Central Administrative Tribunal - Delhi
Gunjan vs Govt. Of Nctd on 17 July, 2023
1 O.A. No.24/2019
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.24 of 2019
Orders reserved on : 31.5.2023
Orders pronounced on : 17.07.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Gunjan, age-32 years
W/o Sh. Vivek Kumar Verma,
H.No.-261/10, Tatiri Baghpat, Pin-250601.
...Applicant
(By Advocate: Shri Sachin Chauhan)
VERSUS
1. Govt. of NCTD
Through the Chief Secretary,
Govt. of NCTD,
Nava Sachivalya IP Estate
New Delhi.
2. The Secretary of Education,
Govt. of NCT of Delhi,
Old Secretariat, New Delhi-54.
3. The Principal Secretary of Education
Govt. of NCT of Delhi,
Old Secretariat, New Delhi-54.
4. The Director (Education)
Directorate of Education,
Govt. of NCTD
Old Secretariat, Near Vidhan Sabha,
Civil Lines, Delhi 110054
...Respondents
(By Advocate: Shri Anuj Kumar Sharma)
2 OA No.24/2019
ORDER
Hon'ble Mr. R.N. Singh, Member (J):
By filing the instant OA under Section 19 of the Administrative Tribunals Act, 1985, the applicant is seeking quashing of the termination order dated 28.3.2017 along with corrigendum dated 30.3.2017 vide which in pursuance of the proviso to sub rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, the services of the applicant have been terminated, and order dated 3.12.2018 vide which the appeal/representation dated 5.4.2017 preferred against the aforesaid order and corrigendum was rejected by the appellate authority. The applicant has also prayed for a direction to the respondents to reinstate her back in service to the post of Assistant Teacher (Primary) forthwith with all consequential benefits, including seniority & promotion and pay & allowances.
2. The brief facts of the case are that the applicant, who was initially appointed to the post of Hindi Translator in the Inland Waterways Authority of India (in short 'IWAI') (Ministry of Shipping, Govt. of India) in the PB of Rs.9300-34800 + GP of Rs.4200/- w.e.f. 3 OA No.24/2019 13.10.2011, had also applied for the post Code Nos.71/09 and 101/12 pertaining to the post of Assistant Teacher. For selection of the said post, a common test was conducted by the Delhi Subordinate Staff Selection Board (hereinafter referred to as 'DSSSB') and the applicant was qualified in the said selection process for both post code Nos., i.e., 71/09 and 101/12 on merit. Thereafter the applicant was selected to the post of Assistant Teacher (Primary) in Directorate of Education against the post code no.71/09 and was issued an offer of appointment dated 21.11.2014 for the said post in the pay scale of Rs.9300-34800 with GP of Rs.4200/-. The applicant joined the said post at SKV No.2, Jama Masjid on 30.4.2015 after tendering technical resignation from IWAI, which was accepted by the IWAI vide letter dated 29.4.2015 (Annexure A-12A) and the applicant was allowed to retain her lien in the said post in IWAI for two years from 30.4.2015, i.e., the date of her joining as Assistant Teacher (Primary), as per rules. Thereafter, the applicant was transferred from SKV 4 OA No.24/2019 No.2, Jama Masjid to SBV No.2, Yamuna Vihar on 1.12.2015. Subsequently, vide order dated 29.4.2016 (Annexure A-17), the competent authority amongst the respondents accorded approval for counting of applicant's past service, i.e., 3 years, 06 months and 18 days (13.10.2011 to 29.4.2015) rendered by her in IWAI for all pensionary benefits as per provisions contained in Rule 26 (2) of CCS (Pension) Rules, 1972. Subsequently, vide order dated 27.9.2016 (Annexure A-18), benefit of pay protection was given to the applicant and she was granted next annual increment w.e.f. 1.7.2016. Subsequently, the services of the applicant along with 13 other candidates were terminated w.e.f. 6.2.2017 vide order dated 7.2.2017 due to revised result against the post Code No.71/09. However, the applicant was again appointed to the said post under Post Code No.101/12 vide letter dated 10.2.2017 and in pursuance