Prem Kishore v. Central Warehousing Corpporati

order no. CWC/106590/Estt. Dated 22.10.85 without casting any stigma."

¶21During the hearing, it was argued by Counsel for the CWC that Shri P.P. Singh, against whom the disciplinary action was taken, was dealt with much later, when he was imposed with penalty of stoppage of two increments. However, the Petitioner"s services were terminated much earlier, on 22 October, 1985, without reference to any action proposed against Shri P.P. Singh, on the basis of his unsatisfactory service record, which included warnings administered, to him.

¶22The extracts of the Inquiry Report, though ostensibly issued in respect of the conduct of Shri P.P. Singh, show that there were allegations of serious misconduct of setting certain stock on fire, against the petitioner; the inquiry officer also recorded that this appeared to be at the behest of Shri. P.P. Singh. He doubted the credibility of the petitioner, who had deposed as a witness. The petitioner had no notice of the fact that such findings would even be contemplated, much less returned against his conduct and functioning; he was merely asked to depose as a witness in a departmental proceeding. These materials cannot be characterised as evidence to judge suitability. If such explanation were to be uncritically accepted, every material or proceeding – even if it pertains to alleged misconduct, would ultimately reflect on an employee"s suitability. The issue which has escaped notice of the learned Single Judge in this case, is that the Inquiry report which definitely was part of the material, commented adversely on the conduct, character and behaviour of the petitioner; the comment was directly relatable to what undeniably were allegations of misconduct. The petitioner was a witness, and not the employee asked to face charges. Such comments amounted to findings of misconduct and were not preceded by any kind of notice or hearing. Page 15

¶23The Corporation"s argument that the reason for the Petitioner"s termination was not the so-called misconduct, but his performance – by relying on the warnings given to him, reflects a similar non application of mind. The extract of the inquiry report in the preceding part of this judgment shows that the memos and warnings administered upon the petitioner were by the charged official, Shri. P.P. Singh. The Inquiry Officer rejected the genuineness of those memos/ warnings, by the said P.P. Singh, as an attempt by him to conceal his role in the fire incident, and lay the blame upon the petitioner. Those findings against P.P. Singh were accepted, and a penalty was imposed on him. In the circumstances, reliance on those warning memos, against the petitioner, betrayed complete non-application of mind. The Court is further of the opinion that there is no material on the record to otherwise support the impugned termination order as having been made on a bona fide assessment of the petitioner"s suitability. In fact, the sections of the counter affidavit reproduced in a preceding portion of this judgment would show that the serious allegations and findings which are unmistakable findings of misconduct, without following any rudimentary fair hearing proceeding against the petitioner, were the basis for his termination.

¶24In view of the above discussion, this Court is of the opinion that the impugned termination order was not an innocuous one, nor was it based on a genuine or bona fide evaluation of the Petitioner"s suitability; the surrounding circumstances reveal that the innocuously worded order was in reality based on allegations of serious misconduct, for which the petitioner was not charged, or made to face any form of inquiry or granted hearing. The other officer, whose complicity was alleged, was in fact afforded a hearing and a penalty of withholding of two increments was imposed. Consequently, the impugned judgment of the learned Single Judge is set aside. Page 16

¶25As to the relief, in ordinary circumstances, the natural relief would have been quashing of the termination order, with an attendant direction to reinstate the petitioner with all consequential benefits. However, the Court would have to, in a case like this, take into consideration several factors. The petitioner had worked for barely two years, and the order of termination was issued about 28 years ago. A direction to reinstate and grant full arrears of salary and consequential benefit would undoubtedly address the petitioner"s plea for full restitution. At the same time, the Corporation"s concern of having to pay a colossal amount (towards arrears of back salary and continuity of service) and also grant higher pay scales and subsequent promotions, without the employee having worked at all, or shown that he deserved such promotions, cannot be brushed aside altogether. Another overriding concern which the Court should not ignore is that the petitioner"s not being in public employment does create complications as to his suitability to discharge functions attached to the higher posts, third party rights to seniority, etc.

