Central Administrative Tribunal - Delhi
Sh. Jai Bhagwan vs Union Of India Through on 6 August, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3246/2011
MA-105/2013
Reserved on : 19.07.2013.
Pronounced on: 06.08.2013.
Honble Sh. G. George Paracken, Member (J)
Honble Sh. Shekhar Agarwal, Member (A)
Sh. Jai Bhagwan,
S/o Sh. Abay Singh,
R/o Block-I, Quarter No.32,
Nanakpura, South Moti Bagh-II,
Near Police Chownky,
New Delhi. . Applicant
(through Sh. Sourabh Ahuja, Advocate)
Versus
1. Union of India through
Its Secretary,
Ministry of Home Affairs,
North Block, New Delhi.
2. The Director,
Intelligence Bureau (MHA),
UOI, North Block,
New Delhi.
3. Assistant Director,
Intelligence Bureau,
MHA, Govt. of India,
North Block, New Delhi.
4. Assistant Director/H,
(Subsidiary Intelligence Bureau)
MHA, Union of India,
Amritsar. .. Respondents
(through Sh. Satish Kumar, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant has sought the following relief:-
(a) Quash and set aside the impugned orders mentioned in Para 1 of the OA and
(b) Direct the respondents to reinstate the Applicant back in service and accord all consequential benefits to the Applicant viz. back wages, seniority, promotion etc. And/or
(c) To pass any further order, which this Honble Tribunal may deem fit, just equitable in the facts and circumstances of the case. And
(d) To award exemplary cost/damages/compensation in favor of the Applicant and against the respondents.
2. Facts of the case are that the applicant was appointed to the post of Junior Intelligence Officer Grade-II on 12.01.2009. On 23.06.2010 his services were terminated by the impugned order, which reads as follows:-
In pursuance of the Proviso to sub-rule(1) of rule 5 of the Central Civil Service (Temporary Service) Rules 1965. I Ravinder Singh, Assistant Director hereby terminate forthwith the services of Shri Jai Bhagwan, JIO-II/MI (PIS No. 130557) and direct that he shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of notice at the same rates at which he was drawing them immediately before the termination of his service, or as the case may be, for the period by which such notice falls short of one month. Subsequently, he made an application for reinstatement against the order of the appointing authority. This was rejected on 03.08.2010. He made another representation which was rejected on 03.05.2011. Aggrieved by the aforesaid orders of the respondents the applicant has filed this O.A. before us.
3. The applicant has challenged his termination on the following grounds:-
(i) The respondents have acted de hors the law as the termination has been done without a departmental enquiry or a show cause notice.
(ii) The applicants termination has been done on the ground of misconduct as revealed through internal enquiries according to which he was involved in fight that took place while he was on training.
(iii) It is a settled law that if misconduct is alleged to have been committed by the Government servant then a departmental enquiry needs to be conducted before imposing any major penalty.
(iv) The impugned orders have been passed on the basis of a preliminary enquiry and not on the basis of regular enquiry without issuing a charge sheet or giving an opportunity of hearing to the applicant.
(v) In the case of Chandra Prakash Shahi Vs. State of U.P. & Ors., (2000) 5 SCC 152 it has been held by the Apex Court that even if the order of termination appears to be a simpliciter, the Courts must go into the circumstances preceding the termination to determine whether termination is founded on misconduct.
(vi) The order of termination is punitive and stigmatic in nature.
(vii) The order is discriminatory inasmuch as Sh. K.S. Verma, who was involved in the same incident of fighting in which the applicant was involved, was sent back to the respective unit and punished only with a penalty of stoppage of three increments, whereas the applicant has been terminated.
The applicant is the only bread winner in the family.
The impugned orders are non-speaking and cryptic.
4. The respondents have filed counter in which they have taken the following two preliminary objections:-
(a) The present Original Application is not maintainable at the Principal Bench of this Tribunal because the impugned orders were passed in Amritsar which comes under the jurisdiction of the Chandigarh Bench.
(b) The application is time barred. In the case of S.S. Rathore Vs. State of M.P., AIR 1990 SC 10 the Honble Supreme Court has laid down that an aggrieved person must approach the Court for relief within a year. This view has been reiterated by the Honble Supreme Court in the case of State of Haryana & Ors. Vs. Miss Ajay Walia, JT 1997(6) SC 592 in which it has been laid down that repeated representations do not create a fresh cause of action. In the instant case the applicant was terminated on 23.06.2010 and his appeal was rejected on 03.08.2010. Thus, the O.A. should have been filed within one year of the date of rejection of his appeal. Repeated representation made on 03.05.2011 should not be considered for the purpose of limitation.
