Central Administrative Tribunal - Delhi
Krishan Kant Gupta vs Delhi State Industrial And ... on 25 March, 2025
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Item No. 35/ C-2 O.A. No. 184/2019
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 184/2019
Reserved on: 20.02.2025.
Pronounced on: 25.03.2025.
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap Member (A)
Krishan Kant Gupta
Ex. Division Accounts Officer (i.e. DAO)
S/o Sh. Raj Kumar
R/o BF-6D, DDA, MIG Flats,
Munirka, New Delhi.
Aged around 39 years,
Group 'A'
Worked as Division Accounts Officer
In Delhi State Industrial & Infrastructure Development
Corporation Limited (DSIIDC)
...Applicants
(By Advocate: Mr. Saurabh Ahuja)
Versus
1. Delhi State Industrial & Infrastructure Development
Corporation Limited (DSIIDC)
Through its Chairman,
N-36, Bombay Life Building, Connaught Circus,
New Delhi-110001.
2. Managing Director
Delhi State Industrial & Infrastructure Development
Corporation Limited (DSIIDC)
N-36, Bombay Life Building, Connaught Circus,
New Delhi-110001.
3. Board of Governors
Through its Secretary
Delhi State Industrial & Infrastructure Development
Corporation Limited (DSIIDC)
N-36, Bombay Life Building, Connaught Circus,
New Delhi-110001.
4. Mr. M.C. Jain
Chief Accounts Officer (Headquarters)
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Item No. 35/ C-2 O.A. No. 184/2019
Delhi State Industrial & Infrastructure Development
Corporation Limited (DSIIDC)
N-36, Bombay Life Building,
Connaught Circus,
New Delhi-110001.
...Respondents
(By Advocate:Mr. Anuj Chaturvedi)
ORDER (ORAL)
Hon'ble Mr. Rajinder Kashyap, Member (A) The applicant has filed present Original Application under Section 21 of the Administrative Tribunals Act, 1985. By way of this O.A., as per para 8 of the OA the applicant seeks the following relief:-
"(a) Quash and set aside show cause notice dated 01.06.2016, termination order dated 29.07.2016 and order dated 16.1.2018. And
(b) Direct the respondents to reinstate the applicant back in service with all consequential benefits including back wages, promotion, seniority etc.
(c) Award cost in favor of the Applicant and against the respondents. And/or
(d) Pass any further order, which this Hon'ble Tribunal may deem fit, just equitable in the facts and circumstances of the case."
BRIEF FACTS:
2. The applicant was given joined on the post of Division Accounts Officer (DAO) in Delhi State Industrial and Infrastructure Development Corporation Ltd. on 02.01.2015. Learned counsel for the applicant submits that the Reporting officer of the Applicant started issuing the Show Cause Notices/Memorandums 3 Item No. 35/ C-2 O.A. No. 184/2019 to the applicant. The Applicant denied the allegations leveled against him andsubmitted that he has not been accorded a reasonable opportunity to defend his cause in an effective manner as the allegations leveled against him are vague and indefinite.
The applicant also requested the higher authorities to transfer him to some other department as he claims that he has been witch hunted by his Reporting Officer. The respondents did not issue any order on the reply/ replies submitted by the applicant.
3. The Reporting Officer of the applicant issued him a Show Cause Notice/ Memorandum dated 01.06.2016 wherein the applicant was called upon to show cause that as to why his services should not be terminated.The applicant submitted his reply dated 09.06.2016 against the said Show Cause Notice, wherein he refuted the allegations leveled against him. The applicant in his reply submitted that he has already intimated his Reporting Officer telephonically about his mother's illness and it was also apprised to him that there is no one at home to look after her. Therefore, the applicant submitted that there was mitigating circumstances because of which he could not attend the office on Saturdays. The respondents terminated the services of the applicant vide their order dated 29.07.2016, which the applicant claims is punitive in nature and has a cascading effect on him in getting a new appointment. In other words, the termination order of the applicant is not simplicitor but punitive and stigmatic order 4 Item No. 35/ C-2 O.A. No. 184/2019 for which a regular inquiry was required to be conducted before terminating the services of the Applicant.
4. The applicant claims that his termination is in contravention to the law laid down by the Hon'ble Apex Court in Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others, in Civil Appeal No. 750 of 1999 decided on 10th February, 1999 (Annexure A-7), wherein the Hon'ble Apex Court held that if the foundation of the termination is misconduct then it is incumbent for the department to conduct the disciplinary proceedings before resorting to any punitive action. Admittedly, in the instant matter,allegedmisconduct of the applicant is the foundation of the termination of the Applicant and it is also an admitted fact that thetermination of the applicant is not preceded by disciplinary proceedings, hence the impugned action order of the respondents qua the applicant cannot be sustained in the eyes of law. Substantiating the same, Annexure-A/6 (colly) clearly indicates that misconduct is the foundation of applicant's termination. The applicant claims that the respondents enhanced the scope of the Show Cause Notice dated 01.06.2016 which is not permissible in the eyes of law, in other words, it amounts to denial of a reasonable opportunity to the applicant which is violative of Article 311 of the Constitution of India.
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5. The applicant preferred representations dated 25.08.2016, 27.09.2016, 24.10.2016 and 24.11.2016 to the Appellate Authority i.e. the Chairman, DSIIDC, against the above noted termination orders stating that his termination of services is in violation of Rule 25 and 26 of the Staff Service Rules (Annexure-A/9). The respondents, vide their order dated 14.12.2016, intimated the applicant that his request for quashing the termination order is under consideration of the management and the decision thereon will be communicated to him in the due course. Thereafter, the applicant preferred an OA No. 3003/2017 against the above noted inaction, before this Tribunal and this Tribunal vide its judgment dated 31.08.2017 disposed of the OA with the directions to the respondents to decide the appeal of the applicant. However, the respondents vide their order dated 16.01.2018 turned down the appeal preferred by the applicant. Thus, the present OA. REPLY OF THE RESPONDENTS:
6. Respondents in their reply state that the applicant has been terminated in accordance to Rule 26-A of DSIIDC (Staff Service) Rules, 1978. In accordance to Rule 26-A, the service of a temporary employee shall be liable to termination at any time by a notice in writing given either by the employee to the Appointing Authority or by the Appointing Authority to the employee. The applicant was a temporary employee of the respondents and did 6 Item No. 35/ C-2 O.A. No. 184/2019 not complete his probation period of two years as Divisional Accounts Officer. The applicant's date of joining was 02.01.2015 and the termination order was issued by the Answering Respondents on 29.07.2016. The decision of terminating the applicant was based on the applicant's performance and conduct, which was found to be unsatisfactory, and hence the appointing authority decided to terminate the service of the applicant in the interest of the organization by supplying the applicant a notice period of 30 days, in lieu of which, one month's salary was paid in advance.
