ORDER
Meera Chhibber, Member (J)
1. By this OA, applicant has challenged orders dated 08.9.1999 and 15.12.1999 with a further direction to the respondents to reinstate him service w.e.f. 15.12.1999 till he attained age of superannuation and pay him all the arrears and consequential benefits alongwith interest @18%.
2. It is submitted by the applicant that he was appointed as a Counter Clerk on 16.4.1968 in Station Canteen Meerut Cantt. He was confirmed and promoted to the post of Sales Clerk on 27.9.1994 and further promoted as Head Cashier.
3. A show cause notice dated 16.7.1999 was issued to the applicant for financial irregularities calling upon him to explain cause of difference and to compensate the losses.
4. Applicant paid a sum of Rs. 40000/- and deposited balance of Rs. 36855.80 also on 24.7.1999 as directed by respondents.
5. Without holding an enquiry he was reverted to the post of Sales Clerk w.e.f. 01.8.1999 vide order dated 08.9.1999. Being aggrieved applicant filed Writ Petition No. 51930/1999. Order dated 08.9.1999 was stayed by hon’ble High Court on 10.12.1999. Instead of taking him back on the post of Head Cashier, applicant’s services were terminated. Applicant once again filed Writ Petition No. 902/2000 for challenging order dated 15.12.1999. Even order dated 15.12.1999 was stayed by Hon’ble High Court on 07.1.2000 by giving liberty to the respondents to pass order which shall be deemed fit and proper after holding enquiry for the tune of principles of natural justice (page-24).
6. In spite of above order since respondents did not permit the applicant to resume his duties, he filed Contempt Petition No. 888/2000. The same was dismissed for default on 03.3.2003. Main Writ Petition No. 902/2000 was also dismissed on the ground of alternative remedy on 25.7.2005 (page-28).
7. It was in these circumstances that the present OA was filed on 26.5.2006.
8. Counsel for the applicant submitted termination is bad in law as he could not have been terminated without holding an enquiry. Moreover in letter dated 16.7.1999 respondents had themselves stated that disciplinary action would be taken if he does not deposit the amount. Since applicant had already deposited the amount, therefore, no penal action could have been taken against him that too without following principles of natural justice. Money was recovered forcibly.
9. Counsel for the applicant also submitted he was terminated by way of revenge because he had approached the High Court. Moreover applicant has already reached age of superannuation in the meantime, therefore, applicant would be satisfied if he is treated as retired w.e.f. 2003 after quashing the termination. He would not be seeking any back wages.
10. Respondents on the other hand have opposed this OA. They have submitted since applicant had misappropriated Rs. 76855.80 as pointed out by CA and had deposited the said amount without any protest, it was proved he had misappropriated the amount. He had, therefore, lost confidence of the authorities. In these circumstances, there was no need to hold enquiry as he did not even dispute the allegations made against him in the show cause notice.
11. Counsel for the respondents further submitted that in Writ Petition applicant had himself stated that he was a contractual employee, therefore, now he cannot be allowed to take a different stand. He was terminated as per terms and conditions of his appointment letter, therefore, there is no question of violation of principles of natural justice. No mala fides have been alleged nor any person impleaded by name. Bald allegations cannot be accepted as mala fides are required to be proved.
12. Counsel for the respondents produced letter dated 27.9.1994 whereby applicant was confirmed as Sales Clerk and letter dated 06.11.1999 written by applicant seeking apology and for withdrawing the case as well as letter written to the Prime Minister of India to show that applicant was writing frivolous letters so there was no other option but to terminate the services of the applicant.
13. I had heard this matter long back. Since counsel for the applicant had submitted he would be satisfied if applicant is treated as retired employee w.e.f. 2003 after quashing the termination and he would not be seeking back wages, the matter was adjourned to 10.12.2007 with a direction to the respondents counsel to take instructions in the matter. Since then respondents were taking adjournments as new officers had taken over in the meantime. On 5.2.2008 court was informed that as per proposed settlement file has been put up before the Chairman and orders would be passed within 2 weeks. However, finally counsel for the respondents submitted that the new officer has decided not to pass any orders. Since matter is pending in the court. Let orders be passed by the court.
