Delhi High Court
Airports Authority Of India vs Harbhajan Singh on 18 December, 2019
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 28th November, 2019
Decided on: 18th December, 2019
LPA 928/2013
AIRPORTS AUTHORITY OF INDIA ..... Appellant
Through: Mr. K. K. Rai, Senior Advocate with Mr.
Ramkrishna Veerendra, Mr. Aman Yadav, Mr.
Anshul Rai, Mr. D. P. S. Rajesh and Ms. Sreoshi
Chatterjee, Advocates.
Versus
HARBHAJAN SINGH ..... Respondent
Through: Mr. Vijay Kumar and Mr. Jaspal Singh,
Advocates.
LPA 183/2014
HARBHAJAN SINGH ..... Appellant
Through: Mr. Vijay Kumar and Mr. Jaspal Singh,
Advocates.
Versus
AIRPORTS AUTHORITY OF INDIA ..... Respondent
Through: Mr. K. K. Rai, Senior Advocate with Mr.
Ramkrishna Veerendra, Mr. Aman Yadav, Mr.
Anshul Rai, Mr. D. P. S. Rajesh and Ms. Sreoshi
Chatterjee, Advocates.
CORAM:
JUSTICE S. MURALIDHAR
JUSTICE TALWANT SINGH
LPA Nos. 928/2013 & 183/2014 Page 1 of 36
JUDGMENT
%
Dr. S. Muralidhar, J.:
Introduction
1. These two appeals - one by the Airports Authority of India („AAI‟) and
the other by Mr. Harbhajan Singh (who is, hereafter, for convenience,
referred to as „Respondent‟) - are directed against the judgment dated 9th
September, 2013, passed by the learned Single Judge disposing of W.P.(C)
No. 2076/2011 filed by the Respondent. By the said impugned judgment, the
learned Single Judge set aside the termination order dated 27th June, 1997,
the enquiry report dated 9th August, 2010, and the impugned order dated 27 th
January, 2011 of the AAI, where the reply of the Respondent to the second
show cause notice („SCN‟), in respect of the proposed punishment was
rejected. The learned Single Judge directed that the Respondent be reinstated
in service and shall be entitled to all consequential benefits, but with 50%
back-wages.
2. On 14th March, 2014, an interim order was passed by this Court to the
effect that subject to the AAI depositing the entire amount payable to the
Respondent in terms of the impugned judgment of the learned Single Judge,
there would be a stay on the reinstatement, as well as the recovery of wages,
during the pendency of the present appeals. On 29th May, 2014, while noting
that the AAI had deposited Rs.43,94,218/-, this Court directed the said
amount to be kept by the Registry in a fixed deposit, as already directed on
14th March, 2014. The Court also noted the submissions of Mr. Vijay
Kumar, learned counsel for the Respondent, disputing the computation of
the above amount by the AAI, and that the consequential benefits had not
been taken into consideration.
3. On 11th July, 2016, a direction was issued to the Respondent to file an
affidavit, stating on oath whether after 27th June, 1997, he had taken up
employment or was unemployed. Pursuant thereto, the Respondent filed an
affidavit on 10th August, 2016, stating inter alia that he has remained
unemployed since 27th June, 1997, and could not get any job due to stigma
of termination of his services. He further pointed out that his family was
living on the monthly pension of his father, who was a retired army
personnel. The AAI filed a reply to the said affidavit, on 7th January, 2017.
4. The Respondent has filed a separate appeal, being LPA No. 183/2014,
against the same impugned judgment of the learned Single Judge, only to the
extent that the back-wages had been restricted to 50%. It must be noted,
however, at the outset, that Mr. Vijay Kumar, learned counsel for the
Respondent stated that if this Court were to reject the AAI‟s appeal, then the
Respondent would not press his appeal.
Background facts
5. The background facts are that the Respondent is an engineering graduate
and belongs to the Scheduled Caste („SC‟) category. On 13th May 1994, the
Respondent was appointed as a Junior Engineer („JE‟) in the AAI. He
subsequently got promoted as Assistant Engineer („AE‟) on 15th December,
1995. When an advertisement was issued for recruitment to the post of
Assistant Executive Engineer [„AEE (E)‟] in the AAI, the Respondent
applied and was selected to that post.
6. According to the Respondent, he was asked to submit a „technical
resignation‟ in order to enable him to join in the post of AEE (E). He
accordingly submitted his technical resignation and joined as AEE (E) at the
Goa Airport Project, Goa on 5th August, 1996 under the charge of an
Executive Engineer („EE‟). On 30th April, 1997, the Respondent was
transferred to the Srinagar Airport. According to the Respondent, he was not
informed of the reasons for his sudden transfer. He joined at the Srinagar
Airport on 15th May, 1997.
7. At this stage, it requires to be noticed that in the letter dated 16th May,
1996, appointing him as AEE (E), it was stated that there would be a two
year period of probation which could be extended at the discretion of the
Management of the AAI (NAD), and that during the period of probation, his
services were liable to be terminated at any time, without assigning any
reasons, by giving one month‟s notice or payment of salary in lieu thereof,
on either side. The offer of appointment was on ad hoc basis.
8. While the Respondent worked as AEE (E) at the Goa Airport, a complaint
dated 21st February 1997 was received by the AAI from one Mr. V. K.
Gupta, acting for M/s. AERCOMFORT, an air-conditioning and
refrigeration contractor with its address at Tilak Marg, New Delhi, making
allegations against Mr. Ashutosh, the JE and Mr Bhatti, an AE, stating that
both the officers were demanding 5% commission as illegal gratification
"for legitimate co-operation required for execution of work." The complaint
alleged that in the last week of January, 1997 at 11.00 pm, the contractor
received an STD call from Mr. Ashutosh, who appeared to be under the
influence of alcohol. It was alleged that Mr. Ashutosh had been behaving in
a most undesirable manner with the staff and manhandling the operator in
the plant room; in the bills prepared by Mr. Ashutosh and Mr. Bhatti, as
received by the said contractor, a lot of measurements had not been taken
although the work had been completed several months before; both the
officers had threatened the contractor that they would make deductions in
spite of the work carried out in order to make him suffer financially, since
the contractor had not met their illegal demand. The said contractor was
engaged in the work of installing air-conditioning in the New International
Block, the Domestic Departure and Arrival Halls, and the associated car
parks at the Goa Airport.