7. The respondents submit that the termination order dated 29.07.2016 is a simple order, with no stigma attached to it and hence, the termination cannot be called a punitive order contrary to the applicant's submission. Further, it is pertinent to note that the case law cited by the applicant in the matter of Dipti Prakash Banerjee Vs Satyendra Nath Bose National Centre for Basic Sciences (1993) 3 SCC 691, the Hon'ble Apex Court set aside the termination order based on the ground of stigma attached to the termination order. Further, the Hon'ble Apex Court has specifically stated that the case in question is based on two aspects; one, whether the impugned order is based on any conclusions arrived by the employer or the employer did not want to continue an employee as there were complaints against him; second, whether there is any stigma attached to the 7 Item No. 35/ C-2 O.A. No. 184/2019 termination order. They submit that in the present case, the applicant was given warnings, asking him to improve his conduct.
Below mentioned are the memo/notices, which were issued to the applicant during the time of his employment:
a. Memo No. DSIIDC/CAO (HQ)/Absentee reports/2014- 15/1125 dated 07.08.2015 vide which the applicant was conveyed that the applicant arrived late to the office and left early from the office during the period of April, 2015 to July, 2015 b. Memo No. DSIIDC/CAO (HQ)/1/2013-14 dated 14.08.2015 regarding non completion of an assigned work.
c. Memo No. DSIIDC/CAO (HQ)/1/2013-14/1275 dated
28.08.2015 reminding explanation with regard to the memo dated 07.08.2015.
d. Office order No. DSIIDC/CAO (HQ)/1/2013-14 dated 21.09.2015 vide which all officers were directed to take prior permission for leave and in case of emergency, oral permission from the superior officer needs to be taken. e. Show Cause Notice No. DSIIDC/CAO (HQ)/2014-15 dated 02.11.2015 asking the applicant as to why disciplinary proceedings should not be initiated against the applicant. f. Memo No. DSIIDC/CAO (HQ)/1/2013-14/2468-2469 dated 23.03.2016 informing the applicant that he was absent from duty on 23.03.2016 without prior approval. 8
Item No. 35/ C-2 O.A. No. 184/2019
g. Office order No. DSIIDC/CAO (HQ)/1/2013-
14/2808/2809/2810/2811 dated 23.05.2016 was absent from duty on 23.03.2016 when certain issues regarding taxation were to be taken up with the concerned authorities.
h. Memo No. DSIIDC/CAO (HQ)/2015--16/2859 dated 27.05.2016 vide which the applicant was communicated about the instances which amounts to dereliction of duties and to explain himself as to why disciplinary action should not be initiated against him.
i. Show Cause Notice No. DSIIDC/CAO (HQ)/Taxation/2897-99 dated 01.06.2016 to show cause as to why the services of the applicant should not be terminated j. Memo No. DSIIDC/DAO/Tax/5-16/Return dated 13.07.2016 as to why disciplinary action for dereliction of duty should not be taken against him
8. The respondents contend that the above notices/memos were not acted upon by the applicant and hence, the termination order was given to the Applicant. In the case of Dipti Prakash (supra, para 36) it was submitted by the respondents that the Court should not interfere where an employee had been given suitable warnings before termination then the termination order cannot be labeled as punitive in nature in accordance to Hindustan 9 Item No. 35/ C-2 O.A. No. 184/2019 Paper Corporation Vs. Purendu Chakraborty [1996 (11) SCC 404],Oil & Natural Gas Commission Vs. Md. S.Iskendu[1980 (3) SCC 428), Unit Trust of India Vs. T.Bijaya Kumar (1992 (5) Serv.L.R. 855 (SC)]. Principal, Institute of P.G.Medical Education & Research, PondicheryVs. S.Andel & others [1995 Suppl. (4) SCC
609) and a labor case Oswal Pressure Die Carting Industry Vs. Presiding Officer [1998 (3) SCC 225] cited in para 36 of the judgment wherein the Hon'ble Apex Court did not take the said cases into consideration as they were simple orders of termination unlike the one impugned in the case of Dipti Prakash (supra). Further it is pertinent to note that the applicant was a probationer and according to Rule 3 (ii) of DSIIDC Staff Service Rules, 1978, the corporation has the right to extend the probationary period stipulated in his letter of appointment unless the services are otherwise terminated within or on the completion of the probationary period without assigning any reasons. REJOINDER OF THE APPLICANT:
9. In rejoinder the applicant contends that he has befittingly replied to the above noted memos and allegations of the respondents. On the other hand, allegations of malafide were leveled against Respondent No. 4, however, he chose not to rebut. He reiterates that foundation of termination order qua the 10 Item No. 35/ C-2 O.A. No. 184/2019 applicant is misconduct, therefore, it is mandatory for the department to conduct regular Departmental Inquiry against the applicant which was not carried out.
