in Govt. of NCT of Delhi has completed her probationary period satisfactorily on 23.12.2005 (FN).
Dr. (Mrs.) Punita Kumari Sodhi may please be informed accordingly.
Sd/-
( RAM LAL ) Under Secretary to the Govt. of India Telefax No.23062550 It is contended that the Respondents did not send the letter to her out of malice. The Applicant would argue that the DOP&Ts OM dated 24.09.1992 provides that confirmation is made only once in service of an official in the entry grade. In view of this, there would be no need for her confirmation in the CHS once more. The OM number 18011/3/88-Estt.(D), dated 24.09.1992 is fully reproduced below:
Subject:- Confirmation of persons appointed on transfer basis in the light of revised confirmation procedure Regarding.
A reference is invited to this Departments Om No.18011/1/88/-Estt(D) dt. 28.3.88 laying down the revised confirmation procedure which inter-alia stipulates that confirmation will be made only once in the service of an official which will be in the entry grade and confirmation is delinked from the availability of permanent vacancy in the grade.
2. After the simplification of confirmation procedure, a Govt. servant appointed by transfer would duly have been confirmed in the earlier post. In such a case further confirmation in the new post would not be necessary and he could be treated as permanent in the new post. Where, however, a Govt. servant who has not already been confirmed in his old post is appointed by transfer, it would be necessary to confirm him in the new post. It has been decided that in such cases, he may be considered for confirmation after watching him for two years. Within this period of two years, the officer would earn two reports in the new grade and the DPC may consider his case for confirmation on the basis of these ACRs.
3. It is also clarified that if a Govt. servant is appointed to another post by direct recruitment either in the same department or in a different department, it will be necessary to consider him for confirmation in the new post in which he has been appointed by direct recruitment irrespective of the fact that the officer was holding the earlier post on a substantive basis. Further confirmation in the new entry grade becomes necessary because the new post may not be in the same line or discipline as the old post in which he has been confirmed and the fact that he was considered suitable for continuance in the old post (which was the basis for his confirmation in that post) would not automatically make him suitable for continuance or confirmation in the new post the job requirements of which may be quite different from those of the old post.
4. These instructions may please be brought to the notice of all concerned for guidance and compliance. It is argued that confirmation should not become necessary if the new post is in the same line or discipline of the old post in which an employee has been confirmed. The post of Assistant Professor in Non-Teaching Sub-cadre and the same post in the Teaching Sub-cadre are similar and in the same discipline. The Assistant Professor in Teaching Sub-cadre and Specialist Grade-II in Non-Teaching Sub-cadre are in the same scale of pay of Rs.3000-5000 (page 339 of the paper book). The job requirements of the posts are also the same. By Gazette notification dated 15.03.2005 (page 45 of the paper book), the Respondent MH&FW has conferred the designation of equated teachers on more than 400 Non-Teaching Sub-cadre working in Vardhman Mahavir Medical College, Safdarjung Hospital and Dr. RML Hospital. The Non-Teaching Sub-cadre employees are performing teaching jobs in these hospitals. The posts, therefore, have to be treated as same in both cases, contends the Applicant.
Adverting to Audit Instruction under Fundamental Rule (FR) 9, placed at Annex 11, the Applicant states that there is distinct difference between an employee on probation and a probationer employee. The instructions read thus:
(1)(a) The term Probationer does not cover a Government servant who holds substantively a permanent post in a cadre and is appointed `on probation to another post.
(b) No person appointed substantively to a permanent post in a cadre is a probationer, unless definite conditions for probation have been attached to his appointment, such as the condition that he must remain on probation pending the passing of certain examinations.
(c) The status of a probationer is to be considered as having the attributes of a substantive status except where the rules prescribe otherwise. Attention has also been drawn to DoP&Ts reply to the OA. Para 4 of the reply reads thus:
Para.4 (7 to 18) : Matter of records concerning Ministry of Health and Family Welfare. However, as per guidelines laid down on `Probation it is clearly stipulated in para 1 (9) of the O.M. No. F-44/1/59-Estt.(A) dated 15.04.1959 (Annexure-RR-II) that the decision whether an employee should be confirmed or probation extended should be taken soon after the expiry of the initial probationary period, that is, ordinarily within six to eight weeks and communicated to the employee together with the reasons in case of extension. A probationer who is not making satisfactory progress or who shows himself to be inadequate for the service in any way should be informed of this shortcomings well before the expiry of the original probationary period so that he/she can make severe efforts at self-improvement. A copy of Audit instructions under FR-9 is annexed (Annexure-RR-III) which indicates the distinction between appointment `on probation and a probationer. A copy of G.I.M.H.A. O.M. No.4/10/66-Estt. `C dated 26.08.1967 is annexed at Annexure-RR-IV which indicates that Rule 5 of Temporary Service Rules is not to be invoked in cases of termination in terms of specific conditions in the offer of appointment. xxxx xxxx xxxx xxxx
(vi) Para 4 (23) It is submitted that as per sub Para (8) of the O.M. No.44/1/1959-Estt(A) dated 15.04.1959 (Annexure RR-II) relating to guidelines on probation on appointment, probation should not be extended for more than a year and no employee should be kept on probation for more than double the normal period, save for exceptional reasons. It is the Applicants contention that when she joined the Teaching Sub-cadre on 30.03.2006, she was on probation and not a probationer, not being a fresh recruit to the CHS. It is further stated that the OM dated 30.03.2006, offering her appointment to the post in Teaching Sub-cadre also mentions that she will be on probation for a period of one year from the date, which may be extended at the discretion of the competent authority. The on probation period of the Applicant would end on 28.02.2008. She would contend that the OM dated 30.03.2006, the offer of appointment to Teaching Sub-cadre, is wrong and para (ii) is contrary to the letter of 28.10.2007 from the first Respondent, already adverted to, by which the Applicant has been given protection of pay et cetera. The OM is ab initio irregular and all actions taken in pursuance of the OM are also irregular.
