Rohit Kumar Gahalot vs Indian Railway Catering And ...
2014 Latest Caselaw 812 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     W.P.(C) 6/2012
      ROHIT KUMAR GAHALOT                   ..... Petitioner
                   Through: Mr. Tanmaya Mehta, Adv.

                          versus

      INDIAN RAILWAY CATERING AND
       TOURISM CORPORATION LTD                ..... Respondent
                   Through: Mr. Ashish Tiwari, Adv.

      CORAM:
      HON'BLE MR. JUSTICE RAJIV SHAKDHER
                   ORDER

% 12.02.2014

1. This writ petition is directed against the order dated 6.7.2010 whereby the services of the petitioner, who was on probation, were terminated.

2. The grievance of the petitioner arises in the background of the following broad facts:

3. On 10.6.2008, the petitioner was made an offer of appointment by the respondent corporation for appointment to the post of F&B attendant (W1). The petitioner was though, put on probation for a period of two years, which was admittedly liable to be extended at the say so of the respondent corporation.

4. Pursuant to the offer of appointment, the petitioner was posted at the New Delhi Railway Station, as an Attendant. The posting order of the petitioner was made vide order dated 9.7.2008. The job function assigned to the petitioner was specifically of vending goods like chips,

juices and other eatables on a trolley at the aforementioned railway station.

5. Apparently, on 26.6.2010, an inspection was carried out by an officer of the respondent whereby certain irregularities were observed qua the petitioner. Consequently, a written notice dated 29.6.2010 was issued to the petitioner wherein, the factum of "having noticed irregularities" was put to him and, he was asked to report in the office of the DGM/CS/NZ, on the very same date, i.e. 29.6.2010. 5.1 It is not in dispute that the petitioner did report, as directed by the order dated 29.6.2010. It was also not disputed before me that, the irregularity was put to the petitioner and, that the petitioner gave his explanation with respect to the same.

5.2. The respondent corporation was, not satisfied with the explanation given by the petitioner and consequently, he was suspended from service, with immediate effect, on the very same date, i.e. 29.6.2010.

6. A week later, i.e. on 5.7.2010, the petitioner was terminated from service on the ground that his performance during the period of probation was "not satisfactory"; resultantly his suspension stood revoked as the final order had issued.

7. The petitioner, though, was paid his emoluments for the notice period, which in this case was one month.

8. The petitioner, evidently, made thereafter a representation to the respondent corporation, which is, dated 29.7.2010. In the representation, the petitioner sought a sympathetic and favourable consideration of his case on the ground that on 26.6.2010 while he was

operating trolley No.7 at the New Delhi Railway Station, certain items were stolen from the trolley, by passengers moving about on the platform and, therefore, on discovering that he was short of items, which had been released to him, he replaced the stolen items with the items purchased from his own account, and that is how, externally sourced items, were found in the vending trolley. 8.1 It is not in dispute that the respondent organisation did not respond to the representation dated 29.7.2010. It is also not disputed before me that, no other representation was sent by the petitioner, after the representation dated 29.7.2010.

9. The petitioner thereafter moved this Court on 21.12.2011.

10. Notice in the writ petition was issued on 3.1.2012, whereupon respondent corporation entered appearance and filed a counter affidavit. Rejoinder, to the said counter affidavit, has also been filed by the petitioner.

11. Upon pleadings being completed, the matter has been taken up for hearing.

12. Mr. Mehta, who appears for the petitioner, has stated that even though the impugned order of termination is not stigmatic, this Court is entitled to, in a given case, to lift the veil and discern the underlying material/motivation for passing the impugned order. 12.1 Mr. Mehta, in support of the aforementioned submission states that the record would show, that the petitioner‟s services were terminated on account of his alleged misconduct of externally sourcing items / goods, which were in excess of the items / goods released to the petitioner by the respondent corporation. In support of this submission,

Mr. Mehta relied upon the averments made by the respondent corporation, in paragraph 4 of the counter affidavit, under the heading „preliminary submissions‟.

12.2 It is, thus, submitted that if what is stated above is accepted by the Court, then the impugned order cannot be sustained as, admittedly, the principles of natural justice have been given a go-by. The respondent neither issued a show cause notice, nor was the petitioner given an opportunity of hearing in defence of what now transpires to be the new charge against the petitioner.

12.3 In support of his submissions, Mr. Mehta has relied upon the judgment of the Supreme Court in the case of "Jarnail Singh and Ors. v. State of Punjab and Ors., (1986) 3 SCC 277".

13. As against this, learned counsel for the respondent corporation says that this was a case where an irregularity in discharge of official functions was discovered on an inspection being carried on 26.6.2010, and pursuant thereto, a written communication dated 29.06.2010, was issued to the petitioner, calling upon him, to explain the irregularities discovered during the course of inspection.