10. The applicant states that the Hon'ble Apex Court in catena of Judgments held that if a termination order is stigmatic and based or founded upon misconduct, would be punitive order and court and lift the veil and declare that in the garb of termination simplicitor, the employer has punished an employee, for an act of misconduct. It was further 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 regular Departmental Enquiry was required to be conducted before passing any adverse order. In the absence of which, the termination order would be inoperative and non-est in the eyes of law. In the instant OA the Respondents not only issued a termination order which is punitive and stigmatic in nature and furthermore, the scope of the show cause notice is extended which amounts to denial of principle of natural justice. It is submitted that this Hon'ble Tribunal in Constable Yudhvir Singh case quashed the termination order and reinstated the Applicant therein. Copy of Judgment dated 13.02.2019 passed by this Hon'ble Tribunal in OA No. 893/ 2013 is annexed herewith as 11 Item No. 35/ C-2 O.A. No. 184/2019 Annexure A/13. It is submitted without prejudice to the above- mentioned pleas that the Respondents have violated Rule 26 (A) of DSIIDC Ltd. (Staff Service) Rules (Amendment), 1985 dated 20.11.1985. It is pertinent to mention herein that the Respondents without giving a prior notice of 30 days or in lieu thereof, one month salary terminated his service. Therefore, the above noted action is contrary to the statutory rules and contrary to the Judgment passed by this Hon'ble Tribunal in OA No. 934/ 1998 (titled as Jyoti Arora Vs. Union of India). Copy of Judgment dated 29.06.1999 passed by this Hon'ble Tribunal in OA No. 934/1998 is annexed herewith as Annexure A/14. It was held by this Hon'ble Tribunal that if while terminating neither a show cause notice was issued nor one month salary was remitted to an employee then the said infirmity cannot be cured by subsequently remitting the money. It is submitted that this Hon'ble Tribunal in that view of the matter quashed the termination order therein.
11. Heard the learned counsels for the parties and perused the pleadings available on record.
ANALYSIS
12. The applicant joined the post of Division Accounts Officer (DAO) in DSIIDC Ltd. on 02.01.2015. A number of show cause notices were issued to the applicant by the respondents' authorities. The applicant submitted reply to the show cause 12 Item No. 35/ C-2 O.A. No. 184/2019 notices refuting allegations against him. The respondents terminated the services of the applicant vide order dated 29.07.2016, which the applicant claims to be punitive in nature. Hence, it is not an order simplicitor but punitive and stigmatic in nature. The representations submitted by the applicant on 25.08.2016, 27.09.2016, 24.10.2016 and 24.11.2016 to the Appellate Authority against the termination orders was disposed of by the respondents vide order dated 14.12.2016 intimating the applicant that his request for quashing the termination order is under consideration of the management and the decision thereon will be communicated to him in the due course. This is a second round of litigation as the applicant preferred an OA No. 3003/2017 against the above noted inaction, before this Tribunal and this Tribunal vide its order dated 31.08.2017 disposed of the OA with the directions to the respondents to decide the appeal of the applicant. However, the respondents vide their order dated 16.01.2018 rejected the appeal preferred by the applicant.
13. It is relevant to mention applicable Rules and for this purpose, Rule 25, 26, 43 and 44 of DSIIDC Ltd. (Staff Service) Rules Amendment 1985 dated 20.11.1985 are stated which read as under:
"25. Resignation:
(i) No employee other than the Managing Director or a person on deputation from the Central Government or any State Government or an Institution shall leave or discontinue his 13 Item No. 35/ C-2 O.A. No. 184/2019 service in the Corporation except after giving one month's notice in writing of his intention to do so to the appointing authority in case of temporary employees and 3 months in case of permanent quasi permanent employees.
(ii) If an employee leaves or discontinues his service in the Corporation in contravention of the provisions of sub-rule (i), the employee shall be liable to disciplinary action. In addition he shall pay as compensation to the Corporation a sum equal to his/her pay as defined in Central Civil Services (Temporary Services) Rules, 1965 for the period of notice or for the period by which the notice given falls short of the prescribed period, at the rate at which he/she was paid immediately before the date of his leaving the service or discontinuance there from.
Provided that the Managing Director/Chairman may, for reasons to be recorded in writing, waive, either wholly or in part the requirement as to payment of such Terminal compensation.
26. Termination of Service:
(i) Notwithstanding anything contained in any of the rules of these regulation, the Management may terminate the services of any employee other than the Managing Director at any time by giving him notice in writing for a period not less than that prescribet4 in Rule 25, if the Management in its considered opinion is satisfied that it is expedient to terminated the service of such employee on account of:
i. Non availability of the service arising out of prolonged or irregular absence without permission of the Management or any other reasons.
ii. Loss of confidence in the employee.
iii. Possible threat to the security and the interest of the Corporation. Provided that the Corporation shall give to an employee whose services are so terminated, pay for the period by which the notice actually given falls short of the prescribed period.
(ii) The Corporation may at any time and without assigning any reasons, terminate the services of any employee who has not completed his probation.
(iii) The power to terminate the service shall be exercised by the Appointing Authority as defined in Rule 10 (i).
43. Code of Conduct and Discipline:
A. General Conduct:
(i) An employee shall, at all times discharge his duties with absolute integrity and devotion. He shall safe-guard and promote at all time the interest of the Corporation.
He shall be courteous in his behavior and polite in his dealings.
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(ii) An employee shall undertake and perform all the duties in such manner, capacity and place as may be directed by the Management from time to time.
(iii) An employee shall conform and abide by the rules and shall comply with and obey all orders and directives liven to him from time to time in furtherance of the interest of the Corporation by any person or persons under whose jurisdiction, superintendence or control he is placed.
(iv) An employee shall always remain loyal to the Corporation and shall make conscientious efforts to preserve and maintain the prestige of the Corporation. B. Promotion of Corporation's Prestige:
(i) An employee shall preserve, maintain and promote the prestige of the Corporation and try his best for the fulfillment of the objectives of the Corporation.
(ii) An employee shall maintain complete secrecy of all information about the Corporation obtained by him during the course of discharge of his duties. He shall not communicate directly or indirectly or disclose or transfer any paper or documents of the Corporation to any employee of the Corporation or to any person outside to the Corporation or unless so authorised by the Management.
C. Punctuality in attendance:
(i) An employee shall be punctual and regular in attendance except in case of unforeseen circumstances.
(ii) An employee habitually attending office late, shall be subject to such penalty as may he prescribed under the rules framed in this behalf.