7. In yet another submission, the Applicant has urged that there are no criminal cases or disciplinary proceedings against the Applicant. It is contended that the Respondent MH&FW is wrongly alleging that a charge sheet has been issued to her vide OM dated 1.07.2008. The OM refers to an incident of 5.01.2007, when she was working on the post of Non-Teaching Sub-cadre from which her technical resignation has already been accepted. Various OMs issued to her have been challenged in OA number 1905/2007. The Applicant has filed cases in the Tribunal/Court to protect her legitimate interests and she cannot be penalized for this. The Applicant had complained of sexual harassment against Dr. K.P.S.Malik, who malafidely made a counter complaint against her. This matter is before the Honourable Delhi High Court in CWP 367/2009. The Respondents cannot also hold it against her that she has published technical papers fraudulently, as this matter is before the Delhi High Court in CWP 12708/2009. It is submitted vehemently that the Applicant had a right to defend herself through legal procedures and such cases cannot be made a ground for termination of her services.
8. It is also urged that Director/Head of Departments of any of the three institutions, where she has worked, have never recommended extension of her probation. The ACRs of the Applicant have been placed on record and there is no such recommendation.
9. The file regarding termination of her service was placed before Minister of State, who was then working in independent charge of the Ministry of H&FW. She had directed that her [Applicants] probation might be extended. There was no justification then to put up the file on the same issue before the newly installed Minister of H&FW, after general elections, and obtaining his orders on a part file, without briefing him on the matter. The Applicant would contend that the Minister realized that irregularity has been committed, when she gave a representation to him. It would be clear from the note dated 12.08.2009 of the O.S.D. to the Minister, which has been annexed with the written submissions and which reads thus:
Placed below is a representation received form Dr. Punita K. Sodhi, C-7/164, SDA, P.O. Hauz Khas, New Delhi, alleging her irregular termination from the services as Assistant Professor in Opthalmology, Lady Hardinge Medical College.
The matter may please be examined and file be submitted for perusal of the Hon. HFM.
Sd/-
(V.S. Ramachandran) OSD to HFM 12.08.2009
10. Reliance has been placed on the judgements of the Honourable Supreme Court in State of Punjab V. Dharam Singh, AIR 1968 SC 1210, Mir Mohammad Khasim V. Union of India & Ors., (2004) INSC 210 (26th March 2004), Jaswantsingh Pratapsingh Jadeja V. Rajkot Municipal Corportion & Anr., 2007 AIR SCW 6764 and State of W.B. and others V. Pantha Chatterjee and others, (2003) 6 SCC 469.
Arguments on Respondents behalf.
11. The learned ASG contends at the outset that there is no law or rule regarding `deemed or automatic confirmation. Reliance has been placed on State of Punjab V. Dahram Singh (supra), in which the Honourable Supreme Court had observed thus:
This Court has consistently held that when a first appointment of promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation, he should be deemed to continue in his post as a probationer only, in the absence of any indication to the contrary in the original order of appointment or promotion or the service rules. In such a case, an express order of confirmation is necessary to give the employee a substantive right to the post, and from the mere fact that he is allowed to continue in the post after the expiry of the specified period of probation it is not possible to hold that he should be deemed to have been confirmed. This view was taken in Sukhbans Singh v. The State of Punjab, 1963 (1) SCR 416, G. S. Ramaswamy v. The Inspector-General of Police, Mysore State, Bangalore, (1964) 6 SCR 278, The Accountant General, Madbya Pradesh, Gwalior v. Beni Prasad Bhatnagar [C.A. No. 548 of 1962 decided on January 23, 1964], D. A. Lyall v. The Chief Conservator of Forests, U. P. and others [C.A. No 259 of 1963 decided on February 24, 1965] and State of U. P. v. Akbar, 1963 (3) SCR 821. The reason for this conclusion is that where on the completion of the specified period of probation the employee is allowed to continue in the post without an order of confirmation, the only possible view to take in the absence of anything to the contrary in the original order of appointment or promotion or the service rules, is that the initial period of probation has been extended by necessary implication. (emphasis added).
