VIRENDER v. GOVT. OF NCTD

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Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:

" (i) Quash and set aside the impugned order dated 24/04/2017 placed at Annexure A/1. (ii). Direct the respondents to reinstate the applicant in service with all consequential benefits including monetary and seniority benefits.

(iii) Award costs of the proceedings and (iv). Pass any other order/direction which this Hon'ble Tribunal deem fit and proper in the facts and circumstances of the case."

2. Brief facts of the case are that upon his selection through DSSSB to the post of Warder, the applicant was offered appointment vide memo dated 10.06.2016 and in pursuance thereto he joined the services with the respondents on 29.06.2016. Since then he has been discharging his duties with utmost sincerity and honesty.

2.1 The respondents, however, have terminated his services vide impugned order dated 24.04.2017, alleging therein that his services have been found unsatisfactory and not conducive to the job requirements.

2.2 The applicant has neither been warned nor has any advisory been issued to him, requiring him

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to improve himself on account of deficiency, if any, in his work and conduct.

2.3 However, he was issued a memorandum dated 21.04.2017 on the ground of absence from duty since 11.04.2017 to 21.04.2017 and he was directed to join his duty immediately or submit the medical papers within 48 hours of the receipt of the said memorandum, failing which strict departmental action was proposed to be taken against him. It was further proposed in the memo that in case no reply is received within the stipulated time, further action could be initiated by the authority without giving any notice to him.

2.4 The applicant was implicated in a criminal case bearing FIR No.146/2017 dated 12.04.2017 under Section 20/21/61/85 PS Hari Nagar, New Delhi, wherein he was arrested on 12.04.2017 and released on bail vide order dated 13.04.2017, immediately joined his duties and submitted medical papers for the period of sickness and thus he has complied with the requirements of the memorandum 21.04.2017.

3. Mr. Ajesh Luthra, learned counsel appearing for the applicant submitted that

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although the impugned termination is an order simpliciter, but it has the flavour of stigma. In this connection the learned counsel further submitted that his view is fortified by the assertion made by the respondents in their counter-reply to the effect that "keeping in view of overall conduct of the ex- warder (applicant), in pursuance of provision to sub-rule (1) of Rule-5 of the Central Civil Services (Temporary Services), Rules, 1965, Sh. Virender, ex-warder 1685 had been terminated vide order dated 24.04.2017.". Further, in reply to para 4.4 of the OA, it is submitted by the respondents that "While it is the fact that the disciplinary authority taking into account the report of superintendent (CJ-02) and gravity of misconduct committed by Sh. Virender, ex- warder-1965, considered his continuance in services as detrimental to the interests of the prison administration and therefore, his services were terminated forthwith under CCS Rule 5 (1) of (Temporary Services) rules, 1965 vide order dated 24.04.2017."

3.1 From the above, it is clear that the impugned order is founded on stigma. In support

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of his plea, learned counsel has relied on the following decisions:

i) Decision of the Hon'ble Supreme Court in the matter of Anoop Jaiswal v. Govt. of India & ors., Civil Appeal No.3040 0f 1982, decided on 24.01.1984;

ii) Decision of the Hon'ble Supreme Court in Madan Mohan Prasad v. State of Bihar & Ors., Writ Petition (Civil) No.121 of 1972, decided on

23.02.1973.

iii) Decision of Hon'ble Supreme Court in Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Others, Civil Appeal No.8662 of 2015, decided on 15.10.2015; and

iv) Decision of Bombay High Court in Viswesvarayya Industrial v. Dilip Madhavrao Vaidya, (1998) IILLJ 142 Bom.

v) Decision of the Hon'ble High Court of Delhi in Nina Lath Gupta v. Union of India,

2023:DHC:2944.

4. On the other hand, Shri Amit Anand, learned counsel appearing for the respondents has

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vehemently opposed the contention of the applicant and submitted that this is a case where the applicant is found to be not suitable for the job in view of the Jail Manual. The impugned order is not punitive order as no stigma has been cast on the applicant and the impugned termination order is an order simpliciter and carries no evil consequences, hence the same is in accordance with law. This is not a case where the impugned order is founded on any misconduct and at the best it can be a case of termination with motive of incident. The learned counsel submitted that if the foundation for the impugned order is the misconduct, the order can be interfered by this Tribunal. The termination has been passed in exercise of the power conferred under the rules and regulations, which do not prohibit that the said exercise has to be done after the period of probation is over. Rather, a bare reading of the rules clearly stipulate that the order can be passed any time before the probation is over and the contract can be cosseted before the period is over.