D. Absence from Head Quarters: No. employee shall remain absent from duty or leave his Headquarters without prior permission of the Management, except under unforeseen circumstances. Where an emp10yee is unable to obtain permission from the Management for remaining absent from duties or leave Head Quarters, he shall seek post facto permission of the Management within 72 hours of his so doing. E. person or authority in the Corporation from within the Corporation or from outside, for his personal benefit in the Corporation.
F. Behaviour: An employee shall always maintain cordial relations with each other and shall strive to maintain decency, decorum and dignity of the Corporation.
T. No employee of the Corporation who is on leave, other than leave preparatory to retirement, shall take service or accept any employment, which involves acceptance of remuneration. Employees on leave preparatory to retirement may accept such 15 Item No. 35/ C-2 O.A. No. 184/2019 service or employment after obtaining the sanction of the Management.
44. Misconduct:
The term misconduct shall deem to include the followings:
(i) Wilful insubordination or disobedience, whether 01' not in combination with or any lawful and reasonable order of his superiors.
(ii) Wilful slowing down in performance of work, whether or others, even arising out of malingering.
(iii) Unwarranted interference with the work of other employees.
(iv) Theft, fraud or dishonesty in connection with the business or property entrusted with the Corporation or the property belonging to any other employees within the premises of the Corporation."
14. The applicant vide Memo No. DSIIDC/CAO (HQ)/Absentee reports/2014-15/1125 dated 07.08.2015 was asked to explain his late arrival and early departure from office for the period of April, 2015 to July, 2015. Also an explanation was sought by the respondents vide their Memo No. DSIIDC/CAO(HQ)/Absentee Reports/2014-15 dated 18.06.2015. The applicant vide letter dated 22.06.2015 had given details of his late attendance in office for the dates 250.05.2015, 22.05.2015, 26.05.2015, 28.05.2015 and 29.05.2015. A close reading of the reply given by the applicant reveals that out of above mentioned five occasions, on four occasions, the applicant came to office late as he attended to some official works assigned to him. On other occasion an explanation of the applicant was sought for not attending to the work relating to the annual report 2013-14, the applicant had submitted his response to Respondent No. 4 vide his letter dated 28.08.2015, 16 Item No. 35/ C-2 O.A. No. 184/2019 wherein, he explained the nature of action taken by him. In reply to another Memo dated 14.08.2015, the applicant had given the details of work attended by him on account of dropping/cleaning qualified opinion in Annual Report 2013-14 in many platforms with all CAOs and DAOs with the help of Ashish Gupta ACA and Commercial Division.
15. In reply to Memo No. DSIIDC/ CAO (HQ)/ 2015-15 dated 02.11.2015, the applicant has stated the following in his reply: -
"1. In response to Memo issued to u/s dated 07.08.2015, whereas I have submitted my replies on dated 28.08.2015 and which have been found unsatisfactory. It is pertinent to mention here that u/s had been entrusted with the Official work and was in charge of taking care of Statutory Auditors during the Audit Period. Our Statutory Auditors had come from Lucknow and Kanpur and stayed at the Hotel at Paharganj on our company expenses and additionally I was assigned the duty to pick the Statutory Auditors from the Hotel and drop them back, I have been using the Office Car during that period and record can be verified from the GAD division which maintains the log book.
Further as a part of my duty I was supposed to visit other offices located at different places in Delhi due to Audit requirements and the same can be got verified by the concerned officers of respective divisions. Moreover I always kept informed my superior as well as my team about my whereabouts and was always available over the cell phone during my absence in the head office.
2. I would like to clarify that dropping/clearing qualified opinions in Annual Accounts 2013-14. Its pertinent to mention here:
a) Mr. Ashish Gupta, Chartered Accountant has been appointed by the Competent Authority after requisition from the Finance Department for the clearing/ dropping of Audit paras, whereas the then ED Mr. Yashpal Garg has raise the issue of appointing a new CA despite the fact that the Corporation has recently recruited the three DAD's who all are qualified Chartered Accountants. In response to that Director Finance has clarified that all the DAO's have been posted in Divisions against vacant posts for carrying out the day to day work, besides they 17 Item No. 35/ C-2 O.A. No. 184/2019 have been assigned the specific tasks of preparing financial models of three big projects.
b) Thus, in view of the above, the above said task regarding dropping/ clearing the qualified opinion of Audit Paras was entrusted to Mr. Ashish Gupta and in this undersigned had no role to play.
c) Further a Memo has been issued on dated 14.08.2015 to u/s for the same reason, since then I have taken up the task with the help of Commercial team for dropping/clearing of Audit paras, I am proud that during the last few months, We as a team were able to achieve the tasks of dropping/ clearing the Audit paras which were appearing since last so many years, all credits goes to my Team and this could have happened without the support of our Director Finance and CAO - HQ and Ms. Parul.
d) The following approach has been taken up for clearing the Audit Paras as per suggestion/guidance of Director Finance
1. Finding out the reason for Audit paras appearing since long with the help of respective divisional heads (past/present)
2. Getting the guidance, how we can justify our Statutory Auditors as well as how we can remove the same from qualified opinion
3. Arranging the various meeting at HQ as well as location to find out the reason for appearing the Audit paras
4. Last but not the least, we have got a wonderful response not only from Accounts persons but also from Technical staff/chief engineer/ SE who attended the meetings along with required documents to clarify the position to give a true and fair view of the Audit paras.
As a matter of praise / respect to the above said officers it is relevant to mention here that since the said Senior officers were busy in their day to day workings, so we had arranged meetings even after office hours as well as on weekends Le Saturdays and Sundays.
3. The Presentation which was required to be presented before the then CMD, Mrs. Geetanjali Gupta Kundra, the task had been assigned to All three new DAO's (Ashish, Vichitra and myself), We had presented our presentation twice before then CMD Ms. Geetanjali Gupta, in the same meeting EO to MD, GM and ED were also present. CMD had appreciated our presentation that time, Further on the request of EO to MD, we have again presented the same presentation before New MD Shri Sanjeev Ahuja along with EO to MD and FA, the same also got due recognition from the Management. Nothing adverse has been received from the MD or Management to any of us, rather Management has appreciated our presentation.