Reliance has also been placed on Registrar High Court of Gujarat and another V. C.G.Sharma, (2005) 1 SCC 132. The Honourable Supreme Court has observed thus in paragraphs 26 and 43 of the judgement:
26. A large number of authorities were cited before us by both the parties. However, it is not necessary to go into the details of all those cases for the simple reason that sub-rule (4) of Rule 5 of the Rules is in pari materia with the Rule which was under consideration in the case of State of Maharashtra v. Veerappa R. Saboji and we find that even if the period of two years expires and the probationer is allowed to continue after a period of two years, automatic confirmation cannot be claimed as a matter of right because in terms of the Rules, work has to be satisfactory which is a prerequisite or precondition for confirmation and, therefore, even if the probationer is allowed to continue beyond the period of two years as mentioned in the Rule, there is no question of deemed confirmation. The language of the Rule itself excludes any chance of giving deemed or automatic confirmation because the confirmation is to be ordered if there is a vacancy and if the work is found to be satisfactory. There is no question of confirmation and, therefore, deemed confirmation, in the light of the language of this Rule, is ruled out. We are, therefore, of the opinion that the argument advanced by learned counsel for the respondent on this aspect has no merits and no leg to stand. The learned Single Judge and the learned Judges of the Division Bench have rightly come to the conclusion that there is no automatic confirmation on the expiry of the period of two years and on the expiry of the said period of two years, the confirmation order can be passed only if there is vacancy and the work is found to be satisfactory. The Rule also does not say that the two years' period of probation, as mentioned in the Rule, is the maximum period of probation and the probation cannot be extended beyond the period of two years. We are, therefore, of the opinion that there is no question of automatic or deemed confirmation, as contended by the learned counsel for the respondent. We, therefore, answer this issue in the negative and against the respondent. xxxx xxxx xxxx xxxx 43. But the facts and circumstances in the case on hand are entirely different and the administrative side of the High Court and the Full Court were right in taking the decision to terminate the services of the respondent, rightly so, on the basis of the records placed before them. We are also satisfied, after perusing the confidential reports and other relevant vigilance files, etc. that the respondent is not entitled to continue as a judicial officer. The order of termination is termination simpliciter and not punitive in nature and, therefore, no opportunity needs to be given to the respondent herein. Since the overall performance of the respondent was found to be unsatisfactory by the High Court during the period of probation, it was decided by the High Court that the services of the respondent during the period of probation of the respondent be terminated because of his unsuitability for the post. In this view of the matter, order of termination simpliciter cannot be said to be violative of Articles 14, 16 and 311 of the Constitution. The law on the point is crystallised that the probationer remains a probationer unless he has been confirmed on the basis of the work evaluation. Under the relevant Rules under which the respondent was appointed as a Civil Judge, there is no provision for automatic or deemed confirmation and/or deemed appointment on regular establishment or post, and in that view of the matter, the contentions of the respondent that the respondent's services were deemed to have been continued on the expiry of the probation period, are misconceived. (emphasis added).
It is urged that Rule 10 of the Central Health Rules, 1996 [quoted in preceding paragraph] does not provide for automatic confirmation. It provides for extension of probation. In this context reference has been made to paragraph 3 of the judgement of the Honourable Delhi High Court in Union of India and others V. Tarseem Lal, Writ Petition 3450/1998, which is reproduced below:
3. Terms and conditions of appointment, as contained in the Office Memorandum dated 11th July, 1986 show that the Respondent was put on probation for a period of two years from the date of his appointment. It was further mentioned in the appointment order that the probation was extendable at the discretion of the competent authority; that failure to complete the period of probation to the satisfaction of the competent authority will render Respondent liable to be discharged from the service. Maximum period of probation has not been prescribed in the offer of appointment dated 30.03.2006. It is clearly stated in that communication that the Applicant would be on probation for a period of one year, which may be extended at the discretion of the competent authority. It is urged, therefore, that the presumption, in the case of the Applicant is that she has not been confirmed. The DOP&Ts instructions provide that the confirmation should be normally within two years. The Applicant had joined on 30.03.2006 and her probation had been extended by 78 days. Advertence has been made to MHAs OM of 15.04.1959 (page 173 of the paper book) in which it is stated that in judging fitness for confirmation of employees, there should be very careful assessment of the outlook, character and aptitude for the kind of work that has to be done in the services. It also states that the person to be confirmed should possess qualities of mind and character, constructive outlook and human sympathy needed in public service. The Applicants contribution to the service or to the general public at large as a doctor is not up to the desired level. The record would reveal that the Applicant had been devoting most of her time in pursuing cases in the Tribunal and High Court and filing complaints against other doctors. The Safdarjung and LHMC hospitals had served 10 memoranda to the Applicant on various grounds reflecting her insubordination and lack of commitment to work. The first Respondent, the Ministry of H&FW also took note of the fact that she had made 38 representations and filed 29 court cases regarding matters of her service. The Ministry of H&FW, the first Respondent, after considering all aspects of her record of service, did not confirm her and terminated her service.
