Central Administrative Tribunal - Delhi
Mahavir Singh vs Delhi Transport Corporation, Govt. Of ... on 8 September, 2016
1 OA No.100/2903/2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.100/2903/2013
New Delhi this the 8th day of September, 2016
HON'BLE MR. JUSTICE M.S. SULLAR, MEMBER (J)
HON'BLE MR. K.N. SHRIVASTAVA, MEMBER (A)
Shri Mahavir Singh
Ex.Driver, DTC
S/o Shri Anand Singh
B.No.24856, T.No.66846
Village -Godiavaas,
Tehsil DAnta Ram Ggarh,
District-Sikar,
Rajasthan. ....Applicant
(Argued by: Shri Sachin Chauhan, Advocate)
Versus
1. Delhi Transport Corporation,
Through its Chairman,
DTC, I.P. Depot,
New Delhi.
2. The CMD,
Through Chairman,
DTC, I.P. Depot,
New Delhi.
3. The Depot Manager,
Delhi Transport Corporation,
Hari Nagar Depot-1,
New Delhi-110064. ...Respondents
(By Advocate: Shri Manish George)
ORDER (ORAL)
Justice M. S. Sullar, Member (J) Applicant, Mahavir Singh, Ex.Driver, Delhi Transport Corporation (DTC), has preferred the instant Original Application (OA), assailing the legal validity of the impugned order dated 21.11.2012 (Annexure A-1), whereby his 2 OA No.100/2903/2013 services were terminated by the Disciplinary Authority (DA) and orders dated 04.02.2013 (Annexure A-2) and dated 15.05.2013 (Annexure A-3), vide which his appeal/supplementary appeal were rejected respectively by the Appellate Authority (AA).
2. Aggrieved thereby, the applicant has instituted the present OA, challenging the impugned orders, invoking the provisions of Section 19 of the Administrative Tribunals Act, 1985.
3. The pith and substance of the facts and material, which needs a necessary mention, for the limited purpose of deciding the core controversy involved in the instant OA, and exposited from the record, is that, applicant was appointed on 08.12.2009 as per an offer of appointment dated 20.03.2009 to the post of Driver in DTC, through Delhi Subordinate Services Selection Board (DSSSB), in the Pay Band of Rs.5200-20200 + Grade Pay of Rs.2000/- and other permissible allowances. His probation period of 2 years was extended for a period of 6 months w.e.f. 08.12.2011 to 07.06.2012, at the first instance and thereafter, for a period of 3 months from 08.09.2012 to 07.12.2012, vide orders dated 05.12.2011 and dated 06.09.2012 respectively, by the DTC. The sole reason for extension of probation period was, his involvement in a criminal case regarding a motor vehicle accident, which, according to the applicant, had taken place without his 3 OA No.100/2903/2013 fault and negligence. He worked satisfactorily and has clean service record. However, on 15.03.2010, the criminal case was registered against him for causing the said motor vehicle accident. According to the applicant, in pursuance to the criminal case, a preliminary enquiry was conducted to ascertain the facts and he was given a warning in this regard.
4. The case of the applicant further proceeds that the impugned order of termination is founded on specific charge of misconduct, for causing the motor vehicle accident, which is stigmatic and punitive in nature. It was alleged that, once the warning was given to the applicant for the same very accident, he cannot be punished twice for the same misconduct. The impugned order was termed to be arbitrary, non-speaking, punitive, stigmatic, against the principles of natural justice and without jurisdiction. On the strength of the aforesaid grounds, the applicant has sought quashment of the impugned orders in the manner indicated hereinabove.
5. The respondents refuted the claim of the applicant and filed their reply, wherein it was pleaded that applicant caused a motor vehicle accident on 15.03.2010. He was placed under suspension, and DTC Accident Committee declared him at fault in the preliminary enquiry. The criminal case registered against him, vide FIR No.115/2010 under Section 279/304-A IPC, is still pending in the 4 OA No.100/2903/2013 Criminal Court. Since he was not a permanent employee, his services were terminated as per Clause 9(a)(i) of DRTA (Conditions, Appointment & Services) Regulation, 1952, as no regular Department Enquiry (DE) was warranted in case of an employee who is on probation. It was claimed that the Disciplinary Authority (DA), has correctly terminated the services of the applicant vide impugned order (Annexure A-
1) which was maintained by the AA. Virtually acknowledging the factual matrix and reiterating the validity of the impugned orders, the respondents stoutly denied all other allegations and grounds contained in the OA and prayed for its dismissal. That is how we are seized of the matter.
6. We have heard the learned counsel for the parties and have gone through the record with their valuable help.
7. At the very outset, learned counsel for the applicant has contended, with some amount of vehemence, that the services of the applicant were terminated, vide impugned order dated 21.11.2012 (Annexure A-1), on account of misconduct of causing motor vehicle accident and pendency of criminal case against him in the Criminal Court, which is stigmatic and punitive in nature. He said that the services of the applicant could not have been terminated without conducting an enquiry and without following the due procedure by the DTC.