14. Counsel for the respondents had produced letter dated 27.9.1994 to show that applicant was confirmed as Sales Clerk in Headquarter Meerut Sub Area CSD Canteen w.e.f. 1.10.1994. Though reference is made to the standing orders in the appointment letter but no standing orders were produced by the respondents. It is relevant to quote the terms of this letter which for ready reference reads as under:
APPOINTMENT – HQ MSA CANTEEN
1. We are pleased to confirm you in the post of Sales Clerk in HQ Meerut Sub Area CSD Canteen with effect from 01st Oct.’94 subject to the administrative guidelines set out in the succeeding paragraphs.
2. Your pay & allowances w.e.f. 01 Oct 94 will be as under:
(a) Basic Pay : Rs. 1245.00 Starting Basic Pay Rs. 1000.00 (Rupees one thousand only). DA, CCA & HRA : At 50% of Central Govt. rates. Ex-Gratia. : 6% of the net canteen profit is disbursed amongst the canteen employees; of the amount set-aside for such disbursement, you will receive percentage of profit as per your pay scale.
Terminal Gratuity. Half month’s basic pay for every completed year of unbroken qualifying service; reckoned with effect from 19 Apr 68 provided you have a continuous service of minimum five years. Membership of Contributory Provident Fund Scheme. Yes; w.e.f. 01 Jan 73.
Canteen Facilities.
(i) For Ex-servicemen. As laid down.
(ii) For Others. All items except liquor, controlled items and specially controlled items; the purchase will be restricted to the monthly monetary ceiling laid down by the Management. Bonus. One bonus, equivalent to one month”s basic pay, to be paid annually at the discretion of the Management subject to the financial position of the canteen. The amount will be proportionately reduced for those who have less than one year’s qualifying service in that calendar year.
No other allowances, facility, pensioner perquisites will be admissible.
3. You will at all times abide and be governed by the Standing Orders of the canteen, as amended from time to time, as also strictly comply with the routine orders that may be issued by the Management. You will submit yourself to the orders & instructions of the Management / the Canteen Manager / your immediate superiors.
4. You will carry out your assigned duties efficiently, diligently and faithfully. You will be punctual on duty and be soberly dressed in neat & clean clothes. You will not indulge in any political, communal, anti-social or anti-national activities.
5. Except in the case of an accident or sickness certified by a civil surgeon / gazetted medical officer / authorized Medical Officer, you will not absent yourself from duty without prior permission of the Manager. You will not be entitled to any pay & allowances for the period of absence.
6. This appointment and its continuance is subject to your being found and remain medically (physically & mentally) fit for the discharge of duties which are assigned to you from time to time during the tenure of your service with the Canteen.
7. The Management terminates your services by giving two months’ notice or two months salary in lieu thereof. Likewise, you may resign your post by giving two month’s notice or two month’s salary in lieu thereof; however, accepting salary in lieu of notice will be at the discretion of the Management who may insist on your working for the duration of the notice.
8. Notwithstanding the provisions of Para 7 herein above, if at any time in the opinion of the Management, which is final & binding in this matter, you are found guilty of dishonesty, disobedience, disorderly behaviour, indiscipline, absence of duty without permission, or loss of faith of the Management, or of any other conduct considered by the Management to be gravely detrimental or prejudicial to the interest of the Canteen, or of violation of one or more terms & conditions of your appointment, your services may be terminated without notice and without payment of any compensation.
9. You will be responsible for the proper maintenance, safe keeping and return in good condition & order such property of the canteen as may be issued to you from time to time for the purpose of carrying out your canteen duties.
10. The Management is entitled to suspend you pending enquiry into charges of misconduct lavelled against you.
11. The Management is not responsible for any injury/casualty/disability suffered by you while carrying out your canteen duties and no claims of compensation will be valid against the Canteen.