9. On 4th March, 1997, an investigation report was submitted by Mr. A. K.
Mishra, the Superintending Engineer (Electrical) [„SE‟ (E)‟], inter alia,
returning the following findings:
(i) That it was the Respondent who had telephoned at the residence of the
contractor at around 11.00 pm, and started abusing the contractor for
delay in the air-conditioning work at Goa Airport.
(ii) That after Mr. Bhatti joined as JE (E), he too started misbehaving with
the contractor‟s local staff.
(iii) That the Respondent had confirmed calling the contractor at around
10.00 pm, but stated that he spoke only about the progress of the air-
conditioning work.
(iv) That the Respondent was warned by Mr. A. K. Mishra not to make
telephone calls to the contractor, particularly at odd hours, and that if
there is any dispute, he should report the matter to the EE (E), who
would take suitable action.
(v) That the EE (E) informed Mr. Mishra that Mr. Bhatti, JE (E) had been
cautioned for the incident, and he had responded positively.
(vi) That, although, the Respondent had been given a warning, it was
desirable to shift him to some other airport in the interest of the work.
10. The Central Vigilance Officer („CVO‟) in a note dated 4th March 1997,
stated that the allegations of the contractor against the two engineers were
"proved at the enquiry held", and the misconduct of demanding commission,
threatening the contractor on telephone in a drunken state, and delaying the
passing of the bills of the contractor was "indeed serious". It was
recommended that since the "conduct and performance" of the Respondent
and Mr. Ashutosh was not found to be satisfactory, they should be
terminated with immediate effect.
11. On receipt of the aforementioned report of Mr. A. K. Mishra, Dr
Ramalingam, ACE (E) in his note dated 7th March, 1997 observed that the
complaint of the contractor was about the aforesaid officers demanding 5%
commission, for which an STD call had been made at 11.00 pm to the
contractor‟s house in Delhi from Goa, and that this complaint was verified
with the contractor by SE (E) - II, who visited Goa. The ACE (E) noted that
Mr. Bhatti had been recommended for transfer to Srinagar Airport, and had
also been warned by the SE (E). It was further noted that the complaint of
the contractor was serious in nature. It was noted that the AE (E) i.e. the
Respondent herein, did admit to having called the contractor at night, and
that his action in directly dealing with the contractor, and that too at night,
called for action. The ACE (E) in his note suggested that they should call for
an explanation from the Respondent as to why he should not be removed
from service for exceeding his authority under the temporary service
conditions, as he was still on probation.
12. Consequent thereto, on 27th June, 1997, the impugned order was passed
by the AAI, terminating the Respondent‟s service with immediate effect, in
terms of paragraphs 4 and 5 of the terms and conditions of the offer of
appointment. A cheque for a sum of Rs.8131/-, towards payment in lieu of
one month‟s notice, was enclosed with the letter.
First round before the Single Judge and DB
13. In the first round, the Respondent challenged the termination of his
services, by filing W.P.(C) 2773/2000 in this Court. It was heard finally by a
learned Single Judge of this Court nearly a decade later. By the judgment
dated 13th February, 2009, the learned Single Judge set aside the order of
termination. In the said judgment, it was noted by the learned Single Judge
that although the termination order was "fairly innocuous", in the written
synopsis filed before the Court by the AAI, the specific reasons for
terminating the Respondent‟s services were disclosed as under:
"In fact his services along with one Mr. Ashutosh Samarkar
have been terminated on the complaint of one Mr. V. K. Gupta,
Proprietor of M/s Aircomfort (an air-conditioning contractor of
IMI) whose bills were not cleared and being harassed for not
obliging both the employees by giving them bribery. Their
services were terminated as a professional misconduct, cheating
and demanding illegal gratification while holding a public
office for which the punishment of dismissal from services
were given for the alleged involvement in the crime as is clear
from page 70-75 the paper book."
14. It was further noted by the learned Single Judge that before the National
Commission for the Scheduled Castes and Scheduled Tribes („SC/ST
Commission‟), in response to the complaint filed by the Respondent against
his termination, the AAI had taken the stand that the reason for terminating
the Respondent was „misconduct‟. The specific portion of the said reply
reads thus:
"Shri Harbhajan Singh was appointed on probation as AEE (E)
in AAI (NAD) on 5th August, 1996 and was on probation for a
period of 2 years as per terms and conditions of his appointment
which were duly accepted by him before joining. His services
were terminated during the probation period in view of the
following misconduct committed by Shri Singh:
(1) Demanding 5% commission from the Contractor. STD
Call by Shri Harbhajan Singh from Goa to Delhi at odd
hours i.e., 11 pm to Contractor Sh. V. K. Gupta was
alleged to have been made in this regard.
(2) Threats given to Contractor over telephone in a drunken
state by Shri Singh.
(3) Delays to pass the bills of the Contractor."
15. It was in the above context that the learned Single Judge examined
whether "the impugned order of termination is founded on misconduct or
whether misconduct can be said to be merely the motive that prompted the
order." The learned Single Judge noted the judgment of the Supreme Court
in Dipti Prakash Banerjee v. Satyendra Nath Base, National Centre for
Basic Sciences, Calcutta (1999) 3 SCC 60, differentiating between
„foundation‟ and „motive‟ in relation to orders terminating the services of
probationers. It was observed that Dipti Prakash Banerjee (supra) referred
to the Supreme Court‟s earlier decision in Radhey Shyam Gupta v. U. P.
State Agro Industries Corporation Limited (1999) 2 SCC 21, wherein the
legal position was summarized as under:
"If findings were arrived at in an enquiry as to misconduct,
behind the back of the officer or without a regular departmental
enquiry, the simple order of termination is to be treated as
"founded" on the allegations and will be bad. But if the enquiry
was not held, no findings were arrived at and the employer was
not inclined to conduct an enquiry but, at the same time, he did
not want to continue the employee against whom there were
complaints, it would only be a case of motive and the order
would not be bad. Similar is the position if the employer did not
want to enquire into the truth of the allegations because of delay
in regular departmental proceedings or he was doubtful about
securing adequate evidence. In such a circumstance, the
allegations would be a motive and not the foundation and the
simple order of termination would be valid."