12. It is denied that the posts of Non-Teaching Sub-cadre and the Teaching Sub-cadre are identical and in the same discipline. It is stated that the CHS comprises four distinct Sub-cadres, namely, Teaching Sub-cadre, Non-Teaching Sub-cadre, General Duty Medical Officers (GDMO) Sub-cadre and Public Health Sub-cadre. Each Sub-cadre is different from the other and selections are made separately by the U.P.S.C. for each sub-cadre. There is no lateral movement between these Sub-Cadres. Counting of past service and protection of pay is provided on transfer from one cadre to the other and it would not mean that the posts are identical and in the same discipline. Even if the Applicant has served in the Non-Teaching Sub-cadre, she has to serve as a probationer on fresh selection by the U.P.S.C. to Teaching Sub-Cadre. She would be subject to Rule 10 of the CHS Rules, 1996. The Applicant is trying to obfuscate the issue by making a distinction between on probation and probationer. Even the reading of the full text of the Audit Instructions below FR-9 would show the fallacy. The Applicant has been wrongly citing the circular of the Medical Council of India (M.C.I.), placed at page 45 of the paper book as Annex-14 (already adverted to in the Applicants arguments). It is being quoted out of context. The correct version has been reproduced in paragraph 4 (28) of the counter affidavit of the first Respondent, which reads thus:
Consultants or specialists who have the experience of working for a period of not less than 18 years and 10 years in teaching and other general departments in the institutions or hospitals, not attached to any medical college, where with the affiliation from any university, post graduate teaching is being imparted as contemplated under sub-regulation (1A) of regulation 8, shall respectively be eligible to be equated as Professor and Associate Professor in the department concerned. The requisite experience for equating a Consultant or Specialist working in the super-speciality departments of the said institutions or hospitals as Professor and Associate Professor shall respectively be 16 years and 8 years. Consultants or Specialists having postgraduate degree qualification, working in such an institution or hospital, who do not have the said period of experience, shall be eligible to be equated as Assistant Professor in the department concerned. It is pointed out that the Applicant has added at entry only they are eligible to be equated as A.P. in her own handwriting. This is not at all the intention of the M.C.I.s notification, as would be clear from its reading, without the Applicants interpolation. The confirmation in one Sub-Cadre cannot be carried over to another Sub-cadre. Reference has been made to DOP&Ts OM of 24.09.1992, relevant paragraph of which reads thus:
(2) If a Government servant is appointed to another post by direct recruitment either in the same Department or a different department, it will be necessary to consider him for confirmation in the new post in which he has been appointed by direct recruitment irrespective of the fact that the officer was holding the earlier post on a substantive basis. Further confirmation in the new entry grade becomes necessary because the new post may not be in the same line or discipline as the old post in which he has been confirmed and the fact that he was considered suitable for continuance in the old post (which was the basis for his confirmation in that post) would not automatically make him suitable for continuance or confirmation in the new post, the job requirements of which may be quite different from those of the old post.
13. The learned ASG contends that the Minister of State passed the order regarding extension of probation on 12.05.2008, when the results of the general election were due on 15.05.2008. The decision was merely taken on the file and not communicated to the Applicant. It cannot give her any cause of action. Moreover, there was nothing wrong in putting up the file to the Cabinet level Minister, later on, when he assumed the charge, for termination of her service, because she was still a probationer.
Whether the order of termination is stigmatic(?)
14. The file of the first Respondent in which the case of termination of her service has been dealt with has been produced for our perusal. On perusal of the file, the Bench put a query to the learned ASG whether the order of termination was not a stigmatic order and not an order simpliciter? The learned ASG would contend that regardless of the contents of the note dated 2.06.2009, the ultimate decision has been taken on the basis of suitability, as would be clear from reading paragraph 15 of the note, which is reproduced below:
15. It is apparent from the above that she hardly devotes her time for patient care and teaching, for which she has been appointed by the government, and rather indulges more on self persecution for creating an aura of a harassed victim. Her work and worth to the government are far from satisfactory, notwithstanding what has been recorded in her ACRs. The order cannot thus be said to be perverse.
Conclusion
15. The Applicant has placed reliance on Mir Mohammad Khasim (supra) in support of her contention that the probation would be automatically confirmed after the prescribed period is over. She has specifically pointed to the observations of the Honourable Supreme Court in High Court of M.P. through Registrar and others V. Satya Narayan Jhavar, (2001) 7 SCC 161, which is quoted in Mir Mohammad Khasim (supra). The aforementioned quotation is reproduced below:
The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter of consideration before this Court times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation.
The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed.
The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired. In our view, this observation, far from advancing the Applicants case, is against her contention regarding deemed confirmation because maximum period of probation is not provided in Rule 10 of CHS Rules, 1996.
16. We have considered the other case relied upon by the Applicant, Jaswantsingh Pratapsingh Jadeja (supra) and, in our opinion, this would also not be of any help to the Applicant. In this case the appellant before the Honourable Supreme Court had been continued on probation from 1999 to 2003 and then his service was terminated. The respondent Municipal Corporation could not produce any rules, by which it could extend the probation of the appellant. In these circumstances, it was observed that:
. If under the statute, the period of probation could not have been extended, he will be deemed to have been confirmed on expiry of the period of probation. However, in the instant case, as noted above, the CHS Rules, 1996 provide for extension of probation.
17. The Applicant also placed before us the judgment of the Honourable Supreme Court in Punjab State Electricity Board V. Dharam Singh and others (Civil Appeal No.8050/2001), to show that the Respondents have wrongly placed reliance on this judgement and that it was distinguishable. However, the Respondents reliance is on State of Punjab V. Dharam Singh (supra), which we have already quoted. These are different cases.