12. You will retire compulsorily on attaining the age of superannuation, i.e. 58 years.
13. Leave is a privilege and cannot be demanded as a matter of right. It must be got sanctioned before it is availed. During a calendar year, you will be permitted the following leave:
Casual Leave. 12 days (during a calendar year, two short leaves will be treated as half day’s casual leave, while three short leaves will be treated as one day’s casual leave.
(b) Earned Leave. One day’s leave for every 11 days of qualifying service.
(c) Medical leave. 12 days on half pay or 6 days on full pay be availed on the prior production of a medical certificate from a MBBS doctor, provided there is no casual leave to your credit.
(d) Maternity leave. One month. Not admissible if the applicant has two or more surviving children.
(Note:- No leave can be accumulated or carried forward to the next calendar year. However unavailed earned leave may be encashed; such encashment will be restricted to 180 days).
14. If you accept the appointment on the above stated administrative guidelines of service, kindly sign an agreement to this effect on non-judicial stamp paper and deposit a security of Rs. 500/- (rupees five hundred only) on the day of assuming appointment.
15. Counsel for respondents relied on Clause 7 and 8 of this letter to state that applicant was terminated as management had lost faith n the applicant, therefore, there was no need to hold any enquiry or give him any notice while counsel for the applicant relied on Clause 10 of the same letter to state that since applicant has been terminated on the charge of misconduct, enquiry ought to have been held and applicant could not have been terminated in this fashion.
16. Admittedly, applicant was initially appointed as Sales Clerk vide letter dated 14.4.1968 (page 17). Thereafter he was not only confirmed as Sales Clerk but was further promoted as Head Cashier also. However, order of promotion has neither been produced by the applicant nor by respondents so the contents of promotion order are not known.
17. From the perusal of Ist letter dated 14.4.1968 it is clear. Even though in para 4 it was mentioned post is temporary for one year but likely to be extended but in the note it was clearly mentioned that applicant was appointed on probation, therefore, it was like a regular appointment. At the time of confirming him again, though in para 8 it was mentioned applicant could be terminated without notice but if other terms are seen, we find applicant was entitled for gratuity (para 2 (e) CPF [para 2( f)] and bonus 2 (h) etc.) In para 10 it was also provided that in case of misconduct enquiry would be held.
18. In this backdrop let me see the facts of the case. On 16.7.1999 applicant was served with a show cause notice which for ready reference reads as under:
Show cause notice
1. The CA had raised observation of difference of Rs. 76855.80 (rupees seventy six thousand eight hundred and fifty five and paise fifty only) arising due to non reconciliation of cash ledger and pass book of Union Bank of India.
2. You were given sufficient notice to carry out reconciliation and explain the cause of difference which you failed to do so and neither you were able to provide explanation on the said issue.
3. You had made partial payment of Rs. 40,000 (rupees forty thousand only) against the difference. Balance of Rs. 36855.80 (rupees thirty six thousand eight hundred fifty paise eight only). You are hereby instructed to pay the balance payment by 25th July 1999 failing which suitable administrative disciplinary action will be initiated against you.
19. Applicant deposited amount of Rs. 36855.80 in the Union Bank of India on 4.7.1999 and gave intimation vide letter dated 31.7.1999 (page 23).
20. At this stage applicant was reverted as Sales Clerk w.e.f. 1.8.1999 vide order dated 8.9.1999 in view of negligence in performing the duties. This order was challenged by the applicant before Hon’ble High Court of Allahabad by filing Writ Petititon No. 51930/1999. Hon’ble High Court was pleased to stay the effect and operation of order dated 8.9.1999. However, instead of permitting him to join the duty of Head Cashier, applicant was terminated vide order dated 15.12.1999 (page 16). It would be relevant to quote the above said order:
Termination of service
1. Reference your appointment letter NO. 140416/Q1C dated 27th September, 1994 (para 7 and 8).
2. The management has lost faith in you due to your disorderly behaviour, dishonesty and indiscipline.
3. You had been given sufficient time to improve your conduct, but you have failed to how any improvement in your manner, behaviour and attitude. Your services, therefore, are hereby terminated with immediate effect.