4. Regarding the charge leveled against me that the u/s didn't telephonically inform if not coming to office, in this respect I would like to submit that I always inform telephonically to my 18 Item No. 35/ C-2 O.A. No. 184/2019 seniors as well as my team mates if not coming to office or going to other office locations.
5. On dated 25.09.2015 was Saturday (Holiday) as well as Holiday on account of Eid, Mr. Manoj Kumar from FA Cell had called me around 10.30 to come to office due to some urgent work of Audit. At that point of time I was away to my in laws as my father in law was not well and we have visited to nearby hospital this took me couple of hours to reach the office. It's pertinent to add here that I came to office at 3.15 PM and stayed back till 9.15 PM in night and left office to visit to my in laws home to pick up my family.
6. Regarding non-submission of application for sanction of leaves regarding August 6,10,27 and September 16, 2015: For this I tender my un conditional and sincere apology for the same. Further I assure that such thing will not happen in future.
7. Furthermore the issue raised in the last para of the SCN, its humbly stated that the u/s was suffering from high fever and vomiting. And thus due to this could not attend the office. To conclude it is requested that kindly give due consideration to problems faced by the undersigned and inconvenience caused if any is highly regretted.
(Krishan Kant Gupta)"
16. In reply to Memos, the applicant submitted a reply vide his letter dated 27.05.2016 to the Chief Accounts Officer, DSIIDC, Head Quarter, Delhi which is as follows: -
"With reference to office order No. DSIIDC/CAO(HQ)/1/2013- 14/2809 dt. 23.05.2016, wherein the CAO (HQ) has alleged that the undersigned was absent from duty on 29.04.2018 at 2.15 PM without approval.
Here It needs to be emphasized that the undersigned was not feeling well and had requested for a "Half day Medical Leave in his application addressed to CAO (HQ) vide diary dispatch No. 2191 dt 29.04.2016 as mentioned in the diary dispatch register of DAO (TAX). Further the CAO(HQ) diarist refused to accept the application and on the contrary asked the peon to take the same application to CAO (HQ). On the top of that CAO (HQ) also refused to accept the application which sounds quite astounding.
So if we think prudently, that when the health condition of a person is not well then in such a situation the person would rush to a doctor immediately and forget the formalities.19
Item No. 35/ C-2 O.A. No. 184/2019 In addition to this, it appears that Management is least concerned about my ill health.
Secondly w.r.t. Memo No, DSIIDC/ CAO (HQ)/ 1/2013-14 /2489 dated 23.03.2016 wherein CAO (HQ) has again alleged the undersigned was absent from duty on 23.03.2016 without the prior approval. The day prior to Holi (A big Hindu festival) this was a restricted holiday. Again the application dated 22.03.2016 for availing RH was duly sent to CAO (HQ) through proper DAK No. 2471/CAO on 22.03.2016 i.e. the day prior to RH (Holi), also being reflected on the application (copy attached). In the application for RH the undersigned has also sought permission to leave the station, Further I have conveyed the messages regarding leave to my seniors orally several times well in advance so that no official work will get affected in case of my absence.
However, the remarks recorded by CAO (HQ) reveal that he has seen the application at 4:45 PM on 23.03.2016, in such a case how the undersigned becomes guilty and why I am being subjected to a punishment like deduction of salary.
Further undersigned would also request that CAO (HQ) is using the words insubordination and dereliction in almost every Memo/ order. This does not appear to be appropriate/justified.
After going through all these circumstances the undersigned has gone into depression due to biased behaviour/ attitude of my superiors.
In order to conclude undersigned would like to request the Management to do justice."
17. The applicant submitted another reply to Memo No. DSIIDC/DAO/TAX/15-16/Return dated 13.07.2016 and requested the respondents to transfer him to some other place vide his letter dated 15.07.2016 to the respondents. For facility of reference the relevant reply is submitted as under: -
"SUB: REPLY TO Memo dt. 13.07.2018 (DSIDC/CAO/TAR/15- 16/Return and Request for TRANSFER With, due respect, Reference Memo No. DSDCMAQ/Tax 15-18/Return dated 13.07.2018 which speaks on the undersigned is not taking any responsibilities of the work assigned to him, here it is pertinent to mention that the undersigned is taking care of income Tax 20 Item No. 35/ C-2 O.A. No. 184/2019 and VAT Scrutiny cases and other matters Independently in the absence of OSD (Tax) (gone to long leave) in addition to regular work assigned to me.
The Service lax has been deposited on 5th of July 201-6 up to 10.30 PM. Here it is pertinent to mention here that the person who is taking care of Service Tax matters in the division has put the file to undersigned around 4.30 P.M. on 06.07.2016. Initially the amours for the Current Month which need to be deposited as per Para No 50 o Page M-18 was around 7,53,883/- which the u/s has put up for depositing to Govt. Treasury for the month of June 2016 before he left the office in emergency situation, whereas after the u/s has left the office the amount has been increased by Rs. 8,52,722 by adding the security service amount for prior month, for the same amount the Director (Finance) has asked the explanation from the respective division (please refer the para No. 32& 38 or. Page N/7 ond N/9 of the File). Additionally the Para No. 43,44,45,46 and 47 may also se look into while making the prior month payments of Service Tax.
Please also note that usually the Service Tax has been deposited with the Banking rights of A.O. (Tax), whereas un 6th of July 2010. the A.D. (Tex) has informed undersigned that she is having some issue in her banking rights and is not able to submit the tax in the late evening hence undersigned has submitted all the taxes with the help of het DED using his ICICI Bunk user id and password of Undersigned and submit all the saxes from 9.00 PM till 10.00 PM and hence the u/s actual works from home all the submission of due taxes in Government Treasury, which is 10:00 of 05.07.2016.
Further when asked from Mr. Sandeep Chugh, AAM (Tax) for reason for delay in putting up the files, he has write (written) a very harsh language to us, the same has been attached herewith for your kind perusal. It may be noted that Shri Sandeap was not available in the Taxation cell since then.
Now so far as leaving the office on 06/07/2016 at 5:30 PM, the undersigned left the office in urgency as the mother of us fell down and he need to rush to his home, the same has been informed to Accounts Officer (Tax) and Other Staff of Taxation, Even though the U/s has left the office, he is always available over the phone and was in touch with the staff of Taxation and submit the tax to Govt Treasury using his banking rights.
