Deepak Kumar vs New Delhi Municipal Corporation

Vijay Lakshmi, J

Being aggrieved by the order of his termination (Ceasing Order) dated 15.7.2015, the applicant has challenged its legality and correctness by means

of instant OA.

We have heard Shri Bal Kishan, learned counsel appearing for the applicant, Shri Vaibhav Agnihotri assisted by Ms. Ashita Chhibber and Shri

Sahithya Krishna, learned counsel appearing for the respondent and have carefully gone through the record.

The brief facts necessary for a correct adjudication of the issues involved in this OA, are that the applicant initially joined his service in New Delhi

Municipal Corporation (in short “NDMCâ€) on 2.4.2008 as Assistant Sanitary Inspector (Health) on contract basis. The selection procedure

consisted of an interview, medical examination and police verification. On 13.1.2010, the applicant, along with other similarly placed employees, was

also granted the benefits of VIth Central Pay Commission except the HRA. In due course of time, vide order dated 26.12.2014 (Annexure A/VII), the

applicantâ€s contract was further extended for a period of five years or till the time the posts were to be filled by regular appointees through Delhi

Subordinate Staff Selection Board (in short “DSSSBâ€) whichever was to be earlier. In pursuance of the aforesaid order, the applicant was given

all the benefits at par with regular employees except the LTC, pensionary benefits, Group Insurance, Study Leave and Child Care Leave.

According to the applicant, on 15.7.2015, the impugned “Ceasing Order†was issued by the respondent, whereby his services were terminated

all of a sudden. Being shocked, the applicant could not understand the reasons for such an abrupt termination of his services. After having made

queries at the concerned branches of NDMC and its vigilance section, he came to know that he has been wrongly implicated in some alleged brawling

that had taken place at “Aditya Sadan†between two neighbours on 8.7.2015. After coming to know about the mischief of mistaken identity, the

applicant in a bid to clarify the situation, submitted a representation on 24.7.2015 before the respondent and also filed the instant OA with prayer to set

aside the impugned ceasing order dated 15.7.2015. The challenge to the legality of the impugned order has been made mainly on the following

grounds:-

I. The impugned order of termination is illegal and arbitrary because no preliminary inquiry or regular inquiry was conducted before termination of the

services of the applicant;

II. The impugned order is violative of principles of natural justice as no opportunity of hearing was given to the applicant before passing the impugned

ceasing order;

III. The impugned order is totally mute and is non-speaking, whereas the respondent was required to pass a reasoned and speaking order before

terminating the services of the applicant;

IV. The contract of the applicant had been renewed on 26.12.2014 for another five years or till the post be filled through DSSSB by regular appointee,

whichever was earlier. None of the contingencies took place since then. Therefore, the impugned order, by way of penalty, is nothing but a colourable

exercise of power by the respondent;

V. The impugned order is violative of Articles 14, 16 and 311 of the Constitution of India; and

VI. The impugned order is stigmatic and punitive in nature so it should have been passed after subjecting the applicant to a regular departmental

inquiry. However, the respondent did not even communicate any shortcoming in the performance of the applicant and passed the stigmatic order all of

a sudden, which is liable to be set aside.

In support of the grounds taken in the OA, the applicant has placed reliance on the judgment rendered by Honâ€ble Apex

Court in Ratnesh Kumar Choudhary vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and others Civil Appeal No.8662 of 2015, decided

on 15.10.2015.

Learned counsel for the applicant has vehemently argued that the Honâ€ble Apex Court in Ratnesh Kumar Choudhary’s case

has reiterated the well settled legal position that whether an order of termination of a probationer can be said to be punitive or not, depends on the fact

that whether the allegations, which are the cause of the termination, are its “motive†or the “foundation†and the Court should lift the veil to

see that the allegations against an employee are “motiveâ€​ or the “foundationâ€​ of the order.

To the contrary, learned counsel for the respondent has vehemently opposed the OA by contending that the applicant being a contractual employee

has no right to remain in service. As per the terms and conditions of the contract, the engagement of the applicant was purely of temporary nature and

could have been terminated at any point of time without assigning any reason. It is next contended that the applicant had never challenged the terms

and conditions of the contract to which he agreed while entering into the service. Therefore, having accepted the said terms and conditions and having

taken engagement in pursuance thereto, the applicant should be estopped from claiming any relief contrary to the said contract.

Learned counsel for the respondent has further contended that insofar as the allegations made in the OA that the impugned order is a non-speaking

order, is concerned, the reason for termination has deliberately been not mentioned in the order so that it may not cast any stigma on the future

prospects of the applicant, whereas the reality is that as the applicant had been found involved in activities pertaining to moral turpitude in a residential

complex, the employer had to terminate his services. Learned counsel has submitted that in para E. of the counter affidavit all the facts have been

mentioned in detail which clearly show that a complaint was received by the Chairman, NDMC, from one of the residents of NDMC Flats, Ashok

