Central Administrative Tribunal - Delhi
Presently R/O Ram Bagh vs Union Of India Through on 15 February, 2010
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1835/2009 New Delhi, this the 15th day of February 2010 Honble Shri Shanker Raju, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) Shri Rakesh Kushwaha s/o lala Ram Kushwaha Ex. Bungalow Khallasi Under Dy. CME North Central Railway, Allahabad Presently r/o Ram Bagh Yamuna Bridge, Agra Cantt. ..Applicant (By Advocate: Ms. Meenu Mainee) Versus Union of India through 1. General Manager North Central Railway, Allahabad 2. Chief Mechanical Engineer North Central Railway, Allahabad 3. Shri Y B Sahare Dy. Chief Mechanical Engineer (W) North Central Railway, Allahabad ..Respondents (By Advocate: Shri R L Dhawan) O R D E R
Shri Shanker Raju:
A Bungalow Khallasi with temporary status, by virtue of this OA, has assailed impugned order dated 26.11.2007 terminating his services as well as a proposal for termination by the controlling officer dated 28.12.2007. Also assailed is an order passing pursuant upon the decision of this Tribunal dated 10.7.2008 in OA-1379/2008 whereby on 5.12.2008 representation preferred against termination was rejected.
2. A brief factual matrix transpires that the applicant was working as a domestic servant with Chief Mechanical Engineer and thereafter on 2.6.2006 was appointed as a Bungalow Khallasi with respondent No.3, Shri Y B Sahare, Deputy Chief Mechanical Engineer (W). He was deputed at the residence and was doing all households chores. The wife of respondent No.3 was also running her own clinic as a doctor. Applicant was working with the officer from 6 AM to 11 PM. He was granted temporary status after four months of satisfactory service on 3.1.2007. On telephonic information on 22.11.2007 that his sister has suddenly fell seriously ill, resulted in an application for grant of leave by the applicant, which was not acceded to. On 26.11.2007, the controlling officer sent the following orders to the applicant:-
Sub: Improper behaviour and unauthorised absence Ref: This office L.No.Mech/210/NG Staff dt. 26.11.07 It was informed to you that you have been unauthorisedly absent since 22-11-07. Further a letter as referred above was also sent on your house address.
You have been remaining unauthorisedly absent continuously since 22-11-07.
Even during duty, your work was very bad. You have never worked properly nor your behaviour and attitude was proper for which when you were told, you would start threatening.
Despite all my efforts to improve your work, neither your work improved nor your behaviour improved.
It is therefore quite evident that you are not fit for the service in Railways. Vide above referred letter also it was made clear that your services stand terminated.
3. As a result thereof, following order was passed by the respondents dated 26.11.2007 whereby his services were dispensed with on termination:
Sub: Unauthorised absence from duty You are attached as Bungalow Peon Kh. To Dy. CME (W)/HQ/ALD Sh. Y B Shahare.
You have remained absent unauthorisedly from 22-11-07. Your lack of devotion to duty is seen. Nor you are sincere towards your duty.
In view of above, you may note that your services would stand terminated.
4. Applicant preferred a representation, which when not disposed of led to filing of OA 1379/2008, which was disposed of on 10.7.2008 by directing the appellate authority to pass a speaking order.
5. By an order dated 5.12.2008 passed by the appellate authority, which was communicated to the applicant, representation of the applicant was rejected basically on the ground that his performance was not satisfactory, as he unauthorizedly absented himself. This has been assailed by the applicant.
6. Ms. Meenu Mainee, learned counsel stated that after grant of temporary service, applicant has a right to be accorded an opportunity before dispensing with his services and as the foundation of the termination was the misconduct of the applicant, it is punitive.
7. Learned counsel relies upon, in an identical situation, a decision of the Tribunal in Dharamender Kumar Yadav v. Union of India & others, 2006 (1) ATJ 408, which stood affirmed by the High Court of Delhi in WP (C) No.3263/2006 on 8.3.2006.
8. Ms. Meenu Mainee, learned counsel has also relied upon the decision of the High Court of Delhi in Lakhi Ram v. Union of India & others, WP (C) No.6070/2006 dated 5.10.2007 where the termination on alleged unauthorized absence has been found to be a punitive. Setting aside the termination, except grant of back wages, the continuity of service for seniority and pension has been granted to the petitioner therein.
9. Learned counsel states that in all fours the above ratio covers the present issue.
10. It is also stated at Bar that one of the decisions where a contrary view was taken by one of us (Shri Shanker Raju, M (J)) in Hukum Singh v. Union of India & others (OA-1468/2002) decided on 24.1.2003 has since been reversed by the High Court, the applicant therein has been reinstated back.
11. On the other hand, learned counsel for respondents vehemently opposed the contentions and stated that the decisions by the applicant are distinguishable, as therein the circular of Railways of 1995 has been relied upon whereas as per conditions of appointment of substitute Bungalow Khallasi dated 14.4.2003 in its body stipulate that the services of one, who is found unsuitable in performance, were terminated.
12. It is also stated by learned counsel that only on completion of three years continued service, one is considered for absorption.
13. Learned counsel also stated that as per the clauses, the services of Khallasi shall be terminated without any notice on an unsatisfactory working report and the same would apply in case of the applicant.
14. Learned counsel has further relied upon the decision of Apex Court in Secretary, State of Karnataka & others v. Umadevi & others, 2006 (4) SCALE 197, (2006) 4 SCC 1 and stated that one, who accepted employment with due notice, is estopped on waiver to challenge the termination as per the terms and conditions.