16. In the same judgment in Dipti Prakash Banerjee (supra), the Supreme
Court examined the issue as to what amounts to „stigma‟. The learned Single
Judge, in this regard, observed:
"It has been held that if the termination of the employee has its
motive in some act of misconduct, although the same is not
mentioned anywhere in the letter of termination and there is no
finding arrived at to that extent even in the records, then, there
is no need for any proper enquiry into the matter by giving
adequate opportunity to the affected officers. If, however, even
if the order itself is innocuous, still, if the records were to
demonstrate that misconduct is the foundation of the order, or
to put it differently, if the authority concerned comes to a
definite conclusion with regard to the misconduct of the officer
before issuing the termination letter, then in that case,
misconduct can be said to be the foundation of such an order,
and if, the same is issued without proper enquiry, the same is
bad."
17. The learned Single Judge having examined the records of the case, came
to the conclusion that the termination order in the present case was
"founded" on the allegations of misconduct and, therefore, the Respondent
ought to have been afforded a proper enquiry and opportunity to defend
himself before the decision of removing him from service was taken. For the
aforementioned reasons, the learned Single Judge set aside the termination
order, directing AAI to reinstate the Respondent along with all consequential
seniority and benefits within one month, leaving it open to AAI to initiate
fresh proceedings against the Respondent, if they were so inclined, in
accordance with law within three months.
18. The above order of the learned Single Judge was challenged by the AAI
by filing LPA 230/2009, which was disposed of by a Division Bench („DB‟)
of this Court by an order dated 20th July, 2009. The DB upheld the order of
the learned Single Judge, with only one modification, i.e. that the
Respondent would be entitled to only 50% back-wages.
Appeal in the Supreme Court
19. Thereafter, AAI filed S.L.P.(C) 35309/2009, in which notice was issued
by the Supreme Court on 16th December, 2009, granting stay on
reinstatement. Liberty was granted to the parties to mention the petition if
any settlement was reached.
20. On the next date of hearing i.e. 26th March, 2010, the Supreme Court
passed the following order:
"Stand over for three months.
In the meantime, we are granting permission to the
Management to hold an enquiry into the alleged misconduct.
We will pass further orders depending upon the result of the
enquiry."
Proceedings before the Enquiry Committee
21. Thereafter, the AAI, issued an SCN dated 11th June, 2010 to the
Respondent, the preamble to which set out the sequence of events till then.
The operative portion of the SCN reads as under:
"Now therefore, in view of the above Shri Harbhajan Singh is
directed to make his submission, if any, to plead his case. His
explanation supported by documents, if any, must be submitted
within 15 days of the receipt of this show cause notice, failing
which it will be presumed that despite affording him an
opportunity, he has no submissions to make in his defence. It is
also informed that the submission/representations made by him
in response to the Show Cause Notice shall be placed before the
Inquiry Committee constituted on the directions of the Hon'ble
Supreme Court order dated 26.03.2010. The committee after
perusing his submission and all other available record, may
afford Shri Harbhajan Singh an opportunity to make
submissions he may like to and also to be heard in person.
The copies of the following documents are also enclosed
herewith.
1. Complaint dated 21.02.97 received from M/s
AERCOMFORT
2. Preliminary investigation report dated 04.03.97
3. Directions of Supreme Court dated 26.03.2010."
22. The Respondent replied to the said SCN on 26th June, 2010. It must be
noticed at this stage that by an order dated 11 th June, 2010, the AAI
constituted the Enquiry Committee („EC‟), consisting of five of its officers
as members. The EC held its proceedings on 29th July, 2010, where it called
the Respondent to make his submissions in person in the chamber of the
Chairman of the EC. The Respondent appeared at the said time and date.
The proceedings of the EC held on that date have been placed on record. The
exchange between the EC and the Respondent have been recorded therein as
under:
Committee- Please introduce yourself.
Harbhajan I, Harbhajan Singh, joined MI on 13.05.1994 as JE at
Singh IGIA Terminal-I. Then I was promoted as AE w.e.f.
11.12.1995 at IGIA Terminal - I. On 05.08.1996,1
joined in AAI (NAD) as Asstt. EE at Goa Airport
against open advertisement for the post of AEE
reserved for SC/ST under special recruitment drive in
1995. I was there as AEE at Goa on probation under
Executive Engineer, Shri WG Raju. I was looking
after the project work including building internal
electrical sub-station works, and air conditioning
work etc. On 11.04.1997, I was transferred to
Srinagar Airport as per the order of Airport Director,
Goa and joined Srinagar Airport. On 27.06.1997, my
services were terminated vide letter dated
SR/AAI/CONF/25/ dated 27.06.1997, while I was on
leave.
Committee Can you please submit any identification proof?
Harbhajan I am submitting the original letter issued by Airport
Singh Authority of India dated 20.07.2010 towards the
proof.
Committee Whether the documents submitted by you, vide letter
dated 26.06.2010 in response to the Show Cause
Notice dated 11.06.2010 are the final documents or
would you like to make additional submissions, if
any?
Harbhajan I have given my submission dated 26.06.2010 in
Singh response to the AAI Show Cause Notice dated
11.06.2010. Further I would like to submit additional
5 documents (5 sets) as follows, vide my letter dated
29.07.2010.
i) Letter of OSD ED (P) dated 06.10.1997 to
NCSC/ST
ii) ED(P) letter dated 04.12.1997 to NCSC/ST as per
directions of former AAFs Chairman Shri S K Narula.
iii) Order of Hon'ble National Commission of SC/ST
No. H- 4/T & CA-SSW-IV dated 09.06.1998.
iv) Order of Hon'ble Single Bench of Delhi High
Court dated 13.02.2009;
v) Order of Hon'ble Chief Justice (Double Bench) of
Delhi High Court dated 20.07.2009.
In addition to the above, I further submit two pages of
addendum at page 2 & 3 of my letter dated
209.07.2010 submitted today before the Committee.
Committee Do you have further submission if any, in addition to
the submissions made so far.
Harbhajan No Sir. These are my final written submissions.
Singh
23. Thereafter the EC enquired from the Respondent whether he would like
to make any oral submissions, he replied in the affirmative and proceeded to
explain in great detail what had happened with him after the termination of
his services, which has been recorded as hereunder:
Committee Would you like to make any oral submissions?