5 OA No.100/2903/2013
8. On the contrary, the learned counsel for the respondents has fairly acknowledged, that the services of the applicant were terminated on account of the motor vehicle accident in question and pendency of the criminal case, but he urged that since his period of probation was extended, so no DE was required. His services were rightly terminated by the competent authority. In this regard, he has placed reliance on the judgments of Hon'ble High Court of Delhi in cases Duli Chand Vs. P.O. Labour Court-VIII & Another in W.P.(C) No.235/2000 decided on 03.03.2010 and Suresh Chand Jain Vs. Director General and Another in W.P.(C) No.5603/2013 decided on 11.02.2015.
9. Having heard the learned counsel for the parties and having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, we are of the firm view that the instant OA deserves to be allowed, for the reasons mentioned hereinbelow.
10. In Duli Chand and Suresh Chand Jain's case (supra), the termination orders (therein), did not allege any specific misconduct, negligence, inefficiency or dereliction of duty on the part of the Delinquent Officials (DO) (therein). On the peculiar facts and in the special circumstances of those cases, it was observed, that the termination of services due to unsatisfactory performance of a probationer, cannot be termed as stigmatic or punitive in nature and thus a regular DE was not required.
6 OA No.100/2903/2013
11. Possibly, no one can dispute with regard to the aforesaid observation, but the same would not come to the rescue of the respondents in the instant case for following reasons.
12. As is evident from the records, the facts of the case are neither intricate nor much disputed. The short and significant question that arises for determination is, whether the impugned order (Annexure A-1) is stigmatic and punitive in nature or not?
13. Having regards to the rival contentions of the parties, the answer must obviously be in the affirmative in this case.
14. The impugned order reads as under:-
"DTC HARI NAGAR DEPOT-1 NEW DELHI-64 No.HND-1/Dr./12/4237 Dated:21.11.2012 Shri Maharvir Singh Driver B.No.24856, T.No.66846 was appointed Driver w.e.f. 08.12.2009 in a condition of probation vide PLD's letter No.PLD-III/DSSSB/Driver other state/Apptt./09/4064, dated 02.12.2009 in this Corporation. During the probation period, he caused a Fatal Accident and his case is lying pending in the Criminal Court. Hence, his services from this Corporation are hereby terminated with immediate effect under clause 9(a)(i) of the DRTA (Conditions of appointment and services) Regulation, 1952.
He is required to deposit all the DTC articles in his possession within 24 hours of the receipt of this memo. Non deposit of the DTC articles by him in accordance with the instructions contained in office order No.21 dated 27.01.1954, will render him liable to pay a penalty of Rs.2/- per day for the days he keeps any of the DTC articles in his possession after the specific period of 24 hrs. Sd/-
Depot Manager".
15. A bare perusal of the impugned order would reveal, that the services of the applicant were terminated on account of misconduct of causing the motor vehicle accident and pendency of the criminal case. Not only that, 7 OA No.100/2903/2013 the same very specific stand and reasons have been pleaded by the respondents in their reply for termination of services of the applicant.
16. Undoubtedly, the impugned termination order is smeared with stigma. It is indeed stigmatic and punitive in nature. Naturally, such an order ought not to have been passed, without following the due procedure by the competent authority. It is not a matter of dispute that no Show Cause Notice (SCN) was issued nor an opportunity of being heard was provided to the applicant nor any enquiry was held against him before terminating his services, which is not legally permissible.
17. Faced with the situation, learned counsel of respondents then submitted that applicant was not a permanent employee, so there was no requirement to issue SCN or hold a departmental enquiry against him.
18. We are afraid, we cannot accept this contention of learned counsel for the respondents, in view of ratio of law laid down by the Hon'ble Apex Court in case Anoop Jaiswal Vs. Government of India and Another (1984) 2 SCC 369 wherein it was ruled that even in case of a probationer, court can go beyond the formal order of discharge to find the real cause of action. Simple order of discharge of probationer on ground of unsuitability passed before his completion of the probation period, which is based on report/recommendation of the concerned 8 OA No.100/2903/2013 authority, indicating commission of alleged misconduct by the probationer, then order is punitive in nature, which in the absence of any proper enquiry amounted to violation of Article 311(2) of the Constitution of India.
19. Again, the same view was reiterated by Hon'ble Apex Court in case Andhra Pradesh State Federation of Coop. Spinning Mills Ltd. and Another Vs. P.V. Swaminathan (2001) 10 SCC 83 wherein it was held that "the legal position is fairly well settled that an order of termination of a temporary employee or probationer or even a tenure employee, simplicitor without casting any stigma may not be interfered with by court. But, at the same time, the court is not debarred from looking to the attendant circumstances, namely, the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the order of termination or formed the foundation for the same order. If the court comes to a conclusion that the order was, in fact, the motive, then obviously the order would not be interfered with, but if the court comes to a conclusion that the so called inefficiency was the real foundation for passing of order of termination, then obviously such an order would be held to be penal in nature and must be interfered with since the appropriate procedure has not been followed".
