Central Administrative Tribunal - Delhi
Dr. Bhawani Shanker Verma vs Employees State Insurance Corporation on 7 October, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 731/2013
M.A. No. 614/2013
Reserved on:13.09.2013
Pronounced On:07.10.2013
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
Dr. Bhawani Shanker Verma
S/o Shri Johari Lal Verma
R/o 213, First Floor, Kewal Park,
Bjagat Singh Marg,
Azadpur, Delh-33. Applicant
(By Advocate: Shri Arun Bhardwaj)
Versus
1. Employees State Insurance Corporation
Through its Director General,
Panchdeep Bhawan,
CIG Marg, (Kota Road),
New Bal Bhawan,
New Delhi-110002.
2. Director (Medical) Delhi
ESI Dispensary Complex,
Tilak Vihar,
New Delhi-110018. Respondents
(By Advocate: Shri Anil Singhal)
ORDER
Shri G. George Paracken:
Applicant in this Original Application is aggrieved by the Respondents Annexure A-IA Office Order No.167 of 2011 dated 14.03.2011 terminating his service and the Annexure A-1 speaking order dated 21.1.2013 issued purportedly in compliance of this Tribunals order dated 21.11.2011 in OA No.1326/2011 filed by him earlier challenging the said order dated 14.3.2011 but upholding the same.
2. The brief facts of the case are that the Applicant obtained MBBS degree from Swai Man Singh Medical College, (S.M.S.M.C. for short), Jodhpur, Rajasthan on 28.08.2008 and he got it registered with the Rajasthan Medical Council on 23.09.2008. Thereafter, he took admission for Diploma in Immuno Haematology and Blood Transfusion (DIHBT for short) there itself on 18.04.2009 but the course started only in July, 2009. As per the pre-conditions for admission in the aforesaid course, he executed a bond for Rs.5 lakhs and deposited his original certificates with them. During the course of his study, he was also entitled for the stipend of Rs.17,000/- approximately. However, after pursuing the course for 30 days, he went on leave for operation of his Polio affected leg but he did not rejoin it, thereafter.
3. Meanwhile, the Respondent-Employees State Insurance Corporation (Corporation for short) had issued an advertisement inviting applications for the post of Insurance Medical Officer Grade-II. Selection was by the method of interview and it was held on 11.04.2009. On his selection, the Respondents issued him the offer of appointment on 01.02.2010 and on accepting the same, he joined the duty with them on 2.3.2010. However, since the original documents were deposited with S.M.S. M.C., he produced a certificate from them stating the aforesaid fact. Further, as part of the codal formalities, he filled up the attestation form and informed the Respondents about the aforesaid facts. He had also separately informed them about the fact that he discontinued the aforesaid PG, Diploma Course. However, when he requested the S.M.S.M.C. to return his original certificates, they asked him to submit his resignation letter and to pay the bond money of Rs.5 lakhs. He challenged the aforesaid decision of the college authorities before the High Court of Judicature of Rajasthan at Jaipur vide Writ Petition ( C) No.2271/2010 Bhawani Shankar Verma Vs. State of Rajasthan and Others. and the High Court vide its order dated 25.02.2010, directed the S.M.S.M.C., to release all the original certificates subject to final disposal of the said writ petition considering the fact that he has already been working with the Corporation and he is no more interested to continue with the PG Course. This court directed the Respondents to give him No Objection Certificate. During the pendency of this OA, the said Writ Petition has also been disposed finally vide order dated 3.09.2013 directing the Applicant to pay the entire bond money in 36 equal monthly instalments starting from Ist October, 2013.