4.1 It is further submitted that, in the instant case, the reasoning is only motive and not

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foundation inasmuch as the respondents have categorically and clearly stated the same to be misconduct. It is a case when an act and omission has only stimulated, the respondents have only considered the person as unsatisfactory for the job. In fact the work of the applicant has been found unsatisfactory and he was also warned to be careful in future. Even when the Superintendent of Jail visited Ward no.1, mobile phone and charger were recovered from the ward where applicant was the warder. Further, he was found absent from duty point on 16.12.2016. Even his colleagues told that his behaviour was suspicious. In such circumstances, the action formed the motive and not the foundation inasmuch as they did not deem it fit to prove such actions and did not deem them as misconduct but found the applicant unsatisfactory for the job.

4.2 The learned counsel further submitted that from a bare perusal of the impugned order it is clear that it does not have punitive flavour inasmuch as no stigma has been cast upon the applicant.

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4.3 The learned counsel submitted that the Delhi Jail Manual as per sl. No.1695, clearly uses the word 'during' and end of probation period, the probation should be evaluated for extending the period of probation or confirmation or discharge on the following points:

(a) Physical fitness and capacity for physical endurance and hard work.

(b) Courage and leadership.

(c) Interest evinced in work

(d) Efficiency

(e) Attitude towards the public, senior personnel, colleagues, subordinates and inmates

(f) Capacity for correctional work

(g) Character and integrity.

4.4 It is submitted that in the instant case it is clear that he was found wanting with respect to the points as stated above and thus, terminated by passing a termination simpliciter order. In fact, considering all the background including the FIR, the respondents did not deem it fit either to term such actions as misconduct or conduct

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an inquiry but at the same time terminated the services as applicant was not a fit person as his work and conduct was unsatisfactory.

4.5 The learned counsel further submitted that the judgments relied upon by the applicant are not applicable to the present case and most of them have been considered by the Hon'ble High Court of Allahabad in the matter of Vijay Raj v. Union of India, Writ A. No.63968 of 2005 decided on 05.03.2020 and he has relied upon para 61, clauses, (a), (b), (c), (f), (g),(k),(n), (o) of the para 61. The judgment cited by the applicant in the case of Neena Lath Gupta (supra) is not applicable

inasmuch as the facts were entirely different which are evident from para 8 of the judgment where there was an order which was withdrawn as the same was punitive and also para 32 where it has been stated that a Committee was constituted to look into the complaints, thus in this particular case the action from the foundation and not the motive. All the judgments cited by the applicant wherein the termination order is held to be contrary to law, in all of them, either the order was punitive, stigmatic or the conduct formed the

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foundation which is not the case in hand. Thus, all the judgments relied by the applicant are of no help to him.

4.6 To buttress his contentions, Shri Anand has relied upon the following decisions:

a) Decision of Hon'ble Bombay High Court in Dharampal Singh Dahiya v. Dr. B.A. Dasannacharya & Ors., Writ Petition No.1373 of 2000, decided on 06.11.2020;

b) Decision of Hon'ble High Court of Delhi in J.S. Arora v. D.V.C. & Ors., W.P. (C) No.7359/2006, decided on 18.01.2022;

c) Decision of Hon'ble High Court of Rajasthan in Saroj Kumari Saini v. CRPF, S.B. Civil Writ Petition No.11428/2012, decided on 12.12.2022; and

d) Decision of Punjab & Haryana High Court in Amita Guglani v. State of Punjab & Ors., CWP No.3512 of 2015 (O&M), decided on 20.02.2017.

4.7 In view of the submissions made hereinabove, the learned counsel submitted that the OA is liable to be dismissed being devoid of merit.