Harbhajan Singh Yes please. I state that on 27.06.1997, when my
services were terminated under the rule of probation,
I made representation to AAI management and
subsequently, on 02.07.1997, I made my
representation to the National Commission for SC /
ST. AAI vide their letter dated 06.10.1997, narrated
the three reasons of my termination. They are:
(a) Demanding commission from contractor over
telephone
(b) Drunken and threatening over telephone
(c) Delay in passing the bill of the contractor
In this connection, the former Chairman, Shri SK
Narula, had a meeting with the Chairman, National
Commission for SC/ST on 02.12.1997 and submitted
the documents pertaining to the misconduct signed
by Shri SH Khan. ED letter No. C 14011/1/92-EE
(Pt. III) dated 04.12.1997.
The Commission, after hearing the case, and based
on the submission made by the AAI, passed an order
dated 09.06.1998 to reinstate me with back wages
and subsequential benefits and cancel the mala-fide
punishment transfer, (page 8 of the order). In the said
order at page-3 & 4, the relevant extract at para7, is
reproduced under:
"So far as the factual, it is very clear from the record
itself that contractor Mr. VK Gupta in his written
complaint dated 21.02.1997 regarding demand of 5%
commission and abusing in filthy language at
midnight on STD call from Goa to his Delhi
Residence does not mention the name of Sh.
Harbhajan Singh. There is no name of Sh. Harbhajan
Singh, Asstt. Executive Engineer (E) in the
complaint. The name of Shri Harbhajan Singh
transpired in the alleged charge in the course of
investigation report of Supdtg. Engineer (Elect.) Sh.
AK Mishra. This enquiry should have been made on
the basis of the original complaint dated 21.02.1997
and as per procedure established by Law, enquiry
authority shall had gone by the complaint and even
the transfer of Sh Harbhajan Singh based on alleged
misconduct is malafide".
"The Chief Engineer, while referring the case to the
ED (Vig) had made some remarks "The Asstt.
Executive Engineer recruited directly in 1995 from
open market are observed to be not only below
standard in their competent but also mischievous"
"We may therefore keep a close watch on AEE's
recruited from open market only in - 1995". The
remarks exposed an ulterior motive and highly
stigmatic".
I would also like to draw the attention of the
Committee to the para 10 & 11 of page 8 of the said
order of the Commission.
When I was not reinstated by AAI as per the order of
the Commission, I approached Hon‟ble High Court,
Delhi. The Court, vid their order dated 13.02.2009
have ordered to reinstate me with all consequential
seniority and benefits. Further, it is mentioned that in
para 18 of the said order, the Court observed that
"this leaves me in doubt that the entire object if the
exercise was to remove the petitioner for something
about which the respondent i.e. AAI had convinced
themselves but did not think it advisable or necessary
to give the petitioner any opportunity to clear his
name".
On non-implementation of the Hon‟ble High Court,
the order passed by the Hon‟ble High Bench, Chief
Justice of High Court direct AAI to reinstate the
petitioner along with all consequential benefits and
seniority. The Court further ordered that the order
passed by the Single Judge requires no interference
as it is in consonance with the settled legal position.
In addition to the above, I would also like to draw
the attention of the Committee to page 21 of my
submission dated 26.06.2010 which highlights the
discrepancies and contradictions in the complaint,
inquiry proceedings/findings and approval order.
Further, I submit that the Committee is therefore
requested to take cognizance of my submissions
made written as well as oral, especially annexures
and letter issued by Department to the contractor.
In view of the order / judgments passed by National
Commission for SC/ST, Hon‟ble Single Bench and
Chief Justice of High Court (Bench), which are in
my favour for reinstatement and consequential
benefits and seniority, hence I may be reinstated with
consequential benefits and seniority.
Committee Would you be willing to appear before the
Committee for clarification, if any in future?
Harbhajan Singh Yes. I will appear before the Committee with prior
notice of 2-3 days. I may also be contacted over
telephone / mobile Nos. 2******* / 9********** /
9********* (Delhi Nos.)
24. In addition to the above, the Respondent filed an affidavit in S.L.P.(C)
35309/2009, where inter alia he submitted as under:
(i) The EC unilaterally decided the terms of reference and merely sent a
formal SCN. At the hearing which took place on 29th July, 2010,
nothing pertaining to the Respondent‟s misconduct was asked from
him.
(ii) The illegality of the earlier enquiry, could not be overcome by
"paying a lip services to the principles of nature justice" by issuing an
SCN to the Respondent. In the eyes of law, there was in fact no
enquiry at all, and the mandate of the Supreme Court‟s order dated
26th March, 2010, had been breached.
(iii) The report of the EC stated that on the issue of the telephone call,
there were inconsistencies. It was averred by the Respondent in the
affidavit as under:
"It would be germane to mention that the so-called phone
call is the bedrock on which all the allegations rest and
since there is inconsistency pertaining to the very
bedrock, the main allegation unmistakably loses its
sting."
(iv) The other illegality pointed out in the report was reliance on a
communication dated 3rd March, 1997. It was stated by the
Respondent that "this report was never a part of records in Courts
below." Moreover, the Respondent was not confronted with the said
communication when he appeared before the EC on 29 th July, 2010.
He was also not given an opportunity to cross examine the
complainant Mr. V. K. Gupta, or even Mr A. K. Mishra, who was
present whenever a personal hearing was granted to the Respondent.
Even Mr. V. V. G. Raju, who sent the said communication, was not
permitted to be cross examined.
Order of the Supreme Court
25. On 29th September, 2010, the EC submitted its findings by a report dated
9th August, 2010, and this was submitted to the Supreme Court, which by an
order dated 20th September, 2010, while disposing of the S.L.P., directed as
under:
"Leave granted.
Mr. Gopal Subramanium, learned Solicitor General, states that
in pursuance of the order dated March 26, 2010, a Committee
was constituted for holding an inquiry into the alleged
misconduct of the respondent. He further states that the
Committee has concluded the inquiry and submitted its report.
Counsel for the respondent tried to submit that the inquiry said
to have been held by the Committee was not proper fair or in
accordance with the permission granted by the Court.