4. In the meanwhile, the Respondent-Corporation, vide its Memorandum dated 28/29.4.2010, issued a show cause notice to the Applicant to explain as to why he had submitted wrong facts at the time of his joining with them on 02.03.2010. According to the said Memorandum, the Principal of S.M.S.M.C. reported to them that prior to his joining with them, he was a student there pursuing the course in DIBHT with effect from 22.06.2009 and the resignation from the said course submitted by him was not accepted by the competent authority as at the time of his admission, he had executed a bond to the effect that in case of non-completion of the tenure as DIBHT, he will deposit Rs.5 lakhs to the Government fund but the same has not been done. In the said Memorandum, the Respondents have also informed him that while joining the Corporation on 02.03.2010, he did not declare that he was not working in any organisation. The Applicant, in his reply dated 03.05.2010, informed the Respondents that prior to his joining the Corporation, he was pursuing DIBHT course in S.M.S.M.C. but before he joined them on 02.03.2010, he had already resigned from the abovementioned course on 22.2.2010 and by 26.02.2010 he cleared all his dues with them and collected all his original certificates which were essential for joining the Corporation. He has also stated that his case regarding payment of bond of Rs.5 lakhs was still pending before the High Court of Rajasthan. Further, according to him, while joining the Corporation, he missed out mentioning that he resigned from his DIHBT course due to his ignorance and there was no mala fide intention behind it.
5. However, the Respondents not satisfied with the aforesaid explanation, terminated his service, vide the impugned order dated 14.3.2011. He challenged the same before this Tribunal earlier vide OA No.1326/2011 (supra) and this Tribunal, vide its order dated 21.11.2011, disposed of the same holding that in terms of Regulation 6 (3) of the Employees State Insurance Corporation (Staff and Conditions of Service) Regulations 1959, his service could be terminated without assigning any reasons but keeping in view of the observation made by the Honble Supreme Court in the matter of SC and Physically Handicapped Categories of Persons, the Corporation should reconsider the aforesaid order of termination and on such reconsideration if the competent authority comes to the conclusion that the order of termination was independent of the allegations contained in the Memoranda dated 28/29.04.2010 and 30.06.2010 and it is an order simpliciter, it would pass an order so indicating. In case the Respondents find that the termination order was based on allegation contained in the aforementioned memos, they would pass final order only after adhering to the principles of natural justice. Till such decision is taken by the Respondents, they would continue applicant in service on the strength of the interim order dated 08.04.2010.
6. In terms of the aforesaid order, the Respondents have now passed the impugned speaking order dated 21.1.2013. According to the said order, the following facts were re-considered by them:-
(1) Petitioner concealed the facts at the time of joining ESIC that at the time of selection he was pursuing DIHBT from Swai Man Singh Medical College, Jaipur. It was clear from the letter dated 15.3.2010 received from Principal, Swai Man Singh Medical College, Jaipur that the petitioner concealed the above facts. He joined ESIC as IOM Grade-II, without acceptance of his resignation by Medical College, Jaipur.
Though the petitioner has given several reasons to justify his non-declaration of facts but these cannot justify his conduct. A person cannot occupy two posts/slots in Govt. Organisation at the same time. This is gross misconduct and unbecoming of a Government servant.
(2) In reply Dr. Verma has stated that after taking admission in the PG course, he pursued the course for only 30 days up to around June-July, 2009, whereafter he had taken leave for his operation of Polio and thereafter he never joined the course nor received stipend, nor claimed any stipend. When he received the appointment letter, he made an application to Swai Main Singh Medical College, Jaipur informing that he is leaving the course and seeking to withdraw his original certificates. But when PG college refused to release his original certificates which were necessary as he had to deposit those with ESIC, he filed SB Civil WP-2271/2010 before the High Court of Rajasthan.
Also, when explanation was called from the petitioner, he informed that he missed out about mentioning the same due to ignorance which is not at all acceptable. Had he disclosed this information he would not have been allowed to join the post. It is clear that the petitioner joined the post concealing the facts deliberately and malafidely. This act amounts to unbecoming of a govt. Servant. Due to this petitioners services had been terminated after giving one month notice in accordance with para 3(iii) of his offer of appointment and which is in accordance with sub regulation (3) of regulation (6) of ESIC (Staff & Service condition of Service) regulations 1959.
3) Petitioner was on probation at the time of issuing of termination letter. Before issuing of the termination order petitioner was given sufficient time and opportunities to give explanation of his act. Explanations given by the petitioner were not found satisfactory. Hence, services of the petitioner were terminated.
7. The Respondents have also filed a reply reiterating the aforesaid position.
8. During the course of the arguments of this case today, i.e., 13.09.2013, learned counsel for the Applicant Shri Arun Bhardwaj, under instructions from the Applicant who is present in the court submitted that in view of the unfriendly attitude of the Respondent-Corporation, he is no more interested to re-join them. He only wants that impugned termination order, being a stigmatic one, is quashed and set aside, otherwise it will always remain a slur in his career.