In view of above, the charges levelled against me like dereliction of duties do not appear to be correct and appropriate.21
Item No. 35/ C-2 O.A. No. 184/2019 I request the Management to do justice and transfer the undersigned in some other departments and save me from the unnecessary stress and depression going since last so many months. Further the undersigned assures that I will come up to the expectations of the Management and would perform all the assigned duties sincerely, honestly and diligently."
18. In reply to Memo No. DSIIDC/CAO/TAX (HQ)/ 2015-16/ 2859) dated 27.05.2016, the applicant submitted a letter dated 30.05.2016 to the Chief Accounts Officer, DSIIDC, Head Quarter, Delhi wherein he even submitted his request to transfer him to some other Department. For facility of reference, reply submitted by the applicant is as follows: -
"SUB: REPLY TO MEMO'S DATED 27.05.2016 DSIDC/CAO (HQ)/2015-16/2559) and Request for TRANSFER xxxxxxx With respect to Memo No. DSIDC/CAO(HQ)/2015-16/2859 dt 27.05.2016, it has been observed that CAO (HQ) has alleged that On various files related to Service Tax Matters during recent past, he has tried to wash off his hands stating that the matter be referred to Tax Consultant on the pretext that he is not a Service Tax expert.
The undersigned has been selected through a written competitive examination conducted by DSIIDC through EdCIL, and secured the Rank. Further undersigned has joined DSIDC on dated 02.01.2015 (last year) and at the time of joining, clarified the Management the undersigned doesn't have the expert knowledge of taxation in India as undersigned was out of Country (India) most of the time and hence was not in touch of laws of India.
Here it needs to be emphasized that undersigned along with his Team, has always given our Best and Expert opinion with regards to service tax matters. However, so far as referring to the Service Tax consultant for his opinion is concerned for selective cases, it was nothing but purely an endeavour for precision. As we all know that the law keeps on changing every now and then so it is always better to seek the advice of a 22 Item No. 35/ C-2 O.A. No. 184/2019 consultant as the involvement of funds is very huge and its going to be a practice in DSIIDC.
Further my team and myself has always recorded our views to the best of our knowledge and belief and if it all the Management does not want to refer the issues to the consultant for their opinion, then also, it is okay.
In my view, either the superiors could have agreed to my opinion or if not, they have the prerogatives to contradict my opinion/ views and recorded their own comments Hence the allegation charges of dereliction of duties on my part are completely incorrect and the delay referred to in the Memo is not because of me.
Further the CAO (HQ) is prejudiced and is levelling vague charges as mentioned in the Memo like my no availability in the office etc. After going through all these circumstances the undersigned has gone into depression due to biased behaviours/ attitude of my superiors.
In order to conclude undersigned would like to brief the Management about the CAO (HQ) who has issued many Memo's and Show cause notice during my first year of Government job, for which undersigned has already replied back to the satisfaction of the Management.
I request the Management to do justice and transfer the undersigned in some other departments and save me from the unnecessary stress and depression. Further the undersigned assures that I will come up to the expectations of the Management and would perform all the assigned duties sincerely, honestly and diligently."
19. In OA No. 893/2013 dated 13.02.2019, this Tribunal in para 7 and 8laid down the followings. For facility of reference, the above-mentioned paras are reproduced as under: -
"7. In Ratnesh Kumar Choudhary Vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Others JT 2015 (9) 363, where a probationer Chest Therapist was terminated from his service, by stating that his appointment on the post of Chest Therapist was illegal in terms of investigation done by the Cabinet (Vigilance). Department and the explanation furnished by the appellant in pursuance of the show cause notice had been found unsatisfactory. The Hon'ble Apex Court while examining the contention of the appellant that his termination order was punitive and in violation of the principles of natural justice, after considering the various 23 Item No. 35/ C-2 O.A. No. 184/2019 judgments of Hon'ble Supreme Court in 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. us. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, Gujarat Steel 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 us. 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 us. Palak Modi and Another (2013) 3 SCC 607, ruled 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 regular departmental enquiry was required to be conducted before passing any adverse order. In the absence of which, the termination order would be inoperative and non-est in the eyes of law. The relevant paragraph of the said judgment reads as under: -
"28. In the case at hand, it is clear as crystal that on the basis of a complaint made by a member of the Legislative Assembly, an enquiry was directed to be held. It has been innocuously stated that the complaint was relating to illegal selection on the ground that the appellant did not possess the requisite qualification and was appointed to the post of Chest Therapist. The report that was submitted by the Cabinet (Vigilance) Department eloquently states about the conduct and character of the appellant. The stand taken in the counter affidavit indicates about the behaviour of the appellant. It is also noticeable that the authorities after issuing the notice to show cause and obtaining a reply from the delinquent 24 Item No. 35/ C-2 O.A. No. 184/2019 employee did not supply the documents. Be that as it may, no regular enquiry was held and he was visited with the punishment of dismissal. It is well settled in law, if an ex parte enquiry is held behind the back of the delinquent employee and there are stigmatic remarks that would constitute foundation and not the motive. Therefore, when the enquiry commenced and thereafter without framing of charges or without holding an enquiry the delinquent employee was dismissed, definitely, there is clear violation of principles of natural justice. It cannot be equated with a situation of dropping of the disciplinary proceedings and passing an order of termination simpliciter. In that event it would have been motive and could not have travelled to the realm of the foundation. We may hasten to add that had the appellant would have been visited with minor punishment, the matter possibly would have been totally different. That is not the case. It is also not the case that he was terminated solely on the ground of earlier punishment. In fact, he continued in service thereafter. As the report would reflect that there are many an allegation subsequent to the imposition of punishment relating to his conduct, misbehaviour and disobedience. The Vigilance Department, in fact, had conducted an enquiry behind the back of the appellant. The stigma has been cast