of the said letter, the applicant joined the said post on 13.2.2017 at SBV No.2, Yamuna Vihar. However, during the interregnum, on 3.2.2017, the applicant had made a 5 OA No.24/2019 complaint regarding loss of her dignity, harassment, humiliation, use of hot and absurd remarks and endeavour for molestation at workplace against the newly joined PGT Teacher, namely, Chandrasekhar Sharma, to the HoS and Dy. Director of Education, North East on 4.2.2017. The applicant has also informed the Vice Principal, namely, Shri Ravindra Kumar via SMS and telephonically regarding the said incident around 10.00 pm on 3.2.2017 itself as HoS was not present at the office when the said incident took place. Even the applicant's husband also tried to enquire from Vice Principal to disclose the name of the teacher but he refused to disclose his name. Subsequent to joining to the said post against Post Code No.101/12, the applicant has not been given pay protection, as was given to her upon joining against post code No.71/09, the applicant made a representation to the concerned authority on 21.2.2017 regarding grant of pay protection. Thereafter the applicant was issued a Memorandum dated 22.2.2017, which reads as under:- 6 OA No.24/2019
"Whereas, the undersigned visited the classes on 21/02/2017 at 1:66 P.M..
Whereas, it was observed during the visit that, Mrs Gunjan, Emp. ID-20170921, Asstt. Teacher (Primary) was not present in her class lInd-A, room No. P-3.
Whereas, the class teacher of lInd-B, which was running in same room, told that she was telling to go Head Quarter.
Whereas, it was come to the notice after verify the movement register that she left the school after made her entry in movement register without permission of undersigned and came back at the school's "off time"
as she was seen at the time of departure only in school.
Whereas, Mrs Gunjan has violated the CCS (Conduct) rules 1964.
Hence, she is directed to explain the reasons within three days why she left the school during duty hours without permission of competent authority." 2.1 The applicant replied to the said Memorandum vide her reply dated 23.2.2017 wherein she has specifically averred that after joining, she had requested several times regarding fixation of her pay and when her above request was not acceded to, she also wrote a letter to the said HoS but the said HoS informed that he did not receive the same as usual. On 20.2.2017, she had also tried to give a letter seeking permission of the HoS but the same was 7 OA No.24/2019 declined without reading the same. On 21.2.2017, she again visited the office of HoS but when he was not present there, she apprised her case to Shri Ajay Kumar, Vice Principal, who allowed her to go the Directorate of Education after making an entry in movement register in this regard. However, the services of the applicant have been terminated vide order dated 28.3.2017 under sub-rule (1) of CCS (TS) Rules, 1965 and thereafter respondents issued a corrigendum dated 30.3.2017 making a partial modification in the termination order dated 28.3.2017, i.e., first line of the said order be read as 'In pursuance of proviso to sub rule (1) of Rule 5 of the Central Civil' instead pursuance of the proviso to sub rule (1) of the Central Civil'.
2.2 The services of the applicant were terminated within a span of one month and 10 days from the date of joining the said post under Post code No.101/12. It is further stated by the applicant that one month's salary in lieu of one month notice of termination was returned to the Directorate of Education vide letter 8 OA No.24/2019 dated 6.6.2017 and cheque No.133486 amounting to Rs.40321/-, which includes one month interest @7% also. Thereafter, the applicant personally met the Director of Education and only then she came to know that her services have been terminated on allegation of misbehaviour and some complaint in that regard being collectively signed by teachers of SBV No.2, Yamuna Vihar.