13.1 According to the learned counsel for the respondent corporation this communication was in fact a show cause notice and, therefore, the principles of natural justice were complied with. 13.2 It was learned counsel‟s submission that this being the case, the impugned order would have to be sustained. Furthermore, it is further submitted that the impugned order is not stigmatic as, it terminated the services of the petitioner, on the ground of non-performance since his explanation was not satisfactory.

13.3. Counsel for the respondent corporation also submits that the petitioner is guilty of delay and latches and, that, he has approached this Court after nearly a year and five months. It is his submission that the petition ought to be dismissed on this short ground alone.

14. I have heard the learned counsels for the parties and perused the record, as well.

14.1 What has emerged from the record quite clearly and, which is not disputed by the learned counsel for the petitioner, is that, externally sourced goods were found on the trolley. Mr. Mehta, learned counsel for the petitioner, however, says that the stand now taken by the respondent corporation that the value /number of items / goods found with the petitioner were in excess, of that, which were released to the petitioner, is a new charge, which was not put to the petitioner. 14.2 I had put to Mr. Mehta as to whether the explanation given in the representation dated 29.7.2010, to the effect that, certain goods were stolen on 26.6.2010, which the petitioner, apparently, tried to replace, was supported by any intimation given by the petitioner to the respondent corporation as regards the loss of items/goods. 14.3 Mr. Mehta, in his usual fairness, said that no such material has been placed on record.

14.4. Therefore, what clearly emerges is that willy-nilly externally sourced goods were found in the vending trolley handled by the petitioner. The explanation given that items / goods supplied were stolen which were replaced by externally purchased items / goods seems nebulous to say the least. Circumstances quite clearly suggest that the petitioner was vending externally sourced items / goods. The

question will thus boil down to : whether such a conduct, which is not in accordance with, what is expected of an employee engaged by the respondent corporation is good enough to terminate probation of an employee?

16. In my view, the petitioner could not have ferried and sold items/ goods which were not supplied to him by the respondent corporation. An infraction in this regard in itself is a good enough reason to have asked the petitioner, to leave services of the respondent corporation. The record also reveals that it is not as if the petitioner was removed from services at the spot when, inspection was carried out. The petitioner was, admittedly, issued a notice dated 29.6.2010, which made a reference to "irregularities".

16.1 Having regard to what I have stated above, irregularities were decidedly found. Therefore, the only dispute, inter se, the parties is the exact nature of irregularities. In the given context, I do not find anything wrong with the impugned order. The impugned order dispenses with the services of the petitioner on the ground that the performance was not satisfactory. That itself does not make it stigmatic. Reliance on the judgment of the Supreme Court in the case of Jarnail Singh's case would not be appropriate as the fact situation was not similar to what has emerged in the present case. 16.2 As is well known, a singular fact can change the texture and the context in which the judgment has been passed. Judgments are not to be read as euclid‟s theorem.

16.3. Paragraph 5 of the said judgment would show that the petitioners in that case had been working as surveyors from varying dates which,

spanned from December, 1976 to 31.1.1981. Their services were sought to be terminated on 31.1.1981, on the purported ground that "posts were no longer required". Furthermore, the pleadings filed in Court, were indicative of the fact that there were accusations of shortages, made against the petitioners in that case. It is in this fact situation, that the Court, observed, even in case of probationers, whose services are terminated, it is entitled to lift the veil and, examine, whether the order terminating services has been made on the ground of misconduct, inefficiency, etc. 16.4 In my view, the fact situation in the present case is different. The petitioner has admitted to the irregularity. The petitioner was given an opportunity and, therefore, the impugned order cannot be interfered with.

17. There is a second aspect of the matter, which is in the nature of an alternate relief sought for by the petitioner. Mr. Mehta says that the petitioner should, even if the impugned order is sustained, be released the money standing to his credit in the form of provident fund, which is, available with the respondent corporation, as also, his security deposit amounting to Rs.10,000/-. Counsel for the respondent corporation says that said respondent will act in consonance with the extant rules, and if, payments are due they will be released. 17.1 This prayer, in my view, can, accordingly, be disposed of with a direction to the respondent corporation to pay whatever is due to the petitioner as per the extant rules applicable to a probationer. 17.2. If any money is due towards provident fund and security deposit to the petitioner as per the rules in vogue, the same shall be released to

the petitioner expeditiously, though not later than three weeks from today.

18. The writ petition is disposed of in the aforesaid terms.

RAJIV SHAKDHER, J FEBRUARY 12, 2014 s.pal