Rehana vs Govt. Of NCT Of Delhi & Ors.

Rajinder Kashyap, Member (A)

By way of the present O.A. filed u/s 19 of the AT Act, 1985, the applicant, in para 8 of the O.A., has prayed for the following reliefs: -

“8.1 That this Hon’ble Tribunal may be graciously pleased to quash the impugned letters (Annexure-1 and Annexure-2) and direct the respondents to grant expansion of service of the applicant beyond 29.02.2020 with all consequential benefits to the applicant including the pay and allowances

8.2 That this Hon’ble Tribunal may be pleased to grant any other or further relief which this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case.”

FACTS OF THE CASE AS STATED IN THE OA

The applicant, along with 10 others, was employed by the respondent no.2 as Office Assistant under Delhi Ladli Scheme-2008 in the Department of Women & Child Development, Govt. of NCT of Delhi vide letter dated 16.08.2011 (Annexure-A/5). The appointment joined the said post on 17.8.2011 vide joining report dated 17.08.2011 (Annexure-A/6) and the same was initially for a period of 1 year, but the same was continued year after year without any break. The respondents transferred the applicant along with 5 others and directed her to join Juvenile Justice Board-III, Seva Kutir Complex, Kingsway Camp, Delhi with immediate effect vide Order dated 29.1.2016 (Annexure A/7). In compliance of the aforesaid office order dated 29.01.2016 passed by the respondent no. 2, the applicant joined the same on 1.2.2016. Thereafter, the respondent no.2 vide transfer/posting order dated 20.11.2019 (Annexure-A/9) transferred the applicant from JJB-III to the office of the D.O. (North West-II), Sava Kutir Complex Camp, Delhi-09. The applicant joined the said office on 21.11.2019 (Annexure-A/10). The Juvenile Justice Board vide their office letter dated 22.01.2020 issued a certificate (Annexure-A/11) to the applicant that she had worked in JJB-III w.e.f. 01.02.2016 to 21.11.2019 and had performed satisfactorily. On 20.04.2020, the applicant got information on whatsapp from the office of Ms. Inderjeet Pathak, Dy. Director, Govt. of N. C. T of Delhi (Ladli Scheme) that her service has been discontinued w.e.f. 01.03.2020.

The applicant made a representation dated 09.07.2020 (Annexure-A/3) to Sh. Rajendra Pal Gautam, Minister, Dept. of Women and Child Development, Govt. of N.C.T. of Delhi against the aforesaid arbitrary action of the respondents as no notice or memorandum was given to her before taking the aforesaid action against the applicant and prayed that her service be continued. The respondents vide letter (Annexures -A/1 & A/2) had informed the applicant that her work assessment report, received from her work supervising officer, has been found to be unsatisfactory/average and since the Director, DCWA in cases of such employees, objected to grant extension of service, the competent authority has not granted extension of her service beyond 29.02.2020 and the same got discontinued w.e.f. 01.03.2020. The applicant preferred another representation dated 02.09.2020 to Dy. Director (Ladli) Dept. of Women & Child Development, ISBT, Kashmiri Gate, Delhi-110006 against the impugned letter dated 27.08.2020 (Annexure-A) stating that her work Assessment Report, received from her work supervising officer, has been found to be unsatisfactory/average, is arbitrary; because no notice or memorandum of such Work Assessment Report was ever served upon the applicant and because her work supervising officer, vide order dated 22.01.2010 (Annexure-A/11) had himself rated her performance as “Satisfactory” and that she had served the respondents continuously from 2011 to March 2020 with unblemished record and had prayed that in view of the above facts, her service be continued w.e.f. 01.03.2020. Hence, this present Original Application.

CONTENTIONS OF THE APPLICANT’S COUNSEL

Learned counsel further submitted that no such Work Assessment Report stating that the applicant‟s work display was found unsatisfactory/average was ever served upon the applicant.

4.1 Learned counsel has drawn our attention to certificate dated 22.01.2020 (Annexure-A/11) issued by the supervisory officer regarding her work rated her performance as “satisfactory”.

4.2 Learned counsel also submitted that the applicant has served the respondents continuously almost for 9 years from August, 2011 to March, 2020 with unblemished record as during said period no notice or memo was ever served upon her.

REPLY OF THE RESPONDENTS

By referring to the counter reply, learned counsel submitted that for proper management of the Ladli scheme,

11 posts of Date Entry Operators and 11 posts of Office Assistants on outsource basis were sanctioned by Hon‟ble L.G. vide letter dated 11.06.2013 and concurrence of Finance Department vide letter dated 07.02.2013. These posts were created vide order dated 31.12.2014 with approval of the Hon‟ble L. G. on outsource basis. The services of the applicant were discontinued due to her average/unsatisfactory work performance report and also she has been surrendered by the District Officer North West-II due to her past work performance report, her services were not extended by the Competent Authority DWCD. However, due to COVID-19 pandemic, the information in the form of letter regarding discontinuation of her services was sent on whatsapp so that information could be delivered quickly and a letter had also been sent to her postal address on 16.04.2020. Further, the letter of surrendering the applicant from District Office North West-II to Joint Director DWCD, GNCTD, was served upon the applicant as her work performance was not appreciable, lack of efficiency to accomplish the said work.