At this stage, we are not inclined to go into that question at all.
As stated by the Solicitor General, a report is submitted after
holding enquiry into the alleged misconduct by the respondent.
The proceeding must, therefore, be allowed to reach its logical
conclusion. The appellant may proceed on that basis of the
enquiry report, in accordance with law, and pass final orders
after giving the respondent the second show cause notice along
with a copy of the enquiry report. If the respondent is aggrieved
by the final order passed by the Authority, it will be open to
him to seek his remedy in accordance with law.
This order passed by us shall substitute the operative order of
the High Court.
The appeal stands disposed of with the above observations and
directions."
Termination order
26. Pursuant to the said order, a second SCN was issued to the Respondent
by the AAI on 26th October, 2010, enclosing a copy of the report dated 9th
August, 2010 of the EC, and asking him to make his
submissions/representation. Pursuant thereto, the Respondent submitted his
reply on 8th November, 2010,
27. After taking into consideration the reply of the Respondent, the
Competent Authority („CA‟) of the AAI held that there were no reasons
which could persuade it to take a view different from the one taken by the
EC, and confirmed the termination of the Respondent‟s services by the order
dated 27th January, 2011.
Second round
28. The Respondent, for a second time, assailed the said order by filing W.P.
(C) 2076/2011 before the learned Single Judge. By the impugned judgment
dated 9th September, 2013, the learned Single Judge allowed the said petition
and quashed the order terminating the Respondent‟s services, directing him
to be reinstated with 50% back-wages. Inter alia, the learned Single Judge
held as under:
(i) Once the Supreme Court directed the AAI to hold an enquiry into the
Respondent‟s misconduct, and take it to the logical conclusion, it was
incumbent on the AAI to conduct a fresh enquiry, consistent with the
principles of fairness and natural justice, regardless of the fact that the
Respondent was a probationer.
(ii) It was a settled legal position that a probationer‟s services cannot be
terminated on the ground of misconduct without holding a proper
departmental enquiry.
(iii) Of the three allegations of misconduct, two were based on the
telephone calls. The admitted position of the AAI was that there were
inconsistencies as far as the fact relating to the telephone calls were
concerned. As regards the third allegation, regarding not favouring the
contractor in approving his bad work, no allegation regarding the
misconduct and bad conduct of the Respondent arose. Therefore, the
report dated 4th March, 1997 of Mr. Mishra and the contractor‟s
complaint dated 21st February, 1997, lost steam. The previous report
dated 4th March, 1997, ought to have been ignored.
(iv) Mr Mishra‟s report dated 4th March, 1997 had been rejected both by
the learned Single Judge as well as the DB of this Court. Placing
reliance on the said report, together with a further enquiry report dated
9th August, 2010, was improper. The letter dated 3rd March, 1997 had
not been part of the judicial record till 9th August, 2010. This
document was not even supplied to the Respondent along with the
SCN issued prior to the report of the alleged fresh enquiry.
(v) The assessment of the performance of the Respondent was not the
basis of termination. In terms of the order of the Supreme Court, a
full-fledged enquiry regarding the misconduct of the Respondent,
fully compliant with the principles of natural justice, was imperative.
In the present case, neither was any witness examined, nor any
statement by any witness tendered in evidence. Needless to say, the
Respondent then had no opportunity to cross-examine them. The
conclusion of the EC was therefore not based on evidence.
29. Elaborate written submissions have been filed by both the sides on more
than one occasion, and these have been taken into account by this Court.
Submissions on behalf of AAI
30. Mr. K. K. Rai, learned Senior Counsel appearing for the AAI submitted
that the following issues would arise for consideration by the Court:
(i) If the department makes a subsequent assessment of the
probationer based on his performance and not as a
disciplinary action as in the present case, is he entitled to
a regular departmental enquiry required for punishment?
(ii) Whether the Hon‟ble Supreme Court contemplated a
regular departmental enquiry particularly when it was
informed that an enquiry has been conducted by a
Committee?
(iii) Whether the Respondent, having submitted to the
proposed enquiry without any demur or protest, can now
turn around and question its composition when the report
is not palatable to him?
(iv) Whether it is possible for an employer to subsequently
pass an order segregating the punitive portion of the
order?
(v) Whether, in the facts and circumstances of the case, the
Respondent, being a probationer, was entitled to merely a
limited enquiry to judge his suitability or a full-fledged
departmental enquiry?
(vi) Whether the quashing of an order on lack of enquiry shall
call for further enquiry and not reinstatement as
mandated by the Hon‟ble Supreme Court in Chairman,
Life Insurance Corporation of India v. A. Masilamani
(2013) 6 SCC 530 (para 16)?
(vii) Whether a probationer who has worked for only a year
should be reinstated in service at this stage on technical
grounds where there is a total loss of confidence?
31. Mr. Rai submitted that the EC held the termination of the Respondent to
be in order, only because his performance was not satisfactory, and not on
the ground of misconduct. Mr. Rai submitted that the enquiry conducted in
accordance with the order dated 26th March, 2010 of the Supreme Court was
a general enquiry merely to assess the Respondent‟s performance. It was not
intended as a disciplinary action. Hence, the misconduct could not be said to
be the „foundation‟ of the order of termination. This was a case of
termination simpliciter and not a case of punishment. Therefore, according
to Mr. Rai, the Respondent‟s termination cannot be held to be bad in law for
the reason that he had not been accorded a regular departmental enquiry.
Submissions on behalf of the Respondent
32. Mr. Vijay Kumar, learned counsel appearing for the Respondent, on the
other hand, referred to the order of the Supreme Court which had directed a
proper enquiry to be held. He also referred to the judgment of the learned
Single Judge dated 13th February, 2009 in W.P.(C) 2773/2000, which was
reiterated by a DB of this Court, which drew the distinction between
„motive‟ and „foundation‟.
33. Mr. Vijay Kumar pointed out that if the Supreme Court had meant for
only a general enquiry to be held, there would have been no further
directions to the AAI, after the report of the EC had been submitted, to carry
the issue to its logical conclusion. In fact, pursuant thereto, a second SCN
was issued to the Respondent, enclosing a copy of the report of the EC.
Therefore, by no stretch of imagination, could this be said to be a mere
general enquiry.