2.3 According to the applicant, termination of her services seems to have been made due to a complaint made by her against one PGT Shri Chandrasekhar Sharma on 4.2.2017 to the HoS and the Dy. Director of Education. The applicant had observed that the said PGT along with Staff Secretary and some of his colleagues were organizing signature campaign against her to prove that applicant's above mentioned complaint was forged and baseless and they were forcing/coercing the teachers of the said school to sign the complaint against her. They also threatened the applicant to transfer her out of the school, if the above complaint made by her is not withdrawn. The 9 OA No.24/2019 applicant had submitted her statutory appeal dated 5.4.2017 (Annexure A-6) against the aforesaid order of termination of her services in which besides the aforesaid, the applicant has annexed a copy of audio recording CD as a proof of her innocence along with an apology letter submitted by the said PGT Shri Chandrashekar Sharma and other relevant documents. When no decision was taken on her aforesaid appeal, the applicant has submitted as many as 18 reminders and despite that when her appeal has not been decided by the concerned appellate authority, she had approached this Tribunal by filing OA No.3087/2018 against the inaction on the part of the respondents in not deciding the appeal and this Tribunal vide Order dated 27.8.2018 disposed of the said OA with a direction to the respondents to pass an appropriate speaking and reasoned order within a stipulated period of 90 days. The operative portion of the said Order dated 27.8.2018 passed in OA No.3087/2018 reads as under:-
"5. In the circumstances, the OA is disposed of, without going into the merits of the case, by 10 OA No.24/2019 directing the respondents to consider annexure A-3 appeal dated 05.04.2017 of the applicant and pass an appropriate speaking and reasoned order thereon, within 90 days from the date of receipt of copy of this order, in accordance with law. No costs."
2.4 In pursuance of the aforesaid Order of this Tribunal, the applicant had been called for personal hearing by the appellate authority on 14.11.2018. The applicant appeared before the concerned authority and made her oral submissions as well as a representation dated 14.11.2018 (Annexure A-4). However, the said appeal of the applicant had been rejected by the appellate authority vide impugned order dated 3.12.2018 (Annexure A/3). Hence, the applicant has filed the present OA for redressal of her grievances.
3. Pursuant to notice, the respondents have filed counter reply opposed the OA and prayed for dismissal of the OA with costs. The applicant has also filed her rejoinder reiterating her claim as made in the OA.
4. We have heard learned counsels for the parties and perused the pleadings available on record. 11 OA No.24/2019
5. During the course of hearing, learned counsel for the applicant has argued that although the impugned order dated 28.3.2017 is stated to be an order simpliciter, however, the same is based on the findings of unauthorised absence as well as on the alleged of misconduct, as is evident from the order passed by the appellate authority on her appeal, the relevant contents of which read as under:-
"4. The facts of the case as relevant to decide the matter are that Ms. Gunjan was appointed as an Assistant Teacher (Primary) since 01.12.2015 at Sarvodaya Bal Vidyalaya No. 2, Yamuna Vihar. This appointment was cancelled vide order dated
06.02.2017 as her candidature was excluded by DSSSB from the result under Post Code 71/09 which result was prepared as per orders passed by Hon'ble CAT in OẠ No. 1656/14 on 26.09.2014. In the freshly drawn merit list, she did not come in the merit. Subsequently, she was appointed again as an Assistant Teacher (Primary) in the same school w.e.f. 14.02.2017 under Post Code 10112 which result was declared on O2.11.2015. The appointment was on temporary and provisional basis for two years.
5. Since Ms, Gunjan was on probation her services were terminated under Rule 5 CCS (Temporary Service) Rules 1965. It was an order simplicitor. Now since Ms. Gunjan has raised a dispute, the department is constrained to disclose the work conduct of the teacher as reported.
6. The Head of the School (HoS) of Ms. Gunjan reported on 23.02.2017 to the Deputy Director that Ms. Gunjan had on earlier occasions misbehaved with Vice Principals Sh. Ravinder Kumar and Dr. 12 OA No.24/2019 Ajay Kumar. She had also misbehaved with the current HoS. On 03.02.2017, she misbehaved, challenged/ threatened the staff members, pointing her finger to Principal Office and saying that she would see each one of them. Just after the incident, all the staff members approached the Dy. Director (North East) on the same date and a written complaint was submitted in the Principal's-office, by Sh. C.S. Sharma, PGT (History) wherein he had raised the issue regarding the indecent behaviour and language being used by Ms. Gunjan towards the Vice- Principal. When Sh. Sharma tried to counsel Ms. Gunjan to behave politely, she threatened him in presence of the Vice-Principals and other staff members. A complaint dated 04.02.2017 signed by 72 staff members of the school is also available on record regarding her misbehaviour towards the Principal, Vice-Principal and all the staff members. It was also reported by the Head of the School that on 21.02.2017, Ms. Gunjan left the school after making the entry in the movement register without permission of the competent authority. It was stated by the Head of School that he, both the Vice- principals and all the staff members were being mentally tortured by Ms. Gunjan on various pretexts including recording by her mobile phone every taik, every meeting and every discussion.
7. The Director (Education) being the Appointing Authority for Assistant Teacher (Primary), after perusing the above report of the HoS was of the firm opinion that transfer of the teacher was not a solution, as considering her past it can be asserted that the official is not going to amend her future by transferring her to other place, and that the conduct of the teacher warranted her termination from the Government Service. The impugned order dated 28.03.2017 was accordingly issued in pursuance of the proviso of sub rule 1 of Rule 5 of CCS (Temporary) Service) Rules, 1965.
8. In the appeal/representation dated 05.04.2017, Ms. Gunjan submitted that she came to know about the grounds of her termination being due to allegation of misbehaviour and collective signatures 13 OA No.24/2019 by teachers of her school only on 30.03.2017. She argued that alleged complaint for her termination was initiated by the HoS as consequence of her complaint regarding loss of dignity, harassment, humiliation and endeavor for molestation at work place against her by the newly joined PGT Sh. C.S. Shama, which she submitted to the HoS and Dy. Director of Education on 04.02.2017. She had also informed the Vice-Principal telephonically and via SMS regarding the incident at 10.00 PM on 03.02.2017. On 04.02.2017, she had also sent an e- mail regarding the incident on school e-mail ID with reference to the misbehaviour and misconduct of Sh. C.S. Sharma. She alleged that Sh. C.S. Sharma alongwith Staff Secretary, Sh. R.P.S. Dhama and some of his colleagues were organizing a campaign against her, and were forcing the teachers of school to sign against her. They had threatened her to transfer her out of the school if the complaint was not withdrawn. Ms. Gunjan thereafter sent an e-mail and complaint to various other authorities, including to SHO Bhajanpura. In her appeal/representation, Ms. Gunjan also enclosed audio recording of some of teachers of her school in which she alleged that they were accepting that they had been pressurized by the HoS for signature against her. She also-claimed that even though Sh. C.S. Shama meanwhile gave an apology letter to her and personally apologized for the incident which occurred on 03.02.2017, she did not accept the apology. Ms. Gunjan also submitted that she had performed her duty with full dedication sincerity & integrity, had always maintained the decorum of the school, and in the end prayed that she may be reinstated in service.
9. The Directorate of Education on receipt of the aforesaid appeal representation, alongwith the CD containing audio recording of some of the teachers of the school allegedly accepting that they had been pressurized by the HoS for signature against Ms. Gunjan, decided that before deciding about her work & conduct, it was necessary to get an inquiry conducted into the allegations made by Ms. Gunjan. Dr. Kanchan Jain, Principal, GGSSS, Yamuna Vihar was accordingly directed by the Deputy Director 14 OA No.24/2019 (North East) to conduct a preliminary enquiry into the allegations made by Ms. Gunjan. The Inquiry officer (IO) observed that Ms Gunjan had sent transcript of audio recording No. 6,7,10,11,12 & 16 only. The employees whose audio recording were available in these transcripts were examined by the IO, who after analysis of their statements concluded as follows:-
"1. No body knew that she was recording their conversation.
2. They all were talking informally with her.
3. All denied about any pressure on them to sign at any given point of time.
4. 5 out of 6 mentioned about the aggressive and ill-mannered behaviour. She used to misbehave with Principal, Vice Principal and staff members.