REJOINDER

In response to the reply of the respondents, the applicant has also filed rejoinder wherein it is submitted that the action on the part of the respondents against her was false and arbitrary; firstly, because the said Work Performance Report dated 29.09.2019 was never served on the applicant; secondly, because there is yet another Work Performance Report of the applicant dated 22.01.2020 on record (Annexure-A/11) of the same period i.e. from 01.02.2016 to 21.11.2019 wherein the same Work Supervising Officer has rated the work performance of the applicant as “satisfactory” and thirdly, because the said Work Supervising Officer while assessing the work performance of the applicant in the aforesaid work assessment report dated 29.09.2019 had granted her 30 out of 50 marks and had put her grading in the category of “average” when according to Grading Schedule mentioned in the said work performance report, the applicant with said marks was also entitled to be placed in the category of “Good”. The Work Supervising Officer, however, instead of putting the applicant in “Good” category has put performance in the “Average” category and thus had violated the settled law that “where two interpretations are possible one favoring the employee will be preferred”. She further submitted that vide letter dated 18.12.2019 (Annexure-R/4), the District Officer North West-II had surrendered her to the office of the Joint Director. On this letter, she was never asked to explain the allegations made against her in the said annexure.

We have heard learned counsel for the parties and perused the pleadings available on record.

Keeping in view above facts and submissions of the learned counsel for the parties, we find that the following issues arise for adjudication in this matter:

(i) Whether the discontinuation of the applicant‟s service w.e.f. 01.03.2020 was arbitrary and in violation of principles of natural justice?

(ii) Whether the action of the respondents is liable to be set aside on the ground of non-communication of the alleged adverse performance report?

ANALYSIS

Admittedly, the applicant served the department for nearly 9 years, from 2011 to February 2020, continuously and without any break. The respondents have not placed on record any memo or warning being served upon the applicant prior to discontinuation of her services.

The only Work Assessment Report relied upon by the respondents is dated 29.09.2019. The Appraisal of Ladli Staff in respect of the applicant dated 29.09.2019 reads as under:-

“PERFORMA FOR APPRAISAL OF LADLI STAFF

Period: - March 2019 – January 2020

Name of the Institution:-

JJB-III, Kingsway Camp,

Delhi

Name of Superintendent:-

Ms. Manju Varshney

Personal details of Staff:

-

Sh. Subhash Gautam

Name of the official:-

Of

B.A./M.S.W.

Experience:-

Category of Post:-

Contractual (ICSIL)

(Permanent/Constractual):-

Since when posted:-

1 Feb 2016 to 21 Nov 2019

Assignments being handled:-

Criteria of Appraisal:-

(Out of 50)

Punctuality

05

3

Discipline

05

3

Knowledge about work attended to

10

6

Attitude towards dealing with public

10

6

Quality of Assignment handled during the Period under report

10

6

Maintenance of records

10

6

Total

30

Grading:-

Very Good

A = 40-50

Good

B = 30-40

Average

C = 20-30 √

Poor

D = 20-10

We again reproduce the schedule with regard to award of grading as has been mentioned in the said performa for appraisal of Ladli Staff, which is as under:-

Grading:-

Very Good

A=40-50

Good

B=30-40

Average

C=20-30

Poor

D=20-10”

Even otherwise, as per the department‟s own above grading schedule, 30 out of 50 marks would fall in the “Good” category. The classification of “Average” appears to be contrary to the grading norms, and, hence, arbitrary.

However, the said report was never communicated or served upon the applicant, and no material has been placed on record by the respondents to demonstrate otherwise. Moreover, the same supervising officer issued a certificate dated 22.01.2020 certifying the applicant‟s performance as “satisfactory” for the said relevant period. No reasons are provided by the respondents for disregarding this certificate.

The Experience Certificate dated 22.01.2020 issued in respect to the applicant by the very same officer reads as under:-

“Experience Certificate

This is to certify that Ms. Rehana Worked as Officer Assistant (Outsourced) from ICSIL in Juvenile Justice Boarde-III, Sewa Kutir Complex, Kingsway Camp, w.e.f. 01/02/2026 to 21/11/2019. She has performed satisfactorily.

We wish her every success in life.”

(emphasis supplied)

Once, it is an admitted position that the aforesaid Work Conduct Report, being the sole basis for the respondent's action, was never served upon the applicant and it is a settled position in law that any such report, particularly, if adverse or potentially prejudicial, must be communicated to the concerned employee, failure to do so violates the principles of natural justice and renders any reliance on such report legally unsustainable, as held by the Hon‟ble Supreme Court in Dev Dutt v. Union of India, (2008) 8 SCC 725; and reaffirmed in Sukhdev Singh v. Union of India, (2013) 9 SCC 566.

The contention of the respondents that the applicant was working on outsourced basis cannot override the requirement of fairness and natural justice. Even an outsourced or contractual employee cannot be removed/ discontinued arbitrarily after rendering years of service without notice, especially when her record is otherwise unblemished.

In view of the foregoing discussions, we hold that the discontinuation of the applicant‟s services w.e.f. 01.03.2020 was arbitrary, violative of principles of natural justice, and unsustainable in law; the respondents failed to adhere to fair procedure before acting upon an un-communicated and internally inconsistent performance report; and, therefore, the applicant is entitled to reinstatement with continuity in service but without back wages, considering the nature of appointment and financial implications.

Accordingly, the Original Application is allowed in the following terms:-

(i) The impugned action of discontinuing the applicant‟s services vide orders dated 27.08.2020 and 23.09.2020 w.e.f. 01.03.2020 are quashed and set aside;

(ii) The respondents are directed to reinstate the applicant within four weeks from the date of receipt of a copy of this order, with continuity in service and all consequential benefits, except back wages;

Pending MA(s), if any, shall stand disposed of accordingly.

There shall be no order as to costs.