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IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J. MEHTA, J.
RAJ KUMAR KAUSHIK - Petitioner
Versus
THE BHARAT SCOUTS AND GUIDES & ANR. - Respondents
W.P.(C) No. 1647 of 2017 & CM Nos. 7414-7417 of 2017
Decided On : 22-02-2017
DISCIPLINARY ACTION - EMPLOYMENT - Staff Service Conduct Rules for BS&G officials - [Rule 11] - The court held that the impugned order was not stigmatic and did not impose punishment on the petitioner. The court referred to various judgments of the Supreme Court to establish that giving reasons for non-confirmation of a probationer with reference to his conduct would not make the order stigmatic. The court also held that there is no requirement of following the audi alteram partem rule before an order is passed of non-confirmation in probation of a probationary employee. The court further held that there is no automatic confirmation of a probationer after one year in service. The court referred to Rule 11 of the Staff Service Conduct Rules, which requires a recommendation of the Director for confirmation of the probationer to his job, and held that there is no language in the rule of automatic confirmation of a probationer after one year. The court dismissed the writ petition, leaving the parties to bear their own costs.
Fact of the Case:
The petitioner sought the relief of quashing an office order dated 30.1.2017, by which the petitioner, who was on probation at the post of Deputy Director, was reverted to the post of Assistant Director and transferred to Guwahati, Assam. The petitioner argued that the impugned order was in the nature of punishment and could not have been passed without conducting an enquiry against the petitioner. The petitioner also argued that he was deemed to have been confirmed to the post of Deputy Director as there was no extension of the probation period beyond one year and his pay slip for the month of May 2016 showed him as a confirmed employee at the post of Deputy Director.
Finding of the Court:
The court held that the impugned order was not stigmatic and did not impose punishment on the petitioner. The court referred to various judgments of the Supreme Court to establish that giving reasons for non-confirmation of a probationer with reference to his conduct would not make the order stigmatic. The court also held that there is no requirement of following the audi alteram partem rule before an order is passed of non-confirmation in probation of a probationary employee. The court further held that there is no automatic confirmation of a probationer after one year in service. The court referred to Rule 11 of the Staff Service Conduct Rules, which requires a recommendation of the Director for confirmation of the probationer to his job, and held that there is no language in the rule of automatic confirmation of a probationer after one year. The court dismissed the writ petition, leaving the parties to bear their own costs.
Issues: The issues revolved around whether the impugned order was stigmatic and in the nature of punishment, whether the petitioner was deemed to have been confirmed to the post of Deputy Director, and whether there was an automatic confirmation of the petitioner after one year in service.
Ratio Decidendi: The court held that the impugned order was not stigmatic and did not impose punishment on the petitioner. The court referred to various judgments of the Supreme Court to establish that giving reasons for non-confirmation of a probationer with reference to his conduct would not make the order stigmatic. The court also held that there is no requirement of following the audi alteram partem rule before an order is passed of non-confirmation in probation of a probationary employee. The court further held that there is no automatic confirmation of a probationer after one year in service. The court referred to Rule 11 of the Staff Service Conduct Rules, which requires a recommendation of the Director for confirmation of the probationer to his job, and held that there is no language in the rule of automatic confirmation of a probationer after one year.
Final Decision: The court dismissed the writ petition, leaving the parties to bear their own costs.
VALMIKI J. MEHTA, J.
1. Disposal of the writ petition is on a demurer of the respondent no.1 that Bharat Scouts and Guides is State under Article 12 of the Constitution of India and that this aspect is not being decided in this writ petition.
2. By this writ petition under Article 226 of the Constitution of India, the petitioner seeks the relief of quashing of the office order dated 30.1.2017, and by which order the petitioner, who was on probation at the post of Deputy Director, has been reverted to the post of Assistant Director. By the self-same office order the petitioner has been transferred and has been asked to report for work at Gauhati.
3. Since quite a few aspects requiring decision will turn upon the impugned order dated 30.1.2017, the same is reproduced as under :-
“Ref. No. B.S.G./N.H.Q/ ADMN-2017/5946/2016-17
Dated 30/1/2017
OFFICE ORDER
Shri Raj Kumar Kaushik, Assistant Director was promoted as Deputy Director and posted at the Bharat Scouts & Guides, National Youth Complex, Gadpuri as per Order No.B.S.G./N.H.Q/ADMN-2015/3687/2014-15 dated 16.02.2015 of Chief National Commissioner, Bharat Scouts & Guides. He was assigned the duty of supervision of construction work undertaken by Bharat Scouts & Guides at National Youth Complex, Gadpuri and was made incharge of NYC, Gadpuri.
While working at NYC, Gadpuri as Deputy Director, he was issued a office memorandum No.ADMN-2015/4068/2014-15 dated 07.03.2015 for his indiscipline behavior at NYC Gadpuri during the visit of Hon’ble Chief National Commissioner. He left NYC, Gadpuri without informing the Hon’ble Chief National Commissioner and the Director who were at NYC, Gadpuri for a programme. He was warned that such behavior and attitude will be viewed seriously which will go against him and to be more cautious in future.
He has submitted a four page explanation to that memorandum abusing his higher officer i.e. the Director in an unparliamentary language instead of accepting his indiscipline and mistake. This reply was viewed by Chief National Commissioner very seriously stating that his explanation is not satisfactory and presumption made by him was totally wrong. He was issued one more warning letter.
He was issued an office Memorandum vide No. B.S.G./N.H.Q./ADMN-2015/3816/2015 dated 23.02.2015 informing that the performance, attitude towards work and his discipline will be on observation for a period of one year and the officer need to show progress in his respective areas of work. He should submit monthly report of his performance to the Director on last working day of every month with effect from 1st March, 2015. He was also informed that if the performance is not found satisfactory, he can be reverted to his original post of Assistant Director.
As narrated above, Shri R.K. Kaushik was posted as Deputy Director at NYC Gadpuri, his Headquarters was therefore NYC Gadpuri. It was expected to him to have stayed at Gadpuri, it being his Headquarters. However, it was noticed that he never stayed at Gadpuri and kept on attending his duties from his residence in Delhi. He was therefore asked to explain as to why he has not been staying at Headquarters and further that he was advised to stay at Gadpuri, his Headquarters.
Shri R.K. Kaushik’s letter dated 13.03.2015 was received in this office in response to this office letter dated 07.03.2015. The contents and the language used by Mr. Kaushik was totally unwarranted. He tried to justify saying that it is not necessary to stay at Headquarters which was ridiculous and un-act of indiscipline.
He was, therefore, issued a letter dated 06.04.2015 bringing to his notice that (a) he doesn’t stay at Headquarters and (b) all his presumptions staying at Headquarters is not compulsory, was totally wrong. It was further made clear to him that his explanation and his behavior were not in line with the Staff Service Conduct Rules for BS&G officials and vide the same letter he was warned to be more responsible and stay at Headquarters. He was
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