15. Learned counsel relied upon the three Judge Bench of Apex Court in Oil & Natural Gas Commission & others v. Dr. Md. S. Iskender Ali, (1980) 3 SCC 428 to contend that termination order on unsatisfactory performance being punitive, does not cast stigma and is bad in law.
16. Learned counsel relied upon the decision of the Apex Court in Dr. (Mrs.) Gurjeewan Garewal v. Dr. (Mrs.) Sumitra Dash & others, 2005 (1) AISLJ (SC) 24 to contend that one, who is not holder of a civil post, cannot successfully assail non-grant of opportunity in case of termination under Article 311 of the Constitution of India.
17. Learned counsel heavily relied upon the decision of Full Bench of this Tribunal in Shyam Sunder v. Union of India & others (OA-896/1995) decided on 12.2.1999 to contend that in case of Khallasi having 120 days on temporary status, his services can be dispensed with on grant of unsatisfactory working without holding any departmental inquiry.
18. Learned counsel also relied upon the decision of coordinate Bench of this Tribunal in Shri Anu Prasad v. Union of India & others (OA-2941/1997) decided on 9.5.2000.
19. Shri Dhawan, learned counsel stated that applicant has leveled baseless and malicious objections against the wife of respondent No.3, which shows bent of mind and unfitness for attachment assuming on reinstatement as Bungalow Khallasi with any officer.
20. Learned counsel lastly relied upon the decision of this Tribunal in Shri Baijnath Mandal v. Union of India & others (OA-1687/2005) decided on 11.12.2006 where the decision in Dharamender Kumar Yadavs case (supra) has been considered but distinguished it on the ground that as there is no allegation of misconduct in the present case and where on a specific allegation of unauthorized absence, which was disputed, termination was set aside.
21. We have carefully considered the rival contentions of the parties and perused the records.
22. The facts are simple and not disputed. Applicant, who was attached on grant of temporary status as Bungalow Khallasi with respondent No.3, has requested for leave on account of serious sickness of his sister, which when not acceded to, he had to leave in mitigating circumstances. This has been treated as an unauthorized absence by the controlling officer, who, vide his communication, written to him as to unfitness of the applicant in service and termination for remaining unauthorized absence from duty and also on his behavioral attitude. Though no show cause notice or any warning was issued but the decision to terminate the applicant was taken, which was basically on the ground of unauthorizedly absence from duty.
23. In this regard, it is pertinent to note that the Apex Court in Jaswantsingh Pratapsingh Jadeja v. Rajkot Municipal Corporation & another, 2008 (1) SCC (L&S) 49 ruled that when the discharge order alleges allegations of unauthorized absence, the same is stigmatic.
24. Also held in State of Punjab & others v. Constable Avtar Singh (Dead) through Lrs., 2008 (8) SCALE 147 that an order of discharge regarding unauthorized absence amounts to a foundation of misconduct of a stigmatic order and is bad in law.
25. Insofar as terms and conditions of 2003 circular of Railway are concerned, we do not find much difference in the earlier circular where some conditions have been enumerated, yet the fact that the Full Bench decision of the Tribunal has been taken into consideration in Dharamender Kumar Yadav (supra), a finding on the ground that once the termination is as a result of an act of the controlling officer under the guise of unwilling or unsatisfactory performance, a foundation of misconduct is to proceed with an opportunity. The aforesaid view has been upheld by the High Court (supra). Though the decision in Ram Kumar & others v. Union of India & others, 1989 (1) AISLJ 101 has been relied upon by the coordinate Bench in Shri Baijnath Mandal (supra), yet the only distinguishing feature therein that there is no justification tendered as to unauthorized absence from duty. In the instant case, applicant has applied for and his absence has been consistently by a stand stated not to be unauthorized, as his sister was ailing, for which he not only produced medical record but also requested the authority. In such view of the matter, the decision in Shri Baijnath Mandal (supra) would have no application. Moreover, a subsequent decision of the High Court in Lakhi Ram (supra) where not only the decision of Full Bench of this Tribunal but also the fact that the termination when accuses the applicant of misbehavior, then non-grant of opportunity has been found to have vitiated the order, being founded on misconduct and stigmatic.
26. A decision where one of us (Shanker Raju, M (J)) in Hukum Singh (supra) where on the basis of the terms and conditions and the decision of the Full bench upheld the termination order has since been reversed by the High Court, the order is binding on us.
27. We are of the considered view that merely because the applicant does not hold a civil post and despite non-applicability of Article 311 of the Constitution, yet principles of natural justice would come in play and violation of audi alteram partem on a punitive order, as a condition precedent, vitiates the impugned orders for deprivation of a reasonable opportunity. Our considered view is that the decisions of the High Court in Dharamender Kumar Yadav and Lakhi Ram (supra), in all fours, cover the present issue. As such, the order of termination and subsequent order passed by the appellate authority cannot be sustained in law.
28. Resultantly, OA is allowed to the extent that impugned orders are set aside. We direct reinstatement of the applicant as Bungalow Khallasi with continuity of service, except back-wages. We further direct that as the applicant is being reinstated in service, he would be entitled to all admissible consequential benefits. Respondents shall complete the exercise within a period of three months from the date of receipt of a copy of this order. No costs.
( Dr. Ramesh Chandra Panda ) ( Shanker Raju ) Member (A) Member (J) /sunil/