in view of the report received by the Central Vigilance Commission which was ex parte and when that was put to the delinquent employee, holding of a regular enquiry was imperative. It was not an enquiry only to find out that he did not possess the requisite qualification. Had that been so, the matter would have been altogether different. The allegations in the report of the Vigilance Department pertain to his misbehaviour, conduct and his dealing with the officers and the same also gets accentuated by the stand taken in the counter affidavit. Thus, by no stretch of imagination it can be accepted that it is termination simpliciter. The Division Bench has expressed the view that no departmental enquiry was required to be held as it was only an enquiry to find out the necessary qualification for the post of Chest Therapist. Had the factual score been so, the said analysis would have been treated as correct, but unfortunately the exposition of factual matrix is absolutely different. Under such circumstances, it is extremely difficult to concur with the view expressed by the Division Bench",
8. In the present case, admittedly the respondents conducted an enquiry against the applicant, in respect of his alleged unauthorised absence and awarded him a written warning for the said misconduct. Further, though the impugned termination order has not given any reasons, but the facts preceding the termination order and the averments of the respondents in the counter clearly establishes that the misconduct of the applicant indeed constitutes the foundation and not motive of the action taken, the same amount to be in violation of the principles of natural justice and hence liable to be set aside. 25
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20. In OA No. 934/1998 dated 29.06.1999, this Tribunal in para 5 and 11 laid down the followings. For facility of reference, the above-mentioned paras are reproduced as under: -
"5. In rejoinder, the applicant states that her husband had visited the office of Joint Director and assured him that she would be joining the service in April 1997. Without waiting for that period, the respondents terminated her services. Although in the notice dated 21.1.97, the respondents indicted initiation of disciplinary proceedings but no such action was taken against her and her services were terminated under CCS (TS) Rules which were not applicable to her. She could not have preferred an appeal to the Lt. Governor of Delhi because the impugned order of termination was passed by the Lt. Governor himself Learned counsel for the applicant relied on the decision of the Delhi High Court in the case of Prem Chand Gupta Vs. Management of MCD-ATJ 1998 (1) 147. The applicant in that case was an employee with the MCD temporarily for a limited period. He was issued notice of termination of service giving one month's time. Salaries and allowances were not paid along with notice as required under Rule 5 of the CCS (Temporary Service) Rules. The Hon'ble Delhi High Court hold that notice of termination from service was not valid and it was not effective termination. The applicant was held to be entitled for all salary and allowances from the MCD. Payment had to be tendered along with notice and that having not been done, the said notice was stated to be not valid in law.
11. We have examined the medical certificates issued by the Military Hospital. The respondents are at liberty to direct her to be examined by the Civil Medical authorities independently and depending on the report her fitness to continue in service can be decided. An employer has every right to consider the justification for continuing an employee on the ground of medical unfitness or on the ground the medical leave sought for is not genuine. If the employee had been absenting herself himself from work on medical grounds, would it not be proper for the employer to terminate her/his service? An answer to this question would depend on the report of the medical authorities after examining her. But in this case proper procedure has not been followed. We have found from the records that the applicant's probation period had been completed satisfactorily. There is no order on record to continue her further on probation. Thus the only inference to be drawn is that she cannot be held to be a probationer any longer. The second infirmity is that she was not paid a month's salary alongwith the termination order. That infirmity cannot be cured by subsequently remitting the money."26
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21. The impugned Order dated July 29, 2016 of the respondents (DSIIDC Ltd.) terminating the services of applicant reads as under:
"Delhi State Industrial and Infrastructure Development Corporation Ltd.N-36, Bombay Life Building. Cannaught Place, New Delhi No.DSIIDC/1-3072/Estt.
Dated: July 29, 2016.
Order WHEREAS, Shri Krishan Kant Gupta Sto Shri Rajkumar was offered the post of 'Divisional Accounts Officer vide reference No. DSIIDC/Estt./E4CIL/2013/1220 dated 17/10/2014 and Shri Krishan Kant Gupta reported for his duties in this Corporation w.e.f. 02/01/2015.
AND WHEREAS, Shri Krishan Kant Gupta was issued a Part11 Office Order vide its reference No. DSIIDC/1-3069/Estt./ dated 13/01/2015 where in it was explicitly mentioned that his services shall be governed by the provisions of Staff Services Rules, 1978 of DSIIDC, as amended from time to time. AND WHEREAS, Shri Krishan Kant Gupta's services were on probation for a period of 2 years w.e.f. the date of joining 02/01/2015. The appointment of Shri Krishan Kant Gupta was purely on temporary basis and his services were liable to be terminated at any time without assigning any reasons thereof. AND-WHEREAS, Shri Krishan Kant Gupta was issued a Show Cause vide its reference No. DSIIDC/CAO(IQ)/2014-15 dated 02/11/2015 on account of his failure on the assignments entrusted to Shri Krishan Kant Gupta, thereby, causing indiscipline, insubordination and the dereliction of düties as contained under the provisions of Staff Service Rules 43 read with, Rule44.
AND WHEREAS, Shri Krishan Kant Gupta was issued Memorandums on 23/03/2016 and 27/05/2016 to mend his attitude towards the job assigned.
AND WHEREAS, Shri Krishan Kant Gupta was issued another Show Cause vide its reference No. DSIIDC/CAO(HQ)/Taxation/2897 dated 01/06/2016 with clear stipulation that Shri KrishanKant Gupta displayed carelessness, insubordination, gross negligence and dereliction of duties as to why his services may not be terminated.
AND WHEREAS, Shri Krishan Kant Gupta was again issued a Memorandum No. DSIDC/DAO/TAX/15-16/Return dated 13/07/2016 and Shri Gupta was accorded ample opportunities 27 Item No. 35/ C-2 O.A. No. 184/2019 to improve upon his way of working and to take interest in the work entrusted to him which he utterly failed. AND WHEREAS, explanations submitted by Shri Krishan Kant Gupta against the Memorandums and Show Cause Notice were found not satisfactory.
AND WHEREAS, while going through the details of the Show Cause as well as Memorandums issued to Shri Krishan Kant Gupta and his replies found not satisfactory, which has finally resulted in initiation of such drastic administrative action against Shri Krishan Kant Gupta.