18. The Applicant has also sought to distinguish the judgement of Honourable Delhi High Court in Union of India and others V. Tarseem Lal Verma in W.P. (Civil) number 3450/1998 decided on 18.08.2009. This is also one of the judgements relied upon by the Respondents. It has been held thus in this judgement:
19. Even otherwise, law on this point is well settled. The mere stipulation of a specific period of probation by itself cannot lead to the inference that upon its expiry, the employee would be deemed confirmed. The condition or stipulation has to be more categorical about intention to treat the employee as a confirmed employee on expiry of period of probation. The employee would remain on probation even after expiry of probation period until and unless an order of confirmation is passed. Merely because probationer continued to work on the post even after expiry of probation period by itself would not be sufficient to infer that such an employee had been confirmed. A probationer would continue to remain on probation even after the expiry of probation period unless a maximum probation period is prescribed in the rules. We cannot accept the Applicants contention that it would not apply in her case merely because she is a Group `A officer and the said Tarseem Lal Verma was a Group `B officer. The principle would apply universally. It would also not be correct to distinguish it on the ground that while Tarseem Lal Verma had adverse A.C.Rs. and that was the reason for extension of his probation, the Applicants A.C.Rs. are categorized as `good and there is no reason to extend her probation. It is also not acceptable that Tarseem Lal Verma was given notice regarding extension of his extension, whereas no notice was given to her or that the Director of the institution where she was working had not given any such recommendation. It is also sought to be projected that she was not a probationer but was `on probation whereas Tarseem Lal Verma was a probationer. We shall deal with the argument regarding the status of an employee `on probation and as `probationer. However, the judgement is not distinguished by any of the arguments of the Applicant. We hold that there cannot be any deemed or automatic confirmation in service if the maximum period of probation is not prescribed and if the rules give the power of extension of probation to the competent authority. In view of this, the Applicant cannot be considered to have been automatically confirmed one year after her appointment by order dated 30.03.2006.
19. The Applicant had earlier served in Non-Teaching Sub-cadre. Although the Respondents have not conceded that she was confirmed in that post, yet from the letter dated 29.11.2006 (page 598 of the paper book), quoted in preceding paragraph, it appears that she was confirmed with effect from 23.12.2005 (Fore Noon). This would, however, provide no succour to her. She submitted technical resignation from this post. She was freshly selected for the post in the Teaching Sub-cadre. There are no rules by the operation of which she could carry her confirmation with her. On the contrary, by virtue of the DoP&Ts instructions contained in O.M. dated 24.09.1992, already quoted above, she has to be confirmed in the new post. She is a fresh recruit and a probationer and not `on probation in the sense used in the Audit Instructions under FR 9. The Applicant does not hold a substantive post in the Teaching Sub-cadre. We have already quoted paragraphs 1(a) to (c) of the Audit Instructions. A reading of paragraph 1 (d) would clearly demonstrate that it does not apply to her:
(d) The instructions in Clauses (a) and (b) above are to be taken as complementary and not as mutually exclusive. Taken together, they contain the essence of the tests for determining when a Government servant should be regarded as probationer or as merely on probation, irrespective of whether he is already a permanent Government servant or is merely a Government servant without a lien on any permanent post. While a probationer is one appointed in or against a post substantively vacant with definite conditions of probation, a person on probation is one appointed to a post (not necessarily vacant substantively) for determining his fitness for eventual substantive appointment to that post. There is nothing in these Audits Instructions to prevent a Government servant substantive in one cadre (e.g., a First Division Assistant holding a lien on a post borne on the Central Secretariat Service, Group B) from being appointed (either through selection by a departmental committee or as a result of competitive examination through the Union Public Service Commission) as a probationer in or against a post borne on another cadre (like the Indian Audit and Accounts Service, the Indian Customs Service and the Income Tax Service, Group A), when definite conditions of probation such as passing of departmental examinations are prescribed. In such a case, the Government servant should be treated as a probationer, and (subject to specific rules, if any, to the contrary) allowed only, as initial and subsequent pays, the rates of pay prescribed for the probationary period, irrespective of whether those rates are actually included in or shown separately from, the time-scales of the services concerned. The case of departmental candidates of the same department promoted by selection [e.g., SAS (Central Service, Group C, Superintendent or an Accounts Officer of the Indian Audit Department promoted by selection to the Indian Audit and Accounts Service within the quota for such promotion] is, however, different. If the departments of the of the Government of India concerned consider it expedient, these promoted men may properly be put on probation for a period to see if they make good in the actual work of Group A Officer and have liens (active or suspended) retained for them on their former posts meanwhile to provide for their possible reversion; but whatever the departmental arrangements be to test their capacity, etc., during the on probation period their initial pay should be fixed under the operations of normal rules regulating pay fixations.
20. The Applicant is certainly not in the same line or discipline after transiting from Non-Teaching to Teaching Sub-cadre. Pay protection and counting of past service is provided from Central Government post to another Central Government or State Government or even Public Sector Undertaking posts. It cannot be construed to mean that confirmation is also automatically transferred. We hold, therefore, that the Applicants confirmation in Non-Teaching Sub-cadre would not entitle her to the benefit of confirmation in the fresh post of Teaching Sub-cadre.
21. The posts are distinct and are not identical and in the same discipline. The CHS Rules, 1996 provide for four distinct Sub-cadres for each of which the recruitment is through U.P.S.C. No inter-sub-cadre movement has been provided. The Applicant would, therefore, have to be confirmed afresh in the post of Teaching Sub-cadre.
22. Although the Minister of State had passed an order on the file extending her probation, when the file regarding termination of her service was submitted to her, yet the Cabinet Minister, who has assumed office after the elections, cannot be precluded from applying himself to the case and passing fresh order. The note dated 12.08.2009 from the OSD to the Minister, regarding her representation and direction for submission of the file of the Applicants termination to the Minister for H&FW, cannot be construed to mean that the Minister had come to the conclusion that irregularity had been committed in terminating her service. An excerpt from the note has been quoted in preceding paragraph 9.