5. It also appears that she wanted to leave school early.
6. The audios that Gunjan sent had only transcript nos. 6,7,10,11, 12 and 16.
Nobody knows where are the rest it proves that audio is tempered and Whatever she finds suits her, she submits that as an evidence."
The IO accordingly concluded that from the content of the CD, neither the charge of conspiracy alleged by Ms. Gunjan, nor her innocence is proved.
10. In the above background, the appeal/ representation of Ms. Gunjan was placed before me. I have gone through the termination order dated 28.03.2017 issued by the Director (Education), the provisions of CCS (Temporary Service) Rules, 1965, the representation submitted by the 72 staff members of GSBV, Yamuna. Vihar, Delhi in which Ms, Gunjan was earlier working, the inquiry report 15 OA No.24/2019 submitted by Dr. Kanchan Jain, and the other facts and records pertaining to this case. Ms. Gunjan was also heard personally by me on 15.10.2018 & again on 14.11.2018.
11. In the representation dated 04.02,2017 submitted by the 72 staff members of the school, it has been stated that the conduct and behaviour of Ms. Gunjan towards Principal, Vice Principal and all the staff members was extremely improper, that she showed disrespect towards them and did not have any respect for any of the members of the school, including the Principal of the school. It had been also stated by them that she had been misbehaving earlier also with the Vice Principals Sh. Ravinder Kumar and Dr. Ajay Kumar. When the staff members had tried to counsel Ms. Gunjan, she had refused to listen to anyone of them and had stated that she was not scared of anyone and that the Principal may do whatever he wants to do. All the staff members were continuously under the fear that Ms. Gunjan could level any allegation on anyone of them. The staff members also stated in the above representation that on 04.02.2017,, Ms. Gunjan came in the office of the Principal, removed the IT Assjstant from the Computer showing a dictatorial attitude and starting doing her personal work. On being questioned by the Principal as to why she had left her class and come there, Ms. Gunjan replied that she had some important work to be done and that she will do it first.
12. In the enquiry conducted by Dr. Kanchan Jain, it has been stated by one Sh. Rajratna Kain that Ms. Gunjan always wanted to leave the school before time and this led to disputes. It has also been stated by one Sh. Vivek, PET and one Sh. Veer Sen, that her behaviour was not good with the Vice Principal, Principal and the staff members, and that she used to behave in an extremely uncouth and mannerless way, Everyone wanted to get her transferred out of the school to get rid of the daily arguments and her nonsensical talks. It has also been stated by one Sh. Chandrashekhar that Ms. Gunjan had an aggressive behaviour and used foul and 'amaryadit' language 16 OA No.24/2019 with the Principal, Vice Principal and the staff members, and that he had been threatened by her in the presence of the Vice Principal.
13. The entire conduct of Ms. Gunjan as revealed from the representation dated 04.02.2017 of 72 staff members of the school, as also revealed by the various persons (whose audio recording had been made by Ms. Gunjan) during the inquiry conducted by Dr. Kanchan Jain, clearly reveals the intemperate and aggressive behaviour of Ms. Gunjan, as well as lack of her respect for the Principal, Vice-Principal as also the other staff members. A teacher is looked upon with respect in the society and is supposed to be a role model for the children studying in the schools as well as for the society. He/she should have patience, and needs to maintain good behavíour and cordial relations with his/her colleagues.. Ms. Gunjan lacked all these desired qualities, and made reckless allegations against the male teachers. I therefore agree with the views of the then Director (Education) that transfer of the teacher from the school to any other school would not have been a solution, and that the conduct of the teacher warranted her termination since she lacked the qualities a teacher should have. Her services were therefore rightly terminated without attaching any stigma.
14. In view of the above, the representation dated 05.04.2017 made by Ms, Gunjan against her termination order dated 28.03.2017 is hereby rejected."