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4.8 The applicant has also filed rejoinder, wherein besides reiterating the pleas raised in the OA, it is submitted that from the counter reply filed by the respondents it is evident that the applicant has been terminated on an alleged misconduct of which no enquiry has been conducted. Hence, the termination is bad in law and cannot be sustained. The allegations levelled by the respondents in their reply have been denied by the applicant and which has also formed the basis of his termination. It is further submitted that the submission of the respondents that failure of the applicant to complete the probation period to the satisfaction of the Competent Authority rendered the applicant to be discharged from service, without any notice, is misconceived and does not match with the other averments of the respondents categorically stating that the applicant has been terminated due to misconduct.

5. We have heard the learned counsels appearing for the respective parties and also gone through the pleadings on record, including the judgments relied upon by learned counsels appearing for both the parties.

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6. Reliance placed by Mr. Luthra on the decision of the Hon'ble Supreme Court in Ratnesh Kumar Choudhary (supra) has been considered by a Coordinate Bench of this Tribunal, along with few other cases, titled Capt. Yashraj Tongia v. Union Of India, OA No.2470/2015, in its order dated 08.02.2013. In para-10, the Coordinate Bench has ruled as under:

"10. The Apex Court in Mathew P. Thomas v Kerala State Civil Supply Corpn. Ltd. & others [(2003) 3 SCC 263], in para 11 held as follows:

"….From a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. If the form and language of the so-called order of termination simpliciter of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. In cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simpliciter, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of

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termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct."

The above observation of the Apex Court makes it clear that while deciding whether the termination of a probationer is a termination simpliciter or punitive, the Tribunal can travel beyond the order of termination to find out what in reality is the background and what weighed with the employer to terminate the services of the probationer."

7. The Hon'ble High Court of Delhi has considered the judgment of Hon'ble Apex Court in the case of Anoop Jaiswal (supra), referred and relied upon by the learned counsel appearing for the applicant, in the case of Nina Lath Gupta (supra). The relevant parts of the judgment read as follows:

"27. Therefore, what emerges from the conspectus of the aforesaid judgments is that if an order is founded on allegations, the order is stigmatic and punitive and services of an employee cannot be dispensed with without affording him an opportunity of defending the accusations/allegations made against him in a full- fledged inquiry. Since this case relates to a tenure appointment, it will be pertinent to look at the law with respect to stigmatic orders in the context of tenure appointments. In Dr. L.P. Agarwal v. Union of India and Others, (1992) 3 SCC 526, Petitioner was Director, AIIMS, who had been appointed for a period of 5 years or till he attained the age of 62 years, whichever was earlier, the Supreme Court examined the meaning and connotation of the term 'tenure' and observed that tenure is a term during which an office is held. It is a condition of holding office and once a person is appointed to a tenure post, his appointment begins when he joins and comes to an end on completion of the tenure, unless curtailed on 'justifiable' grounds.

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Such a person does not superannuate, he only goes out of office on completion of his tenure and thus, the question of prematurely retiring him does not arise. In A.P. State Federation of Coop. Spinning Mills Ltd (supra), Respondent was appointed as General Manager (Finance) for a period of 3 years and prior to the said period coming to an end, his services were terminated. Respondent approached the High Court in a writ petition seeking quashing of the order and the learned Single Judge dismissed the writ petition after coming to a conclusion that the termination order was innocuous and not penal in nature and termination being in accordance with the contract of service, after giving three months' salary in lieu of the notice, required no interference. The Division Bench, allowing the appeal held that though the order on the face of it appeared to be innocuous, however, if the attendant circumstances were examined, more particularly, the stand in the counter affidavit, the conclusion was irresistible that the order was penal in nature and since penalty was imposed without affording opportunity to meet the charge, the order was unsustainable. This order of the Division Bench was challenged before the Supreme Court and the contention of the Appellant was that the reasons indicated in the order were the motive for termination and not the foundation, requiring an inquiry, prior to termination. The Supreme Court upheld the order of the Division Bench, to the extent that the order of termination was vitiated and ruled as follows:-

