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2008 DIGILAW 1623 (BOM)

Devidas Tarachand Bhatham v. Union of India

2008-11-19

BILAL NAZKI, J.H.BHATIA

body2008
JUDGMENT: 1. The petitioner was appointed on 30th January, 2000 as Helper on a regular basis with effect from 1st February, 2000 on a pay-scale. He was also allowed Dearness Allowance and House Rent Allowance. One of the conditions in the appointment letter was, “Your service may be terminated without assigning any reason by giving one month's notice in writing...” Another condition was that “The Manging Committee of HQ Southern Command reserves the right to terminate your services without notice for misconduct and/or on other disciplinary grounds.” He was to remain on probation for a period of 6 months. Without any notice, on 19th March, 2002, he was served with an Order of Discharge on inefficiency grounds. This order reads as under:- “1. It is noticed that despite warning letters having been issued to you, you are in the habit of absenting yourself from duty without prior permission / leave. You have been found to be frequently reporting on duty under the influence of liquor. You have also been caught, time and again, permitting entry of unauthorised persons into the canteen through the exit gate. 2. Since there has been no improvement in your behaviour and discipline, you are hereby discharged from Canteen service with effect from 20 Mar 2002 in terms of para5 (f) of Canteen Standing Operating Procedure issued on 06 April 1992. 3. Outstanding dues, if nay, will be cleared within 30 days from the date of discharge.” 2. The order was challenged by the petitioner before the Central Administrative Tribunal, and the Tribunal dismissed the O.A. by its order dated 20th June, 2003. The main ground on which the Tribunal dismissed the O.A. was that paragraph 5 of the terms and conditions for Canteen Staff under SOP 1992 had made it clear that for misconduct, the petitioner could be discharged without even a notice. The Tribunal, surprisingly, also found that there was no violation of rules of natural justice. 3. The learned counsel for the petitioner has brought to our attention a judgment of the Supreme Court reported in AIR 2001 S.C. 526 , Union of India v. M. Aslam. In this judgment, the Supreme Court held that employees in Unit-run-canteens are Government employees, and the Central Administrative Tribunal has jurisdiction to entertain their application, treating them as Government employees. 4. In this judgment, the Supreme Court held that employees in Unit-run-canteens are Government employees, and the Central Administrative Tribunal has jurisdiction to entertain their application, treating them as Government employees. 4. Since the Tribunal entertained the application of the petitioner, and decided it on merits, the Tribunal has come to the conclusion that the service of the petitioner could only be terminated by following the due process of law. The impugned order, as we have reproduced it hereinabove, creates a stigma, and because of this order, the petitioner would not be able to get job anywhere else as well. He had been charged of frequently reporting on duty under the influence of liquor. He was also charged of permitting entry of unauthorised persons into the canteen. These were serious charges, which were never put to the petitioner, nor any show-cause notice was given, as is admitted by the respondents, before the impugned order was passed. 5. The Rules have also been framed with respect to canteen employees as per the direction of the Supreme Court in an earlier case. The Tribunal was of the view that CCS (CCA) Rules are not applicable to the petitioner, but the Tribunal lost sight of the Rules which were framed by the respondents on direction of the Supreme Court. These Rules are known as “the Rules Regulating the Terms and Conditions of Service of Civilian Employees of Unit Run Canteens paid out of Non Public Funds”. These Rules had come into force on 4th January, 2001. Rule 24 lays down the procedure for dealing with case of misconduct. Rule 24 is reproduced below:- “Before awarding to an employee any of the punishments mentioned in Rule 23, following procedure shall be followed by the disciplinary authority:a. The employee shall be served with a charge sheet, clearly stating the details of misconduct against him and calling upon him to show cause as to why one or more of the punishments included in these Rules should not be awarded to him. b. The reply to the charge sheet, if any, shall be duly considered by the disciplinary authority. c. If the employee so desires by making a representation that he is to be heard in person. d. The disciplinary procedure is laid down in Schedule 'B'.” 6. The impugned order was passed without following the rules of natural justice and without following Rule 24. c. If the employee so desires by making a representation that he is to be heard in person. d. The disciplinary procedure is laid down in Schedule 'B'.” 6. The impugned order was passed without following the rules of natural justice and without following Rule 24. For a punishment, which is even of minor nature, Rule 24 prescribes that employee shall be served with a charge sheet, clearly stating the details of misconduct against him, and he shall be called upon to show cause as to why one or more of the punishments included in the Rules be not awarded to him. 7. The various modes of punishment are prescribed in Rule 23. It may also be pointed out that the petitioner has been discharged by the impugned order, and the discharge is not a mode of punishment prescribed under Rule 23. Rule 23 only prescribes the following punishments:- (1) Censure; (2) Recovery from pay any pecuniary loss caused by the employee; (3) Withholding of increments; (4) Dismissal from service. Termination of service of a contractual employee in accordance with the terms and conditions of employment and termination of service during probation in accordance with the terms and conditions of employment would not be punishment. The petitioner joined the service as probationer on 1st February, 2000, and was discharged on 19th March, 2002. It is not case of the respondents that he had not completed probation. As such, he was a regular employee having completed probation. He could not be removed from service without following procedure laid down in Rule 24. The petitioner has been discharged, which is not even a mode of punishment prescribed under Rule 23. 8. In these circumstances, we feel that the Central Administrative Tribunal was wrong in dismissing the O.A. of the petitioner. We allow the Writ Petition, quash the impugned order passed by the respondents on 19th March, 2002, and also quash the order of the Central Administrative Tribunal dated 20th June, 2003, and direct reinstatement of the petitioner forthwith with all consequential benefits. He shall be entitled to salary and other benefits from the date of discharge. No costs. The Rule is made absolute accordingly.