6. Learned counsel for the applicant has further argued that on a plain reading of the aforesaid order of the appellate authority, it is evidently clear that termination of the services of the applicant is not a simpliciter termination rather the same is based on a 17 OA No.24/2019 preliminary enquiry reporting misconduct of the applicant, which had been conducted at the back of the applicant without affording her an opportunity and therefore, the impugned order(s) passed by the respondents are not only in violation of the principle of natural justice but are also stigmatic and punitive in nature. As such the impugned orders are not sustainable in the eyes of law. In support of the claim of the applicant, reliance has been placed on the decision of the Hon'ble Supreme Court in the case of Ratnesh Kumar Chaudhary vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and others, reported in (2015) 15 SCC 151, the relevant extract of judgment is reproduced herein below:-
"27. In the facts of the case, the Court proceeded to state that there is a marked distinction between the concepts of satisfactory completion of probation and successful passing of the training/test held during or at the end of the period of probation, which are sine qua non for confirmation of a probationer and the Bank's right to punish a probationer for any defined misconduct, misbehaviour or misdemeanour. In a given case, the competent authority may, while deciding the issue of suitability of the probationer to be confirmed, ignore the act(s) of misconduct and terminate his service without casting any aspersion or stigma which may adversely affect his future prospects but, if the misconduct/misdemeanour constitutes the basis of the final decision taken by the competent authority to dispense with the service of the probationer albeit by a 18 OA No.24/2019 non-stigmatic order, the Court can lift the veil and declare that in the garb of termination simpliciter, the employer has punished the employee for an act of misconduct."
7. Reliance is also placed on the decision of the Hon'ble Apex Court in the case of Chander Prakash Shahi vs. State of U.P. and others, reported in (2000) 5 SCC 152, in which it has been held:-
"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."
8. Further reliance is placed on the decision of the Hon'ble High Court of Delhi in the case of S.S. Mota Singh JR. Model School vs. Tanjeet Kaur and another, reported in 221 (2015) DLT 595, the relevant portion of which reads as under:-
"20. In the case in hand, the termination order dated March 23, 2011 does reflect the cause for terminating the services of respondent No.1 was for dereliction of duty, which continued even after the last extension of the probation vide order dated January 4, 2010, which is clear from the usage of the words „dereliction of duty on her part still continued‟. That apart, the order refers to the respondent No.1 class performance was not upto the mark and she has been violating the decorum of the school. Assuming that the respondent No.1 class performance, not upto the mark denotes her unsatisfactory performance. The reasons for termination i.e „Dereliction of Duty‟ and „Violation of Decorum‟ of the school surely denotes a misconduct on the part of the respondent No.1. Since the alleged misconduct reflected 19 OA No.24/2019 in the termination order, surely the said order is not simplicitor, and it is stigmatic. In so far as the judgments relied upon by learned counsel for the petitioner are concerned, first I deal with the judgment in the case of Pavanendra Narayan Verma (supra), the judgment would not help the petitioner in any way more particularly as noted in Pavanendra Narayan Verma, the Supreme Court was considering an order of termination where the language used was 'work and conduct has not found to be satisfactory', the Supreme Court was of the view that the said words are almost exactly those which have been quoted in Dipti Prakash Banerjee (supra), clearly falling within the class of non stigmatic order of termination. As I have concluded above, the usage of the words „Dereliction of Duty‟ and „Violation of Decorum‟ depicts misconduct, termination on those grounds would be illegal, the judgment of Pavanendra Narayan Verma (supra), would be of no help to the petitioner. In so far as State of W.B and Ors. Vs. Tapas Roy case (supra) is concerned, there the Supreme Court was concerned with the discharge order mentioning several instances of unauthorized absence of probationer/trainee/constable from training centre and concluding therefrom, that he was not interested in training and had no respect for discipline. The Supreme Court was also of the view that there are no allegations of moral turpitude or misconduct. As I have, in this judgment, concluded that the termination order qua the respondent No.1 founded on misconduct and the termination is stigmatic, on facts, the case relied upon by learned counsel for the petitioner can be distinguished."