9. We have considered the submissions made by the counsel for both the parties. In our considered view, the concerned officials of the Respondent-Corporation are either ignorant of the administrative process of appointments or they were determined to terminate the service of the Applicant for extraneous reasons. If ignorance of the rules and regulations was the reason, it is seen that they were totally misdirected and they have not applied their mind to appreciate the full facts and circumstances of the Applicants case before passing the impugned order. We fail to understand what concealment of facts has been done by the Applicant by not informing the Corporation that he was student of a Diploma Course in a university and he discontinued his studies before he joined them. Their contention is that they came to know about the aforesaid facts only from the letter dated 15.03.2010 of the Principal of S.M.S.M.C. that his resignation has not been accepted by them. If the Principal of the College was not aware that a student does not resign from a course of study but only discontinue from it, at least the competent authority in the Corporation which deals with the cases of resignation of its employees should have been aware of the meaning of the term resignation. Again, the contention of the competent authority of the Respondent-Corporation that the Applicant was already holding a post and he did not resign from it before he joined the Corporation and thus holding two posts simultaneously again shows their ignorance of rules governing appointment of employees. They failed to understand that Diploma Course in an educational institution is not a cadre or post from which a student can resign. Again, the Civil Writ Petition filed by him in the High Court of Rajasthan against the University seeking a direction to release his original certificates deposited with them to produce them before the Respondent-Corporation on receipt of his appointment letter has nothing to do with them. Therefore, there was no need for the Respondent-Corporation to seek the explanation of the Applicant in the abovesaid matter. Moreover, his reply to the explanation sought by the Respondent-Corporation that he missed out mentioning the same due to ignorance has been misinterpreted by them. Therefore, their contention that in terms of Rule 6 (3) of the ESIC (Staff and Conditions of Service) Regulations 1959, they have terminated the service of the Applicant is untenable. The said rule says that the services of a temporary employee may be terminated without assigning any reason, therefore, at any time after giving him one months notice by the appointing authority. The said rule also provided for removing the unsuitable persons form service before they are confirmed. There shall be valid reason for invoking the said Rule. None of the reasons given by the Respondent-Corporation in the impugned speaking order justify such an action by them. However, the Respondent-Corporation made a distorted statement in the aforesaid show cause notice that in the declaration made by the Applicant that he was not working in any organisation, was contrary to the aforesaid facts. We do not understand when the Applicant was not working in any organisation and he was only a student of the college, how his statement that he was not working in any organisation is contradictory to the aforesaid statement. Therefore, the whole contention of the Respondents that the Applicant has concealed certain facts regarding his previous employment is totally unwarranted and unfounded. When a temporary employee is given opportunity for being heard, such a hearing shall be meaningful and effective. It shall not be an empty formality. While the competent authority takes the decision to terminate such employees, its decision shall be based on cogent reasons which has a nexus with his employment. It shall not be based on any information which has been considered behind the back of the employee. In the present case, the competent authority relied upon the information given by the Principal of the College where the Applicant was studying without hearing his explanation on it. An order of the competent authority does get vitiated not only for non-application of mind but also for deliberate misinterpretation of the statement with a pre-determined mind to stick to its earlier decision.
10. We are, therefore, of the considered view that the impugned order of termination dated 14.3.2011 of the Applicant by the Respondent-Corporation is absolutely illegal and wrong. Therefore, it is quashed and set aside. Further, we are also constrained to observe that the Applicant had approached this Tribunal earlier vide OA No. 1326/2011 (supra) and the Respondents were given liberty to reconsider his case but in an arbitrary and stubborn manner, they reiterated the same position. We, therefore, quash and set aside the impugned speaking order dated 21.1.2013 also. With the aforesaid directions, this OA is allowed. Since the learned counsel for the Applicant under instructions from the Applicant who is in the court submitted that the Applicant is no more interested to join ESI Corporation, we need not give any consequential direction for his reinstatement with the Respondent-Corporation. As far as cost is concerned, we are of the considered view that this is a fit case for imposing exemplary cost on the Respondents for the reasons stated in this order. However, since the Applicant is no more interested in the employment of the Respondent-Corporation in the present employment, we restrain ourselves from imposing any such cost upon them.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh