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Judgment
Suresh Kait, J.—The Petitioner, being aggrieved by an order dated 6th August, 2007 in OA No. 2296/2006 passed by the Central Administrative Tribunal, Principal Bench, New Delhi has filed this writ petition.
Brief facts of the case are that the Petitioner is a Cleaner belongs to the locally recruited cadre of Government of India for Consulate General of India, Jeddah, Saudi Arabia. He was appointed against sanctioned post through proper selection process and the age of retirement from service is 60 years. The Petitioner was initially recruited in 1991 on consolidated salary and was subsequently appointed against the sanctioned post with effect from 1st July, 1995 vide office order dated 22nd July, 1995.
On receipt of the complaint, a charge-sheet was issued to the Petitioner for which the reply was also filed by the Petitioner. Vide order dated 25th October, 2005 his services were terminated.
The contention of the Petitioner is that the inquiry was conducted in an unfair and illegal manner wherein the evidences were adduced behind the back of the Petitioner. He was neither permitted to cross-examine the witnesses, nor even permitted to have the main documents relied upon by the Respondents. More so, even the Inquiry Report was not provided to him before his termination. He further submitted that his termination order was issued by the Presenting Officer who was not competent to do so, therefore, the order of termination was without any authority. The learned Tribunal has not given any opinion on this issue, therefore, we also have decided not to say anything on this issue.
Aggrieved by the aforesaid order, the Petitioner challenged the said order by OA No. 2296/2006. The same was dismissed on the ground that the Petitioner was a contract employee and no inquiry was required in the matter under the terms of contract. Learned Counsel for the Petitioner submitted that while passing the aforesaid order, the learned Tribunal completely overlooked the law as settled in similar cases of locally recruited employee of Government of India in the Consulate General of India, Jeddah, Saudi Arabia, vide order dated 14th August, 1998 in OA No. 2974/1997 which was upheld vide order dated 7th October, 1998 in CWP No. 5056/1998 and orders dated 20th August, 2002 and 23rd September, 2004 in OA No. 242/2002 and OA No. 601/2003 respectively which all have attained finality.
Learned Counsel for the Petitioner contended that the Petitioner was holding a civil post under the Union, was entitled to an inquiry under Article 311(2) of the Constitution. He had to be afforded an opportunity of hearing by the State in respect of the charges before issuing his dismissal order from service. He further submitted that the Tribunal failed to appreciate that even assuming he was a contract employee, the Petitioner was entitled to a fair and just procedure in accordance with law under Article 14 because, of the law laid down by the Hon''ble Supreme Court in Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, .
Before going into the legal position of the case, we have to go through the facts of complaint on which the Petitioner was removed from service. One lady Mrs. Laila Bibi had made oral complaint against the Petitioner in the presence of Mohd. Iqbal. The allegation was that she stayed with the Petitioner for one day (possibly sexual harassment) or was that the Petitioner took money from the lady promising her case to be solved. The lady was also enquired by the Department whether the Petitioner had got some money from her for completing her repatriation formalities. Pursuant to the complaint, the charge memo dated 21st September, 2005 was issued by the Consulate General of India, Jeddah (Administration Section).
The Petitioner filed the reply on 26th September 2005 of the Show Cause Notice dated 21st September, 2005 as well as on affidavit dated 3rd October, 2005 which was solemnized by the complainant which is at page 77 of the petition. The contents of the affidavit are reproduced as under:
When I was in Saudi Arabia on a pilgrimage at the Holy Mecca on Umrah Visa, I have lost my Passport and other travel records there. On seeing puzzled, some men from Kerala helped me to reach the Indian Embassy, Jeddah.
I have revealed all my grievance before the Consulate Officials at the Embassy and they have taken the details about me. They asked me that whether I knew the fellow (the Petitioner) who stood beside me and I answered that I did not know him.
The officials prepared all the documents for the arrangement of my return to India. Thereafter the officials sent me in a car to the Air Port. On the way a person who was in the car asked me to sign on some blank papers. When I enquired about its purpose he said that it was for making some more papers necessary for my return. On believing his words I have signed on the blank papers as he demanded. No matters was written or printed on that papers, when I have signed it.
Subsequently I got a reliable information from my relatives at Jeddah that some matters has been written on the above said signed papers in the style of a complaint against some officials in the Consulate.
I have no complaint against any officials in the Consulate and no one have behave badly towards me there at the Embassy. So I swear again in the name of `Allah'' that I have no complaints against any of the Consulate in the Embassy at Jeddah.
Yours faithfully,
Laila Beevi
In spite of the reply filed by Petitioner, to the show cause notice and the affidavit filed by the complainant, the Respondents issued a termination order of the Petitioner vide order dated 25th October, 2005. The contents of the aforesaid order are reproduced as under:
After detailed investigation, the enquiry committee found you guilty of - (i) Suppressing of the facts and not cooperating with the enquiry committee. (ii) having dubious deal with a lady who came to the office for seeking help. While the job as a cleaner in the consulate does not necessitate any such dealing. (ii) involving the community with an idea of putting undue pressure on the office during the course of the disciplinary proceedings against you, and (iv) sharing the office information with the members of the community especially during the course of the disciplinary proceedings against you. Therefore, the enquiry committee has recommended that based on the above finding in particular, previous records of having received a number of memorandums from the office and strong suspicion of your generally dubious activities in the Community welfare section, to terminate your service with immediate effect.
In view of the positioned explained above, it has been decided that the service of Sh. V.T. Sainuddin is being terminated with immediate effect under the powers vested with the disciplinary authority and the rules laid down in guidelines for employment of local employees in Indian Mission/Posts abroad given under Para-II in regard of termination and the provision given in Para 13 of the Labour Contract signed between the Post and the employee.
Before dealing other aspects, it is necessitated to go through the Guidelines of the Labour Contract.
The Guidelines for Employment of Local Employees in Indian Missions/Posts Abroad are as under:
Introduction : Local Cadre
Indian Mission/Posts abroad are manned by personnel posted from India or on transfer from other Indian Missions: and by employees recruited locally, who are called locally recruited staff or local employees or local recruits. Such local posts are termed as Local Cadre. They are recruited on contractual basis under the powers delegated to Head of Missions/Posts. Local employees are separate entity and they are different from India-based personnel in so far as service conditions are concerned. They are on contract service liable to termination on one month''s pay. Central Civil Services (Classification, Control and Appeal) Rules, Pension Rules, are not applicable to locally recruited staff. Pay Commissioner''s recommendations are also not extended to them. Their services are not transferable to India or other Indian Missions/Posts abroad.
A. RECRUITMENT
The recruitment should be done as far as possible by advertising the vacancies in the local newspapers and recruitment should be on the basis of interview/test of the applicants. The selected candidates should satisfy the eligibility conditions of age, educational/professional qualification, experience to be determined by the Mission/Post depending upon the functional recruitment of each post. Incumbents for the posts of Marketing Officers/Interpreters and other Secretarial/ Clerical staff should be computer literate. At the time of initial appointment the local employees have to enter into a contract containing the terms and conditions of service as per the enclosed model proforma of the Labour Contract (Annex-1). The local employees will be governed by the terms and conditions stipulated therein.
H. TERMINATION
The grounds for termination of the contract from the Embassy will be (a) inadequate performance, (b) wilful misconduct, disobedience or neglect of duties, (c)breach of security, (d) discourtesy, misbehaviour with colleagues or superiors, (e) frequent lack of punctuality without due justification to the satisfaction of the HOC. In keeping with laws of natural justice, the Mission should take care to avoid unilateral/arbitrary action. The Mission is required to serve a show cause notice on the employee before termination except in case of breach of security. In all cases where the services of local employees are terminated, full facts indicating the reasons for termination of their service should be reported to the Ministry immediately. The procedure laid down above will not apply to the local employees in our Missions/Posts abroad where it is found that this procedure runs counter to contractual bilateral agreements or local rules of the host country.
Rule 3(2) of CCS CCA Rules
Notwithstanding anything contained in sub-rule(1), the President may by order exclude any class of Government servants from the operation of all or any of these rules.
It is undisputed that the Petitioner has not signed the above mentioned contract form, therefore, the contract is not binding upon the Petitioner, as contended by learned Counsel for the Petitioner.
A very important factor in the present case is that the Respondents, on receiving the complaint from the lady, she was asked to identify the Petitioner, in the presence of the other persons, there she refused to identify the Petitioner. Further she also denied that she had made any complaint in writing to the Respondents.
The case of the Respondents was that on an oral complaint, the Respondents issued a charge-sheet. After getting the reply from the Petitioner, he was removed from service. Though under Rule 3(2) of CCS Conduct Rules, the Respondents have power not to initiate the full-fledged inquiry.
In the present case, two major flaws are there, which were not been considered by the Tribunal. One, the Petitioner has not signed any contract form, therefore, he is not bound by the terms and conditions of that contract. Second, there is no written complaint from the complainant and at the very first instance she did not identify the Petitioner. Not only that she had filed an affidavit with the contention that she had not made complaint against any of the employee of the Consulate General of India and further clarified that she had not made any complaint in writing to this effect. Further she contended in her affidavit that some blank papers were got signed by the office of the Consulate General of India and she did not know the contents of the same.
Learned Counsel for the Respondents relied upon the judgment of Division Bench of this Court in Ms. Vijay Chhibber v. Union of India and Anr. in WP(C) No. 2968/2005 decided on 9th December, 2005.
The above said judgment has no relevancy in the facts and circumstances of the present case because the Petitioner in that case was a US National, therefore, she was not entitled to invoke jurisdiction of the Tribunal whereas the Petitioner herein is an Indian Citizen. In the case of Ms. Vijay Chhibber, the Petitioner had signed a contract at the entry stage with the Embassy of India, Washington. She had entered into the contract with the terms and conditions thereof being aware of the contents and also wilfully and being not the citizen of India. The CCS CCA Rules did not apply in that case.
We, therefore, are of the considered opinion and keeping in view the facts and circumstances of the case, the order passed by the Central Administrative Tribunal is without considering the full facts of the case and that deserves to be set aside. The Petitioner is reinstated in the service with all consequential benefits including back wages.
Accordingly, the writ petition is allowed and the order dated 6th August, 2007 passed by the CAT is set aside. No costs.