Analysis and reasons
34. Having considered the above submissions, the Court is of the view that
the stand of the AAI that the enquiry conducted by constituting the EC
pursuant to the order dated 26th March, 2010 of the Supreme Court was a
„general enquiry‟, and not a formal enquiry into the misconduct of the
Respondent, is unacceptable. The order of the Supreme Court has to be seen
in tandem with the order of the learned Single Judge and the DB of this
Court in the first round. Both those judgments, on the basis of the stand
taken by the AAI in the pleadings and its written submissions, formed the
concurrent view that although the Respondent was a probationer at the
relevant time, since the termination of his services was founded on his
alleged misconduct, a formal enquiry was mandated to carry on such
termination.
35. A collective reading of the orders passed by the Supreme Court in the
SLP filed by the AAI makes it clear that the Supreme Court impliedly
accepted this determination. It was for this reason that the AAI was directed
to hold an enquiry in the order dated 26th March, 2010. The EC constituted
by the AAI for that purpose was expected to hold not a mere „general
enquiry‟, but a proper enquiry into the alleged misconduct.
36.1 The submission of Mr. Rai that it was possible to segregate the punitive
portion of the order from the non-stigmatic portion, relying on the decision
in State of Uttar Pradesh v. Akbar Ali Khan AIR 1966 SC 1842, is
misconceived. In the said case, the Respondent therein, who was an
employee on probation in the United Provinces Civil Service as a Tahsildar,
was alleged to have drawn excess travelling allowance in respect of certain
journeys undertaken by him. An enquiry was conducted, whereby the
Respondent was given an opportunity to show cause why his probation
should not be terminated.
36.2 By order dated 13th August 1957, the Respondent was informed by the
Governor of Uttar Pradesh that his probation was terminated and that he was
to be reverted to his previous post of Naib Tahsildar, and further that he
would not be considered for promotion for a period of seven years from the
date of reversion. By order dated 1st December 1958, the Governor cancelled
that part of the order by which it was directed that the Respondent therein
not be considered for promotion but confirmed the termination of probation
of the Respondent therein, because in view of the Governor, the Respondent
had "during the probation not made sufficient use of his opportunities and
had failed to give satisfaction."
36.3 The High Court of Judicature at Allahabad held that the order dated 13th
August, 1957 reverting the Respondent therein to the position of Naib
Tahsildar to be in the nature of a penalty without conforming to the
requirements of Article 311 of the Constitution of India, and was therefore
liable to be quashed. The DB in appeal also observed that the order dated
13th August, 1957 was a punitive order. By order dated 1st December 1958,
the Governor had sought to convert the order dated 13th August, 1957 into an
order under Rule 14 of the Subordinate Revenue Executive Service
(Tahsildar) Rules, 1944 (hereinafter, „Rules‟) which the Governor had no
power to do. Under Rule 14 of the Rules, the Governor was authorized to
revert a person appointed on probation if it appeared at any time that the
person had not made sufficient use of his opportunities or had failed to pass
departmental examination or had otherwise failed to give satisfaction.
36.4 The State of Uttar Pradesh challenged the order of the DB by way of an
appeal by special leave. Allowing the appeal, the Supreme Court observed
under paragraph 10:
"The proceeding against the respondent, it is true, commenced
on a report which charged him with having submitted travelling
allowance bills in respect of journeys not performed by him.
But it is clear from the letter dated September 27, 1956, that the
inquiry made against the respondent was only for the purpose
of affording him an opportunity to show cause why his
"probation should not be terminated forthwith." The Governor
of U.P. after considering the explanation submitted by the
respondent, by order dated August 13, 1957, terminated the
probation of the respondent, and further directed that he should
not be considered for promotion for a period of seven years
from the date of reversion. The second part of the order, it
appears, was not given effect to, for even before December 1,
1958 the respondent was posted as an officiating Tahsildar. By
the second order dated December 1, 1958, the Governor of U.P.
cancelled the stoppage or promotion and only confirmed the
order in so far as it related to termination or probation. We are
unable to agree with the High Court that the first limb of the
order dated August 13, 1957, was punitive in character. The
inquiry against the respondent was held for the purpose of
determining his probation. Under r. 14 of the Subordinate
Revenue Executive Service (Tahsildar) Rules, 1944, the
Governor is authorised to revert a person appointed on
probation, if it appears at any time that the person not made
sufficient use of his opportunities or has failed to pass the
departmental examination completely or has otherwise failed to
give satisfaction. An officer who has submitted travelling
allowance bills in respect of journeys not undertaken by him
may not unreasonably be regarded as one who "has failed to
give satisfaction." It cannot be assumed merely because an
inquiry is directed to ascertain whether a person appointed on
probation has failed to give satisfaction, that it is intended to
hold an inquiry with a view to impose punishment against that
person. Inquiry against the respondent which was commenced
for ascertaining whether he should be continued on probation or
whether his probation should be terminated, did not change its
character merely because the Governor made an order which he
could not make in that inquiry. There is nothing to show that
the scope of the inquiry was at any time extended. The order
withholding promotion was one which the Governor was in the
inquiry incompetent to pass, and apparently the order was not
given effect to, and when presumably his attention was drawn
to the irregularity that part of the order was cancelled."
36.5 The Supreme Court accordingly held:
"14. We are therefore of the view that the High Court was in
error in holding that the order made by the Governor
determining the probation of the respondent infringed the
protection of Art. 311. The Governor initially passed an order
determining the probation and also passed an order stopping
promotion. The latter part of the order which the Governor was
incompetent to pass under r. 14 did give rise to a justifiable
grievance which the respondent could set up, but after that
order was cancelled the respondent had no cause for grievance.
It cannot be said that by terminating the probation any penalty
was imposed: and if that be the correct view the opinion
expressed by the High Court that by passing the order dated
December 1, 1958 the Governor was seeking to convert the
earlier order of punishment into an order under r. 14 of the
Subordinate Revenue Executive Service (Tahsildars) Rules,
1944 retrospectively, cannot be accepted. The order terminating
probation was made under r. 14 and continued to retain that
character. The vice in the second part of the order did not either
before or after it was cancelled affect the validity of the order
terminating the respondent's probation."