23. Although the argument regarding lien in the post of Non-Teaching Sub-cadre has not been addressed in oral submissions, yet it has been raised in the OA and in her written submissions. However, under FR 9(13) and instructions under it, she could retain lien only for two years, i.e., up to 28.02.2008 unless it was to be specifically extended by one year. Although the Applicant has made a request for three years lien by her representation dated 6.02.2007 (page 78 of the paper book), yet its fate is not known. Therefore, her lien at the most would be up to 28.02.2008. Further, by virtue of FR 14 (d) her lien would stand terminated on the Non-Teaching Sub-cadre. FR 14 (d) is quoted below:
F.R. 14 (d) A Government servants lien on a post shall stand terminated on his acquiring a lien on another post (whether under the Central Government or State Government) outside the cadre on which he is borne. This argument has also not been pursued by the Applicant and would not advance her cause.
24. What remains, however, to be seen is whether the order of termination of the Applicants service is an order simpliciter or a stigmatic order. We are reproducing below the office note, in extenso, which led to the order of termination:
Dr. Punita K. Sodhi, joined the Central Health Service as Specialist Gr.II in the Non-Teaching sub-cadre of CHS at GNCT, Delhi on 23.12.2004. Later on, she applied for the post of Assistant Professor in the Teaching sub-cadre of CHS and was recommended by the UPSC for appointment as Assistant Professor of Ophthalmology along with Dr. Zia Chaudhuri and Dr. Ruchi Sangal and was ranked 3rd in order of merit. Accordingly, Dr. Chaudhuri and Dr. Sangal were posted to Delhi against two available vacancies and Dr. Punita K.Sodhi was posted to JIPMER, Pondicherry against the vacancy available there. She was given offer of appointment on 30.3.2006.
2. Dr. Sodhi did not join JIPMER and persisted that she be posted to Delhi. Since her offer of appointment was to lapse on 30.9.2006, she was notified by the Ministry for canceling her appointment. Dr. Sodhi, filed a case in the CAT, New Delhi on 25.9.2006 and obtained a stay on the cancellation. The stay was got vacated from the Honble CAT on 25.1.2007 against which Dr. Sodhi approached the Honble High Court of Delhi on 1.2.2007. The High Court, however, did not entertain her appeal and directed that Dr. Sodhi should join the post at JIPMER, Pondicherry by 5.3.2007, which would be subject to the out come of the final judgment of the CAT. Dr. Sodhi joined JIPMER, Pondicherry on 1.3.2007.
3. The Honble CAT in its final judgment dated 25.5.2007 dismissed her application as it was devoid of any merit. The CAT, however, observed that given her family circumstance, it would be appropriate to give her a personal hearing if she makes a request for it. It was, however, made clear by CAT that any action taken or not taken thereafter shall not provide a fresh cause of action to the applicant to approach the Tribunal.
4. Dr. Sodhi had been constantly pressurizing the Ministry for her posting to Delhi on one ground or the other. Initially, she brought up the issue of her being an OBC candidate. She also challenged the recommendations in respect of other two candidates viz. Dr. Zia Chaudhary and Dr. Ruchi Sangal, on the ground of her being better-qualified than these candidates and also alleged Dr. Zia Chaudhury was not medically fit and Dr. Ruchi Sangal was not eligible for the post. She also went to the extent of threatening JS (VC) telephonically on 5.1.2007 that she would approach the media alleging that JS(VC) was harassing her by not acceding to her request for posting to Delhi. Vigilance Section has issued the charge-sheet to Dr. Punita K.Sodhi on this count on 1.7.2008. On the contrary it was JS(VC) who recorded on the file that she may be temporarily deployed at Safdarjung Hospital and VMMC, New Delhi by diverting one post from JIPMER, Pondicherry after a hearing was given by the then DS(CHS) in pursuance of the CATs directions. This was a good will gesture of the Ministry towards her. She was relieved from JIPMER, Pondicherry on 12.7.2007 and she joined SJH & VMMC, Delhi on 13.7.2007. Here too, it may be placed on record that she leveled certain allegations against the then DS (CHS) after the personal hearing was held by him.
5. Dr. Sodhis service records were called from the Director JIPMER, Pondicherry, and it was observed that after assuming the charge of the post of Assistant Professor at JIPMER on 1.3.2007, she had been on leave for 78 days till 12.7.2007. Accordingly, her period of probation of one year was extended by 78 days.
6. After Dr. Sodhi joined the CHS and was posted at SJH&VMMC, it came to notice that a foreign journal carried a publication made by Dr. Punita Sodhi which was contributed by her when she was a Pool Officer in SJH prior to her joining the CHS either as Specialist Grade II or Assistant Professor. The said articles in that journal were published when she had joined the CHS. In that publication she had misrepresented herself as Head of Deptt. of Opthalmology of SJH. Dr. K.P.S. Malik, HoD of Opthalmology Deptt., SJH complained against Dr. Sodhi about the publications. Instead of clarifying her position, Dr. Sodhi made a counter-complaint against Dr. Malik on the ground of sexual harassment. Ministry had written to MS, Safdarjung Hospital to investigate the matter and send the report to the Ministry. Since there were complaints and counter-complaints, which was vitiating the working atmosphere in the Department of Opthalmology at VMMC & SJ Hospital, New Delhi, Dr. Sodhi was transferred from VMMC & SJ Hospital to LHMC, New Delhi in public interest. Though, she was relieved by SJ Hospital on 29.10.2007 but in view of the interim direction of the Honble CAT dated 22.10.2007 in O.A. 1905/2007, the MS SJ Hospital was asked to cancel the relieving order of Dr. Sodhi to comply with the order of Honble CAT, New Delhi. Accordingly, Dr. Sodhi had been continuing in VMMC & Safdarjung Hospital, New Delhi. Honble CAT, New Delhi had vacated the stay on 15.2.2008 and thereafter, Safdarjung Hospital relieved her on 18.2.2008 and she joined LHMC on 20.2.2008.