Considering the over all aspects of the whole gamut of case, T. Sanjeev Ahuja, Managing Director, DSIIDC authorized as per provisions of Rules 26 A contained in DSIIDC Staff Service Rule 1978 amended from time to time, hereby order termination of services of Shri Krishan Kant Gupta from the rolls of the Corporation with immediate effect.
(Sanjeev Ahuja) Managing Director"
22. In para 25 of the letter dated 23.06.2017 [Annexure A-6 (Colly)], DSIIDC Ltd.contains the taint of negligence, indiscipline, insubordination and derelictions of assigned duties and has been categorized as misconduct and has thus held to be unbecoming of an employee. For facility of reference, the relevant paras are mentioned as under:
"25. As mentioned in the note at page (N/3-4) Shri K.K. Gupta is holding the post of DAO under probation for two years w.e.f. 02/102015 and during the probation period the Management has lost confidence in the employee. Some of the reasons are as under:
1. The circumstances led to the prestige of the Corporation at stake due to negligence on the part of the employee while performing his duties as DAO (Taxation).
2. The acts of Sh. Krishan Kant Gupta are categorized under the misconduct of indiscipline insubordination and dereliction of duties to which he was assigned.
3. The employee has miserably failed to execute the jobs assigned to and have also failed to keep his superiors regularly informed on the important tasks entrusted to him.28
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4. Employee has contravened the laid down provisions of rules on Code of Conducts as unbecoming an employee of the organization.
5. Ample opportunities have been given an account of natural justice to improve upon his way of working and take interest in the matter entrusted to him which he utterly failed."
23. While deciding the matter of Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre For Basic Sciences (1999) 3 SCC 60, the Hon'ble Supreme Court held the following. For facility of reference, the relevant paras of the judgement (supra) are as follows: -
"35. The above decision is, in our view, a clear authority for the proposition that the material which amounts to stigma need not be contained the order of termination of the probationer but might be contained in any Document referred to in the termination order or in its annexures. Obviously, such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular enquiry was conducted. We shall presently consider whether, on the facts of the case before us, the documents referred to in the impugned order contain any stigma.
36. It was in this context argued for the respondent that the employer in the present case had given ample opportunity to the employee by giving him warnings, asking him to improve and even extended his probation twice and this was not a case of unfairness and this Court should not interfere. It is trade that where the employee had been given suitable warnings, requested to improve, or where he was given a long rope by way of extension of probation, this Court has said that the termination orders cannot be held to be punitive. [See in this connection Hindustan Paper Corpn. v. Purnendu Chakrobarty, Oil & Natural Gas Commission v. Dr Md. S. Iskender Alps, Unit Trust of India v. T. Bijaya Kumar 26, Principal, Institute of Postgraduate Medical Education & Research, Pondicherry v. S. Andel27 and a labour case Oswal Pressure Die Casting Industry v. Presiding Officer 28] But in all these cases, the orders were simple orders of termination which did not contain any words amounting to stigma. In case we come to the conclusion that there is stigma in the impugned order, we cannot ignore the effect it will have on the probationer's future whatever be the earlier opportunities granted by the respondent-Organisation to the appellant to improve.29
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37. On this point, therefore, we hold that the words amounting to "stigma" need not be contained in the order of termination but may also be contained in an order or proceeding referred to in the order of termination or in an annexure thereto and would vitiate the order of termination. Point 3 is decided accordingly. xxxx
39. Taking up the first aspect, we have noticed that during the first one year of probation, a letter dated 11-12-1995 was served on the appellant. That letter stated, among other things, that the appellant "prepared false bills" and that he "misbehaved with women academic staff members". The appellant sent a reply denying the allegation and he also sought for a copy of the complaint said to have been given by the lady academic staff member. It is true that subsequently, there were two orders of extension of probation each for six months. But in the impugned order dated 30-4-1997, it was stated in para 8 that the order of termination was being passed because of the "conduct", performance, ability and capacity of the appellant during the "whole period". This would clearly take in the facts stated in the letter dated 911-12-1995. It is obvious that findings of preparation of false bills or of misbehaviour with women which ought to be arrived at only in a regular (Incomplete add words)"
24. The Hon'ble Supreme Court held (supra) 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 regular departmental enquiry was required to be conducted before passing any adverse order. In the absence of which, the 30 Item No. 35/ C-2 O.A. No. 184/2019 termination order would be inoperative and non-est in the eyes of law.
25. While issuing the impugned order dated 29thJuly, 2016 terminating the services of the applicant, the respondents have used the expressions that the applicant has failed to do assignments entrusted to him, caused indiscipline, insubordination and the dereliction of duties. It is further stated that the applicant displayed carelessness, insubordination, gross negligence and dereliction of duties. They further state that the above dereliction finally resulted in taking drastic action against the applicant and his services were termination.
26. In this matter, the impugned Order dated July 29, 2016 terminating the services of applicant was based on the applicant's performance and conduct, which was found to be unsatisfactory, and hence the appointing authority decided to terminate the service of the applicant in the interest of the organization. The respondents have stated that they did not want to continue an employee as there were complaints against him. The decision of terminating the applicant was based on the applicant's performance and conduct, which was found to be unsatisfactory.
27. We are of the view that in this case, the impugned termination order is stigmatic and punitive. It cannot be construed as termination simpliciter. Even the basis of on which 31 Item No. 35/ C-2 O.A. No. 184/2019 the impugned order stands is stigmatic and punitive. As could be seen from para 22 above, when we pierce / lift the veil to know the real basis or legs on which the impugned termination order stands, we find the basis also to be stigmatic and punitive. Therefore, we disagree with the contentions of respondents in this matter.
28. In view of above, the Original Application is allowed with the following orders: -
(a) Impugned order dated 29.07.2016 and order dated 16.01.2018 of the respondents are quashed and set aside.
(b) Respondents are directed to reinstate the applicant back in service with all consequential benefits including back wages, promotion, seniority etc. as soon as possible but not later than 03 (three weeks) from the date of receipt of a certified copy of this order.
(c) Pending MAs, if any, stand closed. No order to cost.
(Rajinder Kashyap) (R.N. Singh) Member (A) Member (J) /ks/