Central Administrative Tribunal - Delhi
Sapan Kumar Sharma vs Union Of India on 28 January, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.1099/2010 New Delhi, this the 28th day of January, 2011 HONBLE MR. JUSTICE S.D. ANAND, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Sapan Kumar Sharma Ex. FA (GD), I.D. No. 06153A S/o Late Sh. R.K. Sharma, R/o Q.No.453, Sector-7, R.K. Puram, New Delhi. Applicant. (By Advocate Shri S.C. Sagar) Versus 1. Union of India, through Secretary, Cabinet Secretariat, GOI, New Delhi. 2. Union of India, through Joint Secretary (Pers.), Cabinet Secretariat, Govt. of India, Room No. 7, Bikaner House Annexe, Shahjahan Road, New Delhi. Respondents. (By Advocate Shri A.K. Bhardwaj) ORDER
Justice S.D. Anand:
The services of the applicant, who was concededly on probation, came to be terminated vide order dated 07.07.2008 (Annexure `A), which is extracted hereunder:
In pursuance of the Proviso to sub-rule (1) of Rule-5 of the Central Civil Services (Temporary Service) Rules, 1965, I M.K. Pyasi, Joint Secretary (Pers) hereby terminate forthwith the services of Shri Sapan Kumar Sharma, FA (GD), ID. NO. 06153-A and direct that he shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of notice at the same rates at which he was drawing them immediately before the termination of his service. At the very outset, it would be relevant to mention that the fate of this OA shall turn on the controversy about whether it can be treated as a case of pure and simple innocuous termination during the period of probation or whether there is more to it than meets the eye.
2. The plea raised on behalf of the applicant is that the impugned order, though purportedly innocuous in character is, in fact, invalid inasmuch as it came to be granted in the background of certain allegations against the applicant that he is a habitual absentee from duty and has willfully disobeyed the orders of the department from time to time.
3. The factual expose, required for adjudication, is as under.
4. The applicant came to be appointed w.e.f. 18.08.2006. In terms of the relevant service rules, he was to be on probation for a period of three years from the date of his appointment. He availed of leave for different spells. The averment made by him is that he was impelled to proceed on leave in order to be able to attend to certain pressing domestic problems.
5. In the counter, the averment made on behalf of the respondents, is that the applicant herein was a habitual absentee and a number of warnings/notices came to be issued to him in the relevant behalf.
6. The crux of the stance adopted by the respondents is to the effect that the impugned order did not have to be necessarily preceded by an inquiry into the allegations and the competent authority had acted within its jurisdiction to grant an innocuous order of termination during the period of probation.
7. A conjunctive perusal of the pleadings raised by the parties gives a clear indication that the termination of the applicant herein came about on account of his repeated unauthorized spells of absence from duty and also an allegation that he had disobeyed the orders of the superior authorities. There is ample documentation available on the record which will be supportive of the above inference. In that context, we may notice the contents of documentations dated 02.01.2008, 11.03.2008, 16.05.2008, 27.05.2008 (Annexure R-1) and dated 10.06.2008 (Annexure R-2). In fact, the inference that the conduct of the applicant was not found satisfactory is apparent from the pleadings raised by the respondents themselves. There is no escape from the conclusion that, on lifting of the veil, it is apparent that the impugned termination came about on account of the allegations aforementioned.
8. Though we would agree that none has a right to hold the post, it is equally evident that the termination of services of a probationer cannot come about on the basis of an order which may appear to be ostensibly innocuous but which came to be granted in the background of certain allegations against the delinquent employee.
9. We would, accordingly, allow this OA and set aside the impugned termination order dated 07.07.2008. The competent authority shall be entitled to proceed afresh in the matter in accordance with the rules. Since the applicant did not function during the post 07.07.2008 period, he shall neither be entitled to any wages for that period nor shall the competent authority be obliged to compulsively reinstate him into the job. It would be open to the competent authority to grant a precise order about whether the applicant herein shall be taken into service for the duration of the inquiry to follow or whether he would stay in Departmental hibernation. The Competent authority shall be entitled to take a decision in the context, completely unfazed by the allowance of the OA which (allowance) has come about on a technical point.
10. The exercise of ascertainment of facts, and an appropriate rule-based conclusion thereof, must be concluded within 15 days and it shall be incumbent upon the applicant herein to attend the proceedings initiated by the Competent Authority on all the dates of hearing. If he does not attend all the dates of hearing, risk shall be his and the Competent Authority shall be entitled to proceed ex parte in the matter. In order to facilitate meticulous compliance with the exercise aforementioned, we direct the applicant herein (through his learned counsel) to appear before the competent authority on 22nd February, 2011. The outer limit of 15 days shall start with effect from that date.
11. Disposed of accordingly.
(Dr. Veena Chhotray) (S.D. Anand) Member (A) Member (J) `SRD