4.1 After these preliminary objections the respondents have denied the averments made by the applicant and stated that repeated information was being received about the applicant that he was absenting himself from duty on various occasions. Thus, the applicant was absent from office with effect from 0900 hours on 13.10.2009. All efforts to trace him have failed and he was not even responding to the calls made by his superior officers. Later on, it was found that he had consumed heavy liquor and was out of his senses. Even on the next day i.e. 14.10.2009 his health had deteriorated due to excess consumption of liquor and he had to be hospitalized. His superiors were further informed that the applicant was very casual in discharge of his duties which was affecting smooth functioning of the department and affecting its reputation. Again on 04.11.2009 he absented himself w.e.f. 0900 hours and did not join his duty till 05.11.2009. The office staff sent to trace him found that he was lying under influence of liquor and was not in a position to perform his duties.
He had also take credit from various dhaba owners and tea stall owners and had failed to pay charges for the eatables taken from them thereby tarnishing the image and reputation of the office.
4.2 That on 23.04.2010 the Tarn Taran Office of respondent No.2 complained that activities of the applicant had exceeded all limits as he never cares to listen to official duties/tasks assigned to him. On 04.05.2010 he was reminded of his past misdemeanors and advised to mend his ways. On 09.05.2010 the applicant was rusticated from the training course on the ground of indiscipline and sent back to the office of DCIO-Int, Tarn Taran.
4.3 The respondents have further stated that even after termination the applicant had threatened to commit suicide and self immolation by his wife.
4.4 On the basis of above, the respondents have stated that the services of the applicant were terminated finding him to be unsuitable for continuance in service.
5. We have heard both parties and perused the material placed on record.
6. Learned counsel for the applicant argued that the termination of the applicant was on ground of misconduct and, therefore, should have been preceded by a show cause notice or a departmental enquiry in which the applicant should have been given an opportunity to defend himself and rebut the charges. His contention was that though the order of termination is simpliciter yet the ground on which it had been issued is misconduct of the applicant. Hence as laid down by the Apex Court in the case of Chandra Prakash Shahi (supra) the termination could not have been done without either a show cause notice or a regular enquiry. He also relied on the ruling of the Apex Court in the case Mohd. Yunus Khan Vs. State of Uttar Pradesh & Ors., (2010) 10 SCC 539 to say that principles of natural justice even if to some minds are burdensome, have to be followed if society is to be governed by rule of law.
7. The respondents counsel, on the other hand, argued that the applicant was a temporary government servant and was terminated on the ground of his general unsuitability for holding a government post. Learned counsel drew our attention to the letter of appointment given to the applicant at the time of his appointment available at page-14 of the O.A., para-2(ii) of which reads as follows:-
The appointment may be terminated at any time by a notice of one month given by either side, viz. the appointee or the appointing authority, without assigning any reason. The appointing authority, however, reserves the right of terminating the services of the appointee forthwith or before the expiry of the stipulated period of notice by making payment to him/her of a sum equivalent to the pay and allowances for the period of notice of the unexpired portion thereof. Learned counsel argued that as per this clause the respondents had a right to terminate his services. He denied that the termination was founded on misconduct and emphasized that it was on account of applicants general unsuitability for continuance in government service. He stated that the termination of the applicant was not preceded by any departmental enquiry. He further stated that Apex Court in the case of Shri A.G. Benjamin Vs. Union of India has held as follows:-
4. It is now well established that temporary government servants are also entitled to the protection of Rt. 311 (2) in the same manner as permanent government servants, if the government takes action against them by meeting out one of the three punishments i.e. dismissal, removal or reduction in ranks: (see Parsotam Lal Dhingra v. Union of India). But this protection is only available where the discharge, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. It is also not disputed that the mere use of expression like terminate or discharge is not conclusive and inspite of the use of such expressions the Court has to apply the two tests mentioned in Parshotam Lal Dhingras case, namely, whether the temporary government servant had a right to the post or the rank or (2) whether he has been visited with evil consequences: and if either of the tests is satisfied, it must be held that there was punishment of the temporary government servant. It is also necessary to state that even through misconduct, negligence, inefficiency or other dis-qualification may be the motive or the compelling factor which influenced the Government to take action against the temporary government servant under the terms of the contract of employment or the specific service rule, nevertheless, if the Government had the right, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant. It is in the light of these principles which have been laid down in Parshotam Lal Dhingras case that we have to decide whether the appellant was entitled to the protection of Art.311 (2) in the present case.