Road, New Delhi, alleging that Flat No.23 of “Aditya Sadan†allotted to Shri L.C. Joshi is used for unsocial activities. It was brought to the

knowledge of the concerned authorities that on 8.7.2015 at around 7.00 PM, two men with a girl entered into the flat and remained there for about two

hours. When the residents of the society gathered at the flat, the applicant fled away from the scene along with the girl. The residents forcibly

entered into the flat and found the other man in a drunken state. Upon questioning, he refused to disclose his identity. It was only when the police

authorities entered the scene, the man revealed his name as Shri S.K. Chopra, Sub Inspector in the Enforcement Department. The statements of the

residents of the said locality were recorded. In this regard, our attention has been drawn to Annexure R-I, which is a copy of statement of one of the

residents of the same Complex, who has stated as under:-

“On dated 8-7-15 at 7:00 PM I cought Sh. S.K. Chopra and one other person named Deepak with a girl. Girl and one person left the flat

immediately. The door of the flat was open. I along with the allottee of flat No.13 entered in the flat and found that Sh. S.K. Chopra was in the room

in drunken condition. Few bottles of wine etc. along with some packet of condoms were found lying there which he picked up immediately. First he

refused to disclose his identity but when police was called he told his name as S.K. Chopra and the person who left with the girl was told to be Sh.

Deepak, Inspector in Health Deptt. They further informed that flat is allotted in the name of L.C. Joshi. S.I. (Enforcement/Health).

These persons are using this flat for drinking for sexual activities/womanising etc. and inspite of the repeated request of the residents are still indulging

in such type of unsocial activities.

I request that strict action be taken against them so as to stop these type of activities in the residential complex.â€​

The submission of learned counsel for the respondent is that in view of the aforesaid facts, the services of the applicant, who was merely a

contractual employee, having no right to the post, was immediately terminated by the Chairman, NDMC, by a simple innocuous order, without

mentioning any reason or even without attaching any document, statement or report with it (termination order) so that it may not cast any stigma or

jeopardise the future of applicant. Therefore, it has been contended that the impugned order can in no way be said to be punitive or stigmatic and the

OA is liable to be dismissed.

We have considered the rival arguments advanced from both sides.

Learned counsel for the applicant has filed a compilation containing judgments to support his contentions. The compilation includes the following

judgments:-

i. Ratnesh Kumar Choudhary vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and others Civil Appeal No.8662 of 2015, decided on

15.10.2015 by the Honâ€​ble Apex Court.

ii. Shri Mahavir Singh vs. DTC and others (OA No.2903/2013) decided on 8.9.2016 by the Principal Bench of this Tribunal.

iii. Smt. Saira Bano vs. GNCTD and others (OA 1552/2014) decided on 21.10.2016 by the Principal Bench of this Tribunal.

iv. Srishti Shanker vs. UOI and others (OA No.3165/2015 and other connected cases) decided by common order dated 2.5.2017 by the Principal

Bench of this Tribunal.

v. Poonam Singh vs. GNCTD and another (OA No.1775/2016) decided on 18.1.2018 by the Principal Bench of this Tribunal.

We have carefully gone through all the judgments in the aforesaid compilation. After going through all the aforesaid judgments and keeping in view

the facts and circumstances of this case, we are of the firm view that the applicant cannot be given any benefit out of these judgments because the

facts in these judgments and the facts of the instant OA are entirely different.

In Ratnesh Kumar Choudhary’s case before the Honâ€ble Apex Court, the petitioner was not a contractual employee but an

employee selected through competitive examination, held after open advertisement, in daily newspaper. The services of Ratnesh Kumar Choudhary

were terminated in pursuance of the vigilance inquiry. The report of the vigilance inquiry was made a part of the impugned termination order. Under

these circumstances, Honâ€​ble Apex Court held the impugned termination to be stigmatic and accordingly quashed it.

Insofar as the present case is concerned, the impugned order dated 15.7.2015 reads as under:-

“CEASING ORDER

Under orders of the Chairman/Disciplinary Authority, NDMC, New Delhi, Sh. Deepak Kumar, S/o Sh. Kanwar Pal, Assistant Sanitary Inspector

(Health) on Contract Basis, NDMC, New Delhi, is terminated from the Municipal Services with immediate effect in pursuant to U.O.

No.1411/Vig./IMP/2015/IOV-II/Enf. Dated 13.07.2015.

Accordingly, he is ceased from Municipal Service with immediate effect.â€​

Thus, it clearly shows that not even a single word casting any stigma on the future career/prospects of the applicant has been mentioned in it. No

vigilance report, letter, statement or document has been annexed or even referred to in it forming its “motive†or “foundationâ€. Hence, it

cannot be said that the impugned Ceasing Order in the present case is stigmatic or punitive in nature and it is simply an innocuous order.

It is noteworthy that it was for the first time in their counter reply that the respondent mentioned about immoral conduct of the applicant due to the

reason that the applicant himself in his OA has alleged that his services were terminated without assigning any reason, Therefore, the Department had

to give its reply/explanation in the counter affidavit, detailing the immoral acts of the applicant.

The counter reply filed in the OA, by no stretch of imagination can be said to be the part of the impugned order, so as to make it stigmatic or

punitive.

In view of the above discussions, the OA appears to be devoid of merit and is liable to be dismissed. Accordingly, the OA is dismissed. No costs.