Termination Order Based On Enquiry For Misconduct Behind The Back Of The Officer Is Violative Of PNJ: Delhi HC

A Division Bench of the Delhi High Court comprising of Justice V. Kameswar Rao and Justice Anoop Kumar Mendiratta while deciding a Civil Writ Petition in the case of Govt. of NCT of Delhi & Ors vs Virender has held that a termination order which is based on the report of an inquiry in which misconduct of a definite nature was arrived at behind the back of the officer is violative of principles of natural justice. Background Facts Virender (Respondent) was appointed as Warden in Central Jail through a memorandum dated 29.06.2016. He was on probation for a period of 2 years. In April 2017, the Respondent was apprehended with prohibited articles at Janakpuri bus stop and an FIR under the relevant provisions of NDPS Act was registered against him. Considering the overall conduct of the Respondent and the fact that he was still under probation, the services of the Respondent were terminated by Director General, Prisons under CCS (Temporary Services) Rules, 1965 (Temporary Service Rules). The Respondent filed an Original Application before the Central Administrative Tribunal (Tribunal) seeking quashing of the termination order on the grounds that the services of the Respondent were terminated without Show Cause Notice and without enquiry under the Temporary Service Rules. It was further contended that the expression “unsatisfactory and not conducive to the job requirements‟ as used in the termination order was stigmatic in nature and that the Respondent was terminated from service simply because of the registration of the FIR. The Tribunal allowed the Original Application on the ground that the termination order was on the grounds of misbehaviour and indiscipline and thus was punitive and stigmatic. Since the termination order was passed without conduction of an enquiry, it was not sustainable in law. Thus, the Petitioners filed the writ petition against the order of the Tribunal. It was contended by the Petitioner that during a surprise visit by the Jail Superintendent, the Respondent was found sleeping in his wards during duty hours. The Respondent had further been found to be absent from his duty in December 2016 for which he was given a warning. It was further contended that the FIR lodged during probation period was the motive for terminating the services of the Respondent. Further, simply stating that the performance was not satisfactory will not make the termination order stigmatic. On the other hand, it was contended by the Respondent that the alleged complaints against the Respondent for sleeping on the job were false. The Respondent was terminated on the basis of filing of an FIR and is thus stigmatic in nature. There is a violation of principles of natural justice as he was not given an opportunity to defend his case. It was further contended that the FIR against the Respondent was the foundation of the termination of his services. Findings of the Court The court relied on the judgment of Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd., wherein the Supreme Court laid down the distinction between motive and foundation and held that while terminating an employee, in case of motive for termination, the employer after gathering some prima-facie facts does not go into the truth of the allegations but merely decides to not continue the services of the employee. However, if the employer conducts an enquiry for the misconduct and the employee is not heard, then such an inquiry would be a foundation for termination and such termination would be bad in law. The court further relied on the judgment of Ratnesh Kumar Chaudhary v. Indira Gandhi Institute of Medical Sciences, Patna, Bihar & Ors, wherein the Supreme Court has observed that the termination order would be violative of principles of natural justice if termination is preceded by an enquiry and misconduct is arrived at behind the back of the officer and on the basis of the enquiry report, the termination order is issued. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. The court further observed that if a simpliciter termination order is permitted by the terms of appointment or rules so that the employee does not suffer stigma for the rest of his career, then such termination order can be permissible as the employer was not interested in finding the truth of the allegations against the government servant. The court also remarked that if an enquiry is conducted where evidence is received and the misconduct is proved behind the back of the employee and on the basis of the report of such enquiry, a termination order is issued, then such order is violative of principles of natural justice. The court further observed that the Respondent was terminated on ground that his work was “unsatisfactory and not conducive”. The Petitioners had contended that the Respondent was absent from service and a...

Termination Order Based On Enquiry For Misconduct Behind The Back Of The Officer Is Violative Of PNJ: Delhi HC

Udai Yashvir Singh

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