"3. The legal position is fairly well settled that an order of termination of a temporary employee or a probationer or even a tenure employee, simpliciter without casting any stigma may not be interfered with by the court. But the court is not debarred from looking at the attendant circumstances, namely, the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the order of termination or formed the foundation for the same order. If the court comes to a conclusion that the order was, in fact, the motive, then obviously the order would not be interfered with, but if the court comes to a conclusion that the so-called inefficiency was the real foundation for passing of order of termination, then obviously such an order would be held to be penal in nature and must be interfered with since the appropriate procedure has not been followed. The decisions of this Court relied upon by Mr K. Ram Kumar also stipulate that if an allegation of arbitrariness is made in assailing an order of termination, it will be open for the employer to indicate how and what was the motive for passing the order of termination, and it is in that sense in the counter-affidavit it can be indicated that the unsuitability of the person was the reason for which

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the employer acted in accordance with the terms of employment and it never wanted to punish the employee. But on examining the assertions made in paras 13 and 14 of the counter-affidavit, in the present case it would be difficult for us to hold that in the case in hand, the appellant-employer really terminated the services in accordance with the terms of the employment and not by way of imposing the penalty in question.

4. In fact, the letter of the Commissioner for Handlooms and Director of Handlooms and Textiles dated 19-5-1993 was the foundation for the employer to terminate the services and as such the Division Bench of the Andhra Pradesh High Court was justified in holding that the order of termination is based upon a misconduct, though on the face of it, it is innocuous in nature. We therefore do not find any infirmity with the said conclusion of the Division Bench of the Andhra Pradesh High Court requiring our interference."

xxx xxx xxx

29. Another judgment, which needs a mention and is close on facts, is in the case of Dr. Vijayakumaran C.P.V. v. Central University of Kerala and Others, (2020) 12 SCC 426, wherein the Supreme Court observed that the termination order was issued in the backdrop of Internal Complaints Committee Report and going by the terms and tenor of the order, it was incomprehensible to construe such an order to be an order simplicitor when the report of the Inquiry Committee was the foundation. The Supreme Court also reiterated the position of law that the material which amounts to stigma need not be contained in the termination order and may be in any document referred to therein, which reference will inevitably effect the future prospects of the incumbent and if so, the order must be construed as an ex facie stigmatic order of termination."

8. In the case of Vijay Raj (supra), referred and relied upon by the learned counsel appearing for the respondents, the Hon'ble High Court of Allahabad has considered the law laid down by the Hon'ble Apex Court in a catena of decisions,

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including in a few Constitution Bench judgements and has ruled in paras 61 and 62 as follows:

"61. From the above discussions, the principles discernible to find out whether a simple order of termination/discharge of a temporary employee or probationer is punitive or not, broadly, may be stated as under :

(a) The termination of services of a temporary servant or probationer under the rules of his employment or in exercise of contractual right is neither per se dismissal nor removal and does not attract the provisions of Article 311 of the Constitution.

(b) An order of termination simplicitor prima facie is not a punishment and carries no evil consequences.

(c) Where termination simplicitor is challenged on the ground of casting stigma or penal in nature, the Court initially would glance the order itself to find out whether it cast any stigma and can be said to be penal or not. If it does not, no further enquiry shall be held unless there is some material to show certain circumstances, preceding or attending, shadowing the simplicitorness of the said order.

(d) The Court is not precluded from going beyond the order to find out as to whether circumstances, preceding or attending, makes it punitive or not. If the circumstances, preceding or attending, show only the motive of the employer to terminate, it being immaterial would not vitiate the order unless it is found that order is founded on such act or omission constituting misconduct.

(e) If the order visits the public servant with evil consequences or casts aspersions against his character or integrity, it would be an order by way of punishment irrespective of whether the employee was a mere probationer or temporary.

(f) "Motive" and "foundation" are distinct, though the distinction is either very thin or overlapping. "Motive" is the moving power, which impels action for a definite result, or to put it differently. "Motive" is that which incites or stimulates a person to do an act. "Foundation", however, is the basis, i.e., the conduct of the employee, When his acts and omissions treated to be misconduct, proved or founded, it becomes a case of foundation.

(g) If an order has a punitive flavour in cause or consequence, it is dismissal, but if it falls short of it, it would not.

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(h) Where the employer is satisfied of the misconduct and the consequent desirability of termination, it is dismissal even though the order is worded innocuously. However, where there is mere suspicion of misconduct and the employer does not wish to bother about it, and, instead of going into the correctness of guilt, feel like not to keep the employee and thus terminate him, it is simpliciter termination and not punitive.