¶26Taking into account all these factors, and balancing the two seemingly competing public interests, this Court is of the opinion that the most equitable course would be to award 40% of the back salary and allowances that would have been paid to the petitioner, had he continued in the same post from the date of his termination, till date. The back salary and allowances shall be calculated by adding the total emoluments admissible in respect of the post which the petitioner occupied, on the assumption that he would continue to occupy it all these years – and granting him increments. 40% of the amount of such aggregate would be given to the petitioner, who shall have no right to reinstatement or any other benefit. These amounts shall be paid to the petitioner, within six weeks from today; an affidavit of compliance shall be filed in Court, immediately thereafter. Page 17

¶27The appeal, LPA No. 808/2004 is allowed in the above terms. There shall be no order as to costs.

S. RAVINDRA BHAT (JUDGE)

SUDERSHAN KUMAR MISRA (JUDGE) APRIL08, 2013

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve : 14.02.2013 Date of Decision : 08.04.2013 + LPA 808/2004 & C.M. APPL. 10564/2004 PREM KISHORE ..... Appellant Through : Sh. G.D. Gupta, Sr. Advocate with Sh. Sanjiv Joshi and Sh. Piyush Sharma, Advocates. versus CENTRAL WAREHOUSING CORPORATION ..... Respondent Through : Sh. K.K. Tyagi and Sh. Iftikhar Ahmad, Advocates. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA MR. JUSTICE S. RAVINDRA BHAT % 1. The present appeal – by an unsuccessful writ petitioner (referred to as "the petitioner") is directed against the judgment and order of a learned Single Judge, dated 20-2-2004, dismissing WP 662/1984. 2. The Petitioner was selected for appointment to the post of Junior Technical Assistant. His letter of appointment, dated 17.10.1983, stated that: "(iii) For probation and other terms and conditions his, her services will be governed by the CWC (Staff) Regulations as enforced from time to time." 3. The Petitioner accepted the letter of offer; consequently, sometime in December, 1983, the respondent (hereafter "CWC") issued an office order appointing him to the post of Junior Technical Assistant. The office order Page 2 indicated that the petitioner would be "on probation for a period of one year which may be further extended for a period not exceeding one year in all." 4. By order dated 15th June, 1984, the Petitioner was given additional charge of Godown Nos. III and IV in addition to the charge of Godown Nos. I and II, which was already with him. On 28th June, 1984, a Memo was issued to him, demanding explanation that some damaged empty burnt tins had been thrown out of the godown by him on 27th June, 1984. This Memo, dated 28th June 1984 was received by him with second memo dated 2nd August, 1984 wherein an explanation regarding some allegations was asked from the petitioner. The allegations here were that the petitioner had refused to receive the Zinc Ingots in Godown No. IA to which he gave his reply on 24th August denying allegations made in the first Memo. By an order dated 6th September 1984, issued by the CWC, the petitioner was placed under suspension initially pending the initiation of the disciplinary proceedings. However, none were initiated and the said suspension order was revoked on 16th February, 1985. A regular departmental enquiry was thereafter held against Shri P. P. Singh, Superintendent, Central Warehousing Corporation, Patparganj. In the said proceedings against Shri P. P. Singh, the petitioner appeared as a witness and the Enquiry Officer held Shri P. P. Singh guilty in the report and made certain observations qua the working of the petitioner as well. 5. In the meanwhile, a year"s probationary period of the petitioner ended in December, 1984. No formal order was issued extending the probation, nor was one confirming the petitioner"s service, issued by CWC. In this background, after the suspension order was revoked on 16th February, 1985, the CWC, on 22.10.1985 acting under sub Regulation (1) of Regulation 10 CWC (Staff) Regulations 1966, terminated his services. The office order dated 22.10.1985 reads as under:- Page 3 "OFFICE ORDER In terms of the provisions contained in Sub Regulation (1) of Regulation of Central Warehousing Corporation (Staff) Regulation 1966. Shri Prem Kishore, Jr. Tech.Asstt. Central Warehouse. Gurgaon, is hereby terminated from the service of the Corporation with immediate effect in public interest. He is also paid a cheque bearing No. OS-100-922961 dated 18.10.1985 for Rs.1116/- (Rs.one thousand one hundred sixteen only) being the amount equivalent to one month's pay in lieu of one month's notice required there-under." 6. The petitioner represented against termination of his service, but without any success. He challenged the order of termination in the writ petition, filed before this court, urging that as no order was passed extending his probation period, which was initially for