5When a preliminary enquiry of this nature is held in the case of a temporary government servant it must not be mistaken for the regular departmental enquiry made by the government in order to inflict one of the three major punishment already indicated. So far as the preliminary enquiry is concerned there is no question of its being governed by Art. 311 (2), for the preliminary enquiry is really for the satisfaction of government to decide whether punitive action should be taken or action should be taken under the contract or the rules in the case of the temporary government servant concerned On the basis of above he argued that the Apex Court had ruled that even if a preliminary enquiry is conducted it cannot be mistaken for a regular enquiry and services of a temporary employee can be terminated by a simpliciter termination order. However, in the instant case there was no enquiry. As such, there was no question of the termination being punitive in nature. In this regard he also relied on the ruling of Apex Court in the case of Pavanendra Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences and Another, (2002) 1 SCC 520 .
8. We first decided to look into the preliminary objections taken by the respondents. The first objection was that this Principal Bench of the Tribunal did not have jurisdiction to entertain this O.A. as the impugned orders were passed in Amritsar which comes under the jurisdiction of Chandigarh Bench of the Tribunal. However, in the rejoinder the applicant has clarified that after termination of his services he was residing in Delhi and was, therefore, entitled to file his O.A. in Delhi. We notice from the OA that in the memo of parties the applicant has given his address as resident of Block-I, Quarter No.32, Nanakpura, South Moti Bagh-II, Near Police Chownky, New Delhi. We are, therefore, satisfied that the applicant under CAT (Procedure) Rules, 1987 was entitled to file his O.A. in the Principal Bench of New Delhi.
8.1 The next preliminary ground taken by the respondents was of limitation. According to them one year limitation period should be counted from 03.08.2010, the date on which the appeal of the applicant was rejected. The respondents counsel argued that the order dated 03.05.2011 which was a mercy petition should not be taken into account for the purpose of limitation as repeated representations do not create a fresh cause of action. The applicant has, however, filed MA-175/2013 requesting for condonation of delay of 36 days from 03.05.2011. While we are in agreement with the respondents that there has been delay in filing this O.A., this being a serious matter involving termination of services of young individual, we are not inclined to dismiss it on technical grounds alone. We, therefore, condone the delay and proceed to decide the matter on merits.
9. After hearing both parties, we have come to the conclusion that the only point for our determination is whether the termination of the applicant was based on misconduct or whether he was terminated on account of his being generally unsuitable for continuance in service. As laid down by the Apex Court in the case of Chandra Prakash Shahi (supra), we did not base our judgment only on the language of the termination order and decided to see the original records of the department to ascertain the truth of the matter. In this connection, we saw departmental original file No. 6/PF-ASR/393 from which we find that reports regarding the behaviour of the applicant were received from time to time. Thus, it was mentioned that on 13.10.2009 the applicant could not attend the office due to excess consumption of liquor and because of this he was also hospitalized on 14.10.2009 causing interruption in office. Again on 03.11.2009 he had consumed liquor heavily and was not in a frame of mind to attend to his duty. Rather he did not attend office on 04.11.2009. It is also mentioned that he was bringing bad name to the department by taking eatables on credit from various vendors who were approaching the office for clearance of the dues. After these reports, the competent authority decided to warn him in writing and treated his period of absence as extra ordinary leave.
9.1 From the above file, it is clear that the applicant was sent back to SIB in the midst of training due to his indisciplined activities at the training institute. Finally on 23.06.2010 the competent authority on a proposal of the office for terminating applicants service, passed the following order regarding the applicant:-
Sh. Jai Bhagwan, JIO-II/MT has been displaying misconduct which is absolutely unbecoming of a Government servant. He has failed to improve himself despite being warned which calls for disciplinary action against him as per existing Rules. He is not fit for service in this organization. The competent authority after recording the above note signed the impugned termination order of the applicant.
10. On the basis of above, we come to the conclusion that the services of the applicant were terminated on account of his habit of consuming liquor extensively, loosing his senses and absenting himself from duty. This conduct of his was found to be unbecoming of a Government servant by the competent authority who felt that he was not fit for continuance in service. No departmental enquiry was conducted before arriving at this conclusion and it was based purely on the basis of reports received regarding the conduct of the applicant from his supervisory officers. In our opinion order passed under the above circumstances cannot be called punitive since the applicant has been terminated not for any specific misconduct but for his general behavour which was found to have rendered him unfit for continuance in service. In view of these findings we also feel that grounds (vi) & (vii) taken by the applicant are also not tenable. Thus none of the grounds taken by the applicant deserves consideration. We, therefore, do not find any infirmity in the impugned orders.
11. Accordingly, we come to the conclusion that the O.A. is devoid of merits and is dismissed. There will be no order as to costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/