4. Please acknowledge.
21. Applicant once again challenged this order by filing another Writ Petition bearing No. 902/2000. On 7.1.2000, Hon’ble High Court was pleased to pass the following order:
Order
In the meantime the operation of the impugned order dated 15.12.99 shall remain stayed with the liberty to the respondents to pass order which shall be deem fit and proper after holding enquiry for the tune of principle of natural justice.
22. Since these orders were not complied with, applicant filed C.P. No. 888/2000 but the same was dismissed on 3.3.2003 as one was present (page 26). Finally when W.P. No. 902/2000 came up for hearing on 25.7.2005, the said Writ Petition was dismissed by observing as follows:
The Writ Petition has been filed against the order of termination dated 15.12.1999. Admittedly, the petitioner is an employee of the Army Canteen. In view of the judgment rendered in Union of India v. Mohd. Aslam reported in 2001 (1) SCC 720 the Apex Court has held that employees of the Unit Run Canteens are the Government servants. Now there is no dispute that the petitioner is a Central Government Servant. But in view of the Constitutional Bench judgment of the Apex Court in L. Chandra Kumar v. Union of India the Apex Court has held that civilian employee of the Central Government has to approach the Central Administrative Tribunal first. The alternative remedy cannot be by passed.
In view of the aforesaid fact, the present Writ Petition is hereby dismissed on the ground of alternative remedy.
23. It is in these circumstances that present OA was filed.
24. Counsel for the respondents strenuously argued that since applicant had lost the faith of management he was rightly terminated and there was no need to hold an enquiry. However, perusal of order dated 15.12.1999 shows that though loss of faith is mentioned in para 2 but his services were terminated on the ground that he failed to show improvement in conduct, manner, behaviour and attitude meaning thereby that termination was based on subsequent conduct, behaviour or attitude and not on ground of loss of faith. Moreover, after the show cause notice dated 16.7.1999 respondents had already reverted the applicant as Sales Clerk on the ground that he was negligent in performing the duties as Head Cashier. One can understand that there was a valid justification for the respondents to revert the applicant as difference of Rs. 76855.80 had arisen as per observation of CA due to non-reconciliation of cash ledger and pass book of Union Bank of India so naturally such a person could not have been continued as a Head Cashier. It is also relevant to note that even in this show cause notice it was specifically mentioned that if he fails to pay the balance amount of Rs. 36855 by 25th July, 1999, disciplinary action would be taken against him meaning thereby that respondents were of the view that if amount is deposited, it would not be viewed seriously.
25. Applicant had deposited the amount within stipulated period, therefore, thereafter there was no justification to terminate the services of applicant as he had already been reverted as Sales Clerk, therefore, he could not have been given punishment twice. It is also relevant to note that even Hon’ble High Court of Allahabad had given liberty to the respondents to pass order after holding enquiry in terms of principles of natural justice while staying the operation of order dated 15.12.1999 (order quoted above). While advancing arguments, counsel for the applicant did not press challenge to reversion but he confined his arguments to termination.
26. In view of above facts, prima facie, order dated 15.12.1999 was not sustainable in law and was liable quashed of course with liberty to the respondents to pass the order after complying with due process of law. Admittedly, holding of enquiry would be long drawn process. Applicant has already reached the age of superannuation in the meantime in the year 2003 and respondents are not interested in keeping such a person with them. In these circumstances, the best solution is to accept the suggestion of counsel for the applicant as that would serve purpose of both the parties. He has already made statement in court after taking instructions from his client that he would not be seeking wages for the intervening period but he may be treated as retired w.e.f. the date of his superannuation instead of being treated as terminated.
27. In view of above discussion, order dated 15.12.1999 is quashed and set aside. It is made clear that applicant would not be entitled to any back wages for the intervening period. Respondents shall pass order by recording above facts and treat him as retired w.e.f the date of superannuation. In case he becomes entitled to any payments as a result of above, the same shall also be ordered, otherwise a detailed order shall be passed. This exercise shall be done within a period of 3 months from the date of receipt of a copy of this order.
28. OA stands disposed of with the above directions. No costs.