37. However, in the instant case, the facts are different. In the first round, it
was held by the learned Single Judge and the DB of this Court that the
impugned order, terminating the Respondent‟s services, was stigmatic and
the foundation of such termination was the alleged misconduct of the
Respondent. It was not the stand of the AAI that the termination of the
Respondent‟s services was only on the ground of his "unsatisfactory
performance"; that came up much later, in the report dated 9th August, 2010
i.e. when the EC met to enquire into the misconduct pursuant to the order
dated 26th March, 2010.
38. Therefore, the Court is unable to accept the plea of the AAI that the
impugned order be „segregated‟, by treating the punitive portion separate
from the portion whereby the Respondent‟s services have been terminated
on account of "unsatisfactory performance." This can at best be viewed as an
attempt, although belated, by the AAI to avoid the legal consequences of not
complying with the requirements of principles of natural justice while
holding a regular enquiry into the alleged misconduct of the Respondent.
39. In this connection, it requires to be noted that as far as the first report
dated 4th March, 1997 of Mr A. K. Mishra is concerned, there was no
participation of the Respondent in that exercise. The said report was in fact
rejected by the learned Single Judge and the DB of this Court. Further, as far
as the complaint dated 21st March, 1997 is concerned, the complainant was
not examined. Consequently, that complaint too could not be taken into
account.
40. As far as the report of the EC is concerned, it is seen that it does not
advert to any alleged misconduct by the Respondent. Its proceedings dated
29th July 2010, the relevant portions of which have been extracted
hereinbefore, make it clear that nothing pertaining to the alleged misconduct
of the Respondent was confronted to him. No document was shown to the
Respondent which could impute any misconduct to him. Consequently, there
was no occasion for the Respondent to request for the examination of any
witness in order to establish his innocence.
41. The onus was on the AAI to prove the Respondent‟s misconduct, which
it miserably failed to do before the EC. The report of the EC placed reliance
on the letter dated 3rd March 1997, issued by the EE, Mr. V. V. G. Raju. This
document was not served to the Respondent along with the SCN dated 11th
June, 2010. When the Respondent noted that this letter had been relied upon
in the enquiry report dated 9th August 2010, he raised the issue, of the denial
of the right to cross examine Mr. Raju, in his response dated 14th September,
2010. The Supreme Court had no occasion to examine the correctness of the
report and left it to the AAI to take it to its logical conclusion.
42. The EC failed to provide the Respondent an effective opportunity of
defending himself in the enquiry. It failed to provide him all the evidence
that was going to be used against him in the enquiry. Accordingly, the Court
is of the view that the enquiry conducted by the EC did not satisfy the
requirement of principles of natural justice.
43. The EC appears to have exceeded its brief by not confining itself to
finding out the truth of the allegations against the Respondent regarding his
alleged misconduct. It proceeded to recommend termination of his services
on the basis of his alleged "unsatisfactory performance."
44. In State of Uttaranchal v. Kharak Singh (2008) 8 SCC 236, the
Supreme Court decried this approach by observing as under:
"13. Another infirmity in the report of the enquiry officer is that
he concluded the enquiry holding that all the charges have been
proved and he recommended for dismissal of the delinquent
from service. The last paragraph of his report dated 16.11.1985
reads as under:
"During the course of above inquiry, such facts
have come into light from which it is proved that
the employee who has doubtful character and does
not obey the order, does not have the right to
continue in the government service and it is
recommended to dismiss him from the service with
immediate effect."
Though there is no specific bar in offering views by the enquiry
officer, in the case on hand, the enquiry officer exceeded his
limit by saying that the officer has no right to continue in the
government service and he has to be dismissed from service
with immediate effect. As pointed out above, awarding
appropriate punishment is the exclusive jurisdiction of the
punishing /disciplinary authority and it depends upon the nature
and gravity of the proved charge/charges and other attended
circumstances. It is clear from the materials, the officer, who
inspected and noted the shortfall of trees, himself conducted the
enquiry, arrived at a conclusion holding the charges proved and
also strongly recommended severe punishment of dismissal
from service. The entire action and the course adopted by the
enquiry officer cannot be accepted and is contrary to the well-
known principles enunciated by this Court.
14. A reading of the enquiry report also shows that the
respondent herein was not furnished with the required
documents. The department's witnesses were not examined in
his presence. Though the respondent who was the writ
petitioner specifically stated so in the affidavit before the High
Court in the writ proceedings, those averments were
specifically controverted in the reply affidavit filed by the
department. Mere denial for the sake of denial is not an answer
to the specific allegations made in the affidavit. Likewise, there
is no evidence to show that after submission of the report by the
enquiry officer to the disciplinary authority, the respondent
herein was furnished with the copy of the said report along with
all the relied upon documents. When all these infirmities were
specifically pleaded and brought to the notice of the appellate
authority (i.e. Forest Conservator), he rejected the same but has
not pointed the relevant materials from the records of the
enquiry officer and disciplinary authority to support his
decision. Hence, the appellate authority has also committed an
error in dismissing the appeal of the respondent."
45. There is merit in the contention of learned counsel for the Respondent
that the enquiry report of the EC dated 9th August, 2010, was based on "no
evidence." This is consistent with the law explained by the Supreme Court in
Meenglas Tea Estate v. Its Workmen AIR 1963 SC 1719, wherein, in
paragraph 4, it was held as under:
"4. The Tribunal held that the enquiry was vitiated because it
was not held in accordance with the principles of natural
justice. It is contended that this conclusion was erroneous. But
we have no doubt about its correctness. The enquiry consisted
of putting questions to each workman in turn. No witness was
examined in support of the charge before the workman was,
questioned. It is an elementary principle that a person who is
required to answer a charge must know not only the accusation
but also the testimony by which the accusation is supported. He
must be given a fair chance to hear the evidence in support of
the charge and to put such relevant questions by way of cross-
examination as he desires. Then he must be given a chance to
rebut the evidence led against him. This is the barest
requirement of an enquiry of this character and this
requirements must be substantially fulfilled before the result of
the enquiry can be accepted. A departure from this requirement
in effect throws the burden upon the person charged to repel the
charge without first making it out against him. In the present
case neither was any witness examined nor was any statement
made by any witness tendered in evidence. The enquiry, such as
it was, was made by Mr. Marshall or Mr. Nichols who were not
only in the position of judges but also of prosecutors and
witnesses. There was no opportunity to the persons charged to
cross-examine them and indeed they drew upon their own
knowledge of the incident and instead cross-examined the
persons charged. This was such a travesty of the principles of
natural justice that the Tribunal was justified in rejecting the
findings and asking the Company to prove the allegation
against each workman de novo before it."