7. In the mean time she approached the Honble High Court, Delhi against the order dated 15.2.2008. Honble High Court, Delhi had directed the respondent to expedite their process of examination of the allegations against Dr. KPS Malik and counter-allegations in reaching a conclusion and take appropriate action in accordance with the law. O.A. 1905/2007 regarding the allegation of Sexual Harassment against Dr. KPS Malik was dismissed on 27.5.2008 by Honble CAT, Delhi without any merit with the liberty to reopen after the final out come of the Honble High Court of Delhi. This case is also re-opened in CAT, New Delhi, the next date of hearing is 13.7.2009.
8. On the directions of this Ministry, Safdarjung Hospital, New Delhi had constituted a fact-finding team consisting of Dr. N.K. Mohanty, Addl. D.G. & HoD Urology and Dr. Sudhir Chandra, Addl. M.S. The fact-finding team was of the opinion that these complaints/ counter-complaints be examined by an independent team consisting of External experts from Opthalmology & Ethical Committee. Accordingly, Ministry has constituted a Committee of External Experts as recommended by the fact-finding team with a view to ascertain the allegations and counter-allegation between Dr. K.P.S. Malik and Dr. (Mrs.) Punita K. Sodhi vide order dated 25.4.2008. Dr. (Mrs.) Punita K. Sodhi had represented against this order of this Ministry. Thereafter, Ministry requested the Director, Lady Harding Medical College, New Delhi that the inquiry should be conducted in the matter as per the Supreme Court guidelines in the case of Vishakha & Others V/S State of Rajasthan & Others. Accordingly, they reconstituted the committee by including a lady member of an NGO as an independent expert.
9. Dr. Sodhi also filed a Contempt Case No. 305/2008 in the Honble High Court of Delhi. In this case Honble Court had passed orders on 8.7.2008 that a Committee be constituted by the respondent to look into the sexual harassment complaints made by the petitioner with participation of a representative of NGO and six doctors. The copy of the office order F.No. Sex.Harr/2006-Admn.i/2585 dated 17.6.2008 has been supplied to the petitioner. The petitioner would approach this Committee with all her complaints and grievances and the Committee after considering the grievances of the petitioner shall take a decision. The petitioner, however, states that she does not want that enquiry should be conducted by this Committee since most of the members are junior to Dr. KPS Malik, against whom she had grievances and there is likelihood of these members being influenced by him. She wants to file response with relevant judgments. Honble High Court of Delhi in its order dated 11.12.2008 in CONT.CASE(C) 305/2008 has stated that in a Contempt Petition, this Court has limited jurisdiction only to see that if the order passed by this Court earlier had been complied with or not. This Court cannot either modify or re-draw the earlier directions nor can issue new directions. The Court can only determine if there was willful dis-obedience of the order of the Court or there was non-compliance of the undertaking given to the Court. None of the assertions, made by the petitioner, fall within the jurisdiction of this Court. The Contempt petition were accordingly dismissed. The petitioner was given liberty to avail other remedies available to her.
10. Sexual Harassment Committee chaired by Dr. Manjula Jain, Professor and HoD Pathology, LHMC, New Delhi as also External Expert Committee with a view to ascertain the allegations of Dr. K.P.S. Malik on fraud fictious publication by Dr. Punita Kumari Sodhi, chaired by Dr. P.D. Souza, Director-Professor and HoD Opthalmology, LHMC, New Delhi have submitted their reports to this Ministry. Sexual Harassment Committee has clearly stated in their report that there is no merit in this case of Sexual Harassment against Dr. K.P.S. Malik. Ministry has issued Show-Cause Notice vide O.M. dated 05.01.2009 to Dr. (Mrs.) Sodhi as to why departmental action should not be initiated against her for filing a false complaint against Dr. K.P.S. Malik. In this context she has also filed Court case W.P. (C) No.367/2009 in the High Court of Delhi. High Court in its order dated 21.1.2009 has granted stay on Show-Cause Notice vide O.M. dated 05.01.2009 and next date of hearing is 10.9.2009 and accordingly the Ministry is not taking any further action in this regard. On the matter relating to fraud and fictitious publications, since it has been proved, the matter has been sent to Vigilance for further necessary action.
11. Dr. Sodhi has sent letters to DOP&T, President Secretariat and other authorities seeking permission to prosecute Secretary (H), DGHS, Shri G. Balachandran, then Addl. Secretary, JS (VC), Dr. K.P.S. Malik, Addl. DGHS and their subordinate staff, who are dealing with her case, under Cr.PC 197. The said authorities have been duly replied to.