(i) Where the termination simplicitor is preceded by an enquiry, preliminary or regular, the Court would see the purpose, object of such enquiry as also the stage at which, the order of termination has been passed.

(j) Every enquiry preceding the order of termination/discharge, would not make it punitive. Where an enquiry contemplated in the rules before terminating an probationer or temporary employee is held, it would not make the order punitive.

(k) If the enquiry is to find out whether the employee is fit to be confirmed or retained in service or to continue, such an enquiry would not render termination punitive.

(l) Where the employer hold a formal enquiry to find out the correctness of the alleged misconduct of the employee and proceed on the finding thereof, such an order would be punitive, and, cannot be passed without giving an opportunity to the concerned employee.

(m) If some formal departmental enquiry commenced but not pursued to the end. Instead a simple order of termination is passed, the motive operating in the mind of the authority would be immaterial and such an order would be non punitive

(n) When an order of termination is assailed on the ground of mala fide or arbitrariness, while defending the plea of mala fide, if the authority has referred certain facts justifying the order of discharge relating to misconduct, negligence or inefficiency of the employee in the appeal or in the affidavit filed before the Court, that would not make the order founded on any misconduct.

(o) Sometimes when some reason is mentioned in the order, that by itself would not make the order punitive or stigmatic. The following words mentioned in the order have not been held to be punitive.

i. "want of application", ii. "lack of potential", iii. "found not dependable", iv. "under suspension", v. "work is unsatisfactory", vi. "unlikely to prove an efficient officer".

(p) Description of background facts also have not been held to be stigmatic.

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(q) However, the words "undesirable to be retained in Government service", have been held stigmatic.

(r) If there is (i) a full scale formal enquiry, (ii) in the allegations involving moral turpitude or misconduct, (iii) which culminated in a finding of guilt; where all these three factors are present, the order of termination would be punitive irrespective of the form. However, if any one of three factors is missing, then it would not be punitive.

62. The aforesaid are not exhaustive, but lay down some of the principles to find out whether termination of an employee is simplicitor or punitive. Each and every case has to be considered in the light of the facts and circumstances of the case, but broadly the aforesaid are the factors to find out whether termination of an employee is punitive or not."

9. From the aforesaid judgment it stands settled that each and every case has to be considered in the light of the facts and circumstances of case, of course, broadly keeping in view the factors as recorded in the said judgment to find out whether the termination of an employee is punitive or not? It also stands settled that while deciding whether the termination of a probationer is a termination simpliciter or punitive, the Tribunal can travel beyond the order of termination to find out what in reality weighed with the employer to terminate the services of the probationer.

10. From the judgment of the Hon'ble High Court of Delhi in Nina Lath Gupta (supra) it is settled that even if the order of termination of the

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probationer, on the face of it, appears to be innocuous and or order simpliciter, however, if the attending circumstances, more particularly the stand taken in the counter-affidavit, the conclusion was irresistible that the order was penal in nature and since the penalty was imposed without affording an opportunity to meet the charge, the order was not sustainable in the eyes of law.

11. In the aforesaid background, even if it is assumed that the impugned order dated 24.04.2017 is presumed to be an order simpliciter, however, in view of the specific stand taken by the respondents in the Memorandum dated

21.04.2017 and in the counter-reply, precisely recorded hereinabove, we are of the considered view that the impugned order of termination is founded on an act of misbehaviour and indiscipline by the applicant and, therefore, the impugned order is found to be punitive and stigmatic. The same being passed without holding an enquiry and without following the principles of natural justice is not sustainable in the eyes of law.

12. Accordingly, the impugned order dated 24.04.2017 is set aside. The respondents are

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directed to reinstate the applicant in service, as expeditiously as possible, and preferably within six weeks of receipt of a certified copy of this order. The applicant shall be entitled to consequential benefits in accordance with the relevant rules and instructions on the subject. However, the respondents shall be at liberty to initiate disciplinary enquiry and or to take action in accordance with the relevant rules, depending upon the final outcome of the case FIR, referred to hereinabove, if they so decide.

13. The OA stands partly allowed in the aforesaid terms. However, in the facts and circumstances of the case, there shall be no order as to costs.

(Sanjeeva Kumar) (R.N.Singh)

Member (A) Member (J)

'San.'