46. Further, in Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10,
the Court emphasized that the holding of a regular enquiry was not a mere
formality. It observed as under in paragraph 32:
"32. Apart from the above, Rule 16(3) has to be considered in
the light of the provisions contained in Article 311(2) of the
Constitution to find out whether it purports to provide
reasonable opportunity of hearing to the delinquent. Reasonable
opportunity contemplated by Article 311(2) means "Hearing" in
accordance with the principles of natural justice under which
one of the basic requirements is that all the witnesses in the
departmental enquiry shall be examined in the presence of the
delinquent who shall be given an opportunity to cross-examine
them. Where a statement previously made by a witness, either
during the course of preliminary enquiry or investigation, is
proposed to be brought on record in the departmental
proceedings, the law as laid down by this Court is that a copy of
that statement should first be supplied to the delinquent, who
should thereafter be given an opportunity to cross-examine that
witness."
47. Consequently, as regards the first four issues raised by the AAI, this
Court is of the view that the Supreme Court did contemplate a regular
departmental enquiry and that the mandate of the EC was not to make a
mere assessment as to the performance of the Respondent but to enquire into
his alleged misconduct. There was no occasion for the „segregation‟ of the
punitive part of the order from its non-punitive, non-stigmatic part. It was
not open to the AAI to take this approach after a first round of litigation,
culminating in the order of the Supreme Court which mandated that it should
take the report of the EC to its logical conclusion.
48. Mr. Rai then contended that once the Respondent participated in the
enquiry of the EC, he could not subsequently turn around and say that it had
been improperly constituted only because its report was not acceptable to
him. According to Mr. Rai, neither in his reply dated 26th June, 2010 to the
SCN dated 11th June, 2010, nor when appearing before the EC on 29th July,
2010 did the Respondent object to the procedure being followed by the EC.
Further, the Supreme Court had also been kept informed while the enquiry
was underway. Even before the Supreme Court, no objection was raised by
the Respondent. Therefore, according to Mr. Rai, the Respondent has
waived his right to the principles of natural justice and was estopped from
objecting to the procedure adopted by the EC. He placed reliance on the
decisions in State of U. P. v. Sheo Shanker Lal Srivastava (2006) 3 SCC
276, National High School, Madras v. Education Tribunal (1992) Supp. 3
SCC 106, Manak Lal v. Prem Chand Singhvi AIR 1957 SC 425 and U. D.
Lama v. State of Sikkim (1997) 1 SCC 111.
49. As already noticed, the Respondent was not provided with the material
which was going to be relied upon by the EC in returning findings against
him in its report. At the first available occasion, in response to the second
SCN, the Respondent did question the validity of the procedure adopted by
the EC. Moreover, it was incumbent upon the EC to follow the procedure
while holding a regular departmental enquiry in accordance with the
prescribed rules. There is no question of waiver of this procedure by the
Respondent. The burden was on the AAI to establish the alleged misconduct
of the Respondent, and not the other way round. This burden was not
discharged by the AAI.
50. In fact, the EC did not put any question to the Respondent regarding his
alleged misconduct. Although in State of U. P. v. Sheo Shanker Lal
Srivastava (supra), there was an observation that principles of natural justice
could be excluded by the statute and also be waived, in the present case, it is
plain that after the judgment of the learned Single Judge and the DB of this
Court, as impliedly affirmed by the Supreme Court, it was incumbent upon
the AAI to hold a regular departmental enquiry into the alleged misconduct
of the Respondent.
51. The said decision, and the other decisions cited in this regard by Mr. Rai,
do not come to the aid of the AAI at all, as they are distinguishable on facts.
Issue (v) is accordingly answered against the AAI.
52. Turning now to Issue (vi), about whether there should be a further
enquiry and not reinstatement, the reliance placed on the decision in
Chairman, Life Corporation of India v. A. Masilamani (2013) 6 SCC 530
is misplaced. There has already been a whole round of litigation, where the
Respondent was found to be wrongly terminated without holding a full
enquiry. The Supreme Court gave the AAI an opportunity to rectify this
mistake, and yet the AAI did not avail itself of this opportunity. There is no
question of starting a third round of litigation by directing another enquiry to
be held. This submission is accordingly rejected.
53. On the issue of reinstatement, Mr. Rai referred to the additional affidavit
filed by the Respondent, where he categorically states that he has remained
unemployed throughout. AAI‟s affidavit, without brining on record any
tangible material, simply seeks to poke holes in the above assertion of the
Respondent about his remaining unemployed. This Court finds no basis put
forth by the AAI to contradict what the Respondent has stated on affidavit.
In other words, there is nothing placed before the Court by the AAI to
persuade it to disbelieve the Respondent when he states that after the
termination of his services way back in June, 1997, he has continued to
remain unemployed.
Conclusion and directions
54. For all of the aforementioned reasons, the Court is unable to find any
error having been committed by the learned Single Judge in the directions
issued by him requiring reinstatement of the Respondent with all
consequential benefits and 50% back-wages. The said order will now get
implemented forthwith by issuing the necessary orders not later than four
weeks from today.
55. The appeal being LPA 928/2013 of the AAI is accordingly dismissed
with costs of Rs. 20,000/- which shall be paid by the AAI to the Respondent
within four weeks from today.
56. In view of the above decision, this Court finds no reason to interfere with
the impugned order, insofar as it restricts the back-wages to 50%. The
appeal filed by the Respondent, being LPA 183/2014 is therefore, also
dismissed. There shall be no orders as to costs.
57. The amount deposited in this Court by the AAI be released forthwith to
the Respondent, Mr. Harbhajan Singh, together with the interest accrued
thereon. If there is any discrepancy in the amount calculated by the AAI, it
will be open to the Respondent to seek appropriate remedy in accordance
with law.
58. Both the appeals are disposed of in above terms.
S. MURALIDHAR, J.
TALWANT SINGH, J.
DECEMBER 18, 2019
rd