12. In November 2008 she had put up an eye check-up stall at ITF, Pragati Maidan without due permission of the Hospital authorities and without leave of absence. She also filed a number of Court cases (about eight in number) in the CAT and the High Court regarding her posting in Delhi, eligibility of her colleagues, alleged sexual harassment, permission to visit abroad, etc. Interestingly, she presents her case in person in all the above said cases. It is obvious that cases are filed in the CAT and High Court after necessary signatures are obtained from the Petitioner for which leave should have been sanctioned by the concerned Hospital. It has been ascertained from the concerned Hospital that she had availed of leave for the days of hearing but it is not certain whether she had taken leave for the filing of the cases and given the reason for leave as `filing of Court case which would be necessary for regularizing her leave. All the cases have been disposed of mostly on the grounds of being devoid of merit except three viz. (i) W.P. (C) No.4218/2008 regarding recruitment of Dr. Ruchi Sangal and Dr. Zia Chaudhary and (ii) W.P. (C) 367/2009 regarding challenging the report of Sexual Harasssment Committee are pending in High Court of Delhi and (iii) O.A. No.105/2007 in CAT, New Delhi regarding allegation of Sexual Harassment against Dr. KPS Malik and her transfer from VMMC & Safdarjung Hospital to LHMC, New Delhi.
13. Dr. Sodhi has made more than 30 representations to this Ministry alone not counting the numerous representations made to the various other authorities such as Presidents Secretariat, DOP&T, Cabinet Secretariat, National Commission for Women, Delhi Commission for Women, National Commission for OBCs, Ministry of Social Justice and Empowerment, etc. She is also reported to have met most of these authorities personally to explain her alleged grievances.
14. Dr. Punita K. Sodhi is on extended probation and has not yet been confirmed, as, a vigilance case has been instituted against her. Failure to complete the period of probation to the satisfaction of the competent authority will render her liable to be discharged from service at any time without any notice and assigning any reason.
15. It is apparent from the above that she hardly devotes her time for patient care and teaching, for which she has been appointed by the government, and rather indulges more on self persecution for creating an aura of a harassed victim. Her work and worth to the government are far from satisfactory, notwithstanding what has been recorded in her ACRs.
16. In the circumstances, it was proposed that her service may be terminated immediately as she is still under probation and proposal was submitted to the then MOS (I/C). Honble MOS had minuted as under:
Her probation period be extended by one year meanwhile post her to Delhi Govt.
17. Now, as per direction at p.5/n, it is proposed that her service may be terminated immediately as she is still under probation. The Competent Authority in this case is Honble HFM.
18. Submitted for consideration and appropriate orders, please. The note is replete with allegations against her. It is surely stigmatic. Although the order is simpliciter, yet it is based on serious allegations against the Applicant. In Anoop Jaiswal V. Government of India & Anr., (1984) 1 SLR 426, the Honourable Supreme Court held that the Courts can go behind the order and lift the veil to see the nature of the order. The observations of the Honourable Supreme Court are reproduced below:
It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee. (emphasis supplied).
The Apex Court has further observed that [E]ven 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 alongwith the order for the purpose of determining its true character. If on reading the two 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 in Article 311 (2) of the Constitution. [emphasis supplied].
In Desh Raj V. Govt. of NCTD and Anr., OA No.2663/2006, decided on 27.07.2007, this Tribunal had held as under:
7. In other words, the order of termination is founded on the allegation of misconduct and it is, therefore, definitely punitive. There would be no occasion to interfere in the order of termination if it was issued on the basis of general unsuitability of the concerned person for his job. However, the order is not based on unsuitability of the Applicant for the post of Constable in Delhi Police. If misconduct is alleged against the Applicant, then there should have been an enquiry in which opportunity should have been given to the Applicant to defend himself. The punitive action should have been taken by holding a regular departmental enquiry. The Honble Supreme Court in Chandra Prakash Shahi (supra) has held that The benefit and protection of Article 311(2) of the Constitution is available not only to temporary servants but also to a probationer and the Court in an appropriate case would be justified in lifting the veil to find out the true nature of the order by which the services were terminated. It has also been held in Chandra Prakash Shahi V. State of U.P. & Ors., (2000) 5 SCC 152 by the Honourable Supreme Court that the probationer also has the protection of Article 311 (2). It has been held thus:
The benefit and protection of Article 311(2) of the Constitution is available not only to temporary servants but also to a probationer and the Court in an appropriate case would be justified in lifting the veil to find out the true nature of the order by which the services were terminated. She has to be given an opportunity to answer the charges. We are not persuaded that ultimately it is on the basis of paragraph 15 that her service has been terminated and it is only regarding her unsuitability for service. The order has to be read as a whole. The Applicant has vehemently contested most of the points made in the note, in her written submissions in this OA. She has to be given an opportunity to defend herself.
25. On the basis of the above discussion, we hold that the Applicant would continue to be a probationer till her probation is confirmed by the competent authority and in view of the provisions of Rule 10 of CHS Rules, 1996, she would not he considered to have been automatically confirmed in the post in Teaching Sub-cadre. The Applicants confirmation in the earlier post in Non-teaching Sub-cadre would not be carried to the fresh post in the Teaching Sub-cadre and she would have to be confirmed afresh in the new post. The Respondents could extend the period of her probation in spite of `good Annual Confidential Reports and in spite of her good research work according to herself because the confirmation in probation also depends on her conduct, behaviour, character, aptitude and inter-personal relationships.
26. However, the order of termination is punitive and stigmatic in nature and the Applicant should have been given an opportunity to defend herself as provided under Article 311 of the Constitution.
27. In the result the order of termination is quashed and set aside. The Respondents would, however, have the opportunity to proceed afresh against the Applicant by holding a proper enquiry against her under the provisions of disciplinary rules applicable to her. If the Respondents decide to proceed against the Applicant in a fresh disciplinary proceeding, it should be completed within six months from the date of receipt of a certified copy of this order. No costs.
( L.K. Joshi ) ( V.K. Bali ) Vice Chairman (A) Chairman /dkm/