20. Therefore, once it is proved on record that the services of the applicant were terminated for misconduct by virtue of 9 OA No.100/2903/2013 the impugned stigmatic and punitive order, then the protection under Article 311 of the Constitution of India is available to him and his services cannot be terminated on speculative grounds, without holding an enquiry. Even if the charge is proved against the delinquent official during the enquiry, he would have an opportunity to plea for proportionality of the punishment vis-à-vis the charge of misconduct. This matter is no more res integra and is now well settled.
21. An identical question came to be decided by the Hon'ble Apex Court in the Ratnesh Kumar Choudhary Vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Others JT 2015 (9) 363, wherein having considered the previous judgments of Hon'ble Supreme Court in cases Samsher Singh v. State of Punjab (1974) 2 SCC 831, Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and Another (1999) 2 SCC 21, State of U.P. vs. Kaushal Kishore Shukla (1991) 1 SCC 691, Triveni Shankar Saxena vs. State of U.P.(1992) Supp (1) SCC 524, State of U.P. vs. Prem Lata Misra (1994) 4 SCC 189, Samsher Singh (supra), Parshotam Lal Dhingra vs. Union of India AIR 1958 SC 36, State of Bihar vs. Gopi Kishore Prasad AIR 1960 SC 689, State of Orissa vs. Ram Narayan Das AIR 1961 SC 177, Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, Gujarat Steel 10 OA No.100/2903/2013 Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, Anoop Jaiswal vs. Govt. of India (1984) 2 SCC 369, Nepal Singh vs. State of U.P. (1980) 3 SCC 288, Commissioner, Food & Civil Supplies vs. Prakash Chandra Saxena (1994) 5 SCC 177, Commissioner, Food & Civil Supplies vs. Prakash Chandra Saxena (1994) 5 SCC 177, Chandra Prakash Shahi vs. State of U.P. and Others (2000) 5 SCC 152, Union of India and Others vs. Mahaveer C. Singhvi (2010) 8 SCC 220, Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences (1999) 3 SCC 60, Pavanendra Narayan Verma vs. Sanjay Gandhi P.G.I. of Medical Sciences and Another (2002) 1 SCC 520] and State Bank of India and Others vs. Palak Modi and Another (2013) 3 SCC 607, it was ruled by the Apex Court that if the termination order is stigmatic and based or founded upon misconduct, would be a punitive order and court can lift the veil and declare that in the garb of termination simpliciter, the employer has punished an employee, for an act of misconduct. It was also held that if a probationer is discharged on the ground of misconduct or inefficiency or for similar reason, without a proper enquiry and without his getting a reasonable opportunity of showing cause against the termination, it may amount to removal from service within the meaning of Article 311 (2). Hence, a show cause notice was required to 11 OA No.100/2903/2013 be issued and opportunity of being heard has to be provided to such employees in departmental enquiry before passing any adverse order. In the absence of which, the termination order would be inoperative and non-est in the eyes of law.
22. Sequelly, the same view was followed by this Tribunal in case Jaibir Antil Vs. Director, Department of Women and Child Development, Govt. of NCT of Delhi and Others in OA No.100/1232/2014 decided on 10.08.2016.
23. Therefore, such impugned stigmatic and punitive order of termination, passed on account of causing motor vehicle accident and pendency of criminal case against the applicant by the competent authority would be inoperative and cannot legally be sustained. Thus, the contrary arguments of the learned counsel for the respondents stricto sensu deserve to be and are hereby repelled. On the other end, the ratio of law laid down in the indicated judgments of Hon'ble Apex Court and this Tribunal is mutatis mutandis applicable in the present controversy and is a complete answer to the problem in hand.
24. Thus, seen from any angle, the impugned order cannot legally be sustained in the obtaining circumstances of the case.
25. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 12 OA No.100/2903/2013
26. In the light of the aforesaid reasons, OA is allowed. The impugned termination order dated 21.11.2012 (Annexure A-1) and appellate orders in appeal/supplementary appeal dated 04.02.2013 (Annexure A-2) and dated 15.05.2013 (Annexure A-3), are hereby quashed and set aside. The respondents are directed to reinstate the applicant in service forthwith, with all consequential benefits. However, he would be entitled to only 50% of the back wages in view of the judgment of the Hon'ble Apex Court in Ratnesh Kumar Choudhary's case (supra). However, the parties are left to bear their own costs.
Needless to mention, the respondents would be at liberty to initiate appropriate DE proceedings against the applicant for his alleged misconduct keeping in view the aforesaid observations and in accordance with law.
(K.N. SHRIVASTAVA) (JUSTICE M.S. SULLAR) MEMBER (A) MEMBER (J) 08.09.2016 08.09.2016 Rakesh