9. Learned counsel for the applicant has also submitted that the Hon'ble Apex Court in the case of Jaswant Singh vs. Rajkot Municipal Corporation, reported in 2007 (12) SCALE 155, had ruled that when the termination is founded on a specific misconduct without affording an opportunity of being heard, is in violation of the principles of natural justice, and such an order passed cannot be 20 OA No.24/2019 sustained in law. Learned counsel has further submitted that similar view has also been taken by the Hon'ble Apex Court in the case of State of Uttar Pradesh vs. Ram Bachan Tripathi, reported in 2005 (2) SC SLJ 311.
10. Lastly, learned counsel for the applicant has submitted that this Tribunal, while deciding the similar issue in OA No.660/2017, titled R/Const. Devender Singh vs. Govt. of NCT of Delhi and others, decided on 23.5.2023, has also considered most of the judgments as relied upon by the applicant in this case and held in favour of the applicant therein. Therefore, the present case may be allowed in the same terms as in OA No.660/2017.
11. On the other hand, Shri Sharma, learned counsel for the respondents with the assistance of the counter reply has submitted that a Memorandum dated 22.2.2017 was issued to the applicant due to her negligence of duty because she left the school without the prior permission of the HoS and it is a fact that the applicant left the school without the prior permission of HoS as when class was visited by the HoS, she was found absent from Class IIA room No.P-3 and the teacher of Class II-B also certified the absence of the applicant. Learned counsel for the 21 OA No.24/2019 respondents also submitted that it is a fact that the behaviour of the applicant was unbearable and, therefore, all the teachers were very sad and they signed the complaint against the applicant with the evidence. Therefore, the applicant was terminated by the competent authority vide order dated 28.3.2017.
12. Having regard to the above and keeping in view the Order/Judgment passed by this Tribunal in the case of R/Const. Devender Singh (supra), the issue, which arises for adjudication in the instant case is as to whether the order of termination of the services of the applicant is an order of termination simpliciter or punitive/stigmatic. This issue is put to rest by the respondents themselves through the appellate authority's order, which is admittedly a final order of the respondents in respect of termination of the applicant's services, inasmuch as it is recorded in the said order that inquiry was initiated pursuant to the complaint of the applicant but applicant was not given an opportunity to participate in the said inquiry proceedings, which is clearly a violation of principles of natural justice and the respondents have proved intemperate and aggressive behaviour of the applicant as well as lack of 22 OA No.24/2019 her respect for the Principal, Vice-Principal as also the other staff members without affording an opportunity to the applicant to defend her case.
13. From the above, it is evident that while deciding as to whether the termination of a probationer is termination simpliciter or a punitive, the Tribunal can travel beyond the order of termination to find out what is the reality of the background and foundation of the order of termination. It is undisputed that the impugned order of termination has merged into the appellate authority's order dated 3.12.2018 (Annexure A-3) and the appellate authority's order, relevant portion of which is quoted above, is apparently stigmatic and punitive and the same is not permissible in the absence of a regular departmental enquiry in accordance with the law. So far as reliance on the judgments supra placed by the learned counsel for the applicant is concerned, there is no rebuttal or anything to distinguish the same on behalf of the respondents.
14. In view of the facts and circumstances and for the foregoing discussion, we are of the considered view that the instant case is squarely covered by the decision of this 23 OA No.24/2019 Tribunal in the case of R/Const. Devender Singh (supra). Accordingly, the impugned termination dated 28.3.2017 (Annexure A-1) along with Corrigendum dated 30.3.2017 (Annexure A-2) and the appellate authority's order dated 03.12.2018 (Annexure A-3) are set aside. The applicant shall be reinstated in service as expeditiously as possible and in any case, not later than six weeks from the date of receipt of a copy of this Order. The applicant shall also be entitled for consequential benefits, i.e., seniority, fixation of pay, however, only on notional basis and the respondents shall pass necessary order(s) in this regard and release the benefits, if any, as expeditiously as possible and preferably within eight weeks thereafter. However, the respondents shall be at liberty to initiate enquiry proceedings and conclude the same in accordance with the relevant rules and instructions, if they so desire.
15. The instant OA is allowed in the aforesaid terms. However, in the facts and circumstances, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh)
Member (A) Member (J)
/ravi/